Babu Ram v. State of UP — 1970 DIGILAW 366 (ALL)

ORDER 1. This is a revision application by Babu Ram to challenge the order dated 21-9-1968 of the Magistrate First Class, Etawah, allowing the application of Smt. Parwati and directing that a maintenance allowance of Rs. 40/- per month shall be paid to her by her husband, Babu Ram, from the date the application was made. 2. The material facts of the case are that Smt. Parwati, the wife of Babu Ram, started living separate from her husband from before the year 1965, when she moved an application u/s 488 Code of Criminal Procedure claiming maintenance allowance from her husband on the ground of cruelty and also on account of her husband having married another woman during her life-time. This application was dismissed by the Magistrate on 20-8-1965. In 1967 Babu Ram moved an application before the District Judge, Etawah, claiming judicial separation from his wife, Smt. Parwati, on the ground that she was unfaithful to him and was living separate from him for more than two years. This was a proceeding under the Hindu Marriage Act. Smt. Parwati contested the proceeding and again raised the two grounds she had raised in support of her application u/s 488 Code of Criminal Procedure. Both these pleas were accepted by the District Judge and the application preferred by Babu Ram for judicial separation was dismissed. 3. On 27-4-1968 Smt. Parwati moved a fresh application u/s 488 Code of Criminal Procedure claiming maintenance allowance from her husband on the ground that her allegations had been accepted by the Civil Court in the above proceeding instituted by Babu Ram for judicial separation. The Magistrate then recorded the evidence of both the parties and acting on the finding of the Civil Court accepted the version of Smt. Parwati. The Magistrate was also of opinion that in view of Section 489(2) Code of Criminal Procedure, he could take into consideration the finding recorded by the Civil Court and grant maintenance to Smt. Parwati even though his predecessor had rejected the earlier application of Smt. Parwati for the grant of maintenance allowance. The Magistrate thus allowed the application of Smt. Parwati and directed Babu Ram to pay heir a maintenance allowance of Rs. 40/- per month from the date of the application. 4. The Magistrate thus allowed the application of Smt. Parwati and directed Babu Ram to pay heir a maintenance allowance of Rs. 40/- per month from the date of the application. 4. Babu Ram challenged the order of the Magistrate before the Sessions Judge and after the revision was dismissed, he moved the present revision application before the High Court. 5. The Criminal Revision came up for hearing before a Single Judge, who referred it for decision to a Division Bench. The Criminal Revision then came up for hearing before Brothers Khare and Sinha, JJ. They, however, differed in their opinion and the Criminal Revision has now been referred to me for expressing my opinion on the points of difference. 6. Brother Khare, J. was of opinion that the Magistrate had the jurisdiction to entertain the second application of Smt. Parwati and grant her maintenance allowance even though refused at the earlier occasion. Brother Sinha, J. however, was of opinion that the jurisdiction of the Magistrate u/s 489(2) Code of Criminal Procedure was limited by its provisions and it was not possible for the Magistrate to substitute an order rejecting the application u/s 488 Code of Criminal Procedure by directing the husband to pay maintenance allowance to his wife. Both the learned Brothers are thus in disagreement on the scope of Section 489(2) Code of Criminal Procedure. 7. The allied question whether a second application u/s 488 Code of Criminal Procedure by the wife for the grant of maintenance allowance is or is not maintainable can be said to be beyond controversy. Where an ex parte order has been passed, or the application u/s 488 Code of Criminal Procedure is dismissed in default, the matter can be re-opened at the instance of the aggrieved party as there is no adjudication on the merits of the application; but where the application u/s 488 Code of Criminal Procedure has been decided on merits, no second application under this section shall be maintainable on the same cause of action. While entertaining the second application u/s 488 Code of Criminal Procedure the Magistrate shall have to look primarily into the facts coming into existence since after the passing of the order on the first application u/s 488 Code of Criminal Procedure. While entertaining the second application u/s 488 Code of Criminal Procedure the Magistrate shall have to look primarily into the facts coming into existence since after the passing of the order on the first application u/s 488 Code of Criminal Procedure. Any fact existing upto the decision of first application may be treated as past history which can be read along with the subsequent events, but cannot be the basis of an order. In the instant case, the application u/s 488 of Smt. Parwati was dismissed on merits. The Civil Court recorded a finding on the two material questions on the basis of facts as were in existence before the decision of and which had been raised in, the application u/s 488. Consequently, no second application u/s 488 based on the same facts shall be maintainable, though it shall be open to the Magistrate to act u/s 489 Code of Criminal Procedure provided that he has the jurisdiction to entertain the; application and to alter an order passed on the earlier application u/s 488. 8. This takes us to the consideration of the scope of Section 489 Code of Criminal Procedure. Under Sub-section (1) of Section 489 the Magistrate can alter the maintenance allowance already granted to the wife and children. The alteration can be by increasing or decreasing the maintenance allowance provided that the total maintenance allowance does not exceed the limit of Rs. 500/-prescribed in Section 488 (1). 9. This sub-section cannot empower the Magistrate to allow maintenance allowance once the application u/s 488 Code of Criminal Procedure was dismissed on merits. It is the scope of Sub-section (2) which can be and is a matter in controversy. Sub-section (2) of Section 489 Code of Criminal Procedure runs as below: Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made u/s 488 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. 10. Brother Sinha, J. has referred to the marginal note, namely, "Alteration in allowance" and therefore, opined that u/s 489 the Magistrate could vary his earlier order by reducing or increasing the maintenance allowance and not by passing an order directing the husband to pay maintenance allowance to the wife when at the earlier occasion such an application had been rejected. Brother Sinha, J. has referred to the marginal note, namely, "Alteration in allowance" and therefore, opined that u/s 489 the Magistrate could vary his earlier order by reducing or increasing the maintenance allowance and not by passing an order directing the husband to pay maintenance allowance to the wife when at the earlier occasion such an application had been rejected. It is a settled law that the marginal note cannot restrict the scope of the section. If it be found that the section has been worded generally and covers even those cases not included in the marginal note, the provision shall be given a wider meaning. The marginal note can be utilised in interpreting the section, but not for placing restrictions on the wider scope thereof. I am, therefore of opinion, that much importance cannot be attached to the fact that the marginal note to Section 489 is "Alteration in allowance." 11. Another well settled rule of interpretation is that where the provisions of an enactment are not clear and unambiguous and are capable of more than one interpretation, the Courts of law must take that view which would further the intention of the legislature. 12. The intention of the legislature is evident from the provisions of Section 488 Code of Criminal Procedure. This section enables the wife and children to apply to the Magistrate for the grant of maintenance allowance on the husband or father, as the case may be, neglecting or refusing to maintain them. The remedy provided by Section 488 is a summary one and any finding recorded by the Magistrate, or order passed by him, can be challenged before the Civil Court. The summary remedy was provided to enable the wife and children to survive if not maintained by the husband or father. Decision of civil suits takes a long time and if Section 488 did not exist, the wife and the children may starve to death before their rights are upheld by the Courts of law. 13. The intention of the legislature was evidently to afford a quick relief to the wife and children and further the provisions contained in Ch. XXXVI are for the benefit of the wife and the children than of the husband, the husband merely having the right to resist the claim of the wife and the children. 13. The intention of the legislature was evidently to afford a quick relief to the wife and children and further the provisions contained in Ch. XXXVI are for the benefit of the wife and the children than of the husband, the husband merely having the right to resist the claim of the wife and the children. He can also have the order granting maintenance allowance to the wife cancelled in case it be found that she is living in adultery, or without sufficient cause refuses to live with the husband. The order can also be cancelled on the Civil Court adjudicating upon the disputes between the husband and the wife and recording a finding against the wife which would not justify her to live separate from her husband or to be granted maintenance allowance. 14. Under Sub-section (2) of Section 489 Code of Criminal Procedure the Magistrate can, in consequence of any decision of a competent Civil Court, pass two kinds of orders: either to cancel the order already passed, or to vary it. Cancellation generally implies withdrawal of any benefit given to the party. Consequently, an order which can be cancelled under the sub-section is the order granting maintenance allowance to the wife. There can be no question of cancelling an order rejecting or dismissing an application for the grant of maintenance allowance to the wife. Controversy, however, exists with regard to the scope of the expression "vary the order" made u/s 488. Does the variation include substitution of an order of rejection by an order granting maintenance allowance to the wife? 15. The words "as the case maybe" used in the sub-section suggest that variation of the order can include benefit to the wife, that is, to grant her maintenance allowance even though her original prayer had been rejected. In case such was not the intention of the legislature, the above words would not have been used and the subsequent part of Sub-section (2) of Section 489 would have been: He shall cancel the order or vary the same or "He shall order accordingly." Words used in an enactment are not to be assumed to be superfluous. The Courts of law must try to give due meaning to the words alleged to be superfluous: they can disregard the words only if they lead to some ambiguity or absurdity. The Courts of law must try to give due meaning to the words alleged to be superfluous: they can disregard the words only if they lead to some ambiguity or absurdity. In the circumstances, the words "as the case may be" must be regarded as an integral part of the sub-section and must be given a proper meaning in the context in which expression has been used. 16. The expression "as the case may be" is generally used at the end and rarely in the beginning, but never in between. Where the benefit of the order is to go to one person or the other, or, in certain circumstances, an application can be made by on a person and in others by another, it is often said that the benefit shall accrue to A or B, as the case may be; or the application can be made by A or B, as the case may be. It is rarely that these words precede the words A or B. Where the expression "as the case may be" is incorporated in between, it can be assumed that the legislature had a different intention. Further, if the expression was not to cover the grant of relief to the wife, it would not have been necessary to use the word "accordingly" at the end of the sub-section. 17. On interpretation of Sub-section (2) of Section 489 Code of Criminal Procedure, in the light of the intention of the legislature, which is self evident from the provisions of Section 488, I am of the opinion that the sub-section empowers the Magistrate to vary the order to the benefit of the wife as much as it can be varied to the benefit of the husband. Where the Civil Court has passed a decree for maintenance allowance in favour of the wife, that decree by itself is capable of execution and ordinarily there would be no prayer u/s 489(2) for varying the Magistrate's order granting or refusing to grant maintenance allowance to the wife. Such a prayer may be made only when it shall be easier to recover the amount with the help of the Magistrate than by seeking execution of the decree before the Civil Court. Such a prayer may be made only when it shall be easier to recover the amount with the help of the Magistrate than by seeking execution of the decree before the Civil Court. Similarly, where the allegations made by the wife against the husband are not accepted by the Magistrate, but are upheld by the Civil Court, it shall be, to her advantage, if she can avail of the quick remedy under Ch. XXXVI of the Code of Criminal Procedure. As no second application u/s 488 Code of Criminal Procedure is maintainable, she can benefit only if the Magistrate can vary the order in her favour u/s 489(2) Code of Criminal Procedure. In other words, the intention of the legislature can be given effect to only if it be held that the Magistrate can, u/s 489(2) Code of Criminal Procedure, vary the order made u/s 488 Code of Criminal Procedure by substituting an order granting maintenance allowance to her in place of the order rejecting her application for maintenance allowance. 18. To sum up, Section 489(2) has not been happily worded and it is capable of more than one interpretation. The courts of law must, therefore, adopt that view which shall give effect to the intention of the legislature, that is, to afford a quick relief to the wife and children claiming maintenance allowance on grounds of Cruelty etc. The wording of Sub-section (2) bf Section 489 Code of Criminal Procedure also suggests that the benefit thereof, i.e., varying the order passed on the application u/s 488 Code of Criminal Procedure, can be availed of not only by the husband (or father) but also by the wife (or children). Hence, in consequence of the decision of a competent Civil Court, the wife (or children) can apply u/s 489(2) Code of Criminal Procedure for varying the order passed on the earlier application u/s 488 Code of Criminal Procedure and the Magistrate can, if necessary, direct the husband (or father) to pay a specified sum to his wife (or children) as maintenance allowance, even though at the earlier stage he had rejected the application u/s 488 Code of Criminal Procedure. However, whatever order the Magistrate passes Under Sub-section (2) of Section 489 Code of Criminal Procedure must be in consequence of the decision of the Civil Court and he cannot, oh his own, reopen the matter by treating the application as a fresh application u/s 488 Code of Criminal Procedure. If the decision of the Civil Court does not establish the pleas raised in the original application u/s 488 Code of Criminal Procedure, it shall not be open to the Magistrate to re-consider the matter and after recording a different finding to grant maintenance allowance to the wife (or children). What the Magistrate shall have to safeguard is that the original order is cancelled or varied only to the extent necessary as a consequence of the decision of the Civil Court, i.e. adjudication of the disputes by such court. 19. In the instant case, Smt. Parwati had moved the application purporting to be u/s 488 Code of Criminal Procedure, but it could be treated as an application u/s 489(2) Code of Criminal Procedure. The Civil Court had recorded a finding in her favour and had accepted the pleas of cruelty and second marriage raised by her not only in the suit but also in her original application u/s 488 Code of Criminal Procedure. In consequence of these findings the order u/s 488 already made had to be varied and when the Magistrate varied the order by directing the husband, Babu Ram, to pay maintenance allowance to his wife, Smt. Parwati, the order cannot be said to be without jurisdiction, nor is it against the law. I am, therefore, of opinion that the Criminal Revision be dismissed. 20. The papers along with my opinion shall now be laid before the Bench concerned for passing final orders.