CALCUTTA HIGH COURT

                                                Purnasashi Devi

                                                        Vs.

                                        Nagendra Nath Bhattacharjyee

                                        Criminal Ref. No. 34 of 1950

                                          (Das Gupta and Lahiri, JJ.)

                                                   16.05.1950

                                                  JUDGMENT

Das Gupta, J.

1. This reference was made by the Sessions Judge of Bardwan recommending that an order
passed by the learned Magistrate, Asansol, directing payment of Rs. 60-8-0 per month and 11
Sali Bhati rice and 2 Sali of other Variety of rice or its money equivalent per year to big wife Sm.
Purnagashi Devi for her maintenance and the maintenance of his legitimate child by her should
be set aside.

2. Three grounds have been put forward by the learned Judge for big recommendation. The first
is that as the learned Magistrate was of the view that the maintenance had been paid but the rate
was inadequate, it could not in law be said that the husband has neglected or refused to maintain
his wife. In my judgment, this ground cannot prevail. When the law says "neglects or refuses to
maintain", it cannot but mean "neglects or refuses to maintain properly." Suppose one rupee was
paid for the maintenance of a wife for a month, that would be paying some amount of
maintenance, but it would be ridiculous to suggest that that in such maintenance which would
stand in the way of the operation of Section 438, Criminal Procedure Code. In this case, the
learned Magistrate found that the maintenance which had been given by the husband was
inadequate. He had jurisdiction to pass proper order under Section 488(1), Criminal Procedure
Code.

3. The second ground is that "maintenance" includes food, clothing and lodging and it does not
include cost of education. Even if the costs of education were left out, it does not seem to me that
the amount ordered by the learned Magistrate in this case could be considered to be too high. But
I do not see why the cost of ordinary education should not in the case of a middle class family be
considered to form part of maintenance. It may be that when the case of a person of the cultivator
class is being considered, any education more than primary education should not be considered
to form part of maintainable, but the case of middle class families is different. I am unable to
agree with the learned Judge that in no case can maintenance be thought to include anything
more than food, clothing and lodging.

4. The third ground is that while Section 488, Criminal Procedure Code empowers the Magistrate
to fix a monthly allowance for the maintenance, the learned Magistrate had acted illegally in
directing annual payment of the paddy. In my opinion, the learned Judge was right in this
criticism of the learned Magistrate's order The operative portion of Section 488, Criminal
Procedure Code is in these words :

        " . . .. order such person to make a monthly allowance for the maintenance of his wife or
        such child, at such monthly rate, not exceeding one 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."

5. There is no provision for an order of payment of annual allowance, or any kind of annual
payment.

6. It was contended by Mr. Dutt, on behalf of the husband that as the son on whose behalf
maintenance has been asked for is age 17 or 18 or 19, he does not come within the meaning of
"child" under Section 488, Criminal Procedure Code. If it was intended to limit the maintenance
to eons or daughters upto a certain age, there seems no reason why the Legislature did not make
use of explicit words to give effect to that intention. It seems to me that the word "child" has been
deliberately used to leave the Courts free to order maintenance for such sons and daughters as are
unable to earn livelihood for themselves, having due regard to their class of society to which they
belong and other surrounding circumstances. The fact, therefore, that the son is 17 or 18 or 19 is,
in my opinion, no ground for refusing maintenance on his account.

7. In this view of the matter, I would maintain the order passed by the learned Magistrate with
this modification oily that I would order payment of a lump sum money per month instead of Rs.
60-8 0 per month and 11 Sali Shati rice and 2 Sail of other variety of rice or its money equivalent
per year as ordered by him. On consideration of all the circumstances, it seems to me that the
proper order to make is that the petitioner must pay Rs. 90 per month on account of the
maintenance of his wife a ad Child to his wife Sin. Purna Sashi Devi and I would order
accordingly. This order will take effect from the date of the petition under Section 483, Criminal
Procedure Code.

8. The reference is disposed of in these terms.

Lahiri, J.
9. I agree.
Order accordingly.