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Suryakant Alias Suresh Laxmishanker Vs. Indumati Vithaldas Daiya and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Criminal
CourtGujarat High Court
Decided On
Judge
Reported in(1973)14GLR169
AppellantSuryakant Alias Suresh Laxmishanker
Respondentindumati Vithaldas Daiya and anr.
Cases ReferredRamanlal v. Shantaben
Excerpt:
- - joshi however urged that even if it be held that the husband was visiting wife at rajkot during the period he was unemployed, he used to go to rajkot not with an intention to reside but in order to enjoy his matrimonial rights. it was urged that assuming that husband was visiting wife at rajkot during the period he was without a job, it was not with an intention to stay there or reside there but primary purpose for visiting wife at rajkot was to enjoy matrimonial rights-residence being incidental to the enjoyment of the rights. pandya, learned advocate who appeared on behalf of the wife that even if there was some error in invoking jurisdiction of the court at rajkot that in itself is not sufficient to interfere with any judgment, finding or decision, unless it is shown that error.....d.a. desai, j.1. petitioner suryakant alias suresh laxmisbankar dave 'has preferred this revision application against an order made by the learned judicial magistrate, first class, rajkot in maintenance application no. 40 of 1969 by which the learned magistrate directed the petitioner to pay to his wife respondent no. 1 indumati vithaldas daiya maintenance in the amount of rs. 130/-made up of rs. 35/- per month for each child and rs. 60/- per month for herself under section 488 of the criminal procedure code which order was subsequently confirmed in criminal revision application no. 44 of 1970 preferred by the present petitioner in the court of session at rajkot.2. the petitioner married with respondent on 26th may 1960 at porbandar. hitesh is first son born to the wife on 31st january.....
Judgment:

D.A. Desai, J.

1. Petitioner Suryakant alias Suresh Laxmisbankar Dave 'has preferred this Revision Application against an order made by the learned Judicial Magistrate, First Class, Rajkot in Maintenance Application No. 40 of 1969 by which the learned Magistrate directed the petitioner to pay to his wife respondent No. 1 Indumati Vithaldas Daiya maintenance in the amount of Rs. 130/-made up of Rs. 35/- per month for each child and Rs. 60/- per month for herself under Section 488 of the Criminal Procedure Code which order was subsequently confirmed in Criminal Revision Application No. 44 of 1970 preferred by the present petitioner in the Court of Session at Rajkot.

2. The petitioner married with respondent on 26th May 1960 at Porbandar. Hitesh is first son born to the wife on 31st January 1961 at Rajkot and Nayan is the second son born to her on 14th July 1962 at Rajkot. Respondent No. 1 wife is serving in the District Panchayat at Rajkot and has been staying in the rented premises with her two sons Hitesh and Nayan. It appears that cordiality between the husband and wife came to an end somewhere by the end of 1962 or little later. It is an admitted position that they parted company somewhere in 1964 when again husband has apparently contracted second marriage with one Savitri, whose legal status is not the subject matter of inquiry at this stage. She would, however, be referred to as second wife of the husband. It is an admitted fact that husband is staying with second wife and he has by; now two children by the second wife. At the relevant time in the year 1969 he was serving in the High School at Rajsitapur and has been staying there with his second wife and two children. First wife filed an application in the Court of the Judicial Magistrate, First Class, Rajkot claiming maintenance for herself and for her two minor sons Hitesh and Nayan in the amount of Rs. 100/- per month for herself and Rs. 75/- per month, for each son in all Rs. 250/- per month. The learned Magistrate by his order dated 9th September 1970 gave a direction that the husband should; pay Rs. 60/- per mouth as maintenance to the first wife and Rs. 35/- each for two sons per month in ail Rs. 130/- per month. The husband was also directed to pay Rs. 40/- as and by way of cost. This order was confirmed albeit reluctantly by the learned Sessions Judge in Criminal Revision Application preferred by the husband. Thereafter, the husband filed the present petition challenging the correctness of the decision of the learned Magistrate and also of the learned Sessions Judge.

3. Mr. J.P. Joshi, learned advocate who appeared for the petitioner husband, raised two contentions at the hearing of this petition. They are as under:

(1) The trial court had no jurisdiction to entertain the application of the wife for maintenance under Section 488 in view of the provision contained in Sub-section (8) thereof.

(2) In any view of the matter, the learned Magistrate was in error in awarding maintenance to the first wife at the rate of Rs. 60/- per month in view of the admitted position that she has been serving and earning Rs. 250/- per mouth.

4. First contention is that the court of the learned Judicial Magistrate, First Class, Rajkot had no jurisdiction to entertain the application made by first wife under Section 488 of the Criminal Procedure Code. Sub-section (8) provides forum for entertaining an application under Section 488(1). It reads as under:

Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.

It appears that three forums were created for entertaining an application for maintenance by a discarded wife or by the neglected legitimate or illegitimate children. These three forums are : (i) where the husband or father resides, or (ii) where he is, or (iii) where he last resided with his wife who claims maintenance. Any Magistrate in the district in which where the husband or father resides or is or where he last resided with his wife, would have jurisdiction to entertain the application. The wife stated in her application to the learned Magistrate that she and her husband last resided as husband and wife together at Rajkot and therefore, the court of the learned Judicial Magistrate, First Class, Rajkot has jurisdiction to entertain this application. She has stated in her evidence that she and her husband resided together at Gondal, a place in Rajkot district and therefore, the learned Judicial Magistrate, First Class, Rajkot will have jurisdiction to entertain this application. The learned Magistrate held that wife and husband last resided together at Rajkot and therefore, he had jurisdiction to entertain the application. Alternatively it was observed that even if it is held that they last resided together at Gondal, a place within Rajkot district, he would have jurisdiction to entertain this application. That finding was confirmed by the learned Sessions Judge too. The question where the husband and wife last resided together being a question to be decided on appreciation of evidence concurrent findings of fact would ordinarily be binding on this Court, unless it is shown that the finding is either perverse or not supported by any evidence on record. Mr. Joshi did not challenge the finding on any of the aforementioned two grounds.

5. Mr. Joshi however urged that even if it be held that the husband was visiting wife at Rajkot during the period he was unemployed, he used to go to Rajkot not with an intention to reside but in order to enjoy his matrimonial rights. Mr. Joshi, therefore, urged that such a flying or casual visit would not indicate animus manendi so as to indicate that the husband was residing at Rajkot and therefore, even if it be held that husband came to stay with his wife with the avowed object of enjoying his matrimonial rights he even during that period, could not be said to be residing with the wife at Rajkot so as to clothe the court of the Judicial Magistrate, First Class, Rajkot with jurisdiction in this case. In support of this contention Mr. Joshi specifically relied upon the observations in Mst. Jagir Kaur and Anr. v. Jaswani Singh : [1964]2SCR73 . In that case, the court threadbare examined three different forums created by Sub-section (8) of sec 488 'and examined the connotation of each word so as to find out also on proof of which particular fact any particular court will or will not have jurisdiction to entertain an application under Section 488. Referring to the word 'resides' in Sub-section (8), it was observed that the word 'resides' in the sub-section does not mean only domicile in the technical sense of that word It means something more than a flying visit or a casual stay in a particular place. In order to find out whether a particular person resides at a particular piece, the court should find out animus manned, or an intention to stay for a period, the length of the period depending upon the circumstances of each case. It was urged that assuming that husband was visiting wife at Rajkot during the period he was without a job, it was not with an intention to stay there or reside there but primary purpose for visiting wife at Rajkot was to enjoy matrimonial rights-residence being incidental to the enjoyment of the rights.

6. Now evidence on the point is that wife has been continuously runtime in Rajkot and she is serving there. Husband has been serving at Afferent places. In December 1960 he was at Madhopur. It appears from providence that after marriage at Porbandar both of them resided at Madhopur for a period of three months. Wife then returned to Rajkot. It an nears that since then continuously wife has been residing at Rajkot as she is serving there and but for few months after marriage she has not gone to the place with the husband where he is serving. It also appears that during the subsisting wedlock two sons were born to wife being Hitesh on 31st January 1961 and Nayan on 14th July 1962 and both of them were born at Rajkot. Necessary inference is that husband must be visiting the wife at Rajkot where wife has hired a place for herself. When husband is in Rajkot he stays with the wife in the premises hired by her. There is further the evidence that husband was serving at a place called Ghed Madhopur and that service came to be terminated on 9th December 1968 and as soon as he was out of job, he came down to stay with wife at Rajkot and left her when he obtained next job at Moti Garad on 6th January 1964. When again his service was terminated somewhere by the end of February 1964 he came to reside with the wife at Rajkot and stayed with her till 15th June 1964 when he procured service at Raj Sitapur. Now, these visits to Rajkot during the aforementioned periods and staying with the wife in the premises hired by wife at Rajkot have been held to be proved by both the courts. It was however, seriously contended that such a visit must be treated as casual or flying visit with no intention to reside at Rajkot. Intention being the state of mind, will have to be gathered from the circumstances disclosed in evidence. Husband does not say whether he has any permanent abode or permanent place of residence. He does not refer to any family house or parental roof. He was staying at places where he was serving for the purpose of service. Whenever he was out of job he returned to the place where the wife was staying. Now, whenever, he came to stay with the wife, obviously, he must have made up his mind to stay with the wife till he procured another job. He cannot be certain when he would procure it. Therefore, he would stay with the wife as long' as he is without service. This evidence would disclose that husband treated the place of residence of wife as abode whenever be had no other place to stay. He would stay in the town where he has service obviously for the purpose of service. The moment that purpose is over, he would return to the place where his wife is staying. Obviously while staying with the wife he may claim enjoyment of his matrimonial rights. But the intention of the husband whenever he returned to the wife being out of job was to reside with her. On the first day when he goes to the place of the wife after being out of job he goes there as a place of final resort where he is welcome and would stay almost as of right. Enjoyment of matrimonial rights is incidental to the husband and wife being under the same roof.' Therefore, the intention must be gathered from the conduct of the husband in returning to the wife as and when he was in search of lebensraum a place under the sun, only place being the place of his wife which the husband appears to have treated as a permanent abode and without the slightest hesitation he went and stayed with her. Unquestionably, the intention would be to reside with her. Therefore, the conduct of the husband in going to the wife gives a clue to his intention and that would be proof of animus manendi leading to the only conclusion that he went to reside with the wife. Once this residence with the wife in Rajkot in 1964 is believed, conclusion reached by both the courts that the husband and wife last resided together at Rajkot must be held to be correct and that itself will clothe the court of the Judicial Magistrate, First Class, Rajkot with the jurisdiction to entertain this application.

7. As I agree with the finding of both the courts that on the facts disclosed in evidence in this case, the court of the Judicial Magistrate, First Class, Rajkot had jurisdiction to entertain the application, 1 need not examine the alternative argument put forth by Mr. M. D. Pandya, learned Advocate who appeared on behalf of the wife that even if there was some error in invoking jurisdiction of the court at Rajkot that in itself is not sufficient to interfere with any judgment, finding or decision, unless it is shown that error has in fact occasioned a failure of justice, vide Section 531 of the Criminal Procedure Code.

8. Second contention was that both the courts were in error in awarding Rs. 60/- per month by way of maintenance to the discarded wife in view of the obvious fact that she had been and has been serving and at least earning a salary of Rs. 250/- per month. Now, at the out set, it must me made distinctly clear that Mr. Joshi, learned advocate for the petitioner did not dispute the obligation of the husband to maintain his two sons Hitesh and Nayan who are at present staying with the discarded wife. And Mr. Joshi also did not challenge the finding of both the courts awarding Rs. 35/- per month to each of the two sons as and by way of maintenance. The only contention as to quantum put forth before this Court is about that part of the order by which Rs. 60/- per month by way of maintenance is awarded to the wife. Now, before any court can make an order under Section 488(1) obvious jurisdictional fact namely that the party claiming maintenance has the status of wife and that she has been neglected or the husband has refused to maintain her must be established. If these jurisdictional facts are established the court can proceed to inquire into the claim of maintenance and on the relevant evidence decide the quantum of maintenance to be awarded to the wife or the legitimate or illegitimate child. In this case, at any rate one Savitri is staying with the husband. He has two children by Savitri. I am not concerned with the status of Savitri, as that fact hardly enters into the picture except for one reason that husband is staying in company of another woman not enjoying the status of wife and that would give legitimate ground to the discarded wife to refuse the offer of the husband that he is willing to keep her and maintain her. Therefore, it can legitimately be inferred that the husband has either refused or neglected to maintain the discarded wife and finding on that point is not questioned. The whole controversy centres round a very narrow point.

9. Mr. Joshi urged that while awarding maintenance under sec 488(1) the court has discretion either to award something or nothing keeping in view the fact that the discarded wife has income of her own. It was urged that even if wife, is a position to establish that her husband has either refused or neglected to maintain her, yet, the Court has a discretion whether to award maintenance or not. And this discretion must be exercised keeping in view all the circumstances of the case and one of the relevant circumstances, it was urged, is the income of the discarded wife who claims maintenance. It was also incidentally urged that the court should bear in mind one fact that the husband has some obligation to maintain a woman who might have become his companion and illegitimate offspring who could have successfully claimed a right of maintenance against the father under Section 488. Therefore, urged Mr. Joshi, that while fixing the quantum of maintenance it is the most relevant factor whether discarded wife has income of her own and it is equally a factor to be kept in view that husband has incurred an obligation to maintain other woman as well as the illegitimate offspring of that woman.

10. Section 488(1) reads as under:

488(1). If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself a Presidency Magistrate, or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.

Use of the word 'may' does indicate that the court has a discretion to award maintenance or to refuse to award the same. Whenever a discretion is conferred upon the court, it has to be exercised on sound judicial principles. The question that can be posed is : Is it a relevant consideration, while deciding the quantum of maintenance to be awarded to a discarded wife that she has income of her own There is nothing in Sub-section (1) of Section 488 which indicates that the court while considering the claim of maintenance of the discarded wife must take into account the income of that wife from any other source and so modulate the order that the wife does not get anything more than the bare necessities of life such as food, shelter and clothing. There is something in the section itself which indicates that the income of the discarded wife is never a relevant consideration. Expression 'unable to maintain' itself qualities the legitimate or illegitimate child, but not the wife. Therefore, if the claim of maintenance is of a child, the court will have to ascertain whether that child is able to maintain itself or not. When the court proceeds to ascertain whether the child is able to maintain itself, the court must take into account evidences led to show that child has income independent of the right to recover maintenance from the father. If there is such an independent income that would enter into the verdict while deciding the claim of maintenance of such a child against the father. But there is no such qualifying clause as regards the wife. The wife is entitled to maintenance because of her status as a wife and it is the obligation of the husband which flows from the marriage itself. In general law, husband is bound to maintain his wife for the whole of her life only on one condition that she remains chaste and faithful to him. This obligation is carried further, and attaches to the estate of the husband to maintain the widow. Of course, now, she inherits the property of the husband. Therefore, it would appear that the right to maintenance of the wife inheres from the status of the wife corresponding obligation being that the husband has sufficient means to maintain her. That aspect has to be examined when an application is made under Section 488(1). Expression 'sufficient means' has been interpreted also to mean capacity to earn or ability to earn. Therefore, once it is established that husband having sufficient means including his capacity to earn, has neglected or refused to maintain the wife, uninhibited or uninfluenced by any extraneous consideration, right to maintenance under Section 488 has to be granted. Use of the word 'may' does not mean that even after proof of neglect or refusal of the husband, the court will exercise discretion on some extraneous ground to refuse the application of the wife for maintenance. If the Legislature ever wanted to take into account the income of the wife, it would not have qualified by expression 'unable to maintain itself' the child only. Any such or similar expression would and could have been used even in the case of the wife. No such expression is used and, therefore, one cannot re-write the section by importing into it some thing which is not there and the legislative intent is clearly manifested by providing in one case a qualifying clause and not providing such a qualifying clause in the case of other claimant both of whom get the right of maintenance under the very section. Therefore, whenever wife makes an application for maintenance, the court has to examine only two things, namely, whether the husband has refused or neglected to maintain her; and whether the claimant is a wife, meaning thereby she enjoys the status of wife under a lawful wedlock. While illegitimate child is given a right to apply for maintenance under Section 488; no such right is conferred upon the mistress in exclusive keeping of a person, companion or even the mother of an illegitimate child by whatever name called to claim maintenance under Section 488. Therefore, it is crystal clear that the Legislature wanted to confer upon the wife, a woman who acquired the status under her lawful wedlock a right to apply for maintenance and cast an obligation on the husband to provide maintenance on proof of only two things, namely, neglect or refusal to maintain and means of the husband to maintain her, including the ability or capacity of the husband. The income or the ability or capacity of the wife to earn and provide maintenance to herself is an irrelevant consideration. The income of the wife from any other source would not be a relevant consideration at all.

11. Now, assuming that I am not right in my conclusion, I would examine the submission made by Mr. Joshi that income of the wife is a very relevant consideration while deciding the application for maintenance under Section 488. Once it is said that at the time when an application for maintenance is being decided, the court's decision should be influenced by the income of the wife at the relevant time, it would throw open a vista for all sorts of speculative suggestion by the husband, namely her potential capacity to earn, her capacity to take up a job, her capacity to proceed with her study and then qualify here for a job or even the offer of the husband who might be an industrialist to come and serve and thereby disentitle her to claim maintenance arising out of status of wife. Once income of the wife is considered a relevant consideration, simultaneously the court will be required in every case to examine at the instance of husband her potential capacity to earn. Even if she is not serving at the relevant time, the husband can suggest that she is a qualified woman and if she makes any attempt she would get a job and thereby the husband would be free from the obligation of maintaining the wife. Such approach would throw open the floodgates of speculative suggestion by the husband which the section does not permit. If the existing income is the criterion for determining the right of the wife to maintenance, her potential capacity to earn either at the very time or at some future date, will have to be simultaneously examined. If that way the matter is not examined, it would lead to a startling result. The wife may give up the job and make an application and as soon as the application is decided on the basis that she has no independent income, she may get the job over again. If the income of the wife is a relevant consideration, would it be proper for the husband to move the court again as soon as the wife gets the job to reduce the quantum of, maintenance awarded to her on the basis that at the relevant time, she had no income of her own In fact Mr. Pandya very pithily illustrated this point. I would like to illustrate this point. Mr. Pandya illustrated by saying that looking to the means of the husband, a wife was awarded Rs. 20/- per month as and by way of maintenance and in these days of very high cost of living, it would be impossible to keep body and soul together by the pittance of Rs. 20/- per month. The wife in order to go through the torture of life takes up a job of a maid servant or if she is little qualified, a primary school teacher, or if she is further qualified a clerical job or even if not at all qualified even as maid servant. Now, if such a wife was to earn Rs. 20/- per month she would be disentitled to maintenance forthwith. Such was never the intention of the Legislature in enacting Section 488.

12. Once it is held that the only relevant considerations, while examining an application of wife for maintenance are refusal or neglect to maintain and status of a wife, the right flowing from the status of the wife with the corresponding obligation of the husband to maintain her throughout the life and to guard against vagrancy by providing the summary procedure, no other consideration could properly enter the judicial verdict in determining the application and even in determining the quantum keeping in view the existing income of the husband. These are the only considerations on which application can be decided.

13. Mr. Joshi however strenuously urged that the court while doing justice between the parties, must bear in mind equities of the case. Mr. K. Joshi expanded the argument by saying that the court need not be unduly indulgent to a discarded wife and need not have penalizing attitude towards the husband, who has a luxury of having two women-a wife and another a companion. Mr. Joshi urged, and in my opinion, rightly that application for maintenance by a discarded wife should not be utilised as a forum for inflicting some punishment on the erring husband. It was, therefore, urged that the court should keep in view existing realities of the situation that the husband has a companion and there is offspring of the companionship. Strictly speaking, it would not be proper to put a premium on matrimonial offence. Misconduct cannot be raised to the status of a virtue not can one be permitted to make profit out of it. Sympathies will be misplaced by taking such factors into consideration. It is irrelevant to consider what brought about parting of the ways between the husband and wife, once the finding is that the husband has quietly discarded the wife and is in company of another woman. Now, if the companionship of the other woman and offspring which again creates obligation to maintain them are brought into consideration, while deciding the question of quantum of maintenance to be awarded to the discarded wife, I am afraid the husband would be always able to nullify such a claim. It is true that only a humanitarian consideration might invite the court to take such factors into consideration, but it cannot be claimed as of right, nor can be put forth as a ground against a wife who is a victim of matrimonial offence to be told that she shall not get anything because the husband has incurred some further liabilities. It was very pithily observed in Ma Mya Khin v. L. N. Godenho A.I.R. 1938 Rangoon 42 that if the husband has a woman and two children to maintain, that is because he has chosen to take a mistress, and surely that would be no reason for reducing the allowance awarded to his legal wife. I would however, point out at the end of this judgment by mathematical calculation that even if the obligation to maintain the companion and her offspring on humanitarion consideration, is taken into account the husband is not very much worse of.

14. Mr. Joshi however urged that while considering the question of the quantum of maintenance to be awarded to the wife under Section 488, the court should only take three aspects into consideration food, shelter and clothing and some provision must be made for medical expenses. Mr. Joshi however fairly conceded that the status of the husband, his social position, his financial standing, may be taken into consideration to decide the quantum of maintenance. Incidentally it was also urged that the obligation of the husband to maintain some other dependants may also be kept in view.

15. Taking up the first limb of the argument that while deciding the quantum of maintenance, the court must confine itself to food, shelter and clothing, I feel that this is a very harsh approach to the problem, as harsh as was law of demand and supply in the old economic theories. To hold that the wife must only get food, shelter and clothing, is to deny her something which makes life worth living. One cannot bring in the concept of fixing the bare minimum wages while determining the quantum of maintenance to be awarded to the wife. The idea behind awarding maintenance to a discarded wife is not that she should be able to live and keep her body and soul together so that she may suffer torture till the end of her life. No one in these days can ever think of providing maintenance which only includes food, shelter and clothing. Mr. Joshi referred to Mahmad Ali alias Chakat Ram v. Mt. Sakina Begum alias Shakuntla A.I.R. 1944 Lahore 392 in which it was observed that while considering the claim of maintenance it must be determined by reference to food, shelter and clothing which wife would require and while so doing, if the wife has income from other source in the amount which would have been awarded to her as maintenance, looking to the means of the husband, she should be denied maintenance. With respect, it is not possible to accept the ratio of this judgment. Apart from being too harsh, it is entirely out of tune with the spirit of the section itself. If the wife stays with the husband she is entitled to all facilities which the husband enjoys. If the husband misbehaves and discards the wife and which enables her to obtain maintenance, the court is called upon to award only the minimum requirement. That does not appear to be the spirit behind Section 488(1). This decision was followed in Ahmed All Sahib v. Sarfarajulnisae Begum A.I.R. 1952 Hyderabad 76. The ratio of these two decisions was accepted in P. T. Ramankutty v. Kalyanikutty : AIR1971Ker22 . Reference in that case was also made to Joginder Singh v. Raj Mohinder Kaur A.I.R. 1960 Punjab, 249, to which I would presently refer. Both the above-mentioned decisions came up for examination in Joginder Singh's case (supra). The High Court disapproved the ratio of the aforementioned two judgments and approached the case entirely from a different angle. After examining the language of Section 488 it was observed that in order to enable a child to claim maintenance it has to be proved that the child is unable to maintain itself. No such condition has been imposed in the case of a wife. Cases in which maintenance was refused to the wife merely on the ground that she was in a position to maintain herself have omitted to consider the implication of this distinction while construing the scope and ambit of Section 488. While reaching this, conclusion change in the social trends, the status of the wife recognised in the civilised society has been taken into consideration. Of course, Mr. Joshi stated that these are irrelevant considerations. The court further observed that while considering an application under Section 488(1), the question that the wife has income of her own is not relevant, though, of course, at other stage, it was observed that the status of both the parties and all other circumstances should be kept in view while considering the question of quantum. The view that I have taken in this revision application, gets full support from this judgment of the Punjab High Court.

16. I may also refer to one more decision to which reference was made by Mr. Joshi in Ramanlal v. Shantaben : AIR1968Guj171 . While examining the question as to quantum of maintenance to be awarded to the wife in that case following observation was made on which Mr. Joshi relied:

The amount to be paid to her may vary having regard to the means that her husband possesses or even some times in view of the income that the wife has.

It is not very clear whether the wife had any independent income in the case before my learned brother N. G. Shelat J. (as he then was). It is not clear from the reported portion of the judgment whether any argument was advanced before the learned Judge that in view of certain independent income of the wife, the court should not award particular amount of maintenance to her. In fact, the question in terms raised herein does not appear to have been raised before the learned Judge.

17. Therefore, upon a true interpretation of Section 488(1) it appears that while considering the question of quantum of maintenance to be awarded to the wife, the income that wife might have is not a relevant consideration. Therefore, in this case, the fact that the discarded wife is earning Rs. 250/- per month was not a relevant consideration when the court fixed an amount of Rs. 60/- per month to be awarded to her as and by way of maintenance.

18. Examining the case from a slightly different angle, also, the same conclusion can be reached. The court has awarded Rs. 35/- per month each to the two sons who are staying with the discarded wife. I am sure with even Rs. 70/-per month, it would not be possible for the discarded wife to bring up her two sons both of whom are now attending school. She will have to spend some thing from her own income. Even if Rs. 60/- are awarded per month by way of maintenance to the wife the total amount awarded would be Rs. 130/ per month and I have little doubt in my mind that Rs. 130/- would be spent in bringing up both of her sons. Therefore, though apparently she was awarded Rs. 60/- p.m. which would satisfy the requirement of Section 488(1), she is not substantially better of by this award.

19. If the income of the wife is kept apart, and this case is examined then the amount awarded appears to be in adequate. Income of the husband at present is Rs. 330/ per month. The court has awarded Rs. 130/- to the discarded wife for herself and two children leaving a balance of Rs. 200/- to the husband to be spent for himself, his companion and two children. While the husband would be able to spend Rs. 50/- for himself, and for each of his two children, that amount would not be available to the discarded wife and her two children. Even if Rs. 330/- were to be divided equally amongst all the claimants, namely, husband, two wives and four children, the discarded wife and her two children are not treated equally. Therefore, examining the case from any angle, no case is made out for interfering with the quantum of maintenance awarded to the discarded wife. Unless, therefore, the court comes to this conclusion that discarded wife is earning Rs. 250/- per month and as her husband is earning only Rs. 330/- per month, and is not only having an obligation to maintain his companion and his two children of her, but also two sons of the discarded wife, she should not be awarded anything, no case is made out for interfering with the direction given by the trial court. There would be no justification for bringing into consideration the income of the wife so as to disturb the direction given by the court.

These were all the contention raised in this revision application and as there is no merit in any of them, it fails and is dismissed. Rule is discharged with no order as to costs.


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