Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Bhartiya No. 1 (Nationalist)     04 November 2010

Interim alimony hiked due to concealment of Income????

Cheating or concealment of Income may boomrang, Below is the news item in which Del HC has incresed the Interim alimony,

Woman's interim alimony hiked from Rs 40,000 to Rs 1.25 lakh

January 16, 2009 18:51 IST

Accepting a woman's allegation that her husband concealed facts related to his income, the Delhi [ Images ] high court on Friday ordered a three-fold increase in her interim monthly maintenance to Rs 1,25,000 from Rs 40,000.

A division bench of Justice Mukul Mudgal and Justice Manmohan in a judgement increased the interim maintenance to Rs 1,25,000 per month from Rs 40,000, awarded by the lower court while disposing of the woman's suit for interim maintenance against husband Karun Raj Narang.

In addition, the court also asked Narang to provide a new Honda City [ Images ] car with petrol and driver at his own cost for the day-to-day maintenance of her along with three children (one of them is a major).

Directing the husband to comply with the court order within 60 days, the Bench also asked Narang to provide her a two bedroom-cum-drawing-cum-dinning house with an extra room in any of South Delhi colonies specifying that it should not be more than seven kms away from the school of their children.

"Keeping in view the facts and circumstances of the case coupled with the conduct of the respondent (husband) in concealing the facts from court, we are of the view that the award of Rs 40,000 per month to wife is wholly inadequate after taking into consideration the social and financial status of the husband," the Bench said allowing the wife's petition.

The court accepted her submission that before the matrimonial dispute she used to be director of M/s Eastern Medikit Ltd and was provided with all the facilities, including a chauffeur driven car.

But, soon after she approached the family court due to marital discord she was removed from her post by her husband, she alleged.

 

Source/Link:

 

https://www.rediff.com/money/2009/jan/16womans-interim-alimony-hiked-from-rs-40000-to-rs-1-point-25-lakh.htm



Learning

 13 Replies

Bhartiya No. 1 (Nationalist)     04 November 2010

For judgement of the above suit please see the link below,

 

https://www.lawyersclubindia.com/forum/Concealment-of-Income-may-prove-costly-regarding-Maintenance-26647.asp

 

or

https://indiankanoon.org/doc/178624/

 

1 Like

hedevil hydraheaded (non professional )     05 November 2010

Good judgement for those who suddenly turn into Rehadiwala, Khomachewala and Chaiwala!

Avnish Kaur (Consultant)     05 November 2010

THIS MAN HAS TURNOVER OF 60 CRORES, CANT TURN INTO KHOMCHEWALA.

Avnish Kaur (Consultant)     05 November 2010

HE HAS CHILDREN TOO AND HIS LIFESTYLE is envy of top guns in delhi.

Bhartiya No. 1 (Nationalist)     05 November 2010

Exactly  hedevil hydraheaded

 

Before marriage, the boy earns in six to seven figures, and property/assets ke kya kahne ki puchho mat, but when marriage broke out they change their color faster than chameleons.

And as u rightly said they suddenly become a "Lachar, jobless person". or Rehadiwala, Khomachewala and Chaiwala.

Sab Paison ki Maya Hai!!!!

 

Avinashji,

 

" THIS MAN HAS TURNOVER OF 60 CRORES, CANT TURN INTO KHOMCHEWALA."

Lekin usne try to kiya.


Avnish Kaur (Consultant)     05 November 2010

i am sorry to say some lawyers misguide clients for their interests. now comes supreme court's take on dole seeking working females. these are is latest views in recent times  :

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 879 OF 2009
[Arising out of SLP(Crl.) No.7503 of 2008]

BHUSHAN KUMAR MEEN

Versus

MANSI MEEN @ HARPREET KAUR

WITH

SLP(Crl.)No.7924 of 2008

...

Appellant(s)

... Respondent(s)

ORDER

Leave is granted in SLP(C) No.7503 of 2008.

This appeal is directed against the judgment and order dated 1 st July,

2008, passed by the Punjab & Haryana High Court in Crl.Misc.No.14793-M of 2008,

whereby the appellant's application under Section 482 of the Code of Criminal

Procedure for quashing the orders dated 25th July, 2007 and 6th November, 2007

passed by the courts below granting Rs.10,000/- per month, as interim maintenance to

the respondent-wife, was dismissed.

Taking into consideration the evidence adduced, the learned Additional Chief

Judicial Magistrate, Patiala, before whom the proceedings under Section 125 of the

Criminal Procedure Code, filed by the respondent-wife is pending, directed the

appellant-husband to pay the said sum of Rs.10,000/- by way of interim maintenance

to the respondent-wife during the pendency of the proceeding. The said order was

2

affirmed both by the Sessions Court as well as the High Court.

Before us, the appellant-husband, who is appearing in person, has shown that

his salary certificate had been produced before the Magistrate, from which it appears

that he was drawing approximately Rs.34,900/- per month towards his salary, out of

which various deductions were being made, including a deduction of Rs.21,329/-

towards the home loan which he had obtained, leaving in his hand as takeaway salary

a sum of about Rs.9000/-.

The appellant has submitted that in that view of the matter, the amount as

awarded by the Magistrate to the respondent-wife was not justifiable.

The appellant-husband has also taken another point regarding the

maintainability of the application under Section 125 Cr.P.C. on account of the ability

of the respondent-wife to maintain herself.

On behalf of the respondent-wife, it has been urged that having regard to the

net salary, which the appellant is entitled to take home, the amount as assessed by way

of interim maintenance by the Magistrate and as upheld by the Sessions Judge as well

as the High Court, could not be said to be excessive and that the fact that the appellant

had taken the home loan which has been adjusted against the salary, is no

consideration for altering the said amount, as had been granted by the learned

Sessions Judge.

As far as the second point taken by the appellant is concerned, it was submitted

that the same required evidence and had to be to ultimately decided by the Magistrate

while deciding the application under Section 125 Cr.P.C..

Having heard learned counsel for the respective parties, and considering the

reality of the situation to the effect that the appellant is receiving a sum of about

Rs.9000/- in hand after deduction of various amounts, including the instalments

3

towards repayment of the home loan, we are of the view that the amount as awarded

by way of interim maintenance is on the high side. At the same time, we cannot also

shut our eyes to the fact that at present the respondent-wife is not employed or at least

there is nothing on record to indicate she is employed in any gainful work. However,

having regard to the qualifications that she possesses, there is no reason why she ought

not to be in a position to also maintain herself in the future.

Accordingly, we modify the order passed by the learned Magistrate, granting

Rs.10,000/- per month to the respondent-wife by way of interim maintenance and

direct that the appellant-husband shall pay to the respondent-wife a sum of Rs.5000/-

per month, instead of Rs.10,000/-, and all other terms and conditions, as indicated by

the learned Magistrate, will continue to operate.

We are informed that there are huge arrears, which are yet to be paid by the

appellant-husband to the respondent-wife. The learned Magistrate shall recalculate

the amount of arrears on the basis of the order passed today and the appellant-

husband shall within three months of the re-assessment of the amount, pay the sum to

the respondent-wife, if necessary, in three installments, to be decided by the learned

Magistrate.

We make it clear that we have not gone into the question as to what would be

the amount payable by way of maintenance per month to the respondent-wife and this

is only an interim arrangement till the matter is finally disposed of by the learned

Magistrate. We also keep open the second question raised by the husband-wife

regarding the applicability of Section 125 Cr.P.C. as far as the respondent-wife is

concerned.

Since the matter has been pending for a long time and evidence has been

recorded to some extent, we direct the learned Magistrate to dispose of the pending

4

proceedings within six months from the date of communication of this order.

The other Special Leave Petition, being No.7924 of 2008, be delinked from the

appeal arising out of SLP(C)No.7503 of 2008, being disposed of by this order, and be

listed separately for final disposal after the summer vacation.

The order of attachment of the salary of the appellant, which had been stayed

in these proceedings, shall continue till the final disposal of the matter by the learned

Magistrate. In the event, the appellant defaults in making the payment in terms of this

order, the Magistrate will be at liberty to re-impose the order of attachment.

...................J.
(ALTAMAS KABIR)

...................J.
(CYRIAC JOSEPH)

New Delhi,
April 28, 2009.

Avnish Kaur (Consultant)     05 November 2010

another take somewhat older:

Equivalent citations: 1975 AIR 83, 1975 SCR (2) 483
Bench: Sarkaria, R Singh

PETITIONER:

BHAGWAN DUTT

Vs.

RESPONDENT:

KAMLA DEVI AND ANR.

DATE OF JUDGMENT17/10/1974

BENCH:

SARKARIA, RANJIT SINGH

BENCH:

SARKARIA, RANJIT SINGH

CHANDRACHUD, Y.V.

GUPTA, A.C.

CITATION:

1975 AIR 83 1975 SCR (2) 483

1975 SCC (2) 386

CITATOR INFO :

R 1986 SC 984 (5)

R 1987 SC1100 (5)

ACT:

Code of Criminal Procedure (Act 5 of 1898) s. 488- Maintenance to wife Whether her income and means can be taken into account in fixing.

HEADNOTE:

The separate income and means of the wife can be taken into account in determining the amount of maintenance payable to her under s. 488, Criminal Procedure Code, 1898. [490 D] (1)(a) 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 s. 488(1) 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] (b)The 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] (c)The mere fact that the language of s. 488(1) 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]

(d)There 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, s. 489(1) provides that 'on proof of a change in the circumstances of any person receiving under s. 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 v. Kalyanikutty, A.I.R. 1971 Kerala 22, approved.

Major Joginder Singh. v. Bivi Raj Mohinder Kaur, A.I.R. 1960, Punjab 249, and Nanak Chand Banarsi Das and Ors. v. Chander Kishore and Ors. A.I.R. 1969 Delhi 235. overruled. (2)Section 488, Cr.P.C., 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 s. 23 and other provisions of the Hindu Adoptions and Maintenance Act 1956, 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 CI/75 484

and s. 488, Cr. P.C. Both could stand together, and hence, there is no question of s. 488 being partially repealed or modified by s. 23 of the 1956 Act. [490 A-B] Manak Chand v. Shri Chandra Kishore Agarwal and Ors., [1970] 1 S.C.R. 565, followed.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal 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. The Judgment of the Court was delivered by SARKAR Can the income of the wife be taken into account in determining the amount of maintenance payable to her under Section 488 of the Code of Criminal Procedure, 1898 ? This is the principal question for determination in this appeal by special leave.

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 s. 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 6,1969 the Magistrate directed the husband to pay Rs. 250/- per month i.e. 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/- p.m. allowed to the child being inadequate, it deserved to be raised to Rs. 125/- p.m. for the period of the pendency of the application in the trial court and thereafter to Rs. 150/- p.m. He referred the case to the High Court under s. 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 s. 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 488(1) 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 case(1) "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 s. 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 s. 488(1) is construed in the light of its primary object and. the nature of the jurisdiction conferred by it, together with s. 489(1), 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 v. Mt.

(1) 6 N.W.P. 205.

487

Sakina Begum(1) Narasimha Ayyar v. Rangathayammal(2); Ploonnabalam v. Saraswathi(3); Ahmed Ali Saheb v. Sarfara linisa Begum (4) and P. T. Ramankutty A chan v. Kalyanikutty(5).

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 s. 489 cannot be called in aid to construe s. 488 (1). Reliance for the main argument has been placed on Major Joginder Singh v. Bibi Raj Mohinder Kaur.(6) In Major Joginder Singh's. case (supra), the wife had claimed maintenance under s. 488, Cr. P. C. both for herself and her minor son. The husband was a Major in the army, getting Rs. 1070/- p.m. 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 s. 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 s. 488, Cr.P.C., 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 s. 488(1) in Major Joginder Singh's case (supra),

(1) A.I.R. 1944 Lah. 394.

(3) A.I.R. 1957 Mad. 693.

(5) A.I.R. 1971 Kerala 22.

(2) A.I.R. 1947 Mad. 204.

(4) A.I.R. 1952 Hyd. 76

(6) A.I.R. 1960 Punjab 249.

488

was carried a step further by the Division Bench in Nanak Chand Banarsi Dass and ors. v. Cliander Kishore and Ors.(1) to deduce the proposition that the wife's right to receive maintenance under s. 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 s. 488(1) 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 s. 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 s. 489(1) that the financial resources of the wife are also a relevant consideration in making such a determination. Section 489(1) provides inter alia, that "on proof of a change in the circumstances of any person receiving under s. 488 a monthly allowance, the Magistrate, may make such alteration in the allowance as he thinks fit". The "circumstances" contemplated by s. 489(1) must include financial circumstances and in that view,the 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 s. 488(1), the Magistrate is competent to take into consideration the separate income and means of the wife. (1) A.I.R. 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 v. 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 s.488, 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 s.488. 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 s. 488 must be deemed to have been partially repealed and modified by s. 23 of the Hindu Adoptions and Maintenance Act, 1956 (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 s.4 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 s.488 which is in consistent withs .23 or any other provisions of the act. This matter is no longer resititegra.In Nanak Chand v. Shri Chandra Kishore Agarwala and Ors.(1) this Court held that there is no inconsistency between Act 78 of 1956 and s. 488, Criminal Procedure

(1) [1970] 1 S.C.R. 565.

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 S. 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 s. 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, s. 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. V.P.S.

Appeal allowed.

491

Avnish Kaur (Consultant)     05 November 2010

one more recent one u/s 24 :

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.1789-1790 OF 2009

(Arising out of SLP(C) NOS. 24589-24590 of 2007) Anu Kaul ........ Appellant Versus

Rajeev Kaul ........Respondent ORDER

Leave granted.

2) In the appeal filed by the respondent-husband before the High Court of Punjab and Haryana, being aggrieved by the judgment and decree passed by Addl. District Judge (Ad-hoc), Fast Track Court No.3, Faridabad, dated 04.06.2005, the appellant herein had filed an application under Section 24 of Hindu Marriage Act, 1955, for the grant of interim maintenance of Rs. 10,000/- (Rupees Ten Thousand only) and the litigation expense of Rs. 22,000/- (Rupees Twenty Two Thousand only). The application is partly allowed by the Court by its 1

order dated 23.08.2006, by granting an amount of Rs.10,000/- towards litigation expense and a sum of Rs.2,000/- for the maintenance of the minor child living with her. The Review Petition is also dismissed by the Court vide its order dated 21.03.2007, leaving it open to the appellant/applicant to claim interim maintenance before an appropriate forum in the capacity as a Guardian of the child.

3) Challenging both the orders, the appellant-wife is before us in these appeals.

4) Though notice of special leave petition is served on the respondent- husband, for the reason best known to him, has not entered appearance either in person or through his counsel. 5) Marriage between the parties and birth of the female child Karmistha Kaul is not in dispute. The assertion of the appellant in the application filed under Section 24 of Hindu Marriage Act, 1955 that the respondent is working as a Senior Head of Mukund Steel Ltd., having its head office at Mumbai and drawing a salary of Rs.40,000/- per month and is entitled to claim perks for the education of his children was not denied by the respondent by filing his counter affidavit or reply statement.

 

6) In the application filed, the appellant admits that she is employed and drawing a salary of Rs.9,000/- per month. However, she asserts, she has to pay an amount of Rs.3,000/- by way of rent to the tenanted premises which she is presently occupying in view of the lis between the parties. She has also stated, that, Kumari Karmisatha Kaul is now grown up and she is studying in Senior School and due to insufficient funds, her education is being hampered.

7) A sermon on moral responsibility and ethics, in our opinion for disposing of this appeal may not be necessary, since the respondent has not disputed the assertion of the appellant. However, since the appellant is employed and is drawing a salary of Rs.9,000/- per month, we do not intend to enhance the interim maintenance awarded to her by the High Court during the pendency of the appeal filed by the husband. However, taking into consideration the child being the daughter of highly placed officer, the exorbitant fee structure in good Schools and the cost of living, we deem it proper to direct the respondent to pay a sum of Rs.5,000/- per month to the applicant commencing from 1st of April, 2009 for the maintenance of the minor child during the pendency of the appeals before the High Court. 8) The appeals are disposed of accordingly.

.......................................J. [ TARUN CHATTERJEE ]

.......................................J. [ H.L. DATTU ]

New Delhi,

March 23, 2009.

 

swatirswatir (learning law)     05 November 2010

Ya , current trend of SC  is not to give maintenance to able bodied well earning wife. however children are given good maintenance according to standard of living of family .

swatirswatir (learning law)     06 November 2010

agree avnish ji , this is a case of super-rich man. even his  mr narang the  husband) adress comes as at Dr. G. C. Narang Marg, how can such super rich people having luxurious swimming pools in house become a rehdiwala?

hedevil hydraheaded (non professional )     07 November 2010

He can't become Rehadi wala? forget it. But good judgement for those who are planning to become Rehadiwala, Khomachewala, Chai wala, Paani Puchke wala....

They shuld have  choices of occupations, whatever they are good at , they can choose, but the judgement spells risks for them, which they should be aware of , too. 

Bhartiya No. 1 (Nationalist)     07 November 2010

Things or cheating ppl do to deny/avoid alimony/maintenance. They can become anything.

Ashwin   10 April 2018

thank you sir


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  



Post a Suggestion for LCI Team
Post a Legal Query