BHAGWAN DUTT versus KAMLA DEVI AND ANR.

Citation: [1975] 2 S.C.R. 483 · Decided: 17-10-1974 · Supreme Court of India · Bench: Y.V. CHANDRACHUD · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
B 
c 
D 
E 
F 
BHAGWAN 
DUTT 
v 
KAMLA DEVI AND ANR; 
October 17, 1974 
[Y. V. CHANDRACHUD, R. S. SARKARIA AND 
A. C. GUPTA, n.] 
483 
Code of Criminal Procedure (Act 5 of 1898) s. 488-Ma/ntenance to wife-
Whether her income and means can be taken into account In fixing. 
The separate income and means of the wife can be taken into account in deter-
mining the amount of maintenance payable to her under s. 488, Criminal Procedure 
Code, 1898. [490 DJ 
(1) (a) The section does not confer an absolute right on a neglected wife to 
get an "rder 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 discro-
tionary, thougl) 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-DJ 
(b) The object of Ss. 488 to 490 being to prevent vagrancy and destitution, 
the Magistrate Ii.as 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 his commitments. [488 D-EJ 
(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 mainto-
nance, the Magistrate is debarred from taking into consid•rati 1n the wife's: own 
separate income or means of support. There is a clear distii:ctfo 1 between a wife's 
locus standi to file a.petition under the section and her being <ntitledto a particular 
amount of maintenance. Even in the case of a neglected child the proof of tho 
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 . tho 
fixation of the amount would depend upon the discretion of the Magistrate. 
(485 B-D] 
(cl) There is nothing in the sections to show that in determining the mainte· 
nance 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 circumst1111ces of any person receiving under s. 488 a monthly allQW· 
ance, the Magistrate may make such alteration in the allowance as he thinks flt;' 
and 'circumstances' must include financial ci.rcumstances. [488 E-G] 
G 
P. T. Ramankutty Achan v. Kalyanlkutty, A.I.R. 1971 Kerala 22, appreved. 
H 
Major Joginder Singh. v. Bivi Raj .Mohlnder Kaur, A.J.R. 1960, Punjab 249, 
and Nanak Chand Banarsl Das and Ors. v. Chander Klshore and Or1. A.I.R. 1969 
Delhi 235. overruled. 
(2) · Section 488, Cr.P.C., providei. 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 mow 
obligation of a man towards his wife and children. But s. 23 and other provisloD& 
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 depen-
dents under their personal 111iv. There is no inconsistency between the 1956-Act 
Hi-M 255 Sup Cl/75 
484 
SUPREME COURT. REPORTS 
[1975] 2. $.C.R. 
and s. 488, Cr. P.C. Both could stand together, and hence, there is no qiu:stion 
of s. 488 being partially repealed or modified by s. 23 of the 1956 Act. [490 A-Bl 
Nanak Chand v. Shri Chandra Kishore Agarwal and Ors., [1970] 1 S.C.R .. 565, 
followed. 
CR:MINAL APPELLATE JURISD:OTION: 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 Kam!esh Bansal, for the 
appellant. 
Sardar Bahadur Saharya, for the respondents. 
The Judgment of the Court was delivered by 
SARKAR!A J. Can the income of the wife be taken into account in 
determining the amount of maintenance payable to her under Section 
~88 of the Code of Criminal Procedure, 1898? This is the pr
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