D.A. Desai, J.
1. Dhirajlal Maganlal Desai applicant in this Revn. Application is the husband and opponent No. 1 Kamuben is the wife of applicant. Kamuben, the wife filed an application being Criminal Miscellaneous Application No. 11 of 1968 in the Court of the Judicial Magistrate, First Class, Navsari praying for an order for maintenance in her favour in the amount of Rs. 150/- per month alleging that the husband has refused or neglected to maintain her. In the proceeding before the learned Magistrate, Kamuben examined herself at Ex. 3 and she examined two witnesses Arunkumar Exh. 12 and Babubhai Ex. 15. Her husband Dhirajlal gave his evidence at Exh. 16 and examined one Shankarbhai Dayalji Exh. 19 as his witness. The learned Magistrate was of the opinion that the present applicant husband has both refused and neglected to maintain his wife and after taking into consideration the evidence about the income of the husband, he directed the present applicant to pay Rs. 60/- per month by way of maintenance to opponent No. 1. The present applicant preferred Criminal Revision Application No. 6 of 1969 in the Court of Sessions, Bulsar at Navsari. The learned Sessions Judge agreed with the finding of the learned Magistrate and dismissed the revision application. Present applicant has challenged the order passed against him awarding maintenance to opponent No. 1 in this Revision Application.
2. Mr. S.D. Shah, learned Advocate who appeared for the applicant urged that before the learned Magistrate could exercise the jurisdiction vested in him under Section 488, he must come to an affirmative conclusion that the present applicant husband has either refused or neglected to maintain opponent No. 1 and must be further satisfied that the applicant husband is possessed of sufficient means. To use the words of Mr. Shah refusal or neglect by husband and possession of sufficient means by the husband are the conditions precedent to the exercise of jurisdiction by the Magistrate under Section 488 and until these two conditions are affirmatively satisfied, the Magistrate has no jurisdiction to award maintenance under Section 488. In the facts of this case, it is not necessary to consider the first aspect, namely, whether the proof of refusal or neglect by the husband is a condition precedent to the exercise of jurisdiction under Section 488 of the Criminal Procedure Code by the Magistrate before awarding maintenance to the wife or the illegitimate child who complained of refusal or neglect by the husband or the father of the illegitimate child, though there is much to be said in favour of that contention. But there is concurrent finding of two Courts in this case, that the present applicant has refused and neglected to maintain his wife and, therefore, even if it be held that the proof of refusal or neglect is a condition precedent to the exercise of jurisdiction by the Magistrate under Section 488, the same is fully satisfied in this case. This finding is arrived at by both the Courts on appreciation of evidence recorded in the case and unless it is shown that the finding is perverse or is not supported by any evidence on record it must ordinarily be accepted.
3. Mr. Shah very strenuously urged that before the learned Magistrate can proceed to exercise jurisdiction under Section 488 of the Criminal Procedure Code, he must be satisfied that the person against whom the order is sought to be made is a person having sufficient means. In other words, Mr. Shah urged that the existence of sufficient means of the person against whom the order is to be made is a condition precedent to the exercise of jurisdiction by the Court under Section 488. Mr. Shah urged that it is not every husband who is proved to have neglected or refused to maintain his wife is a person against whom an order can be made. But such an order can only be made after the Court reaches an affirmative conclusion that he is a person who is possessed of sufficient means. It is not possible to accept this submission of Mr. Shah. The words 'having sufficient means' in Sub-section (i) of Section 488, qualify the word 'person'. In other words, an order for maintenance can be made against the person who has sufficient means and refuses or neglects to maintain his wife. The means or sufficiency thereof of the person against whom the proceedings are taken would have to be considered by the Court in order to arrive at the quantum of maintenance. In other words, it will be a fact in issue as to what are the means of the person against whom the proceedings are taken. As a fact in issue, it will have to be proved by leading evidence and being a fact in issue, both the parties may lead evidence so that the Court on appreciation of evidence may reach an appropriate conclusion as to the quantum of maintenance to be awarded to the wife or illegitimate child. If there were any merit in the contention of Mr. Shah that the proof of sufficient means gives jurisdiction to the Magistrate to pass an order for maintenance, it would defeat the very purpose for which a summary remedy is provided for in favour of neglected wife or illegitimate child. The person against whom proceedings are taken may come and say that he has no tangible means much less means which could be said to be sufficient and if that was a jurisdictional fact, the proceedings will have to be dismissed. Looking to the language of Section 488(2), this could not be the intention of the legislature. The means of the person against whom the order is to be made or sufficiency thereof, plays an important part in determining the quantum of maintenance. But it has nothing to do with the jurisdiction of the Magistrate to pass an order for maintenance despite the fact that in a given case, the man has no tangible means. It is from this approach that the doctrine of able bodied man was spelt out by the Courts. The decision in this respect worth referring to is in Re. Muni Kantivjayji 34 Bom. L.R. 587. In that case in response to the application made by the wife for maintenance, her husband contended that he has become a Sadhu meaning thereby that he entered the holy order and consequently he incurred civil death in the social order to which he formerly belonged. It was urged that as a Sadhu he is prohibited from earning for his livelihood according to religious precepts and as he has no property or no income he cannot be fastened with the liability under Section 488 to provide maintenance to his wife. Negativing this contention, it was observed by be amount C.J. as under:
Then the question is whether the applicant has sufficient means to maintain his wife. Mr. Velinker contends that the word 'means' in Section 488 denotes visible means and that there must be some income, revenue, estate or property. But I think that is too narrow a definition of the word. 1 think that 'means' within Section 488 includes a capacity to earn money, then he has the means to maintain his wife.
Prima facie, a man twenty-six years of age, as the applicant in this case is, must be presumed to be capable of earning money. But the presumption may be rebutted. He may be able to show that in fact, whether through disease or accident, he is not an able-bodied man, or he may show that owing to the state of the labour market he is in fact incapable of earning any money.
At other stage it was observed that it is not sufficient merely to show that the applicant is an able bodied man and to infer from that alone that he has sufficient means to maintain his wife. It is necessary to consider and decide whether he has means or he has capacity to earn money. It would thus appear that existence of sufficient means is a fact in issue to be considered for deciding the quantum of maintenance. It is not a fact the disproof of which may deny jurisdiction to the Court to award maintenance. Reference in this connection may be made to a decision recently given by the Division Bench of this High Court in Anil Starch Products Ltd. v. The State of Gujarat and Ors. 10 Guj. L.R. 907. The contention in that case was that before the Collector could exercise jurisdiction under Rule 81(3) of the Bombay Land Revenue Rules, there was a condition precedent to the exercise of jurisdiction and as that was not fulfilled, the order passed by the Collector was without jurisdiction. Negativing this contention, it has been observed that the Collector has jurisdiction as assessing authority to determine non-agricultural assessment and in exercise of this jurisdiction, he may decide all questions which arise in the course of assessment and one of such questions is whether the land is situate in an exceptionally favourable position or is used temporarily for a non-agricultural purpose or the purpose for which it is used is of a special kind. It was observed that these are facts in issue which may be considered by the Collector but it cannot be said that they were conditions precedent to the exercise of jurisdiction by the Collector under Rule 81(3). This reasoning would mutatis mutandis apply here and it would appear that the sufficiency of means of the person against whom the proceedings under Section 488 are taken is a fact in issue to be determined by the Magistrate who gets jurisdiction to pass an order under Section 488 on the proof of two facts namely, that the applicant is a wife and the person proceeded against is the husband and that the husband has neglected or refused to maintain the wife. Sufficiency of means, in my opinion, would always be a question to be considered for the purpose of determining the quantum of maintenance.
4. Mr. Shah then urged that assuming that sufficiency of means as a fact in issue is to be considered by the Court, it must be considered and decided upon the relevant evidence placed on record and before any order for maintenance is made, there must be an unequivocal finding about the means or the income of the husband and the quantum awarded must be relatable to the assessment of income. That of course is certainly true. The learned Magistrate exercising jurisdiction under Section 488 must, on the relevant evidence placed before him, reach an affirmative conclusion as to the income of the husband. Some surmises from the evidence placed on the record are certainly permissible. Inference can be drawn from the evidence led but the inference must be relatable to the evidence led in the case. It will be open to the Court to surmise or assess the income from the evidence led in the case. But having said this, it is incumbent upon the Magistrate to determine the income of the husband with reasonable certainty and then decide the quantum of maintenance keeping in view the obligation of the husband to persons other than the wife or illegitimate child and fix the quantum. The quantum so fixed must be relatable to the income assessed. While fixing the quantum, the learned Magistrate must keep in view the social position, the status of parties and reasonable need of the applicant and obligation of the husband to some other persons who have a claim of maintenance, with this reservation that the wife has a prior claim of maintenance against the husband because the obligation flows from marriage by which the husband undertakes to maintain his wife. Unfortunately, in this case, the learned Magistrate has rather not approached this part of the case from the correct legal standard. He has dealt with this aspect in cursory and summary manner. In fact, he is not even accurate in certain statements made by him. The learned Magistrate has observed that the opponent has stated that his yearly income is of Rs. 300/- only. This is not factually correct. He does not even refer to the unchallenged evidence of the wife. He has not even found from the documentary evidence placed on the record as to the area of the land cultivated by the husband. He has made absolutely no attempt to assess the income of the husband. There is justification for the criticism made by Mr. Shah that the learned Magistrate has very cursorily dealt with this aspect of the case. Mr. Shah was further justified in urging that the situation is not improved by the observations made by the learned Sessions Judge while disposing of the Revision Application, with the result that this Court at this stage is called upon to determine the income with reasonable certainty and to arrive at a quantum of maintenance or to find out whether the amount of maintenance awarded by the learned Magistrate is fully justified or not. Two courses are open to this Court; one being to remand the case and the second being to proceed to take upon itself the determination of all the aforementioned aspects. In my opinion, J should adopt the latter course and that necessitates my going into the evidence. Before going into the evidence, I would like to notice one submission of Mr. Shah and dispose it of at this stage.
5. Mr. Shah urged that where a husband is shown to be a person, who, to the best of his ability carries on a vocation, profession, business, or trade chosen by him and earns a certain income, the doctrine of able-bodied man cannot be simultaneously invoked for assessing his actual or presumptive income, Mr. Shah urged that once it is shown that the husband is gainfully employed and earns a certain income, that income alone can be taken into account to determine the quantum of maintenance and it is not open to the Court to fix a presumptive income of such a husband by invoking the doctrine of able-bodied man on such a vague and untenable ground that he being an able bodied man he must strive more to earn higher income. It is not impossible that even an able-bodied man may with the best of effort not be able to obtain any employment or earn any income and in such a case, the Court cannot award maintenance by merely invoking the doctrine of able-bodied man. That doctrine can be invoked where a normally healthy young man capable of hard work avoids doing anything any pleads lack of income for inability to provide maintenance. Where a man keeps himself fully occupied, the Court must confine itself to the income earned by him. In such a case the presumption arising out of the capacity to earn by an able-bodied man cannot be imported. The presumption is that an able bodied man would be able to earn so much as to maintain his wife and children; but as observed in the case of Re: Kanti Vijayji (supra), that presumption is rebut-able and it would stand rebutted by showing that the husband is carrying on his vocation and keeps himself fully occupied or with best of effort he is unable to earn anything or he is physically so weak that he is incapable of doing any work. Where it is satisfactorily established that the husband keeps himself fully occupied and earns an income the Court must confine itself to that income how so meagre it may be and determine the quantum of maintenance on the basis of the said income. It is not open to the Court in such circumstances to fix a presumptive income by invoking the doctrine of able-bodied man. The learned Magistrate, unfortunately, mixed up both the courses. At one stage he proceeded to find out what was the income of the husband who was an agriculturist and then the learned Magistrate observed that the husband is an able-bodied person and that he has a capacity to earn. In my opinion, the learned Magistrate committed an error in approaching the case from this angle. Even according to the opponent No. 1, the wife, the present applicant is an agriculturist and he is a tiller of land. It cannot be disputed that agriculture is a whole-time occupation. Therefore, if the husband has taken to agriculture attempt should have been made to find out the income of the husband rather than bringing in the doctrine of an able-bodied man in this case.
6. According to opponent No. 1 the present applicant has 14 acres of land and his annual income is about Rs. 2000/-. She produced the extract from the crop register at Exhs. 6 to 8 and entries from the Record of Rights at Exhs. 9 to 11. That is all her evidence about the income of her husband. Curiously, this part of her evidence is not challenged at all in her cross-examination. Not a word has been asked by the learned advocate appearing for the husband challenging this statement of the wife. There was not much to be cross-examined also because the statement of the wife that her husband cultivates about 14 acres of land is to a considerable extent borne out from the extract from the Government records. Now as against this evidence, the present applicant husband in his examination-in-chief stated that he has got 6 bighas of land and that he manages 18 bighas of land and that his total income from the land is Rs. 700/- and that he would get one third share from this income and that he gets help in money and grains from his maternal uncle. In the cross-examination he admitted that he cultivates 18 bighas of land and that out of it he cultivates 12 bighas of land free of charge and his maternal uncle helps him to the tune of Rs. 300/- per year. He admitted that he did not keep any account of his income. It is true that the husband is a petty agriculturist who may not be keeping any account of his income. The evidence can be said to be scanty. But the attention of the parties was focused on the point that the evidence of the income must be led. The Court has to proceed to assess the income from whatever evidence is placed on the record. The case is not of no evidence. There is evidence showing the income of the present applicant. The contention of Mr. Shah that the evidence is neither sufficient nor weighty enough to reach a conclusion cannot be accepted. Once the attention of the parties was focused on the particular point and the parties led evidence, the Court must base its finding on the evidence led before it. Mr. Shah however referred to Ram Singh v. State and Anr. : AIR1963All355 . In that case, there was no evidence of income and the only finding recorded by the Magistrate was that Ramsingh had 80 bighas of land in joint cultivation and has also a number of cattle and a good house. It was in this state of evidence that the case was remanded. The position in the case before me is entirely different. Reference was also made to Shri Lalsram Nimanacha Singh v. Smt. Khaidem Ningol Sakhi Devi A.I.R. 1965 Manipur 49. It has been observed in that case that a presumption arises in the case of an able-bodied man that he has sufficient means to support his wife or child and the onus lies on him to show that by accident, decease or the conditions of the labour market or the like he is not capable of earning anything. It is further observed that in fixing the rate of maintenance only the necessaries should be provided for according to the status in life of the applicant and the means of the respondent. Mr. Shah also referred to two English decisions but the facts and circumstances in this case so materially differ including the customs, conditions of society and other things are so different that they would not assist me in any way in deciding the point raised before me. I, therefore, need not refer to them here.
7. I have already referred to the evidence led by the parties about the income of the present applicant. The evidence of the wife that the income of her husband is Rs. 2000/- per year remains unchallenged. Taking the admission of the applicant that he in all cultivates 18 bighas of land and out of it he cultivates 12 bighas free of charge, it can be said that the estimate of the income of the husband by the wife is reasonable. As stated earlier, from the facts stated in evidence, surmises or inference about the income is permissible. Apart from the fact that the statement of the wife was not challenged in the cross-examination that statement appears to be borne out by the facts admitted by the husband in his cross-examination. It would, therefore, not be improper to proceed on the basis that at least minimum income of the husband is Rs. 2000/- per year. He has an obligation to maintain himself. He has a daughter aged about 15 years and his mother over and above the present applicant, Mr. Shah urged that even if it is assumed that his income is Rs. 2000/- per year, the present applicant has to maintain four persons and if an equitable distribution is made, Rs. 500/- per year be awarded to the wife which would bring the quantum to Rs. 40/- per month. It must not be forgotten that the husband is staying in his own house and the certificate of the Panchayat shows that he has got a cattle-shed which would imply that he has his own cattle. As against this, it must be remembered that the husband has obligation to get his daughter married. If all the earnings are spent away there would be no saving. The parties are coming from the lower middle class of the society. The husband is a petty agriculturist residing in a small village. The wife is residing with her brother at village-Tajlav possibly another small village in Bulsar District. As urged by Mr. Chokhawala she would have to pay some amount by way of rent. Considering the matter from all angles, Rs. 50/- per month would be the proper amount of maintenance which the present applicant should be directed to pay to the wife from 7-9-1968 as done by the learned Magistrate. The order awarding costs passed by the learned Magistrate is confirmed.
8. In view of what is stated above, the order of the learned Magistrate awarding maintenance is modified to the extent that the applicant should pay to the opponent No. 1 Rs. 50/- (fifty) per month by way of maintenance commencing from 7-9-1968. The order awarding costs is confirmed. Rule made absolute to the extent indicated above.