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1999 DIGILAW 343 (ALL)

SAFIQ MOHAMMAD v. STATE OF U P

1999-03-17

B.K.SHARMA

body1999
B. K. SHARMA, J. This is a revision against the order dated 2- 9-1996 passed by Sri V. P. Gaur, Judge Family Court, Bareil ly, in Misc. Case No. 60 of 1996 Km, Suman Bi & Ors. v. Safiq Mohd, whereby he en hanced the maintenance allowance of Km. Suma Bi, Hafiz Mohd. and Mohd. Riya/. each from Rs. 150per month to Rs. 225 per month from the date of the order under Section 125,cr. P. C. 2. Heard the learned Counsel for the revisionist and the learned A. G. A. 3. The only contention raised by the learned Counsel for the revisionist is that under Section 125 (1), Cr. P. C. the Magistrate cannot award more than Rs. 500 in all for all the persons entitled to claim maintenance under this provision, taken together. This contention has been opposed by the learned A. G. A. who claims that there was nothing illegal in the order passed by the learned Magistrate. 4. The law on the subject is well set tled. There are a number of authorities on the subject. Relating to the old Criminal Procedure Code in the case of This Das v. Smi. Samju Dei Devi & Ors. , AIR 1933 Calcutta, 406. In this case, a Division Bench of the Calcutta High Court held; "the words "in the whole" in Sec. 488, Criminal PC. , do not mean that Rs. 100 is the maximum limit for all the dependents together hut means for all kinds of maintenance for each dependent. They are intended to prevent the Court from exceeding the statutory limit in the case of any particular dependent and are not intended to restrict the powers of the Court to ordering a monthly allowance of Rs. 100 in resp ect of he maintenance of all the dependents. " 5. Then a similar view was taken by a Division Bench authority of Madras High Court M. Bulteen v. R. C. Bulteen, AIR 1938 Madras 721. Then there was a Full Bench authority of the Bombay High Court, Prabhavati v. Sumatilal, AIR 1954 Bom bay 546. In this authority, it was said by the Full Bench. " 5. Then a similar view was taken by a Division Bench authority of Madras High Court M. Bulteen v. R. C. Bulteen, AIR 1938 Madras 721. Then there was a Full Bench authority of the Bombay High Court, Prabhavati v. Sumatilal, AIR 1954 Bom bay 546. In this authority, it was said by the Full Bench. "the suggestion that the juris diction of Magistrate is limited to allowing the one hundred rupees in respect of main tenance of the wife and the children jointly is, in our opinion, an impossible construc tion once it is accepted that the right of the wife and of each child is an independent right. Such a construction would lead to extremely anomalous results. If, for in stance, a wife applies for maintenance for herself and for her children and the Magistrate allows a maintenance of one hundred rupees, and if thereafter an il legitimate child were to come forward and to make an application for maintenance, the Magistrate having allowed an al lowance to her up to the maximum of his jurisdiction would be prevented from making any order in favour of the il legitimate child. Or, a man may have more than one wife and he may have children by each one of the wives. If the suggestion is that maintenance can be allowed in a com pendious application to be made and such maintenance cannot exceed one hundred rupees for all the persons applying for maintenance, then in a conceivable case a wife or a child may be deprived of main tenance altogether under the section. 6. The intention of the legislature was clear, and the intention was to cast as obligation upon a person who neglects or refuses to maintain his wife or children to carry out his obligation towards his wife or children. The obligation is separate and independent in relation to each one of the persons whom he is bound in law to maintain. It is futile to suggest that in using the expression "in the whole" the Legislature was limiting the jurisdiction of the Magistrate to passing an order in respect of all the persons whom he is bound to maintain allowing them maintenance not exceeding a sum of one hundred rupees". 7. All these authorities were in respect of the provision of Section 488, Cr. 7. All these authorities were in respect of the provision of Section 488, Cr. P. C. 1898 whose provisions were similar to the 125 of the new Cr. P. C. with the dif ference that the amount mentioned there in was Rs. 100. 8. There is a direct authority of the Apex Court about the provisions of sec tion 125, Cr. P. C. (Act 2 of 1974) itself Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal & Ors. , AIR 1978 SC 1807 . In this authority, the apex Court quoted with approval the above noted two pas sages from the Full Bench authority of Prabhavati v. Sumatilal, and also the authority of the Calcutta High Court Mohd. Basir v. Noor Jahan Begum, 1971 Cr LJ 547, (Cal) and concconcluded that the "decide a case have made a psychological approach to conclude that each claimant for maintenance, be he or she wife, child, father or mother, is independently entitled to maintenance up to a maximum of Rs. 500. Indeed, an opposite conclusion may lead to absurdities. If a woman has a dozen children and if the man neglects the whole lot and, in his addiction to a fresh mistress, neglects even his parents and all these members of the family seek maintenance in one petition against the delinquent respondent, can it be that the Court cannot award more than Rs. 500 for all of them together, on the other hand if each filed a separate petition there would be a maxi mum of Rs. 500 each awarded by the Court. We cannot, therefore, agree to this ob vious jurisdictional inequity by reading a limitation of Rs. 500 although what the section plainly means is that the Court cannot grant more than Rs. 500 for each one of the claimants. in the whole in the context means taking all the items of main tenance together, not all the members of the family put together. Tb our mind, this interpretation accords with social justice and semantics and, more than all, is ob vious". 9. The argument of the learned Counsel for revisionist has thus no force and is rejected. 10. No other point has been argued nor could possibly be argued when the quantum of even the enhanced main tenance amount was too meagre to sup port the minors adequately. 11. For the reasons above said, the revision is dismissed. 12. 9. The argument of the learned Counsel for revisionist has thus no force and is rejected. 10. No other point has been argued nor could possibly be argued when the quantum of even the enhanced main tenance amount was too meagre to sup port the minors adequately. 11. For the reasons above said, the revision is dismissed. 12. Let a copy of this judgment be certified to the Judge Family Court, Bareily for information within a week from today. Revision dismissed. .