It should not be forgotten that Under Section 401, Cr.P.C. a revisional Court can make any amendment or any consequential or incidental order that may be just or proper. In this connection provisions of Sections 401(1) and 386(e) " can be referred to. Provisions of Section 125. Cr.P.C. have been engrafted in Criminal Procedure Code for preventing destitution or vagrancy and providing succour to starving persons. Frequent remand of cases Under Section 125, Cr.P.C. or revisions arising them from defeat the very purpose of this Section. Since the evidence in the case relating to the means of the husband, is not voluminous this Court thinks proper to go through the evidence and point out the means of the husband.
IN THE HIGH COURT OF ALLAHABAD
Crl. Revision No. 1831 of 1990
Decided On: 08.04.1991
Chandrapal Vs. Harpyari and Ors.
Hon'ble Judges/Coram:
S. C. Ram Saran Bhargava, J.
Citation: 1991 Cri L J 2847 (All), MANU/UP/0287/1991.
1. This revision, arising from proceedings under •Section 125, CrP.C. is being disposed of finally at admission stage after notice to opposite parties.
2. Revisionist Chandrapal and Opposite Party No. 1 Smt. Harpyari are husband and wife Wife filed application Under Section 125, Cr.P.C. against the husband claiming maintenance of Rs. 500/- per month with the allegations of second marriage of the husband; of cruelty; and desertion and neglect. She asserted that the husband has been pradhan of the village. He has cultivable land, and business of grain, in all having income of Rs. 5000/- per month. Husband resisted the application and came out with case of denial, He pleaded that the wife went away with her cousin and has been living in adultery. He offered to keep the wife.
3. Learned Magistrate accepted the grounds alleged by the wife and disbelieved the case of the husband that the wife has been living in adultery. He narrated the evidence adduced by the, wife. He said that wife did not file revenue papers showing the extent of the land of the husband and so it was not possible to accept her case that the husband has income of Rs. 5000/- per month. He allowed maintenance of Rs. 100/- per month to the wife.
4. Both the parties filed revisions before the Sessions Judge against the order of the Magistrate, Revisionist challenged the findings of the Magistrate on the points of second marriage, cruelty, neglect and desertion, and alleged living of wife in adultery. He assailed the order of maintenance passed by the Magistrate. On the other hand, wife filed revision for enhancement of her maintenance.
5. Learned Additional Sessions Judge, seized of revisions confirmed the findings of the Magistrate. On the quantum of maintenance he noted that the husband has been erstwhile pradhan and has agricultural land He pointed out to the evidence of the wife that the husband has been carrying on business of grain and has in all income of Rs. 5000/- per month He further noted that in her cross-examination wife stated that the husband has 33 bigha is of land. Then he noted that the husband adduced evidence that he owned only two acres of land and that his income is meagre. He further noted that the husband failed ID produce revenue papers. Then the Additional Sessions Judge said, "These days of inflation no one can make a livelihood in such a paltry amount as Rs. 100/- per month. In my view awarding of maintenance @ 200/- per month would meet the end of justice".
6. With these findings and observations the learned Additional Sessions Judge dismissed the revision filed by the husband and partly allowing the revision of the wife raised her maintenance to Rs. 200/- per month.
7. In face of provisions of Section 397(3), Cr.P.C. husband could not challenge the findings of the Magistrate on the points of second marriage cruelty, neglect and desertion, wife not living in adultery and allowing of maintenance of Rs. 100/- per month to the wife. In the present revision he only challenged the enhancement of maintenance from Rs. 100/- to Rs 200/-per month by the Additional Sessions Judge.
8. Criticism revealed on behalf of the husband against judgment of the two lower Courts is that both of them did not appreciate the evidence about his means. The learned Additional Sessions Judge enhanced the maintenance to Rs. 200/- only on the ground .that the wife cannot sustain herself for the revisionist referred to the words of Section 125(1), Cr.P.C. running as under :
If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself or
(b) ...............
(c) ...............
(d) ...............
a Magistrate of the 1st Class may, upon proof of such neglect or refusal, order such person make a monthly allowance for the maintenance of his wife............. at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay same to such person a" the Magistrate from time to time direct.
9. The learned Counsel demonstrated before this Court that in Section 488 of Criminal Procedure Code of 1988 these words occurred. The learned Counsel then emphasised that in fixing the quantum of maintenance the Magistrate must be guided by the means of the husband. He argued that if the means of the husband are meagre he cannot be directed to pay maintenance to the wife so that she may live comfortably and the husband may starve. The learned Counsel referred to the observation in the case of Mohd. Shamim v. Smt. Naseem Jahan Begum, 17 1980 ACC 251 do not think that a husband must starve himself in order to maintain his wife.
10. In the case of Prabhulal v. Parwatibai, 1953 CRILJ 868. It was observed :--
"It was necessary for the learned Magistrate before determining what maintenance should be allowed to have determined the actual means of the husband of Parwatibai and allocate proper part of it top maintenance. It is true that a person taking on the responsibility of marriage has to maintain his wife and mere minority or the fact that the husband does not work cannot come in the way of the maintenance of the wife, but it is in all cases necessary to ascertain the feasible means and the earning capacity of the husband if he is compelled to work."
11. In the cafe of Chameli v. Gajraj Bahadur, 1954 CriLJ 19 this Court held that in fixing the maintenance Under Section 488 the Court has to take into consideration not only the needs of the applicant but also the paying capacity and the circumstances of the person liable to pay maintenance.
12. In the case of Ashish v. D.C. Tewari. MANU/DE/0053/1970 it was held by Delhi High Court that in awarding maintenance Under Section 488, Cr.P.C. all the circumstances of the case including the standard of the person liable to maintain should be taken into consideration. It is wrong to presume that unless the father can spare some money after maintaining himself, his old mother and the brother, he has legal obligation to maintain his own minor son, of course in accordance with status and standard.
13. In the case of Mohammad Ayyub v. Zaibul Nissa MANU/UP/0289/1974 this Court held that the quantum of allowance directed to be paid by the husband to the wife has relevance to his means. Where the Magistrate does not give any thought to the question as to what are the means existing or potential of the husband Justifying an order for payment or allowance to his wife, the order is liable to be set aside.
14. In the case of Smt. Alimunissa v. State of U.P. and Anr. (24) 1987 ACC 304 this Court emphasised the status and income of the husband as the criteria for allowing maintenance to the wife.
15. The foregoing law clearly shows the principles that the maintenance allowable to the wife must have relevance to the means of the husband; that Under Section 125, Cr.P.C. the amount of maintenance allowable to the wife should not exceed Rs. 500/-; that the Magistrate must discuss the evidence and determine the means of the husband for fixing the amount of maintenance; means not only mean the tangible property or sources of income of the husband but also mean his capacity, potentiality and status.
16. It is true the two lower Courts ignored the above principles in awarding maintenance. It was vehemently argued on behalf of the revisionist that since the Additional Sessions Judge ignored the principles of law his order of enhancement should be quashed It is true that both the lower Courts did not appreciate the evidence relating to means of the husband for determining his means. But the evidence in the lower Court record about the means of the husband is small and can be persuading this Court. It should not be forgotten that Under Section 401, Cr.P.C. a revisional Court can make any amendment or any consequential or incidental order that may be just or proper. In this connection provisions of Sections 401(1) and 386(e) " can be referred to. Provisions of Section 125. Cr.P.C. have been engrafted in Criminal Procedure Code for preventing destitution or vagrancy and providing succour to starving persons. Frequent remand of cases Under Section 125, Cr.P.C. or revisions arising them from defeat the very purpose of this Section. Since the evidence in the case relating to the means of the husband, is not voluminous this Court thinks proper to go through the evidence and point out the means of the husband.
17. Testimony of the wife is that when she filed the application for maintenance husband was village pradhan. He carries on trade of grain and has monthly income of Rs. 5000/-. In her cross-examination it was elicited that the husband has 33 bighas of land; the three brothers have 100 bighas of land. There was no cross-examination on the point of trade carried on by the husband. Testimony of the husband was that be has only two acres of land yielding meagre income. He has no other sources of income. Suggestion put in his cross-examination that he can pay maintenance of Rs. 500/- per month to his wife denied by the husband. This is all the evidence about the sources of income of the husband Then there is one very important circumstance related to the means of the husband. It is consistent finding of the two lower Courts that be married with another woman from whom he has a child. In face of this circumstance testimony of the husband that he has only two acres of land and has meagre income is suppression of his tangible means of income. His status has been that of village pradhan. He has capacity to keep another woman and beget a child from her whom he is liable to maintain. He did not specifically denied his trade of grain. Considering all these circumstances, testimony of the wife that the husband has income of Rs. 5000/-per month may be exaggeration. Excluding the exaggeration the husband cannot be expected to have income of less than Rs. 5000/- per month.
18. Hence, in result, I do not consider it proper to interfere in the enhancement of the maintenance allowance of the wife to Rs. 200/- per month. Revision is dismissed at admission stage.
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