Bhagwan Dutt Vs. Kamla Devi & ANR 
INSC 214 (17 October 1974)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
CITATION: 1975 AIR 83 1975 SCR (2) 483 1975
SCC (2) 386
R 1986 SC 984 (5) R 1987 SC1100 (5)
Code of Criminal Procedure (Act 5 of 1898) s.
488Maintenance to wife Whether her income and means can be taken into account
The separate income and means of the wife can
be taken into account in determining the amount of maintenance payable to her
under s. 488, Criminal Procedure Code, 1898. [490 D] (1)(a) The section does
not confer an absolute right on a neglected wife to get an order of maintenance
against the husband nor does it impose an absolute liability on the husband to
support her in all circumstances. The use of the word may' in s. 488(1)
indicates that the power conferred on the Magistrate is discretionary, though
the discretion must be exercised in a judicial manner consistently with the
language of the statute and with due regard to other relevant circumstances of
the case. [486 B-I] (b)The object of Ss. 488 to 490 being to prevent vagrancy
and destitution, the Magistrate has to find out what is required by the wife to
maintain a standard of living which is neither luxurious nor penurious, but is
consistent with the status of the family. Such needs and requirements of the
wife can be fairly determined only if her separate income, also, is taken into
account together with the earnings of the husband and Ms commitments. [488 D-E]
(c)The mere fact that the language of s. 488(1) does not expressly make the
inability of a wife to maintain herself acondition precedent to the
maintainability 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. There is a
clear distinction between a wife's locus standi to file a petition under the
section and her being (entitled to a particular amount of maintenance. Even in
the case of a neglected child the proof of the preliminary condition, namely,
the inability to maintain itself, will only establish the child's competence to
file the petition; but its entitlement to maintenance and the fixation of the
amount would depend upon the discretion of the Magistrate. [485 B-D] (d)There
is nothing in the sections to show that in determining the maintenance the
Magistrate should take into account only the means of the husband and not the
means of the wife. On the contrary, s. 489(1) provides that 'on proof of a
change in the circumstances of any person receiving under s. 488 a monthly
allowance, the Magistrate may make such alteration in the allowance as he
thinks fit;' and 'circumstances' must include financial circumstances.
[488 E-G] P. T. Ramankutty Achan v.
Kalyanikutty, A.I.R. 1971 Kerala 22, approved.
Major Joginder Singh. v. Bivi Raj Mohinder
1960, Punjab 249, and Nanak Chand Banarsi Das
and Ors. v. Chander Kishore and Ors. A.I.R. 1969 Delhi 235. overruled.
(2)Section 488, Cr.P.C., provides a summary
remedy and is applicable to all persons belonging to all religions and has no
relationship with the personal law of the parties It provides a machinery for
the summary enforcement of the moral obligation of a man towards his wife and
But s. 23 and other provisions of the Hindu
Adoptions and Maintenance Act 1956, relating to fixation of the rate of
allowance, provide for the enforcement of the rights of Hindu wives and
dependents under their personal law. There is no inconsistency between the
1956-Act 16-M 255 Sup CI/75 484 and s. 488, Cr. P.C. Both could stand together,
and hence, there is no question of s. 488 being partially repealed or modified
by s. 23 of the 1956 Act. [490 A-B] Manak Chand v. Shri Chandra Kishore Agarwal
and Ors.,  1 S.C.R. 565, followed.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 228 of 1970.
Appeal by special leave from the judgment and
Order dated the 30th April, 1970 of the Delhi High Court at New Delhi in
Criminal Revision No. 90 of 1970.
D. N. Nijhawan, Urmila Kapoor and Kamlesh
Bansal, for the appellant.
Sardar Bahadur Saharya, for the respondents.
The Judgment of the Court was delivered by
SARKAR Can the income of the wife be taken into account in determining the
amount of maintenance payable to her under Section 488 of the Code of Criminal
Procedure, 1898 ? This is the principal question for determination in this
appeal by special leave.
Respondent No. 1, Kamla Devi was married to
the appellant Bhagwan Dutt on January 22, 1957 according to Hindu rites.
out of this wedlock a daughter, Respondent
No. 2, was born on November 22, 1957. On October 18, 1966, Respondent No. 1
filed a petition against the appellant for judicial separation on the ground of
desertion and cruelty. During the pendency of that petition, she filed all
application under s. 488 of the Code of Criminal Procedure, 1898, in the court
of the Magistrate, 1st Class, Delhi, claiming maintenance for herself and for
her minor daughter, on the ground that the appellant had neglected and refused
to maintain them. At the date of the application Respondent No. 1 was employed
as a stenographer on a monthly salary of Rs. 600/-. The appellant was at that
time earning about Rs.
800/per month. However, later on when the
case was in the Sessions Court in revision, the monthly income of each of them
had increased by Rs. 1501-, approximately.
By his order dated June 6,1969 the Magistrate
directed the husband to pay Rs. 250/per month i.e. Rs. 175/for the wife and Rs.
75/for the child for their maintenance.
While fixing the amount of maintenance for
the wife, the Magistrate did not take into consideration her own independent
Against the order of the Magistrate, the
husband went in revision to the Court of Session. The Additional Sessions Judge
was of the view that since the income of the wife was "substantial"
and enough to maintain herself". she was not entitled to any maintenance.
He was further of the opinion that Rs. 75/p.m. allowed to the child being
inadequate, it deserved to be raised to Rs. 125/p.m. for the period of the
pendency of the application in the trial court and thereafter to Rs. 150/p.m.
He referred the case to the High Court under s. 438 of the Code with a
recommendation that the order of the Magistrate to the extent it allowed
maintenance to the wife, be quashed, but the allowance of the child be enhanced
485 A learned single Judge of the High Court
who heard the reference held that in "making an order for maintenance in
favour of a wife under s. 488 of the Code of Criminal Procedure the court has
not to take into consideration the personal income of the wife as section 488
does not contemplate such a thing". He therefore declined the reference
pro-tanto, but accepted the same in regard to the enhancement of the allowance
of the child.
Aggrieved by the judgment of the High Court,
the husband has now come in appeal before us.
The material part of Section 488 of the
Criminal Procedure Code is in these terms:
"(1) 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 Magistrate, a 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.
(2) to (5).. .. .." The corresponding
part of Section 125 in the new Criminal Procedure Code, 1973, which came into
force on 1st April 1974, reads:
"125. (1) If any person having
sufficient means neglects or refuses to maintain(a) his wife, unable to
maintain herself, or (b) his legitimate or illegitimate minor child, whether
married or not, unable to maintain itself, or (c) his legitimate or
illegitimate child (not being a married daughter) who has attained majority ,
where such child is, by reason of any physical or mental abnormality or injury
unable to maintain itself, or (d) his father or mother, unable to maintain
himself or herself.
a Magistrate of the first class may, upon
proof of a such neglect or refusal, order such person to make a monthly
allowance for the maintenance of his wife, such child, father or mother, 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 may
from time to time direct......" A comparative study of the provisions set
out above would show that while in Section 488 the condition "unable to
maintain itself" 486 apparently attached only to the child and not to the
wife, in Section 125, this condition has been expressly made applicable to the
case of wife. Does this recasting of the old provision signify ally fundamental
change in the law? Or, has this been done merely to clarify and make explicit
what was formerly implict ? Section 488 does not confer an absolute right on a
neglected wife to get an order of maintenance against the husband nor does it
impose an absolute liability on the husband to support her in all
circumstances. The use of the word "may" in Section 488(1) indicates
that the power conferred on the Magistrate is discretionary. A neglected wife,
therefore, cannot, under this Section, claim, as of right, an order of
maintenance against the husband. of course, the Magistrate has to exercise his
discretion in a judicial manner consistently with the language of the statute
with the regard to other relevant circumstances of the case.
Nevertheless, the Magistrate has to exercise
his discretion primarily towards the end which the Legislature had in view in
enacting the provision.
Sections, 488, 489 and 490 constitute one
family. They have been grouped together in Ch. XXXVI of the Code of 1898 under
the caption, "of the maintenance of wives and children". This
Chapter, in the words of Sir James Fitzstephen, provides " a mode of
preventing vagrancy, or at least of preventing its consequences". These
provisions are intended to fulfill a social purpose. Their object is to compel
a man to perform the moral obligation which he owes to society in respect of
his wife and children. By providing a simple, speedy but limited relief, they
seek to ensure that the neglected wife and children are not left beggared and
destituted on the scrap-heap of society and thereby driven to a life of
vagrancy, immorality and crime for their subsistence. Thus, S-section 488 is
not intended to provide for a full and final determination of the status and
personal rights of the parties. The jurisdiction conferred by the Section on
the Magistrate is more in the nature of a preventive, rather than a remedial
it is certainly not punitive. As pointed out
in Thompson's case(1) "the scope of the Chapter XXXVI is limited and the
Magistrate cannot, except as there under provide, usurp the jurisdiction in
matrimonial disputes possessed by the Civil Courts". Sub-section (2) of s.
489 expressly makes orders passed under Chapter XXXVI of the Code subject to
any final adjudication that may be made by a civil Court between the parties
regarding their status and civil rights.
The stage is now set for appreciating the
contentions canvassed by the learned Counsel for the parties.
Mr. Nijhawan, learned Counsel for the
appellant contends that if s. 488(1) is construed in the light of its primary
object and. the nature of the jurisdiction conferred by it, together with s.
489(1), it would be amoly clear that in determining the wife's claim to
maintenance and its quantum, her independent income is a relevant
consideration. in support of this contention, Counsel has referred to Mohd. Ali
(1) 6 N.W.P. 205.
487 Sakina Begum(1) Narasimha Ayyar v.
Ploonnabalam v. Saraswathi(3); Ahmed Ali Saheb
v.Sarfara linisa Begum (4) and P. T. Ramankutty A chan v.Kalyanikutty(5).
As against the above, Mr. Sardar Bahadur
Saharya maintains that the very fact that the Section does not make the
inability of a wife to maintain herself, a condition precedent to the grant of
maintenanceas it does in the case of child-shows that the intention of the
Legislature was that the wife's own income or means should not be taken into
account either for determining her right to maintenance or for fixing its
amount. It is further urged that the language of s. 489 cannot be called in aid
to construe s.
488 (1). Reliance for the main argument has
been placed on Major Joginder Singh v. Bibi Raj Mohinder Kaur.(6) In Major
Joginder Singh's. case (supra), the wife had claimed maintenance under s. 488,
Cr. P. C. both for herself and her minor son. The husband was a Major in the
army, getting Rs. 1070/p.m. It is not very clear from the Report as to whether
the wife was having any substantial income of her own. However, an argument was
raised that she had her own means of support which should be taken into account
for determining her right to maintenance.
The learned Judge who decided the case,
negatived the contention, thus :
"It is obvious from the language of the
section 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,
in my view, omitted to consider the implication of this distinction while
construing the scope and effect of s. 488. In my opinion, the ability of the
wife to maintain herself was not intended by the legislature to deprive her of
the right of maintenance conferred by this section, if she is otherwise found
entitled to it.." Commenting on the cases cited before him, the learned
Judge further observed :
"But if those authorities intend to lay
down any rigid rule of law that the only right which a wife possesses under s.
488, Cr.P.C., is to claim just subsistence allowance which should merely
provide bare food, residence and raiment and that also only if she has no other
means or source, then I must with respect, record my emphatic dissent." It
may be noted that the above principle spelled out from the interpretation of s.
488(1) in Major Joginder Singh's case (supra), (1) A.I.R. 1944 Lah. 394.
(3) A.I.R. 1957 Mad. 693.
(5) A.I.R. 1971 Kerala 22.
(2) A.I.R. 1947 Mad. 204.
(4) A.I.R. 1952 Hyd. 76 (6) A.I.R. 1960
488 was carried a step further by the
Division Bench in Nanak Chand Banarsi Dass and ors. v. Cliander Kishore and
Ors.(1) to deduce the proposition that the wife's right to receive maintenance
under s. 488, Criminal Procedure Code is an absolute right.
In our opinion, one wrong assumption has led
to another false deduction. The mere fact that the language of s.
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. There is a
clear distinction between a wife's locus standi, to file a petition under s.
488 and her being entitled, on merits, to a particular amount of maintenance there
This distinction appears to have been
overlooked in Major Joginder Singh's case (supra). Proof of the preliminary
condition attached to a neglected child will establish only his competence to
file the petition but his entitlement to maintenance, particularly the fixation
of its amount, will still depend upon the discretion of the Magistrate. As the
Magistrate is required to exercise that discretion in a just manner, the income
of the wife, also, must be put in the scales of justice as against the means of
The object of those provisions being to
prevent vagrancy and destitution, the Magistrate has to find out as to what is
required by the wife to maintain a standard of living which is neither
luxurious nor penurious, but is modestly consistent with the status of the
family. The needs and requirements of the wife for such moderate living can be fairly
determined, only if her separate income, also, is taken into account together
with the earnings of the husband and his commitments.
There is nothing in these provisions to show
that in determining the maintenance and its rate, the Magistrate has to inquire
into the means of the husband alone, and exclude the means of the wife
altogether from consideration.
Rather, there is a definite indication in the
language of the associate s. 489(1) that the financial resources of the wife
are also a relevant consideration in making such a determination. Section
489(1) provides inter alia, that "on proof of a change in the
circumstances of any person receiving under s. 488 a monthly allowance, the
Magistrate, may make such alteration in the allowance as he thinks fit".
The "circumstances" contemplated by
s. 489(1) must include financial circumstances and in that view,the inquiry as
to the change in the circumstances must extend to a change in the financial
circumstances of the wife.
Keeping in view the object, scheme, setting
and the language of these associate provisions in Chapter XXXVI, it seems to us
clear that in determining the amount of maintenance under s. 488(1), the
Magistrate is competent to take into consideration the separate income and
means of the wife.
(1) A.I.R. 1969 Delhi 235.
489 We do not wish to burden this judgment
with discussion of all the decisions that have been cited at the Bar. It will
suffice to notice one of them rendered by the Kerala High Court in which Major
Joginder Singh's case (supra) was explained and distinguished. That case in P.
T. Ramankutti v. Kalyankutty (supra) therein, the husband was getting a net
salary of Rs. 240/-, while the monthly salary. of the wife was (after
deductions) Rs. 210/-. The question, was whether the wife in such a financial
position had a right to claim maintenance under s.488, Criminal Procedure Code.
after referring to the observations of Dua,
J. in Major Joginder Singh's case (supra) and surveying the case law on the
subject, the learned single Judge of the Kerala High Court correctly summed up
the position thus ;
"To take the view that in granting
maintenance under Section 488 to a wife her personal income also can be
considered may Prima-facie appear to be against the language of the section
because the condition "unable to maintain itself" appearing therein
attaches itself only to child and not to wife. But that condition has
application only in considering the maintainability of a petition filed under
s.488. A wife can file a petition under that section 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." Any other construction would be subversive of the primary
purpose of the section and encourage vindictive wives having ample income and
means of their own, to misuse the section as a punitive weapon against their
It is next contended on behalf of the
appellant that s. 488 must be deemed to have been partially repealed and
modified by s. 23 of the Hindu Adoptions and Maintenance Act, 1956 (for short,
called the Act) which provides that in determining the amount of maintenance,
the Court shall have, inter alia, regard "to the value of the wife's
property and any income derived from such property or from the claimant's own
earning or from other sources".
Clause (b) of s.4 of that Act provides
"Save as otherwise expressly provided in this Act (a) x x x (b) any other
law in force immediately before the commencement of this Act shall cease to
apply to Hindus in so far as it is inconsistent with any of the provisions
contained in this Act." The question therefore resolves itself into the
whether there is anything in s.488 which is
in consistent with s .23 or any other provisions of the act. This matter is no
longer resititegra. In Nanak Chand v. Shri Chandra Kishore Agarwala and Ors.(1)
this Court held that there is no inconsistency between Act 78 of 1956 and s.
488, Criminal Procedure (1)  1 S.C.R. 565.
490 Code. Both could stand together. The Act
of 1956 is an Act to amend and codify the law relating to adoption and maintenance
among Hindus. The law was substantially similar before when it was never
suggested that there was any inconsistency with S. 488, Cr. P. C. The scope of
the two laws is different. Section 488 provides a summary remedy and is
applicable to all persons belonging to all religions and has no relationship
with the personal law of the parties.
We have said and it needs to be said again,
that s. 488 is intended to serve a social purpose. It provides a machinery for
summary enforcement of the moral obligations of a man towards his wife and
children so that they may not, out of sheer destitution become a hazard to the
well-being of orderly society. As against this, s. 23 and other provisions of
the Act relating to fixation of the rate of allowance, provide for the
enforcement of the rights of Hindu wives or dependents under their personal
law. This contention therefore is meritless and we negative the same.
For the reasons aforesaid, we allow the
appeal, set aside the judgment of the High Court and send the case back to the
trial Magistrate to refix the amounts of maintenance. In the case of the wife,
he shall together with other relevant circumstances, take into account her
income also. In the case of the daughter, he shall afford opportunity to the
parties to lead fresh evidence and then refix her allowance.