Kamalia Bivi and others vs Fakkir Mohammed

This revision filed under sections 397 and 401 of the Code of Criminal Procedure is directed against the judgment rendered by the learned

Sessions Judge, Ramanathapuram at Madurai in Cri. R.C. 1 of 1988 dated 11-9-1989 where by modifying the order of maintenance passed by

the trial Court by reducing the quantum of maintenance payable to the first petitioner to the extent of Rs. 150/- and at Rs. 50/- each to the revision

petitioners 2 to 8 by setting aside the order of maintenance passed by the learned Sub-Divisional Judicial Magistrate, Ramanathapuram in M.P.

No. 99 of 1986, whereby directing the respondent herein to pay a sum of Rs. 400/- towards maintenance to the first petitioner and at Rs. 150/-

each to respondents 2 to 8 per month from the date of petition viz., 11-9-1986 which come to Rs. 1450/- as contemplated u/s 125(1)(a) and (b)

of the Criminal Procedure Code.

The brief facts of the case are as follows :- Ten years prior to the filing of the maintenance case before the trial Court, the first revision petitioner

married the respondent herein in accordance with the caste customs and mohammedan religion and since then onwards both were living as

husband and wife and that out of their wedlock petitioners 2 to 8 were born and they were under their care and custody. While that being so,

about 3 months prior to 15th February 1986, the first petitioner came to know that her husband the respondent herein contracted a second

marriage with a lady belongs to Velipattanam by means of a registered marriage, that subsequently he had set his family at Pamban, and in view of

the same, the respondent had neglected the petitioners in spite of the advise by the Jamath people and the elders of the locality and that with regard

to their daily maintenance, the respondent herein has totally neglected them in toto. Since the first petitioner wife and petitioners 2 to 8 children

have no means to maintain themselves and also due to the illtreatment and cruelty meted out by the first petitioner, the first petitioner filed M.P. 99

of 1985 on behalf of herself and her minor children petitioners 2 to 8, before the Sub-Divisional Judicial Magistrate, Ramanathapuram. According

to the petitioners, the respondent herein is doing business in fish and has properties worth Rs. 7,50,000/- and also receiving a rental income of Rs.

3,750/- and Rs. 6,000/- per month from the business in fish. Therefore, petitioners 1 to 8 sought each Rs. 500/- as monthly maintenance.

The respondent herein contended inter alia, that while admitting the marriage with the first petitioner, in accordance with the caste customs and

religion, the long cohabitation as husband and wife and that petitioners 2 to 8 are their children, denied the other contentions, viz. that he has

illtreated the first petitioner and neglected to maintain the petitioners. As regards to the means of the respondent is concerned, the respondent has

not denied it nor his claim is one a lesser such as different one.

On examining the oral and documentary evidence tendered by both parties, the learned trial Magistrate has found that the respondent is liable to

pay the maintenance to all the revision petitioners herein as the marriage between the respondent and the first petitioner exists and continues and

the other petitioners 2 to 8 are their legally born children and since they have no means to maintain by themselves and considering the mean

position of the respondent, the learned Magistrate directed the respondent to pay maintenance as referred to above.

Aggrieved with the order of the learned trial Magistrate, the respondent husband has preferred Cri. R.C. 1 of 1988 before the learned Sessions

Judge, Ramanathapuram at Madurai. The learned Sessions Judge after having elaborate discussion has reduced the quantum of maintenance so as

to come within the total range of Rs. 500/- alone by stating that what has been contemplated under Sec. 125 of the Code of Criminal Procedure is

the maximum quantum to be awarded by any Court of law is at Rs. 500/- alone irrespective of the fact that the persons maintained is one or more

in number and as against which the present revision is sought for.

Mrs. Bagyalakshmi, learned Counsel appearing for the revision petitioners, while canvassing the propriety and the correctness of the impugned

order passed by the lower appellate court in reducing the quantum of maintenance passed by the trial court, to appreciate the point involved in this

case, drew my attention to S. 125 of the Code of Criminal Procedure which reads as follows :-

Order for maintenance of wives, children and parents. (1) If any person having sufficient means neglects of refuses to maintain -

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or nor unable to maintain itself; or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason on any physical or

mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself.

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, father or mother, as 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 may from time to time direct.

Per contra, Mr. Raja Mohammed, learned counsel representing Mr. Abdul Wahab, contended that what was provided in the above Section of

law itself is that a maximum of Rs. 500/- alone irrespective of the number of persons to be maintained.

In the light of the above rival contentions, I have carefully perused the above section of law. The words ""not exceeding five hundred rupees in

the whole"" do not by themselves are confined to all the persons whatever they may be in number have been very clear and manifest in the Section

itself. The words ""in the whole"" would mean not with regard to the maximum number of claimants for maintenance, viz., wife, child has been

specifically provided in S. 125, Cr.P.C. Therefore, a wider meaning is required to be given while interpreting the Section.

A cursory reading of S. 125 of the Code of Criminal Procedure would clearly show that it is a measure of social justice and specially enacted by

the legislature to protect the discarded women and children by the person liable to maintain them legally. Therefore, the words ''in the whole'' in

built in the above section in the above context would mean taking about all the items of maintenance together, but certainly not all the members of

the family put together and this would be correct and proper meaning should necessarily be given in the context of social measure provided by the

legislature to support the discarded wife and children of a person having means to maintain them.

In Captain Ramesh Chander Kaushal Vs. Mrs. Veena Kaushal and Others, the Supreme Court has observed as follows (Para 11) :-

The words which connote that the total, all together, cannot exceed Rs. 500/- namely ""in the whole"" have been inherited from the previous Code

although some ambiguity in the sense of the clause is injected by these words. Clarity, unfortunately, has not been a strong point of our

draftsmanship, at least on occasions and litigation has been engendered by such deficiency. Luckily, these words have been subject to decisions

which we are inclined to adopt as correct. A Full Bench of the Bombay High Court in Bai Prabhavati Sumatilal Dholidas Vs. Sumatilal Dholidas,

has held that the sum specified is not compendious but separate. Chagla C.J. explained the position correctly, if we may say so with respect :

The suggestion that the jurisdiction of the Magistrate is limited to allowing one hundred rupees in respect of maintenance of the wife and the

children jointly is, in our opinion, an impossible construction 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 instance, 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 illegitimate child were to come forward and to make an application

for maintenance, the Magistrate having allowed an allowance to her up to the maximum of his jurisdiction would be prevented from making any

order in favour of the illegitimate 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 compendious 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 maintenance altogether under the

section.

The intention of the Legislature was clear and the intention was to cast an 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.

Meeting the rival point of view, Chief-Justice Chagla held :

...... We are unable to accept the view taken by the Division Bench, that the jurisdiction of the Magistrate is confined to making a compendious

order allowing one hundred rupees in respect of all the persons liable to be maintained.

A recent ruling of the Calcutta High Court in Md. Basir Vs. Noor Jahan Begum, has taken a similar view reviewing the case law in India on the

subject. We agree with Talukdar J. who quotes Mr. Justice Mocardie :

All law must progress or it must perish in the esteem of man.

In short, the decided cases have made a sociological 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.

In the light of the legal ratio clearly laid down by the Apex Court, I am of the view that the order passed by the lower appellate court is liable

to be set aside and the order passed by the learned Sub Divisional Magistrate is to be restored.

In the result, the revision succeeds and accordingly it is allowed. The order of the lower appellate court is hereby set aside and the order

passed by the trial court in directing the respondent to pay maintenance to all the revision petitioners herein individually to the total extent of Rs.

1,450/- per month is hereby restored.

Revision allowed.