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1964 DIGILAW 271 (ALL)

Maya Ram v. Shrimati Sampatia

1964-08-27

SATISH CHANDRA

body1964
JUDGMENT Satish Chandra, J. - This revision arises out of proceedings under Section 488 of the Code of Criminal Procedure. 2. The learned Magistrate, being satisfied with the merits of the case of the wife, has fixed an allowance of Rs. 30/- per month. The learned Second Additional Sessions Judge affirmed the order and dismissed the husband's revisions. 3. The main grievance of the husband in this revision is that, while fixing the amount of maintenance, his earning capacity was not taken into consideration; the courts below have not recorded any finding as to the specific amount which the applicant earns. In the absence of such a finding no specific amount could be fixed as maintenance. In support he relied upon several decisions of this Court. 4. The learned Magistrate observed that the opposite-party has no separate cultivable landed property in his name but that there is an ancestral holding of about ten bighas and the husband is living with his father. He is also an able-bodied man. On these facts the magistrate fixed the allowance at Rs. 30/- per month, as the minimum amount necessary for the wife to maintain herself. The applicant relies upon the decision of this Court in Ram Singh v. State A.I.R. 1963 All. 355 where a Single Judge of this Court held that it is incumbent upon the Magistrate to find the income of the husband; merely because the husband had a joint holding with an unknown number of other persons would not be a correct index to deduce his means. It was held that the amount of maintenance cannot properly be fixed without finding out the income of the husband. It is worthy of notice that the attention of the learned Judge was not drawn to earlier decisions of this Court on the point. The earlier decisions are not in conformity with the view taken by the learned Judge. Under the circumstances, this decision cannot be treated as a binding precedent. 5. In Dhani Ram v. Mst. Ram Dei, A.I.R. 1955 All. 320 : 1954 A.L.J. 626 Asthana J., held that the word `means' under Section 488 Cr.P.C. includes earning capacity. His Lordship observed, when a man is healthy and able bodied, he must be taken to have the means to support his wife. 5. In Dhani Ram v. Mst. Ram Dei, A.I.R. 1955 All. 320 : 1954 A.L.J. 626 Asthana J., held that the word `means' under Section 488 Cr.P.C. includes earning capacity. His Lordship observed, when a man is healthy and able bodied, he must be taken to have the means to support his wife. The trend of this judgment is that it is not necessary to find out the exact current income of the husband in order to fix the maintenance allowance. In Abdul Shakur v. Smt. Kulsum Bibi A.I.R. 1955 All. N.U.C. 2706 another Single Judge of this Court held that, where it was found that the husband had at least taken two wives after divorcing the applicant and besides the trial court as well as the first revisional court had come to the conclusion that the husband was a man of means, the High Court will not enter into the question of amount of maintenance fixed by the trial court. In other words, this decision holds that it is not necessary that, before maintenance allowance could be fixed, the exact income earned by the husband should be ascertained else the decision would be termed as arbitrary. 6. Learned counsel for the applicant has also relied upon the case of Ramji Malviya v. Smt. Munni Devi Malviya A.I.R. 1959 All. 767. I have perused the authority. It has no bearing on the quantum of maintenance. In Smt. Chameli v. Gajraj Bahadur A.I.R. 1954 All. 33=1953 A.L.J. 485 the dictum is that the Court should consider the paying capacity and means of the husband. There is no quarrel with the proposition so far as it goes. The word `means' in Section 488 of the Code of Criminal Procedure does not signify only the visible means, such as current income gained from a definite employment or real property. If a man is healthy and able bodied, he must be deemed to have the means to support his wife unless he proves that, owning to ill health or accident or disease he is disabled to effectively use his earning capacity. 7. In the present case it has been found that the wife was turned out of the house without sufficient cause and that the husband has taken another woman as his wife. He is able-bodied and has some source of income namely, a share in an ancestral holding of about 10 bighas. 7. In the present case it has been found that the wife was turned out of the house without sufficient cause and that the husband has taken another woman as his wife. He is able-bodied and has some source of income namely, a share in an ancestral holding of about 10 bighas. These facts, in my opinion, were sufficient to enable the Court to come to the conclusion that Rs. 30/- per month was the proper amount for maintenance. 8. In the result the revision fails and is dismissed.