G. Maraiah v. G. Vijayalakshmi and another — 1979 DIGILAW 134 (MAD)

Order.- These two revisions are being disposed of by this common judgment as the questions involved in them are similar. 2. Crl.R.C. No. 349 of 1978 has been filed by the husband-who was the respondent in M.C. No. 8 of 1977 on the file of the Second Additional Judicial First Class Magistrate, Guntur-against the order granting maintenance in favour of the wife. The husband has confined his revision only so far as the maintenance to the wife is concerned and has not filed any revision against the order granting maintenance in favour of the child. 3. The Crl.R.C. No. 16 of 1979 has been filed by both wife and child against the husband and father for enhancement of the maintenance granted by the trial Court. The trial Court granted Rs. 60 per month as maintenance to the wife and Rs. 40 as maintenance to the child. Both the wife and child were petitioners in M.C. No. 8 of 1977. 4. The case of the wife is that she was married to her husband on 2nd July, 1975 and lived with him till 24th July, 1975 at Hyderabad. She returned to Guntur on 8th August, 1975 and when she came back to Hyderabad she was driven out by her husband on 24th November, 1975, and since then she is living with her parents and that her husband is not maintaining her. During the said period when she lived with her husband she conceived and a child was born to her The child is petitioner No. 2. She, therefore, claimed maintenance not only for herself but also for the child. The plea of the husband was that the wife was able to maintain herself as she was working as a Typist in the Veternary Department at Guntur and drawing a salary of Rs. 459 per month. He denied the allegation that he drove away his wife. He stated that with out seeking his permission the wife went away to Guntur for attending an interview and never came back since she was appointed as a Typist at Guntur. The petitioners, i.e., wife and child, examined two witnesses vis., P.W. 1, wife herself, and P.W. 2 her father. On behalf of (he husband no evidence is produced. He stated that with out seeking his permission the wife went away to Guntur for attending an interview and never came back since she was appointed as a Typist at Guntur. The petitioners, i.e., wife and child, examined two witnesses vis., P.W. 1, wife herself, and P.W. 2 her father. On behalf of (he husband no evidence is produced. It appears that the husband filed an application stating that he would like to be examined on commission as he was afraid of his life if he goes to Guntur. That application was dismissed. The trial Court disposed of the matter after hearing the learned Advocates for the parties. It came to the conclusion that there was neglect on the part of the husband to maintain the wife as also the child and having regard to the income of the husband who is also working as a Typist fixed the maintenance at Rs. 60 and Rs. 40 for the wife and child respectively. 5. In this revision by the husband, viz., Crl.R.C. No. 349 of 1978, Mr.K.F. Baba, the learned Advocate, contends that having regard to the provisions of section 125 of the Code of Criminal Procedure, 1973, the order of maintenance could be passed in favour of the wife and child if they are unable to maintain themselves. If there is enough evidence or admission to show that the wife or the child is having sufficient in-come of their own then the order of maintenance cannot be granted. Mr. Baba reinforced his contention by citing the rulings reported in P.T. Ramankutty v. Kalyanikutty1, and Bhagwan Dutt v. Kamla Devi2. He submits that both these rulings deal with section 488 of the old Code of Criminal Procedure wherein the words ‘unable to maintain herself were not to be found. Nevertheless, the Courts have observed that even under section 488 of the old Code, in fixing the quantum of maintenance the Courts would be permitted to take info consideration the income of the wife. Therefore, submits the learned Advocate that when the wife herself is getting the same amount of salary as that of her husband, viz., Rs. 459 per month, there is no reason why her petition should not have been dismissed by the trial Court. On the other hand, Mr.V. Rajagopal Reddy, the learned Advocate appearing for the wife and child, submits that the amount of Rs. 459 per month, there is no reason why her petition should not have been dismissed by the trial Court. On the other hand, Mr.V. Rajagopal Reddy, the learned Advocate appearing for the wife and child, submits that the amount of Rs. 459 in the present days of high cost of living is not enough for the wife to maintain herself and her child and, therefore, she" is entitled to the maintenance in spite of the fact that she is receiving her salary from the Veterinary Department as a Typist. 6. So far as the child is concerned, Mr. Rajagopal Reddy contends that the amount of Rs. 40 granted by the trial Court as maintenance for him is extremely low having regard to the station in life of the parties and also the cost of living in the present set up. 7. So far as the maintenance to the wife is concerned, I am of the opinion that the contention advanced by Mr.K.F. Baba has to be accepted. Section 125 of the Code of Criminal Procedure (relevant portion) is as follows: "125. (1) If any person having sufficient means neglects or refuses to maintain- (a) his wife, unable to maintain herself (We are not concerned with the rest of the section). A perusal of this section would show that if the wife is unable to maintain herself then only an order under section 125, Criminal Procedure Code, can be passed against the husband. The question that remains for consideration is what is the meaning of the words, ‘unable to maintain herself. This question was answered in P.T. Ramankutty v. Kalyanikutty1. The Courts interpreted these words to mean that where the income is not sufficient to keep the wife away from starvation. Justice Burn in Arunachala Asari v. Anandayammal3, has observed: "I cannot see that section 488, Criminal Procedure Code, has anything to do with ordinary conjugal rights; it deals with ‘maintenance’ only and I see no reason why maintenance should be supposed to include anything more than appropriate food, clothing and lodging.......... Justice Burn in Arunachala Asari v. Anandayammal3, has observed: "I cannot see that section 488, Criminal Procedure Code, has anything to do with ordinary conjugal rights; it deals with ‘maintenance’ only and I see no reason why maintenance should be supposed to include anything more than appropriate food, clothing and lodging.......... She cannot claim under section 488, Criminal Procedure Code, to be treated ‘as a wife’; she can only claim to be maintained on the scale appropriate to her station in life." In Bhagwan Dutt v. Kamla Devi1, it was observed: "........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 living can be fairly determined, only if her separate income, also is taken into account together with the earnings of the husband and his commitments." Therefore, it would only mean that the words unable to maintain herself would include only such expenses which are neither penurious nor luxurious, and which would meet her daily necessities and keep her away from starvation. Since the wife is earning an income of Rs. 459 per month, I do not sec how an order could be passed having regard to the words contained in section 125(1) (a) of the Code of Criminal Procedure, granting maintenance. 8. Therefore, the revision preferred against the wife is allowed and the order of maintenance passed by the trial Court in favour of the wife is set aside. 9. So far as the child is concerned, the case is completely different. Admittedly, the child is unable to maintain itself. At the same time, there is a. finding of the trial Court that there was neglect and refusal to maintain on the part of the father. Having given this finding the trial Court fixed the maintenance for the child at Rs. 40 per month, which, to my mind, is highly insufficient in view of the cost of living these days. In view of the fact that the father is earning an income of Rs. 459 per month as his salary and the fact that he has got his mother and two unmarried sisters to be maintained by him I deem it proper that the maintenance, that should be granted to the child should be Rs. In view of the fact that the father is earning an income of Rs. 459 per month as his salary and the fact that he has got his mother and two unmarried sisters to be maintained by him I deem it proper that the maintenance, that should be granted to the child should be Rs. 80 per month from the date of filing of the application. Therefore, Tr. Crl.R.C. No. 16 of 1979 is allowed in part i.e., only to the extent of the child fixing the maintenance at the rate of Rs. 80 per month from the date of the application; whereas it is dismissed in so far as it is concerned with the wife. So far as the award of costs by the lower Court is concerned, the same is hereby confirmed. 10. It is stated by Mr.K.F. Baba that since the High Court did not pass any order of stay, the wife had filed an execution petition and had recovered certain amount which may he deducted or adjusted towards the arrears of maintenance granted to the child. His request is acceded to. 11. In the result, Crl.R.C. No. 349 of 1978 is allowed and Tr.Crl.R.C. No. 16 of 1979 is partly allowed.