1. Petitioner Govindaswami Mudaliar was the respondent in M. C. No. 19 of 1965 on the file of the Additional First Class Magistrate, Mayuram. The respondent filed a petition under Section 488, Criminal P.C. and the Additional First Class Magistrate has ordered the petitioner to pay a monthly allowance of Rs. 40 per month.
2. The main contention urged by the learned Advocate for the petitioner is that the respondent having obtained a decree for maintenance in O. Section 162 of 1949 on the file of the District Munsif 's Court, Mayuram, at the rate of Rs. 15 per month, she is not entitled to file a petition under Section 488, Criminal P.C. The learned Advocate for the petitioner referred to the decision in In re, Subbramakkamah, 2 Weir Cr 615 where it was held that a decree for a monthly allowance for maintenance having been obtained in the High Court and that decree being still in force, the petitioner could not get a further and separate order for maintenance from the Magistrate. He also relied on the decision in Sundara Naicker v. Thiru-poorammal 1936 MW N 524, where it was held that the principle to be observed in a case like the one in that case is that once the civil Court has decided the question of maintenance, a Magistrate cannot have jurisdiction under Section 488 Criminal P. C.
3. There is a provision in Section 489 (2) Criminal P. C., for canceling or varying an order passed under Section 488, Criminal P.C. in conformity with the decision of a competent civil Court. But the present case relates to the maintenance order obtained by the respondent long after the civil Court has granted a decree for maintenance. The learned Additional First Class Magistrate has referred to two decisions, namely, In re. Mohamadali Muthabhai, AIR 1930 Bom 144 and In re, Taralakshmi Manurprasad, : AIR1938Bom499 , where it has been held that a criminal Court would have jurisdiction to pass orders under Section 488, Criminal P. C, so long as there is evidence that the petitioner is the wife of the respondent and the respondent has neglected or refused to maintain her.
4. The question, whether a decree of a civil Court would bar an action under Section 488, Criminal P.C. would depend on the facts and circumstances of each case. There is nothing in Section 488, Criminal P.C. that the existence of a civil Court decree would ipso facto bar a proceeding under that section. The rights of parties are generally governed by civil Court decrees determining them. Thus, if on the question of status the civil Court were to find that there was no relationship of husband and wife between the petitioner and the respondent it would obviously Bar a criminal Court from entertaining a petition under Section 488, Criminal P.C. But if a degree passed in the civil Court becomes unexcitable for some reason or other, but the petitioner is able to satisfy the conditions of Section 488, Criminal P.C. she could certainly claim relief under that section Thus in AIR 1930 Bom 144, it was held that if the husband becomes insolvent and the decree could not be enforced aglets him it would certainly be open to the wife to seek her remedy under Section 488, Cr P.C. The learned advocate for the petitioner argued that the more fact that the petitioner has no means to pay and the decree for maintenance could not be effectively executed is not sufficient to hold that the decree is not executable.
It is true that if the petitioner acquires property, the respondent would be in a position to execute the maintenance decree. It is evidently on account of this fact that the learned Additional First Class Magistrate has stated towards the end of the order that if any sum is realised in execution of the maintenance decree the petitioner should give credit, while executing the order for maintenance. Even without this specific direction the respondent is bound to give credit for any amount realised by her as maintenance in executing an order under Section 488, Criminal P.C. It is clear from the order in E. P. 483 of 1984 in O. Section 162 of 1949 marked as Ex. P. 1 in this case, that | the respondent sought to recover the arrears of maintenance by way of arrest of the petitioner and it was dismissed on the ground that the petitioner here in had no means to pay the decree amount. Thus, the respondent here in is not in a position to realised any maintenance amount by virtue of the civil Court decree. Her only remedy is therefore under Section 488, Criminal P.C. It has been found by the Additional First Class Magistrate that the requirements of Section 488, Criminal P.C. have been satisfied by the respondent here in and that she is entitled to maintenance. In my opinion the existence of a civil decree, namely, the decree in O, Section 162 of 1949 on the file of the District Munsif's Court, Mayuram, is not a bar to the proceedings under Section 488, Cr. P.C. as the respondent here in is not in a position to realise any amount under the said decree.
5. The only other question to be considered in this 'petition is about the quantum of maintenance. The learned Additional First Class Magistrate has merely relied on the statement of the petitioner here in that in the present economic conditions at least Rs. 50 would be required for a person to maintain himself and that on the basis of the said statement has awarded Rs. 40 per month. He has not considered the means of the parties and the other circumstances of the case in fixing the quantum of maintenance. It should be noted that the respondent got a decree for maintenance as early as 1949 at the rate of Rs. 15 per month and she was content to execute the decree for maintenance till she came forward with the petition under Section 488, Cr. P.C. In fact, the petition filed by her in E, P. 483 of 1964 was only to realise the maintenance at the said rate. The order on the said execution petition and the evidence in this case clearly show that the petitioner herein has no means to pay as he has no property or other income.
The learned Additional First Class Magistrate has discussed about the means of the petitioner (herein in paragraph 14 of his judgment and he has found at the end of that paragraph that the petitioner here in has no property or income at present from which he can pay. He has further observed in the next paragraph that it is not necessary that the petitioner here in should be actually getting income or should own property and that it is enough if he has got the capacity to earn and maintain. This is the correct criterion in a case under Section 488, Cr. P. C, But having regard to the findings of the learned Additional First Class Magistrate, in paragraphs 14 and 15, there is no justification for awarding maintenance at the rate of Rs. 40 per month. For the foregoing reasons, I reduce the maintenance from Rs. 40 per month to Rs. 15 Per month. Subject to the modification as to the quantum of maintenance, the criminal revision petition is dismissed.