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Allahabad High Court · body

1967 DIGILAW 332 (ALL)

Babu Lal v. Ram Rati

1967-09-12

GANGESHWAR PRASAD

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ORDER Gangeshwar Prasad, J. - This application in revision has been filed by one Babu Lal who was ordered by the City Magistrate Allahabad in a proceeding u/s 488 Code of Criminal Procedure to pay Rs. 40/- per month as maintenance allowance to his wife Smt. Ram Rati and whose revision application against the said order filed in the court of Session was rejected by the IInd. Additional Sessions Judge Allahabad. 2. The only contention raised in this Court by the Learned Counsel for the Applicant was that in view of Clause (b) of Section 4 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter called the Act) no proceeding could be taken against the Applicant u/s 488 Code of Criminal Procedure. The Learned Counsel was faced with the decision of a learned single Judge of this Court in Ram Singh v. State and Anr. AIR 1963 Allahabad 355 which is clearly opposed to his contention, but he submitted that the view taken by the learned Judge in the above case is not correct. 3. Clause (b) of Section 4 of the Act says that save as otherwise expressly provided in the Act, any other law in force immediately before the commencement of the Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in the Act. The question, therefore, is whether Section 488 Code of Criminal Procedure is inconsistent with Section 18 of the Act which dealt with the right of a Hindu wife to be maintained by her husband. 4. A comparison of the two aforesaid provisions shows that although they overlap each other to a certain extent there is no element of inconsistency between them. In some cases it may be open to a wife to have recourse to either of the said provisions for receiving maintenance from her husband but that does not bring the provisions into any conflict and only makes them equally applicable in certain situations. The position really is that Section 488 Code of Criminal Procedure which provides for a cheaper and a more expeditious remedy is limited in its scope both in respect of the liability imposed upon the husband to maintain his wife and the quantum of maintenance which may be made payable by him. The position really is that Section 488 Code of Criminal Procedure which provides for a cheaper and a more expeditious remedy is limited in its scope both in respect of the liability imposed upon the husband to maintain his wife and the quantum of maintenance which may be made payable by him. It would be seen that Section 488 Code of Criminal Procedure enables a wife to claim maintenance only when the husband refuses or neglects to maintain her inspite of having sufficient means to do so whereas Section 18 of the Act does not mate the right of the wife to maintenance dependent upon the sufficiency of the means of the husband. The obligations imposed by Section 18 of the Act arises out of the mere fact of relationship irrespective of possession of sufficient means for discharging it. Under the Act the means of the husband would certainly be a relevant factor in determining the amount of maintenance, but the absence of sufficient means would not relieve him from the liability of maintaining his wife. It would also be seen that the maximum allowance which a husband may be directed to pay to the wife u/s 488 Code of Criminal Procedure is only Rs. 500/- per month, where as there is no such limit provided by the Act. The right conferred by Section 488 Code of Criminal Procedure is, therefore, a comparatively restricted right inasmuch as it is enforceable only under certain conditions and within a certain pecuniary limit and it is in no manner inconsistent with the larger and the ampler right enforceable in the civil court under the Act. It was urged by the Learned Counsel for the Applicant that a judgment of the civil court with regard to the liability or the quantum of maintenance under the provisions of the Act may quite frequently be contrary or opposed to an order passed u/s 488 Code of Criminal Procedure and this possibility of an inconsistency between a judgment of the civil court in accordance with the Act and an order u/s 488 Code of Criminal Procedure makes the provisions of Section 488 Code of Criminal Procedure inconsistent with the Act. The argument is plainly unsustainable, and apart from anything else, Section 489(2) Code of Criminal Procedure is quite sufficient to demonstrate its incorrectness. The argument is plainly unsustainable, and apart from anything else, Section 489(2) Code of Criminal Procedure is quite sufficient to demonstrate its incorrectness. Section 489(2) Code of Criminal Procedure, lays down that where it appears to the Magistrate that, in consequence of any decision of a competent civil court, any order made u/s 488 Code of Criminal Procedure should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. This provision removes in unmistakable terms the possibility of any conflict between an order passed u/s 488 Code of Criminal Procedure and a judgment of the civil court in accordance with the provisions of the Act. The result is that not only is there no inconsistency between Section 488 Code of Criminal Procedure and the Act but there can also be no inconsistency between the results respectively following from a recourse to proceedings for maintenance u/s 488 Code of Criminal Procedure and under the Act. 5. For the reasons stated above I am in respectful agreement with the view expressed in Ram Singh v. State and Ors. (supra) and hold that Section 4 of the Act does not make Section 488 Code of Criminal Procedure inapplicable to a Hindu wife and it does not preclude a proceeding for maintenance instituted under it by her against her husband. The proceeding taken by the Magistrate was, therefore, competent and the order passed by him cannot be interfered with. 6. The revision application is dismissed.