minal Appeal No 228 of 1970
Appeal by special leave from the judgment and Order dated the 30th April 1970 of the Delhi High Court at New Delhi in Criminal Revision No 90 of 1970
D N Nijhawan Urmila Kapoor and Kamlesh Bansal for the appellant
Sardar Bahadur Saharya for the respondents
Respondent No 1 Kamla Devi was married to the appellant Bhagwan Dutt on January 22 1957 according to Hindu rites
out of this wedlock a daughter Respondent No 2 was born on November 22 1957
On October 18 1966 Respondent No 1 filed a petition against the appellant for judicial separation on the ground of desertion and cruelty
During the pendency of that petition she filed all application under section 488 of the Code of Criminal Procedure 1898 in the court of the Magistrate 1st Class Delhi claiming maintenance for herself and for her minor daughter on the ground that the appellant had neglected and refused to maintain them
At the date of the application Respondent No 1 was employed as a stenographer on a monthly salary of Rs 600 
The appellant was at that time earning about Rs 800 per month
However later on when the case was in the Sessions Court in revision the monthly income of each of them had increased by Rs 1501  approximately
By his order dated June 61969 the Magistrate directed the husband to pay Rs 250 per month ie Rs 175 for the wife and Rs 75 for the child for their maintenance
While fixing the amount of maintenance for the wife the Magistrate did not take into consideration her own independent income
Against the order of the Magistrate the husband went in revision to the Court of Session
The Additional Sessions Judge was of the view that since the income of the wife was substantial and enough to maintain herself
she was not entitled to any maintenance
He was further of the opinion that Rs 75 pm allowed to the child being inadequate it deserved to be raised to Rs 125 pm for the period of the pendency of the application in the trial court and thereafter to Rs 150 pm
He referred the case to the High Court under section 438 of the Code with a recommendation that the order of the Magistrate to the extent it allowed maintenance to the wife be quashed but the allowance of the child be enhanced as aforesaid
485 A learned single Judge of the High Court who heard the reference held that in making an order for maintenance in favour of a wife under section 488 of the Code of Criminal Procedure the court has not to take into consideration the personal income of the wife as section 488 does not contemplate such a thing
He therefore declined the refe rence pro tanto but accepted the same in regard to the enhancement of the allowance of the child
Aggrieved by the judgment of the High Court the husband has now come in appeal before us
The material part of Section 488 of the Criminal Procedure Code is in these terms 1 if any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself the District Magistrate a Presidency Magistrate a Sub Divisional Magistrate or 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 at 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 from time to time directs
2 to 5  The corresponding part of Section 125 in the new Criminal Procedure Code 1973 which came into force on 1 st April 1974 reads 125
1 If any person having sufficient means neglects or refuses to maintain a his wife unable to maintain herself or b his legitimate or illegitimate minor child whether married or not 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 of 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 a such neglect or refusal order such person to make a monthly allowance for the maintenance of his wife such child father or mother at 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  A comparative study of the provisions set out above would show that while in Section 488 the condition unable to maintain itself 486 apparently attached only to the child and not to the wife in Section 125 this condition has been expressly made applicable to the case of wife
Does this recasting of the old provision signify ally fundamental change in the law Or has this been done merely to clarify and make explicit what was formerly implict  Section 488 does not confer an absolute right on a neglected wife to get an order of maintenance against the husband nor does it impose an absolute liability on the husband to support her in all circumstances
The use of the word may in Section 4881 indicates that the power conferred on the Magistrate is discretionary
A neglected wife therefore cannot under this Section claim as of right an order of maintenance against the husband
of course the Magistrate has to exercise his discretion in a judicial manner consistently with the language of the statute with the regard to other relevant circumstances of the case
Nevertheless the Magistrate has to exercise his discretion primarily towards the end which the Legislature had in view in enacting the provision
Sections 488 489 and 490 constitute one family
They have been grouped together in Ch
XXXVI of the Code of 1898 under the caption of the maintenance of wives and children
This Chapter in the words of Sir James Fitzstephen provides  a mode of preventing vagrancy or at least of preventing its consequences
These provisions are intended to fulfil a social purpose
Their object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children
By providing a simple speedy but limited relief they seek to ensure that the neglected wife and children are not left beggared and destituted on the scrap heap of society and thereby driven to a life of vagrancy immorality and crime for their subsistence
Thus S section 488 is not intended to provide for a full and final determination of the status and personal rights of the parties
The jurisdiction conferred by the Section on the Magistrate is more in the nature of a preventive rather than a remedial jurisdiction it is certainly not punitive
As pointed out in Thompson s case1 the scope of the Chapter XXXVI is limited and the Magistrate cannot except as thereunder provide usurp the jurisdiction in matrimonial disputes possessed by the Civil Courts
Sub section 2 of section 489 expressly makes orders passed under Chapter XXXVI of the Code subject to any final adjudication that may be made by a civil Court between the parties regarding their status and civil rights
The stage is now set for appreciating the contentions canvassed by the learned Counsel for the parties
Mr Nijhawan learned Counsel for the appellant contends that if section 4881 is construed in the light of its primary object and
the nature of the jurisdiction conferred by it together with section 4891 it would be amoly clear that in determining the wife s claim to maintenance and its quantum her independent income is a relevant consideration
in support of this contention Counsel has referred to Mohd Ali vs Mt 1 6 NWP 205
487 Sakina Begum1 Narasimha Ayyar vs Rangathayammal2 Ploonnabalam vs Saraswathi3 Ahmed Ali Saheb vs Sarfara linisa Begum 4 and P T Ramankutty A chan vs Kalyanikutty5
As against the above Mr Sardar Bahadur Saharya maintains that the very fact that the Section does not make the inability of a wife to maintain herself a condition precedent to the grant of maintenanceas it does in the case of child shows that the intention of the Legislature was that the wife s own income or means should not be taken into account either for determining her right to maintenance or for fixing its amount
It is further urged that the language of section 489 cannot be called in aid to construe section 488 1
Reliance for the main argument has been placed on Major Joginder Singh vs Bibi Raj Mohinder Kaur6 In Major Joginder Singh section case supra the wife had claimed maintenance under section 488 Cr P C both for herself and her minor son
The husband was a Major in the army getting Rs 1070 pm
It is not very clear from the Report as to whether the wife was having any substantial income of her own
However an argument was raised that she had her own means of support which should be taken into account for determining her right to maintenance
The learned Judge who decided the case negatived the contention thus  It is obvious from the language of the section that in order to enable a child to claim maintenance it has to be proved that the child is unable to maintain itself 
No such condition has been imposed in the case of a wife
Cases in which maintenance was refused to the wife merely on the ground that she was in a position to maintain herself have in my view omitted to consider the implication of this distinction while construing the scope and effect of section 488
In my opinion the ability of the wife to maintain herself was not intended by the legislature to deprive her of the right of maintenance conferred by this section if she is otherwise found entitled to it  Commenting on the cases cited before him the learned Judge further observed  But if those authorities intend to lay down any rigid rule of law that the only right which a wife possesses under section 488 CrPC is to claim just subsistence allowance which should merely provide bare food residence and raiment and that also only if she has no other means or source then I must with respect record my emphatic dissent
 It may be noted that the above principle spelled out from the interpretation of section 4881 in Major Joginder Singh s case supra 1 AIR 1944 Lah
3 AIR 1957 Mad 693
5 AIR 1971 Kerala 22
2 AIR 1947 Mad
4 AIR 1952 Hyd 76 6 AIR 1960 Punjab 249
488 was carried a step further by the Division Bench in Nanak Chand Banarsi Dass and ors
vs Cliander Kishore and Ors1 to deduce the proposition that the wife s right to receive maintenance under section 488 Criminal Procedure Code is an absolute right
In our opinion one wrong assumption has led to another false deduction
The mere fact that the language of section 4881 does not expressly make the inability of a wife to maintain herself a condition precedent to the maintainability of her petition does not imply that while determining her claim and fixing the amount of maintenance the Magistrate is debarred from taking into consideration the wife s own separate income or means of support
There is a clear distinction between a wife s locus standi to file a petition under section 488 and her being entitled on merits to a particular amount of maintenance thereunder
This distinction appears to have been overlooked in Major Joginder Singh s case supra
Proof of the preliminary condition attached to a neglected child will establish only his competence to file the petition but his entitlement to maintenance particularly the fixation of its amount will still depend upon the discretion of the Magistrate
As the Magistrate is required to exercise that discretion in a just manner the income of the wife also must be put in the scales of justice as against the means of the husband
The object of those provisions being to prevent vagrancy and destitution the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious but is modestly consistent with the status of the family
The needs and requirements of the wife for such moderate living can be fairly determined only if her separate income also is taken into account together with the earnings of the husband and his commitments
There is nothing in these provisions to show that in determining the maintenance and its rate the Magistrate has to inquire into the means of the husband alone and exclude the means of the wife altogether from consideration
Rather there is a definite indication in the language of the associate section 4891 that the financial resources of the wife are also a relevant consideration in making such a determination
Section 4891 provides inter alia that on proof of a change in the circumstances of any person receiving under section 488 a monthly allowance the Magistrate may make such alteration in the allowance as he thinks fit
The circumstances contemplated by section 4891 must include financial circumstances and in that viewthe inquiry as to the change in the circumstances must extend to a change in the financial circumstances of the wife
Keeping in view the object scheme setting and the language of these associate provisions in Chapter XXXVI it seems to us clear that in determining the amount of maintenance under section 4881 the Magistrate is competent to take into consideration the separate income and means of the wife
1 AIR 1969 Delhi 235
489 We do not wish to burden this judgment with discussion of all the decisions that have been cited at the Bar
It will suffice to notice one of them rendered by the Kerala High Court in which Major Joginder Singh s case supra was explained and distinguished
That case in P T Ramankutti vs Kalyankutty supra therein the husband was getting a net salary of Rs 240  while the monthly salary
of the wife was after deductions Rs 210 
The question was whether the wife in such a financial position had a right to claim maintenance under s488 Criminal Procedure Code
after referring to the observations of Dua J in Major Joginder Singh s case supra and surveying the case law on the subject the learned single Judge of the Kerala High Court correctly summed up the position thus  To take the view that in granting maintenance under Section 488 to a wife her personal income also can be considered may Prima facie appear to be against the language of the section because the condition unable to maintain itself appearing therein attaches itself only to child and not to wife
But that condition has application only in considering the maintainability of a petition filed under s488
A wife can file a petition under that section irrespective of the question whether she is able or unable to maintain herself
But on her application at the time of the granting of monthly allowance to her there is nothing prohibiting the Court from considering whether she can maintain her self with her own income and if she can granting her nothing by way of allowance
 Any other construction would be subversive of the primary purpose of the section and encourage vindictive wives having ample income and means of their own to misuse the section as a punitive weapon against their husbands
It is next contended on behalf of the appellant that section 488 must be deemed to have been partially repealed and modified by section 23 of the for short called the Act which provides that in determining the amount of maintenance the Court shall have inter alia regard to the value of the wife s property and any income derived from such property or from the claimant s own earning or from other sources
Clause b of s4 of that Act provides Save as otherwise expressly provided in this Act a x x x b any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act
 The question therefore resolves itself into the issue  whether there is any thing in s488 which is in consistent withs 23 or any other provisions of the act
This matter is no longer resititegra
In Nanak Chand vs Shri Chandra Kishore Agarwala and Ors1 this Court held that there is no inconsistency between Act 78 of 1956 and section 488 Criminal Procedure 1  490 Code
Both could stand together
The Act of 1956 is an Act to amend and codify the law relating to adoption and maintenance among Hindus
The law was substantially similar before when it was never suggested that there was any inconsistency with section 488 Cr P C The scope of the two laws is different
Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties
We have said and it needs to be said again that section 488 is intended to serve a social purpose
It provides a machinery for summary enforcement of the moral obligations of a man towards his wife and children so that they may not out of sheer destitution become a hazard to the well being of orderly society
As against this section 23 and other provi sions of the Act relating to fixation of the rate of allowance provide for the enforcement of the rights of Hindu wives or dependents under their personal law
This contention therefore is meritless and we negative the same
For the reasons aforesaid we allow the appeal set aside the judgment of the High Court and send the case back to the trial Magistrate to refix the amounts of maintenance
In the case of the wife he shall together with other relevant circumstances take into account her income also
In the case of the daughter he shall afford opportunity to the parties to lead fresh evidence and then refix her allowance
VPS Appeal allowed


Summary:
The separate income and means of the wife can be taken into account in determining the amount of maintenance payable to her under section 488 Criminal Procedure Code 1898
490 D 1a The section does not confer an absolute right on a neglected wife to get an order of maintenance against the husband nor does it impose an absolute liability on the husband to support her in all circumstances
The use of the word may  in section 4881 indicates that the power conferred on the Magistrate is discretionary though the discretion must be exercised in a judicial manner consistently with the language of the statute and with due regard to other relevant circumstances of the case
486 B I bThe object of Ss 488 to 490 being to prevent vagrancy and destitution the Magistrate has to find out what is required by the wife to maintain a standard of living which is neither luxurious nor penurious but is consistent with the status of the family
Such needs and requirements of the wife can be fairly determined only if her separate income also is taken into account together with the earnings of the husband and Ms commitments
488 D E cThe mere fact that the language of section 4881 does not expressly make the inability of a wife to maintain herself a condition precedent to the maintainability does not imply that while determining her claim and fixing the amount of maintenance the Magistrate is debarred from taking into consideration the wife s own separate income or means of support
There is a clear distinction between a wife s locus standi to file a petition under the section and her being entitled to a particular amount of maintenance
Even in the case of a neglected child the proof of the preliminary condition namely the inability to maintain itself will only establish the child s competence to file the petition but its entitlement to maintenance and the fixation of the amount would depend upon the discretion of the Magistrate
485 B D dThere is nothing in the sections to show that in determining the maintenance the Magistrate should take into account only the means of the husband and not the means of the wife
On the contrary section 4891 provides that on proof of a change in the circumstances of any person receiving under section 488 a monthly allowance the Magistrate may make such alteration in the allowance as he thinks fit  and circumstances  must include financial circumstances
488 E G P
T Ramankutty Achan vs Kalyanikutty AIR 1971 Kerala 22 approved
Major Joginder Singh
vs Bivi Raj Mohinder Kaur AIR 1960 Punjab 249 and Nanak Chand Banarsi Das and Ors
vs Chander Kishore and Ors
AIR 1969 Delhi 235
overruled
2Section 488 CrPC provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties It provides a machinery for the summary enforcement of the moral obligation of a man towards his wife and children
But section 23 and other provisions of the  relating to fixation of the rate of allowance provide for the enforcement of the rights of Hindu wives and dependents under their personal law
There is no inconsistency between the 1956 Act 16 M 255 Sup CI75 484 and section 488 Cr
PC Both could stand together and hence there is no question of section 488 being partially repealed or modified by section 23 of the 1956 Act
490 A B Manak Chand vs Shri Chandra Kishore Agarwal and Ors
   followed