Raja Ram vs Smt. Sundari Devi

K.S. Tiwana, J.—Smt. Sundari Devi, respondent, who is the married wife of Shri Raja Ram, revision petitioner filed an application u/s 488 of the Criminal Procedure Code of 1898 and claimed maintenance for herself and her four minor children from Raja Ram on the ground of his neglect and refusal to maintain them inspite of the fact that he was possessed of sufficient means. She also alleged that she had been maltreated by her husband. Raja Ram contested the petition and refuted her right to claim maintenance. He inter alia pleaded that he was not earning anything and because of the insolent behaviour of Smt. Sundri Devi towards him he was forced to leave his house and live with his son Sita Ram, by whom he was being supported.

The learned Trial Magistrate came to the conclusion that Raja Ram had refused and neglected to maintain Smt. Sundri Devi and her children. Accepting her case he awarded a maintenance of Rs. 150/- per month in favour of Smt. Sundri Devi and her four children against Raja Ram. The revision petitioner felt dissatisfied with the order of the learned Trial Magistrate and took the matter in revision. The learned Additional Sessions Judge, Karnal, disagreed with the findings of the learned Trial Magistrate, on the point of neglect and refusal to maintain by Raja Ram. He held that Smt. Sundri Devi was a woman of quarrel some nature and because of her temparament Raja Ram was forced to leave his house and live with his son Sita Ram. He also came to the conclusion that Raja Ram, being an old man of 66 years with a weak eye sight, was incapable of earning anything. The learned Additional Sessions Judge came to the finding that because of his inability of earn, Raja Ram was not possessed of sufficient means to maintain his wife and children. He also held that Smt. Sundri Devi''s son Daya Ram, was earning about Rs. 100/- per month and as she was possessed of means to maintain herself and her children, she was not entitled to claim anything. The learned Additional Sessions Judge referred the case u/s 438 of the Criminal Procedure Code (here-in-after referred to as ''the Code'') for vacating the order of the Trial Magistrate awarding maintenance. In the alternative the learned Additional Sessions Judge, also made a recommendation that in case the reference was not accepted, the amount of maintenance be reduced to Rs. 50/- per month for Smt. Sundri Devi and her children.

I have heard the Learned Counsel for the parties and have also gone through the judgment of both the Subordinate Courts. The learned Additional Sessions Judge took a completely erroneous view of the law on the subject of maintenance as provided in the Code. It is the neglect and refusal to maintain his wife and legitimate and illegitimate children, who are unable to maintain themselves, which gives the cause to the persons entitled to maintenance to claim maintenance from the father or the husband, as the case may be. If the wife alleges the use of violence by the husband or maltreatment by him, which she at the trial is unable to prove, it cannot be held that in the absence of that proof she cannot plead the refusal or neglect to maintain if that can be inferred from the facts on the file. Neglect or refusal to maintain is an independent fact, which is to be determined by the conduct of the husband or the father, as the case may be, and his approach towards his dependents, as mentioned in section 488 of the Code. In the case in hand, it is the positive case set up by the husband that because of the quarrel some behaviour of his wife he was forced to leave the house. He has nowhere taken the position that after he started residing with his son Sita Ram, after leaving his own house, he contributed anything for the maintenance of his wife and children or that he had made any gesture to support them. In the absence of I this fact, the husband or the father who has statutory as well as moral obligation to maintain his children and wife, cannot escape the liability for their maintenance. The liability for maintenance, as contained in the Code, does not look with favour towards the run-away husbands. If a man, in order to satisfy his biological necessities, marries and also procreates, then it is he, who has social, moral and legal obligation to maintain the person, whom he marries and the children he procreates. The Learned Counsel for the defendant No. 1, Raja Ram argued that he had provided shelter for the wife and children, as they are admittedly living in his house. Merely providing a shelter does not satisfy the intention of the law. He must provide food and clothes to his wife and children. It is not his case that he had provided the house as an act of grace or as a step towards maintenance of the children and wife. They were living in the house, from where he ran away. In the case in hand even from the evidence of the respondent and his conduct the neglect and refusal to maintain Smt. Sundri and her children are well proved.

The reference to quash the order allowing cannot be accepted.

Next comes the quantum of maintenance or the amount to which the children and his wife are entitled. The Learned Counsel for the revision petitioner argued that Raja Ram is an old man of 66 years and has got weak eye sight. For that reason he says Raja Ram was unable to maintain himself. The ages of the minor children show that Raja Ram had been procreating till quite late in his life. Raja Ram did not examine any medical expert or a Doctor so us to show that his eye sight was weak to be an impendiment in his way to earn the livelihood. He did not examine any specialist to show that his physical condition did not permit him to undertake phyicalstrian of labour to earn for the maintenance of the family. His bald statement, coupled with the oral statement of the witnesses examined by him, who were favourably inclined towards him, does not satisfy the requirments of law to prove that he is really in such a health where he cannot even earn for his own existence. The law is well settled u/s 488 of the Code that even if the husband is not possessed of any physical property, his capability to earn shall be taken as his capability to maintain his wife and children. The failure of Raja Ram to prove his complete incapacity to earn imposes upon him a legal obligation to maintain Smt. Sundri and her minor children

It was argued that Smt. Sundri earned about Rs. 2.50 per day by sale of grass. Her son, Daya Ram also earned something and the learned Additional Sessions Judge took these wages cumulatively at the rate of Rs. 100/- per month approximately. Income of the wife is no ground to refuse her maintenance. It can be taken as an extenuating circumstance by the husband to bring down the amount of her claim for maintenance. In this case Smt. Sundri, forced by the circumstances, worked as a labourer, because of the cold shoulder her run away husband gave to her and to the children. Even that earning is not continuous. The evidence is that she occssionally earns that amount. Since it is not a permanent source of income for her, it cannot be taken into account. When Daya Ram, aged 18 years, earns himself, the case of the revision-petitioner qua him can be considered. The father was to maintain his minor children. Daya Ram who is aged 18 years cannot be treated as a minor to entitle him to any maintenence. The approach of the learned Additional Sessions Judge was completely wrong on these aspects as he ignored the settled principles of law on the point.

So far as the quantum of maintenance is concerned. Raja Ram, the revision petitioner has got a good case. In view of his age being in the close proximity of 70 years, his earning capacity because of the age, is on the waning side. He cannot be expected to be put in such a great physical strain to earn such an amount out of which he can spare Rs. 150/- per month for the maintenance of his wife and children. The reasoning of the learned Additional Sessions Judge, atleast to this extent, is reasonable that the amount to be reduced to Rs. 50/- per month. Both the Subordinate courts failed to apportion the amount of maintenance between Smt. Sundri and her remaining three children. Out of this amount, to make the figures even, Smt Sundri shall be entitled to Rs. 26/- per month and her three children to Rs. 8/- each per month.

The reference is accepted to this extent.