# BHAGWAN DUTT v. KAMLA DEVI AND ANR - **Citation:** [1975] 2 S.C.R. 483 - **Court:** Supreme Court of India - **Decided:** 1974-10-17 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhagwan-dutt-v-kamla-devi-and-anr-6327 - **Pages:** 8 ## Headnote A B c D E F BHAGWAN DUTT v KAMLA DEVI AND ANR; October 17, 1974 [Y. V. CHANDRACHUD, R. S. SARKARIA AND A. C. GUPTA, n.] 483 Code of Criminal Procedure (Act 5 of 1898) s. 488-Ma/ntenance to wifeWhether her income and means can be taken into account In fixing. 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 DJ (1) (a) The section does not confer an absolute right on a neglected wife to get an "rder 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 discrotionary, thougl) 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-DJ (b) The object of Ss. 488 to 490 being to prevent vagrancy and destitution, the Magistrate Ii.as 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 his commitments. [488 D-EJ (c) 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 does not imply that while determining her claim and fixing the amount of maintonance, the Magistrate is debarred from taking into consid•rati 1n the wife's: own separate income or means of support. There is a clear distii:ctfo 1 between a wife's locus standi to file a.petition under the section and her being licit 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 s~pport 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 discn:tion primarily towards the end which the Legislature had in view in enacting the provir,ion. 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 moqe of preventing vagrancy, or at least of preventing its consequences". These provisions are intended to fulfil a social purpose. Their· object is to cpmpel a man to perform the moral obligation which he owes to society in respect of his wife and children. Uy 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, Section 488 is not intended to provide for a full and j\nal determination of the status and personal rights cf the parties. The jurisdiction· conferred by the Section on the Magistrate is more in the nature of a preventive, rather than a remedial jurisdiction; it is certainly not punitive. As pointed out in Thompson's case(I) "the s<:ope of the Chapter XXXVI is limited and the M?.gistrate c?.nnrt, except as thereunder provide, usurp the jurisdiction in matrimonial disputes possessed by the Civil Courts". Sub-secti0n (2) of s. 489 expressly makes orders passed under Chapter XXXVI of the Code subject to any final adjudic'ltion that may be made by. a civil . Court between the pa:rties regarding their status and civil rights. The stage is now set for appreciating the contentions canvassed by tbe learned Counsel for the parties. Mr. Nijhawan, learned Counsel for the appellant contends that ifs. 488(1) is construed in the light of its primary objrc:t imd the natu.re ofthejuri$diction conferred by it, together withs. 489(1), it WC1uld be am~IY clear that in determining the wife's claim to mairitenani:e and its quantum, her independent income is a relavant cC1nsideraticn. In support of this contentio.n, Counsel has ieferred to Mohd. A.Ii v. Mt. (1) 6 N.W.P. 20S.- A B c D E F G H A 8 c D E F G H BHAGWAN' DUTT v. KAMLA DEVI (Sarkaria, 1.) 487 Sakina Begum(I) Narasimha Ayyar v. Rangathayammaf(2); Poonnab,/am · v . .Saraswathi(3),' Ahmed Ali Saheb v. Sarfarajulinisa Begum (4) and P. T. Ramankutty Achan v. Kalyanikutty('). AB 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 in,t~ a~count either for determining her right to maintenance or for fixing its amount. It is further urged that the language ofs. 489 cannot be called in aid to construe s. 488 (1 ). Reliance for the main argument h!ls 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 cfaim 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 wif~ 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 effoct 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 un~er s. 488, Cr.P.C., is to claim just subsistence allowance which should merely provide bare food, residence and raiment and that a!so only if she has no other means· or source, then I must with respect, record my enphatic dissent." It may be noted that the above principle spelled out from the in· terpretation of s. 488(1) in Major· Joginder Singh's case (supra), . (1) A.I.R. 1944 Lah. 394. (3) A.I.R. 19S7 Mad. 693, CS) AJ.R. 1971 Kerala 22, (2). A.I.R. 1947 Mad. 204. (4) A.I.R. m2 Hyd. 76 (6) A.I.R. 1960 Pulliab 249. 488 SUPREME COURT REPORTS [1975] 2 S.C.JL was carried a step further by the Division Bench in Nanak Chand Ba11arsi Dass and ors. v. Chander Kishore and Ors.(l) 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 hc:r being entitled, on merits, to a particular amount of maintenance thereunder. This distinc:tion appears to have been overlooked in Major Jogi11der Sing/i's case (supra).. Proof of the preliminary condition att.ached 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 husband. The object of those provisions being to prevent vagrancy and destitution, the Magistrat1: 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 livin1g can be fairly det1:rmined, only if her separate income, also, is taken into account together with the earnings of the husband and his commit· men ts. 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 deterknation. 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 allowal).ce 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 fo take into consideration the separate i1icome and means of the wife. (!) A.J.R. 1969 Delhi 235. A B c D E F G H A B c D E F G H llHAGWAij DUTT v, TCAMLA DBVI (Sarkaria, !.) 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 · Sing/r'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 questfon, 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 primaJacie ap_pear to be against the language of the section because the condition· "unable to maintain itself" appearing therein attaches itself cinly 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 husbands. It is next contended on behalf of the appellant that s. 488 must be deemed to have lieen 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)ofs.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 issue : whether there is any thing in s. 488 which is inconsistent with s.23 or any other provi· sions of the Act. This matter is no longer res integra. In Nanak Chandv. Shri Chandra Kishore Agarwala and Ors.(1) this Court held that there is no inconsistency between Act 78of1956 ands. 488, Criminal Procedure (I) [.19701 1 S.C.R. 565, 490 SUPREME COURT REPORTS [1975) 2 s.c.R. Code. Both bould 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 s1lid and it needs to be said again, thats. 488 is intended t<1 serve a social purpose. It provides a machinery for summary enforce·· ment of the moral obligations ofa man towards his wife and childre11 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 provi· sions of the Act relating tG fixation of the rate of allowance, provide fo1r the enforcement of the rights of Hindu wives ot dependents under thei1r personal law. This contention therefor1: is meritless and we negativi: the same. For the reasons afores&id,. we allow the appeal, set aside the judg· ment of the High Court and send the case back to the trial Magistrat1: to refix the amounts of maintenance. In the case of the wife, he shall together with other relevant circumstances, take into account her incom1l also. In the case of the d~ughtcr, he shall afford opportunity to th1' parties to leacHresh evidenc:e an1d then refix her allowance. V.P.S. Appeal allowerl. A B c D