1. The petitioners herein are the wife and son of the respondent. They applied before the court of the Additional First Class Magistrate No. 2, Salem, for granting maintenance to them, in M. C. No. 25 of 1971, and the court on 5-7-1971, ordered that the respondent should pay maintenance amounts of Rs. 25/- and Rs. 10/- per month to the first and second petitioners respectively. The respondent has been paying these amounts as ordered. At the time of the passing of the said order, the respondent was working as a temporary helper in the Mettur Aluminium Co, on a daily wage of Rs. 5.85. Not being satisfied with the quantum of maintenance, the petitioners filed M C. No. 462 of 1973, before the same court, praying for enhancement of the monthly maintenance to Rs. 75 and Rs. 45 to the first and second petitioners respectively on the ground that the respondent has been absorbed on a permanent basis as a workshop assistant on a monthly salary of Rs. 310.60. The respondent resisted this claim for enhancement, stating that no new circumstances had arisen in his living condition or status and that he is still a temporary worker on a daily wage of Rs. 7.80. Further, he raised a plea that the first petitioner was earning Rs. 75/- per month as an agricultural cooly. The respondent had to maintain his family consisting of his parents and his younger brother. The petitioners, in proving their claim, examined the first petitioner as P. W. 1 who gave evidence that the respondent is earning Rs. 11.50 per day. P. W. 2, the Chief Time Keeper in MALCO, would state that the respondent is still a temporary helper earning Rs. 6.88 as daily wages, besides dearness allowance as per the cost of living index. The respondent examined R. W. 1, in order to prove that the first petitioner is getting an independent income of Rs. 2/- or Rs. 2.50 as daily wages.
2. After hearing both sides, the the learned Magistrate, having regard to the increased income of the respondent, further ordered that he should pay Rupees 30/- and Rupees 15/- per month as maintenance to petitioners 1 and 2 respectively from the date of the said order. The petitioners, not having been fully satisfied with the quantum of the enhanced maintenance, have filed this revision petition for further enhancement.
3. The liability of the respondent to maintain the petitioners, viz., his wife and son (aged about 10) is not disputed. In respect of the enhanced maintenance awarded to them in the impugned order, no argument was advanced on the side of the respondent stating that it is excessive. But, on the other hand, this revision petition is resisted on the ground that this petition for further enhancement of the quantum of maintenance should be dismissed as incompetent on account of the sufficient independent income of the first petitioner which resources also should be taken into consideration in awarding maintenance to her.
4. It is obvious that the language of Section 488(1), Criminal Procedure Code, does not impose any condition on a wife in claiming maintenance from her husband to prove that she is unable to maintain herself, unlike in the case of a legitimate or illegitimate child. But, it clearly and unequivocally imposes a moral obligation on a person to maintain his wife irrespective of her personal resources to maintain herself, provided the other requirements of the section are satisfied, warranting its enforcement. The enquiries under this section are purely summary proceedings. The word 'may' used in Section 488, Criminal Procedure Code, confers only a discretion on the court in the enquiry, in awarding maintenance, which discretion has to be exercised on sound judicial principles, considering the equity of each case.
5. The question whether a court could take into consideration the independent income of the wife while fixing the quantum of maintenance has been subjected to serious discussions in a number of cases. In P. T. Ramankutti v. Kalyanikutti : AIR1971Ker22 , after referring to the number of cases on this aspect, the court held-
A wife can file a petition under that section (Section 488, Criminal Procedure Code) irrespective of the question whether she is able or unable to maintain herself. But, on her application, at the time of the granting of monthly allowance to her, there is nothing prohibiting the court from considering whether she can maintain herself with her own income and if she can, granting her nothing by way of allowance... The fixing of the rate is to be done on the merits of each case and the income of the wife is a relevant circumstance to be taken into account in fixing the rate.
Learned Counsel for the respondent also placed his reliance on a recent decision of the Supreme Court in Bhagwan Dutt v. Smt. Kamala Devi : 1975CriLJ40 . in support of his contention. In fact the said Supreme Court decision has approved the above-cited observations of the Kerala High Court, and has held thus:
The mere fact that the language of Section 488 (1) does not expressly make the inability of a wife to maintain herself a condition precedent to the maintainability of her petition, does not imply that while determining her claim and fixing the amount of maintenance, the Magistrate is debarred from taking into consideration the wife's own separate income or means of support.... Keeping in view the object, schemes, setting and the language of these associate provisions (provisions in Chapter XXXVI), it seems to us clear that in determining the amount of maintenance under Section 488 (1). the magistrate is competent to take into consideration the separate income and means of the wife.
6. It is also pertinent to note that Section 125 of the Criminal Procedure Code, 1973 (Act II of 1974). which corresponds to Section 488 of the old Code, has expressly made it clear that the inability of a wife to maintain herself is a condition precedent to the very maintainability of her petition for maintenance.
7. Applying the above principle, in this case we have to see (1) whether there is sufficient evidence to show that the first petitioner is having sufficient independent income of her own to maintain herself, and if not, whether she is entitled to the further enhancement of the maintenance awarded, and (2) so far as the second petitioner is concerned, whether a further enhancement of the maintenance awarded is necessary.
8. In this particular case, the evidence of R. W. 1 that the first petitioner herein is earning Rs. 60/- to Rs. 75/- per month is not satisfactory and trustworthy. So, I find that the first petitioner is not having any independent income of her own to maintain herself. But, on the contrary, it is proved by the evidence of P. W. 2, an independent witness, that the income of the respondent has increased from the date of the original order, by about Rs. 100/- per month. This fact also has not been denied by the respondent. So, taking into consideration the present state of affairs, and the cost of living, I enhance the maintenance payable to the first petitioner from Rs. 30/- to Rs. 45/- per month.
9. So far as the second petitioner is concerned, I feel that it would be reasonable if the maintenance payable to him is enhanced from Rs. 15 to Rs. 25/- per month.
10. Accordingly, the petition is allowed, enhancing the maintenance payable to the first petitioner to Rs. 45/- per month and the maintenance payable to the second petitioner to Rs. 25/- per month. This order shall take effect from this date.