Safiq Mohd vs State of U.P. and Others

B.K. Sharma, J.—This is a revision against the order dated 2.9.1996 passed by Sri V.P. Gaur. Judge, Family Court, Bareilly in Km. Suman Bi and Ors. v. Safiq Mohd.. Misc. Case No. 60 of 1996, whereby he enhanced the maintenance allowance of Km. Suman Bi Hafiz Mohd. and Mohd. Rayees each from Rs. 150 per month to Rs. 225 per month from the date of the order u/s 125, Code of Criminal Procedure.

Heard the learned Counsel for the revisionist and the learned A.G.A.

The only contention raised by the learned Counsel for the revisionist is that u/s 125(1), Code of Criminal Procedure 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.

The law on the subject is well- settled. There are a number of authorities on the subject. Relating to the old Code of Criminal Procedure in the case of Tulsi Das Vs. Sm. Saraju Dei Devi and Others, In this case, a Division Bench of the Calcutta High Court held:

The words "in the whole" in Section 488, Criminal Procedure Code, do not mean that Rs. 100 is the maximum limit for all the dependants together but means for all kinds of maintenance for each dependant. They are intended to prevent the Court from exceeding the statutory limit in the case of any particular dependant and are not intended to restrict the powers of the Court to ordering a monthly allowance of Rs. 100 in respect of the maintenance of all the dependants.

Then a similar view was taken by a Division Bench authority of Madras High Court in M. Bulteen v. R.C. Bulteen AIR 1938 Mad 721. Then there was a Full Bench authority of the Bombay High Court, Prabhavati v. Sumatilal, AIR 1954 Bom 546. In this authority, it was said by the Full Bench. The suggestion that the jurisdiction of 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 favor 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.

All these authorities were in respect of the provision of Section 488, Code of Criminal Procedure, 1898, whose provisions were similar to Section 125 of the Code of Criminal Procedure with the difference that the amount mentioned therein was Rs. 100.

There is a direct authority of the Apex Court about the provisions of Section 125, Code of Criminal Procedure (Act 2 of 1974) itself, Captain Ramesh Chander Kaushal Vs. Mrs. Veena Kaushal and Others, . In this authority, the Apex Court quoted with approval the above noted two passages from the Full Bench authority of Prabhavati v. Sumatilal, and also the authority of the Calcutta High Court Md. Basir Vs. Noor Jahan Begum, , and concluded that 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. 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 maximum of Rs. 500 each awarded by the Court. We cannot, therefore, agree to this obvious 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 maintenance together, not all the members of the family put together. To our mind, this interpretation accords with social justice and semantics and, more than all, is obvious."

The argument of the learned Counsel for the revisionist has thus no force and is rejected.

No other point has been argued nor could possibly be argued when the quantum of event the enhanced maintenance amount was too meager to support the minors adequately.

For the reasons above said, the revision is dismissed.