Bindeshwari Rai v. Phulbasi — 1970 DIGILAW 12 (ALL)

JUDGMENT D.D. Seth, J. - This reference has been made by the learned Sessions Judge of Ballia and arises out of proceedings under Section 488 Criminal Procedure Code. 2. The facts of the case are that Smt. Phoolbasi filed an application before the learned SDM, Ballia under Section 488 of the Criminal Procedure Code against her husband, Mangala Rai, claiming maintenance at the rate of Rs. 200/- per month for herself and her two minor children, Smt. Phoolbasi alleged that she was the wedded wife of Mangla Rai and that two children had been born to her from Mangala Rai. She further alleged that for some time after her marriage she lived with her husband peacefully but the members of the family of her husband were able to wield sufficient influence upon Mangala Rai with the result that he turned her out of the house and thereafter she has been living with her parents. She further alleged that her husband Mangala Rai, refused to maintain her or her children and hence the application under Section 488 Criminal Procedure Code. 3. Smt. Phoolbasi's application was contested by Mangala Rai who pleaded that she had left the husband's house of her own accord and that she had been living with a paramour. Mangala Rai also pleaded his inability to maintain Smt. Phoolbasi. According to Mangala Rai he was a member of the joint Hindu family and his father was the karta of the family and he himself had no income of his own. 4. The trial court held that the husband had failed to prove that Smt. Phoolbasi was immoral and that the last issue of Smt. Phoolbasi was born in the house of Mangala Rai. The trial Magistrate however, dismissed the application of Smt. Phoolbasi on the ground that Mangala Rai belonged to a joint family and had no income of his own. Against the order of the trial Magistrate Smt. Phoolbasi preferred a revision and the learned Sessions Judge of Ballia made a reference to this Court recommending that the order passed by the learned Magistrate be quashed. The learned Sessions Judge also held that it had not been proved that Smt. Phoolbasi was immoral and further held that Mangala Rai had sufficient means to pay maintenance allowance to her because he had his share in the income of the joint family property. The learned Sessions Judge also held that it had not been proved that Smt. Phoolbasi was immoral and further held that Mangala Rai had sufficient means to pay maintenance allowance to her because he had his share in the income of the joint family property. The learned Sessions Judge also held that Mangala Rai, being an able bodied person, would be deemed, in the eye of law, to be capable of maintaining his wife and children. This Court on 12.5.1965, on the reference made by the learned Sessions Judge, Ballia, passed the following order:- "For the reasons stated in the order of the Sessions Judge dated 17.10.1963, the reference is accepted, and the order of the Magistrate dated 1.4.1963 is quashed. The case shall now go back to the SDM Ballia who would assess the maintenance allowance of Smt. Phoolbasi. The parties shall be entitled to file documentary evidence in support of their respective contentions about the extent of the land possessed by the joint family." Accordingly, the file of the case was sent back to the learned Magistrate and after several adjournments the case was fixed for hearing on 16.6.1966 when an affidavit was filed by one Hari Bans Rai informing the Magistrate that Mangala Rai had died on 1.4.1966. On the same day one Shambhu Narain Rai filed an application praying to the Magistrate to drop the proceedings under Section 488 Criminal Procedure Code. On 17.6.1966 the learned Magistrate held that Smt. Phoolbasi and her children were entitled to a maintenance of Rs. 60/- per month which was to be recovered from the joint family property. 5. Against the order of the learned Magistrate Bindeshwari Rai, father of Mangala Rai, filed a revision out of which this reference has arisen. The learned Sessions Judge, Ballia, by his order dated 5.5.1967, has recommended to this Court that the order passed by the learned Magistrate be partly quashed and it may be ordered that Smt. Phoolbasi is entitled to receive maintenance at the rate fixed by the learned Magistrate for the period commencing from 5.3.1962, on which date she filed the application under Section 488, Criminal Procedure Code, till 1.4.1966, on which date her husband Mangala Rai died from the estate of the deceased in the hands of the members of his family. 6. 6. I have heard Sri N.N. Singh, learned counsel in support of the reference and Sri B.S. Darbari, learned counsel appearing for Smt. Phoolbasi and Sri V.P. Goel, the learned brief holder for the State. Sri N.N. Singh has made only one submission that the order of the learned Magistrate that the maintenance payable to Smt. Phoolbasi shall be recovered from the family property cannot be sustained as the right to recover maintenance terminated with the death of Mangala Rai from whom maintenance had been claimed by Smt. Phoolbasi. 7. Sub Section (1) of Section 488 is relevant in this connection and reads 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 DM, a Presidency Magistrate, a SDM 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." 8. The liability to pay maintenance under the provisions of Section 488 Criminal Procedure Code is that of a 'a person'. Hindu joint family or the property belonging to such a family cannot be called 'a person' within the meaning of Section 488(1) Criminal Procedure Code and hence the order of the learned Magistrate that the maintenance allowance payable to Smt. Phoolbasi shall be recoverable from the family property even after the death of Mangala Rai was not a correct order. Such an order, after the death of the person against whom the order was passed, against his estate is not enforceable as the right to recover maintenance terminated with the death of the person from whom it was claimed. Section 488, Criminal Procedure Code, gives a statutory right to a woman to claim maintenance from her husband if he has sufficient means and if he neglects or refuses to maintain his wife or his legitimate or illegitimate child. The right to claim maintenance against joint family property under Section 488 Criminal Procedure Code is not enforceable. It may be enforceable under the personal law of the woman for which she has to file a civil suit. The right to claim maintenance against joint family property under Section 488 Criminal Procedure Code is not enforceable. It may be enforceable under the personal law of the woman for which she has to file a civil suit. The learned Sessions Judge, therefore, was correct in referring the case to this Court and recommending that this Court may partly quash the order of the learned Magistrate dated 17.6.1966 and that an order may be passed that Smt. Phoolbasi may realise the amount of the maintenance at the rate fixed by the lerned Magistrate only for the period commencing from 5.3.1962 to 1.4.1966 which was the date of death of Mangala Rai from the estate of the deceased in the hands of his father. 9. After hearing the learned counsel for the parties and for the reasons mentioned above I accept this reference and partly quash the order of the learned SDM, Ballia, dated 17.6.1966 and further direct that Smt. Phoolbasi can realise the maintenance at the rate fixed by the learned Magistrate only for the period commencing from 5.3.1962, which was the date of her application under Section 488 Criminal Procedure Code, till 1.4.1966, which was the date of the death of her husband Mangala Rai, from the estate of the deceased in the hands of his father.