N.C. Talukdar, J.
1. These two Rules are taken up together for disposal as these are interconnected and arise out of the same order dated the 4th December, 1968 passed by Sri. S. R. Bhowmick, Presidency Magistrate, 7th Court, Calcutta, Under Section 488 of the Criminal P.C., in case No. M/1023/67. The first Rule, being Criminal Revision case No. 1376 of 1968, is at the instance of the 2nd Party husband, Md. Basir, for setting aside the order of maintenance passed by the learned Presidency Magistrate of the sum of Rs. 350 per month payable to the 1st Party wife, Noor Jahan Begum, to take effect from the date of the order. The other Rule, being Criminal Revision Case No. 231 of 1969, is at the instance of the wife, Noor Jahan Begum, for setting aside the order passed by the learned Presidency Magistrate, rejecting the petitioner's prayer for allowing maintenance also to her five daughters, living with her and for enhancing the quantum of maintenance.
2. The back-drop of the case is set in a respectable Mohnamedan family of Calcutta, the husband, Mr. Basir, being man of position and affluence while the wife, Noor Jaban Begum,is also well connected. Unfortunately for the couple the ship of their marriage, instead of riding the high seas got entangled into shallows of doubts and bitterness. There were allegations and counter allegation by one against the other, landing on to various litigations, culminating is the present proceedings under H, 488 of the Coda of Criminal Procedure, Bereft of all verbiage, the case of the first party is that there was continuous neglect, refusal to maintain, and even cruelty on the part of the second-party and that to add to her discomfiture, new flames appeared in her husband's life and she had to leave the house in 1965 and in early i966 and was ultimately driven out in July, 1986. Since then she was living separately from her husband with her five minor daughters on the charities of friends and neighbours and she is now lining at 41, Bacharia Street, Calcutta, at the residence o her husband's brother, Barnaul Haque. Left with no other alternative, the tiled the present application for maintenance Under Section 488 of the Code of Criminal Procedure in the court of the learned Chief Presidency Magistrate, Calcutta, praying far a maintenance of Es. 800 for her and Bs. 00 each for the five minor daughters, totalling Xl3. 1,800 per month. The Second party showed cause and his case inter alia is that the boot is on the other leg; that the wife is really the guilty party; that it is out o her own free-will that she had left the house during his absence; and that the allegations leveled against him are all untrue. 7 witnesses were examined on he-half of the first-party and 6 on behalf of the second party, besides several documents being proved by the parties and as a result of the enquiry the learned Presidency Magistrate by his order dated the 4th December, 1968, passed the order of maintenance mentioned above. The said order has been impugned and the two Rules were issued,
3. Mr. Nalin Chandra Banerjee, Advocate (with Mr. Jahar Lal Roy, Advocate) appearing on behalf of the second-party petitioner is the first Rule, has contended that the order of maintenance passad by the learned Presidency Magistrate is not a proper order in law because of the absence of the essential ingredients enjoined Under Section 488 (1) of the Code of Ori. minal Procedure. Mr. Bejoy Kumar Bhose, Advocate (with Mr. Anil Bandhu Roy, Advocate) appearing on behalf of the first-party,opposite party, submitted that the evidence on record both oral and documentary, clearly establishes gross neglect and refusal to maintain the wife and the children by the husband and exhibits 1, 1/1, 2, 2/1, 3 and 3/1/1, the written commitment by the second-party husband, bear eloquent testimony to that.
4. In the second rule Mr. Bejoy Kumar Bhose. Advocate (with Mr. Anil Bandhu Roy and Mrs. Gauri Dey, Advocates) appearing on behalf of the first party contended that the learned enquiring magistrate has clearly erred in rejecting the prayer for maintenance for the five daughters living with the first-party and that the quantum of. maintenance passed is also grossly inadequate for the maintenance of the wife and the children, in conformance to their status and requirements. Mr. Nalin Chandra Banerjee, Advocate (with Mr. Jahar Lal Roy, Advocate) appearing on behalf of the second party joined issue and submitted that there is no question of enhancement as some of the other children were living with the father and as there is no necessity at all for allowing separate maintenance for the five daughters living with the mother. Mr. Nalin Chandra, Banerjee further submitted that the evidence on record relating to the means of the husband rules out the scope for any enhancement, as alleged or at all.
5. At the time of the hearing of the Rules an important point of Saw was raised as to the proper interpretation of the words ''in the whole' in Sub-section (1) to Section 488 of the Code of Criminal Procedure and. the learned Advocates appearing for the petitioner and the opposite party prayed for an adjournment which was granted, to ascertain the correct position in law and to find out precedents. On the adjourned date, after hearing1 the further sub-missions of the learned Advocates appearing on behalf of the respective parties, it appeared that the point at issue is of some importance and so this Court requested Mr. J. M. Banerjee, a Senior Advocate of the Bar, to appear as amicus curiae in the case and the learned Advocate was good enough to agree to do so. Submissions thereafter were made ok the date fixed by the learned Advocates appearing on behalf of the respective parties and also by Mr. J. M. Banerjee appearing amicus curiae.
6. Having heard the learned Advocates appearing on behalf of the petitioner and the opposite).party in the first rule, I hold that the evidence on record clearly establishes neglect and refusal to maintain on the part of the husband and the findings ultimately arrived at in the case by the learned Presidency Magistrate, in that behalf, are cogent findings based upon relative evidence. The evidence of 1st party's witness No. 1, Noor Jahan Begum, the wife, brings to light instances of neglect and refusal to maintain and also the circumstances which compelled her to leave her husband's house in 1965, in early 1966 and ultimately in July, 1966. She is corroborated 'n material particulars by her daughters, let Party's witnesses No. 2 to 4 and further corroborated by documentary evidence viz., Exhibits 1, 2 and 3, being the written commitments to the wife by the husband in Urdu and Exhibits 1/1, a/1, and 3/1/1 which are the English translations thereof, made by lst party's witness No. 7, Abdul Hasnat, an Advocate. The said exhibits are sought to be explained away by the husband on the purported ground that those were for the sake of restoration of peace and for the interests of the children, but the said explanation does not justify the nature of the commitments. The allegations levelled by the husband are Bought to be proved by his own evidence as D. W. 5 (wrongly mentioned as D. W. 4) and also by the evidence of his son, D, W. 4. I hold however that the said evidence is Dot sufficient to establish the allegations made by the second.party. The evidence of D. W. 0 (wrongly mentioned as D. W. 5) who is a Sub-Inspector of Police attached to the Paik Street Police Station, is not convincing and has been rightly jettisoned by I'm learned magistrate. Exhibits C and D also do not help the second-party ultimately. The latter exhibit is dated 19-11.67 and is by the eldest daughter of the second-party from Assam. From the letter itself it transpires that the lady was living away in Assam all the time and is not there-fore competent to depose to the points at issue. The other evidence adduced by the second, party does not again in any way demolish the case made out by the first-party accordingly hold that the first-party has succeeded in proving neglect and refusal to maintain on the part of the husband and even Heaving out of consideration the question of any second marriage, the evidence on record entitles her to have a maintenance Under Section 488 of the Criminal P.C. The contention of Mr. Nalin Chandra Banerjee, Advocate, raised in the first Rule accordingly fails, aud I uphold the order passed by the learned Presidency Magistrate granting a maintenance. As to the quantum of maintenance payable ho waver, it will abide the decision in the connected Rule,
7. In tae second Rule viz., in Criminal Be. vision Cute No. 231 of 1969), Mr. Bhose'a contention is that the learned Presidency Magistrate clearly erred hi rejecting the prayer for maintenance of the five daughters living with the first party and that the quantum of maintenance, which is grossly inadequate, should also be enhanced to meet the requirements of the wife and the growing up children living with her. The amount of maintenance undoubtedly depends on the means of the husband. The expression 'sufficient means' within the meaning of Section 488 (l) of the Criminal P.C., does not mean visible means only but stands for potential means. It includes a capacity to earn. A reference in this context may be made to the case of Kandaswami Moopan v. Angammal : AIR1960Mad348 wherein Mr. Justice Ramaswami observed at p. 349 that 'The possession of property is not at all the criterion for awarding maintenance Under Section 488. It is independent of possession of property, so long as a man is able-bodied and can work and earn his livelihood, it is his duty to support his wife.' I agree with the Raid observations and hold that the expression 'Sufficient means' as incorporated in Section 488(1) of the Criminal P.C., does not stand for physical means alone. In this case, however, the evidence on record clearly brings to light visible means and one need not travel into the realms of potential means. 1 will therefore refer to the evidence on this point adduced by the respective parties. The evidence is undoubtedly conflicting and the income of the second party ranges from about Rs. 1,000 per month as deposed to by the second party's witness No. 5 (wrongly described as second-party's witness No. 4) to about Rs. 6,000 as stated by the first party's witness No. 1, Noor Jahan Begum. It is bettor to proceed upon the golden moan and in that con text the evidence of the opposite party's witness No. 4, the son, will be material. Ho admitted in cross-examination ihati the second party gets B. 2,000 par month from his Elliot Eon'' premises and Us. 500-600 per month from his Taltola House by any of root. He further admitted than he sometimes collects rent and that besides this income his father has some properties in Assam fetching no income. The monthly income of the second party therefore, to compute the sum even modestly, is about Rs. 2,500 per month. It is the settled practice, however, of, the High Court not to interfere, in Revision with1 the amount; of maintenance which is awarded by the Magistrates unless and until it is grossly inadequate. In view of the evidence on record, however, I hold, as, observed by Mr. Justice Ramaswami in the case reported in A.I.R. 1960 Mad 348 that the quantum of maintenance awarded in this case ''is so manifestly perverse that it requires interference without any further argument on the subject.'
8. Mr. Nalin Chandra Banerjee, Advocate, appearing on behalf of the second party husband, next contended that, in any view, the quantum of maintenance cannot exceed ''five hundred rupees in the whole' as laid down in 8. 488 (1) of the Criminal P.C. Mr. Banerjee submitted that some meaning and effect must fee given to the words 'in the whole' as used in the said sub-section and referred to a case. in support of his contention, viz. the case of Palmerino v. Mrs. Palmerino : AIR1927Bom46 decided by Shah and Percival JJ. under the provisions of Section 488 of the Criminal P.C. before its amendment by Act 26 of 1955 having a ceiling of rupees coo hundred only. Mr. Justice Shah who delivered the judgment of the Court observed at p. 47 that 'The magistrate can make an order for the maintenance of his wife and cbtl t at each monthly rate not exceeding one hundred rupees on the whole, a3 he thinks lit. In the present case the order of the magistrate directing a monthly allowance to be paid at the rate of Es. 150 per month was clearly in excess of his jurisdiction'. Mr. Nalin Chandra Banerjee, Advocate, finally submitted that in a summary proceeding Under Section 4s8 of the Criminal P. 0, providing for speedy remedies, the wider interpretation sought to be put to the words 'in the whole' by Mr. Bhose extending ultimately the ceilling to a sum exceeding live hundred rupees is unwarranted and will lead on to repugnancy. In view of the personal laws of the parties and in view of the conditions of the present day world, and the alternative avenues available to the parties by way of a suit under the Indian Divorce Act, the ceiling as fixed Under Section 488, Sub-section (t) of the Criminal ?. 0. should not be interpreted to include any sum even exceeding it. Mr. Bejoy Kumar Bhose, Advocate, appearing on behalf of the first party wife joined issue and submitted that the amount of 'five hundred rupees in the whole' is the maximum allowable for each claimant and not for all the claimants taken together in a proceeding under B. 488 of the Criminal P. G. Otherwise it will be circumscribing the meaning c: the said words and frustrating the intention of the legislator. In this context ho referred to the case of Tulsi Das Burman v. Sm. Saraju Dei Devi A.I.R. 1933 Cal 406 wherein Pankridge and Patterson .JJ. observed that 'But it is sufficient to say that in my judgment the words 'in the whole' ate intended to prevent the court from exceeding the statutory limit is the wise of any particular dependant and are not intended to restrict; the powers or the court to ordering a monthly allowance of Rs. 100 in reaped of the maintenance of all the dependents.'
9. The point bhua raised for determination is an intriguing point oi la?/ of same Importance. A reference is therefore necessary to Sub-section (1) to Section 488 of the Code of criminal Procedure to ascertain the intention of the Legislature as incorporated therein and also 6he context in which the words 'in the whole' have been used Section 488 (l) is as follows; 'If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrates Presidency Magistrate, a, Sub.divisional 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.' It is significant that the words used at the beginning of the said subsection are 'his wife or his legitimate or iliegitimate child unable to maintain itself' and also at the end of the Section preceding tha words 'in the whole1' are ''to make a monthly allowance for the maintenance of wife or such child.' Some meaning and effect must be given thereto and the words 'in the whole' must be interpreted in the context referred to above. It is also relevant that alternatives and not conjunctives have been used while mentioning the words ''the wife or his legitimate or illegitimate child' is the'above mentioned sub.section. I may now turn to the meaning of the words 'in the whole' and 'in all' as given in the Shorter Oxford English Dictionary (3rd. Edn.), edited by C. T, Onions. The expression 'in all' has been defined as 'all together' but the words 'in the whole' have been defined as 'to the full amount or entirely.' In Stcoud's Judicial Dictionary (3rd. Edn.) the word 'all' has been mentioned as being equivalent to 'each and every.' Lord Fitzgerald approved of the said definitions in the case of Burnett and Great North of Scotland Railway, (1885) 54 L JQB 539, Lord Greene, the Master of the Roils, observed in the case of Ee Wellsteti'a Will Trusts, Wellsted v. Hanaom (1948) Ch 296 at p. 306 that 'the proper way of construing a word like 'all' is to say, that it means 'all,' and does not mean unless one finds a compelling context which forces one to plase Rome limitation oh the word'. The expression ''in the whole' is Dot therefore equivalent to 'in alll' and the same is pinpointed by the use of alternatives and not conjunctives in respect of the different claimant or a proper interpretation of the words Rr'jiia one will have to depend on the Rules relating to the interpretation of statutes. It, has been observed in 'Maxwell On the Interpretation Statutes' that 'The first and most elementary rule of construction is that if, is to be assumed that the words and phrases of technics legislation are used is their technical meaning if they have acquired one, and, otherwise in their ordinary meaning and secondly, that the phrases and sentences are to be construed according to the rules of gram mar'. This is known as the Rule of Literal Construction. As Viscount Simon L. 0., observed in the case of Nokes v. Doneaster Amalgamated Collieries Ltd. (1910) 3 All ER 549 (HL) at page 563 that ''the golden Rule is that the words of a statute must prima facie be given their ordinary meaning'. The observation a of Viscount Haltlsrie, L. 0. are also to the same effect. In the ease of Attorney General v. Milne (1914.15) All ER 1061 at p. 1063 it was observed by the Lord Chancellor that if the language used 'hag a natural meaning, we cannot depart from that meaning unless reading the statute as a whole, the context directs ua to do so'. I respectfully agree with the said observations relating to Literal Construction of Statutes and 1 hold that on the basis thereof the words 'in the whole' in the con. text of the other expression used in Sub-section (1) to Section 488 of the Coda of Criminal Procedure are not susceptible of the circumscribed interpretation sought to be put thereupon by Mr. Nalin Chandra Banerjee, Advocate. It is pertinent again to refer to the principle of Interpretation of Statutes ruling out redundancy. As was observed by Lord Sumner in the case of Quebec Railway Light, Heat and Power Co. Ltd. v. Vandry A.I.R. 1920 P C 181 at p. 186 that 'Hlffect must be given if possible to all the words used, far the legislature is deemed not to waste its words or to say anything in vain'. Mr. Justice SubbaRao(as His Lordship then was) also observed in the case of Ghauahyamdaa v. Regional Asst. Commr. of Sales Tax, Nagpur : 51ITR557(SC) that ''a construction which would attribute redundancy to a Legislature shall not be accepted except for compelling reasons'. I agree with the game and I hold that in order to give proper effect to the words 'in the whole' as used by the Legislature in Section 483 (1) of the Coda of Criminal Procedure, the same cannot be restricted to mean the ceiling of rupees five hundred in the each of all the claimants in a particular proceeding inasmuch as the said construction is clearly bad and repugnant, attributing redundancy to the Legislature while incorporating the words 'in the whole'. On a consideration therefore of the language of Section 488 (1) of the Code-of Criminal Procedure and also in the light of the rules relating to the Interpretation of Statutes, it appears that the words 'in the whole' as 3ed in 8. 488 (1) of the Criminal P.C. do not mean 'in all' and therefore tho ceiling of five hundred rupees as mentioned there is not for all the claimants in a proceeding taken together but the sum.total of all the different items of maintenance relating to a single claimant eligible to maintenance.
10. It will now be pertinent to refer to the case law on the point. Two of the cases have already been referred to above in connection with the respective submissions of the learned Advocates appearing on behalf of the first party and the second party. I will now pass on to a consideration of the several oases cited by Mr. J. M. Banerjee, Advocate, appearing as amicus curiae, in this case, both in favour and against, relating to the interpretation of the words ''in the whole' as used in 8. 488 (1) of the code of Criminal Procedure and to the material submissions ultimately .made by him. Mr. Banerjee referred in the first place to the case of K. C. Kent v. E. E. L. Kent A.I.R. 1926 Mad 5i under the provisions of the Old Act before the amended Act 26 of 1955 and providing for a ceiling of rupees one hundred only. Mr. Justice Devadosa observed therein.. at page 61 that 'The magistrate can only order one sum not exceeding rupees hundred to be paid for the wife and for each of the children unable to maintain it3elf'. In other words, it was held that the words 'in the whole' mean one sum only and not separate sums for different purposes for the different claimants. The next case cited by Mr. J. M. Banerjee is the Full Bench decision of the Bombay High Court in the case of Bai Prabhavati Sumatilal Dholidae v. Sumatikl Dholidas. : AIR1954Bom546 . Chief Justice Chsgia delivering the judgment of the Pull Bench observed at pages 546 and o47 that 'The intention of the Legislature was clear, and the intention was to cast an obligation upon a person who neglects or refuses to maintain his wife or children to carry out his obligation towards his wife or children. The obligation is separate and independent in relation to each one of the persons whom he is bound in law to maintain. It is futile to suggest that in using the expression 'in the whole' the Legislature was limiting the jurisdiction of the Magistrate to passing an order in respect of all the parsons whom he is bound to maintain allowing them maintenance not exceeding a sum of one hundred rupees'. The next case cited by Mr. Banerjee is the case of A.I.R. 1933 Cal 406 already cited by Mr. Bhose and discussed before, Mr. J, M. Banerjee further referred to a, later case viz., the case of Mrs. M. Bulteel v. Mr. R. C. Bulteel AIR 1933 Mad 721, and under the Act before the amendment in 1955. Chief Justice Leach and Mr. Justice Madhavan NA.I.R. held that where an application is made for the maintenance of the wife and also for her child, the husband can be directed to pay Rs. 100/. per mensem for the maintenance of the wife and Rs. 100/- per mensem for the maintenance of the child. The decision in A.I.R. 1933 Cal 408 was relied upon in the said case. Mr. Banerjee finally referred to an old case under the old Act when the maximum amount-payable by way of maintenance was not to exceed rupees fifty in the whole, viz., the case of Clement J. De Monte v. Florence De Monte. (1911) 12 Cri L J 583 (Low Bur). The Chief Judge, Sir Charles Fox of the Lower Burmah Chief Court, observed therein that 'the Section contemplates the making of an order for a monthly allowance ot a wile or of a child. The order may direct the amount to be paid to any person the magistrate directs'. A wide interpretation was given to toe words ''in the whole'' and it wm held that the total sum allowable under the old Act foe maintenance of the wife and the children can exceed rupees fifty which was the ceiling fixed. Mr. J. M. Banerjee appearing as amicus curiae in the present; Rules, ultimately submitted, on the basis of the above mentioned decisions, that the correct view appears to be that the words 'in the whole' in Section 488 (1) of the Criminal P. 0, mean the total amount of maintenance payable to each individual claimant in a proceeding, being the sum-total of the various items of maintenance and not the total amount of maintenance payable in a proceeding, irrespective of the number of the claimants entitled to such maintenance. I agree with the Division Bench decision of the Calcutta High Court in A.I.R. 1933 Cal 400 as well as the Full Bench decision of the Bombay High court in A1K 1954 Bom 516 (F.B) and I also agree with the submissions of; Mr. J. M. Banerjee, appearing as amicus curiae and I hold that the ceiling of 'five hundred rupees in the whole' as enjoined in Section 488 (1) of the criminal P.C. is not the total amount of maintenance that can be awarded by the learned magistrate to all the claimaota taken together in a proceeding but the sum-total of the different items of maintenance in the case of each claimant and can very well, exceed the maximum of rupees five hundred if there be a number of claimants, Any other interpretation will be opposed to the clear wording of the section. I uphold the interpretation given by Mr. Bhose to the words ''in the whole' in Sub-section (l) to Section 488 of the Criminal P.C., and I overrule the circumscribed interpretation sought, to be put thereupon by Mr. Nalin Ghandra Banerjee.
11. Mr. Nalin Chandra Banerjee lastly submitted that having regard to the provisions of the Indian Divorce Act and the other relief provided for in different Acts, too wide an interpretation of the intention of the legislature as to the ceiling of maintenance, is neither called for nor merited. The learned Advocate contended that the law must have its roots in the needs of the society and in cannot ignore the dynamic social change. He therefore con-tended that the words 'not exceeding five hundred rupees in the whole' must be interpreted in the light of such social needs and against the backdrop of the successive changes in the Act, enhancing the amount of the maintenance from Rs. 50 under the old Code, to Es. 100 under the Amending Act 18 of 1923 and finally to Rs. 500 by the Amending Ace 26 of 1955. I hold however that it will neither be; expedient nor proper to import the concept of a dynamic theory to interpret the provisional of a statute enjoining a summary proceeding. When Mr. Justice Mccardie observed in Ronald True's Case reported in the Notable British Trials Vol. on Ronald .True, at p. 246 that 'All law must progress or it must perish in the esteem of man,' he did not certainly mean that existing legislations should be bypassed or wrongly interpreted to give effect to the purported progressive outlook. Nobody would dispute that today when man has reached the moon, he need not remain shackled to age-old shibboletha and that laws may be changed to reflect the changing needs of the society. But so long as it is not changed or altered by the legislature, to suit such contingencies, the Courts must interpret the law as it is and not-try to legislate in the garb of sophisticated interpretations. In view of the established principles whereby statutes are to be interpreted, this theory in de hors both 'the principle of 'intent' and that of 'meaning' It would be pertinent in this context this to refer to the observations of Francis Bacon that 'Judges ought to remember that their office is jusdicere and not jus dare; to interpret law, not to make law or give law.' I agree with the said observations and I hold that it is not possible to give effect to the dynamic theory of interpretation propounded by Mr. Nalin Chandra Banerjee within the frame-work of the existing statute. The ancillary submission raised by Mr. Nalin Chandra Banerjee accordingly fails.
12. Before I part with the case, I mast place on record the appreciation of this Com is of the manner in which Mr. Jintendra Mohan Banerjee, Advocate, discharged his task as amicus curiae. The learned Advocate has spared no pains in placing before the Court the material decisions on the point, either in favour of or against the contentions raised, has materially assisted this Court in coining to the ultimate decision.
13. In the result, the order dated the 4th December, l968, passed by Sri S. It. Bhow-mick, Presidency Magistrate, 7th Court, Calcutta in Case No M/1023/67 Under Section 488 of the Criminal P.C., is modified as follows; Tha raid order, so far as it holds that there has been neglect or refusal to maintain on the part of the second party-husband is hereby upheld; and it is directed that the second-party shall pay to the first-party a maintenance of Rs. 200 permonth, and to the five daughters living with her and unable to maintain themselves, a maintenance of Rs. 100 each per month. totalling Rs. 700 per month, taking effect from the date of the original order, payable by the seventh day of the following month. It is further directed that the arrears of the maintenance due, including the difference between the amount payable and actually paid under the orders of the court, shall be paid within sis months from the date of this order.
14. The two Rules are disposed of accordingly.
15. The records are to go down as early as possible.