1. These two Rules are taken up together for disposal as these are interconnected and arise out of the same order dated the 4th December, 1968 passed by Sri. S.B Bhowmick, Presidency Magistrate, 7th Court, Calcutta, under S. 488 of the Criminal P.C in case No. M/1023/67. The first Rule, being Criminal Revision case No. 1376 of 1968, is at the instance of the 2nd Party husband, Md. Basir, for setting aside the order of main, tenance passed by the learned Presidency Magistrate of the sum of Rs. 350 per month payable to the 1st Party wife, Noor Jahan Begum, to take effect from the date of the order. The other Rule, being Criminal Revision Case No. 231 of 1969, is at the instance of the wife, Noor Jahan Begum, for setting aside the order passed by the learned Presidency Magistrate, rejecting the petitioner's prayer for allowing maintenance also to her five daughters, living with her and for enhancing the quantum of maintenance.

2. The back-drop of the case is set in a respectable Mohammedan family of Calcutta, the husband, Mr. Basir, being a man of position and affluence while the wife, Noor Jaban Begum, is also well-connected. Unfortunately for the couple the ship of their marriage, instead of riding the high seas got entangled into shallows of doubts and bitterness. There were allegations and counter-allegations by one against the other, leading on to various litigations, culminating in the present proceedings under S. 488 of the Code of Criminal Procedure. Bereft of all verbiage, the case of the first party is that there was continuous neglect, refusal to maintain, and even cruelty on the part of the second-party and that to add to her discomfiture, new flames appeared is her husband's life and she had to leave the house in 1965 and in early 1966 and was ultimately driven out in July, 1966. Since then she was living separately from her husband with her five minor daughters on the charities of friends and neighbours and she is now living at 41, Sacharia Street, Calcutta, at the residence of her husband's brother, Samsul Haque. Left with no other alternative, she filed the present application for maintenance under S. 488 of the Code of Criminal Procedure in the court of the learned Chief Presidency Magistrate, Calcutta, praying for a maintenance of Rs. 800 for her and Rs. 200 each for the five minor daughters, totalling Rs. 1,800 per month. The second party showed cause and his case inter alia is that the boot is on the other leg; that the wife is really the guilty party; that it is out of her own free-will that she had left the house during his absence; and that the allegations levelled against him are all untrue. 7 witnesses were examined on behalf of the first-party and 6 on behalf of the second party, besides several documents being proved by the parties and as a result of the enquiry the learned Presidency Magistrate by his order dated the 4th December, 1969, passed the order of maintenance mentioned above. The said order has been impugned and the two Rules were issued.

3. Mr. Nalin Chandra Banerjee, Advocate (with Mr. Jahar Lal Boy, Advocate) appearing on behalf of the second-party petitioner in the first Rule, has contended that the order of maintenance passed by the learned Presidency Magistrate is not a proper order in law because of the absence of the essential ingredients enjoined under S. 488(1) of the Code of Criminal Procedure. Mr. Bejoy Kumar Bhose, Advocate (with Mr. Anil Bandhu Boy, Advocate) appearing on behalf of the first-party, opposite party, submitted that the evidence on record both oral and documentary, clearly establishes gross neglect and refusal to maintain the wife and the children by the husband and exhibits 1, 1/1, 2, 2/1, 3 and 3/1/1, the written commitments by the second-party husband, bear eloquent testimony to that. In the second Rule Mr. Bejoy Kumar Bhose, Advocate (with Mr. Anil Bandhu Boy and Mrs. Gauri Dey, Advocates) appearing on behalf of the first-party contended that the learned enquiring magistrate has clearly erred in rejecting the prayer for maintenance for the five daughters living with the first-party and that the quantum of maintenance passed is also grossly inadequate for the maintenance of the wife and the children, in conformance to their status and requirements. Mr. Kalin Chandra Banerjee, Advocate (with Mr. Jahar Lal Boy, Advocate) appearing on behalf of the second-party joined issue and submitted that there is no question of enhancement as some of the other children were living with the father and as there is no necessity at all for allowing separate maintenance for the five deughters living with the mother. Mr. Nalin Chandra Banerjee further submitted that the evidence on record relating to the means of the husband rules out the scope for any enhancement, as alleged or at all.

4. At the time of the hearing of the Rules an important point of law was raised as to the proper interpretation of the words “in the whole” in sub-s. (1) to S. 488 of the Code of Criminal Procedure and the learned Advocates appearing for the petitioner and the opposite party prayed for an adjournment which was granted, to a certain the correct position in law and to find out precedents. On the adjourned date, after hearing the further submissions of the learned Advocates appearing on behalf of the respective parties, it appeared that the point at issue is of some importance and so this court requested Mr. J.M Banerjee, a Senior Advocate of the Bar, to appear as amicus curiae in the case and the learned Advocate was good enough to agree to do so. Submissions thereafter were made on the date fixed by the learned Advocates appearing on behalf of the respective parties and also by Mr. J.M Banerjee appearing as amicus curiae.

5. Having heard the learned Advocates appearing on behalf of the petitioner and the opposite-party in the first Rule, I hold that the evidence on record clearly establishes neglect and refusal to maintain on the part of the husband and the findings ultimately arrived at in the case by the learned Presidency Magistrate, in that behalf, are cogent findings based upon relative evidence. The evidence of 1st party's witness No. 1, Noor Jahan Begum, the wife, brings to light in stances of neglect and refusal to maintain and also the circumstances which compelled her to leave her husband's house in 1965, in early 1966 and ultimately in July, 1966. She is corroborated in material particulars by her daughters, 1st Party's witnesses Nos. 2 to 4 and further corroborated by documentary evidence viz., Exhibits 1, 2 and 3, being the written commitments to the wile by the husband in Urdu and Exhibits 1/1, 2/1, and 3/1/1 which are the English translations thereof, made by 1st party's witness No. 7, Abdul Hasnat, an Advocate. The said exhibits are sought to be explained away by the husband on the purported ground that those were for the take of restoration of peace and for the interests of the children, but the said explanation does not justify the nature of the commitments. The allegations levelled by the husband are sought to be proved by his own evidence as D.W 5 (wrongly mentioned as D.W 4) and also by the evidence of his son, D.W 4. I hold however that the said evidence is not sufficient to establish the allegations made by the second party. The evidence of D.W 6 (wrongly mentioned as D.W 5) who is a Sub-inspector of Police attached to the Park Street Police Station, is not convincing and has been rightly jettisoned by the learned magistrate. Exhibits C and D also do not help the second-party ultimately. The latter exhibit is dated 19.11.67 and is by the eldest daughter of the second party from Assam. From the letter itself it transpires that the lady was living away in Assam all the time and is not there, fere competent to depose to the paints at issue. The other evidence adduced by the second-party does not again in any way demolish the case made out by the first-party. I accordingly hold that the first-party has succeeded in proving neglect and refusal to maintain on the part of the husband and even leaving out of consideration the question of any second marriage, the evidence on record entitles her to have a maintenance under S. 488 of the Criminal P.C The contention of Mr. Nalin Chandra Banerjee, Advocate, raised in the first Rule Bccordinly fails, and I uphold the order passed by the learned Presidency Magistrate granting a maintenance. As to the quantum of maintenance payable however, it will abide the decision in she connected Rule.

6. In the second Rule viz., in Criminal Revision Case No. 231 of 1969, Mr. Bhose's contention is that the learned Presidency Magistrate clearly erred in rejecting the prayer for maintenance of the five daughters living with the first-party and that the quantum of maintenance, which is grossly inadequate, should also be enhanced to meet the requirements of the wife and the growing up children, living with her. The amount of maintenance undoubtedly depends on the means of the husband. The expression “sufficient means” within the meaning of S. 488(1) of the Criminal P.C, does not mean visible means only but stands for potential means. It includes a capacity to earn. A reference in this context may be made to the case of Kandaswami Moopan v. Angammal, AIR 1960 Mad 348 wherein Mr. Justice Ramaswami observed at p. 349 that “The possession of property is not at all the criterion for awarding maintenance under S. 488. It is independent of possession of property. So long as a man is able-bodied and can work and earn his livelihood, it is his duty to support his wife.” I agree with the said observations and hold that the expression “sufficient means” as incorporated in S. 488(1) of the Criminal P.C, does not stand for physical means alone. In this case, however, the evidence on record clearly brings to light visible means and one need not travel into the realms of potential means. I will therefore refer to the evidence on this point adduced by the respective parties. The evidence is undoubtedly conflicting and the income of the second party ranges from about Rs. 1,000 per month as deposed to by the second party's witness No. 5 (wrongly described as second-party's witness No. 4) to about Rs. 6,000 as stated by the first party's witness No. 1, Noor Jahan Begum. It is better to proceed upon the golden mean and in that context the evidence of the opposite party's witness No. 4, the son, will be material. He admitted in cross-examination that the second party gets Rs. 2,000 per month from his Elliot Road premises and Rs. 500-600 per month from his Taltola House by way of rent. He further admitted that he sometimes collects rent and that besides this income his father has some properties in Assam fetching no income. The monthly income of the second party therefore, to compute the sum even modestly, is about Rs. 2,500 per month. It is the settled practice, however, of the High Court not to interfere in Revision with the amount of maintenance which is awarded by the Magistrates unless and until it is grossly inadequate. In view of the evidence on record, however, I hold, as observed by Mr. Justice Ramaswami in the case reported in AIR 1980 Mad 348 that the quantum of maintenance awarded in this case “is so manifestly perverse that it requires interference without any further argument on the subject.”

7. Mr. Nalin Chandra Banerjee, Advocate, appearing on behalf of the second party husband, next contended that, in any view, the quantum of maintenance cannot exceed “five hundred rupees in the whole” as laid down in S. 488(1) of the Criminal P.C Mr. Banerjee submitted that some meaning and effect must be given to the words “in the whole” as used an the said sub-section and referred to a case, in support of his contention, viz the case of Palmerino v. Mrs. Palmerino, AIR 1927 Bom 46 decided by Shah and Percival, JJ. under the provisions of S. 488 of the Criminal P.C, before its amendment by Act 26 of 1955 having a ceiling of rupees one hundred only. Mr. Justice Shah who delivered the judgment of the court observed at p. 47 that “The magistrate can make an order for the maintenance of his wife and child at such monthly rate not exceeding one hundred rupees on the whole, as he thinks fit. In the present case the order of the magistrate directing a monthly allowance to be paid at the rate of Rs. 150 per month was clearly in excess of his jurisdiction”. Mr. Nalin Chandra Banerjee, Advocate, finally submitted that in a summary proceeding under S. 488 of the Criminal P.C, providing for speedy remedies, the wider interpretation sought to be put to the words “in the whole” by Mr. Bhose extending ultimately the ceilling to a sum exceeding five hundred rupees is unwarranted and will lead on to repugnancy. In view of the personal laws of the parties and an view of the conditions of the present day world, and the alternative avenues available to the parties by way of a suit under the Indian Divorce Act, the ceiling as fixed under S. 488, sub-s. (i) of the Criminal P.C should not be interpreted to include any sum even exceeding it. Mr. Bejoy Kumar Bhose, Advocate, appearing on behalf of the first-party wife joined issue and submitted that the amount of “five hundred rupees in the whole” is the maximum allowable for each claimant and not for all the claimants taken together in a proceeding under S. 488 of the Criminal P.C Otherwise it will be circumscribing the meaning of the said words and frustrating the intention of the legistature. In this context he referred to the case of Tulsi Das Burman v. Sm. Saraju Dei Devi AIR 1933 Cal 406 wherein Panckridge and Patterson, JJ. observed that “But it is sufficient to Bay that in my judgment the words ‘in the whole’ are intended to prevent the court from exceeding the statutory limit in the case of any particular dependent 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 dependents.”

8. The point thus raised for determination is an intriguing point of law of some importance. A reference is therefore necessary to sub-s. (1) to S. 488 of the Code of Criminal Procedure to ascertain the intention of the Legislature as incorporated therein and also the context in which the words “in the whole” Slave been used. Section 488(1) is as follows; “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 Glass 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.” It is significant that the words used at the beginning of the said sub-section are “his wife or his legitimate or illegitimate child unable to maintain itself” and also at the end of the section preceding the words “in the whole” are “to make a monthly allowance for the maintenance of wife or such child.” Some meaning and effect must be given thereto and the words “in the whole” must be interpreted in the context referred to above. It is also relevant that alternatives and not conjunctives have been used while mentioning the words “the wife or his legitimate or illegitimate child” in the abovementioned sub-section. I may now turn to the meaning of the words “in the whole” and “in all” as given in the Shorter Oxford English Dictionary (3rd. Edn.), edited by C.T Onions. The expression “in all” has been defined as “all together” but the words “in the whole” have been defined as “to the full amount or entirely.” In Stroud's Judicial Dictionary (3rd. Edn.) the word “all” has been mentioned as being equivalent to “each and every.” Lord Fitzgerald approved of the said definitions in the case of Burnett and Great North of Scotland Railway, (1885) 54 L.J Q.B 539. Lord Greens, the Master of the Rolls, observed in the case of Re Wellsted's Will Trusts, Wellsted v. Hansom, (1949) Ch 296 at p. 306 that “the proper way of construing a word like ‘all’ is to say, that it means ‘all,’ and does not mean unless one finds a compelling context which forces one to place some limitation on the word”. The expression “in the whole” is not therefore equivalent to “in all” and the same is pin pointed by the use of alternatives and not conjunctives in respect of the different claimants. For a proper interpretation of the words again one will have to depend on the Rules relating to the interpretation of statutes. It has been observed in “Maxwell on the Interpretation of Statutes” that “The first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning if they have acquired one, and, otherwise in their ordinary meaning and secondly, that the phrases and sentences are to be construed according to the roles of grammar”. This is known as the Rule of Literal Construction. As Viscount Simon L.C, observed in the case of Nokes v. Doncaster Amalgamated Collieries Ltd. (1940) 3 All ER 549 (HL) at page 563 that “the golden Rule is that the words of a statute must prima facie be given their ordinary meaning”. The observations of Viscount Haldane, L.C are also to the same effect. In the case of Attorney General v. Milne, (1914-15) All ER 1061 at p. 1063 it was observed by the Lord Chancellor that if the language used “has a natural meaning, we cannot depart from, that meaning unless, reading the statute as a whole, the context directs us to do so”. I respectfully agree with the said observations relating to Literal Construction of Statutes and I hold that on the basis thereof the words “in the whole” in the eon text of the other expression used in sub-s. (1) to S. 433 of the Coda of Criminal Procedure are not susceptible of the cirumscribed interpretation sought to be pat thereupon by Mr. Nalin Chandra Banerjee, Advocate. It is pertinent again to refer to the principle of Interpretation of Statutes ruling out redundancy. As was observed by Lord Sumner is the case of Quebec Railway Light, Heat and Power Co. Ltd. v. Vandry, AIR 1920 P.C 181 at p. 186 that “Effect must be given if possible to all the words used, for the legislature is deemed not to waste its words or to say any thing in vain”. Mr. Justice Subba Rao (as His Lordship then was) also observed in the case of Ghanshyamdas v. Regional Asst. Commr. of Sales Tax, Nagpur, AIR 1964 SC 766 at p. 772 that “a construction which would attribute redundancy to a Legislators shall not be accepted except for compelling reasons”. I agree with the same and I hold that in order to give proper effect to the words “in the whole” as used by the Legislature in S. 488(1) of the Code of Criminal Procedure, the same cannot be restricted to mean the ceiling of rupees five hundred in the case of all the claimants in a particular proceeding inasmuch as the said construction is clearly had and repugnant, attributing redundancy to the Legislature while incorporating the words “in the whole”. On a consideration therefore of the language of S. 488(1) of the Code of Criminal Procedure and also in the light of the rules relating to the Interpretation of Statutes, it appears that the words “in the whole” as used in S. 488(1) of the Criminal P.C do not mean “in all” and therefore the ceiling of five hundred rupees as mentioned there is not for all the claimants in a proceeding taken together but the sum-total of all the different items of maintenance relating to a single claimant eligible to maintenance.

9. It will now be pertinent to refer to the case law on the point. Two of the cases have already been referred to above in connection with the respective submissions of the learned Advocates appearing on behalf of the firsts party and the second party. I will now pass on to a consideration of the several cases cited by Mr. J.M Banerjee, Advocate, appearing as amicus curiae, in this case, Doth in favour and against, relating to the interpretation of the words “in the whole” as used in S. 488(1) of the Code of Criminal Procedure and to the material submissions ultimately made by him. Mr. Banerjee referred in the first place to the case of K.C Kent v. E.E.L Kent, AIR 1926 Mad 59 under the provisions of the Old Act before the amended Act 26 of 1955 and providing for a ceiling of rupees one hundred only. Mr. Justice Devadoss observed therein at page 61 that “The magistrate can only order one sum not exceeding rupees hundred to be paid for the wife and for each of the children unable to maintain itself”. In other words, it was held that the words “in the whole” mean one sum only and not separate sums for different purposes for the different claimants. The next case cited by Mr. J.M Banerjee is the Full Bench decision of the Bombay High Court in the case of Bai Prabhavati Sumatilal Dholidas v. Sumatilal Dholidas. AIR 1954 Bom 546 (FB). Chief Justice Chagla delivering the judgment of the Full Bench observed at pages 546 and 547 that “The intention of the Legislature was clear, and the intention was to cast an obligation upon 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”. The next case cited by Mr. Banerjee is the case of AIR 1933 Cal 406 already cited by Mr. Bhose and discussed before. Mr. J.M Banerjee further referred to a later case viz., the case of M. Bulteel v. R.C. Bulteel, AIR 1938 Mad 721, and under the Act before the amendment in 1955. Chief Justice Leach and Mr. Justice Madhavan Nair held that where an application is made for the maintenance of the wife and also for her child, the husband can be directed to pay Rs. 100/- per mensem for the maintenance of the wife and Rs. 100/- per mensem for the maintenance of the child. The decision in AIR 1933 Cal 406 was relied upon in the said case. Mr. Banerjee finally referred to an old case under the old Act when the maximum amount payable by way of maintenance was not to exceed rupees fifty in the whole, viz., the case of Clement, J. De Monte v. Florence De Monte. (1911) 12 Cri LJ 583 (Low Bur). The Chief Judge, Sir Charles Fox of the Lower Burmah Chief Court, observed therein that “the section contemplates the making of an order for a monthly allowance of a wife or of a child. The order may direct the amount to he paid to any person the magistrate directs”. A wide interpretation was given to the words “in the whole” and it was held that the total sum allowable under the old Act for maintenance of the wife and the children can exceed rupees fifty which was the ceiling fixed. Mr. J.M Banerjee appearing as amicus curiae in the present Rules, ultimately submitted, on the basis of the above mentioned decisions, that the correct view appears to be that the words “in the whole” in S. 488(1) of the Criminal P.C mean the total amount of maintenance payable to each individual claimant in a proceeding being the sum-total of the various items of maintenance and not the total amount of maintenance payable in a proceeding, irrespective of the number of the claimants entitled to such maintenance. I agree with the Division Bench decision of the Calcutta High Court in AIR 1933 Cal 406 as well as the Full Bench decision of the Bombay High Court in AIR 1954 Bom 546 (FB) and I also agree with the submissions of Mr. J.M Banerjee, appearing a amicus curiae and I hold that the ceiling of “five hundred rupees in the whole” as enjoined in S. 488(1) of the Criminal P.C is not the total amount of maintenance that can be awarded by the learned magistrate to all the claimants taken together in a proceeding but the sum-total of the different items of maintenance in the case of each claimant and can very well, exceed the maximum of rupees five hundred if there be a number of claimants. Any other interpretation, will be opposed to the clear wording of the section. I uphold the interpretation given by Mr. Bhose to the words “in the whole” in sub-s. (1) to S. 488 of the Criminal P.C and I overrule the circumscribed interpretation sought to be put thereupon by Mr. Nalin Chandra Banerjee.

10. Mr. Nalin Chandra Banerjee lastly submitted that having regard to the provisions of the Indian Divorce Act and the other relief provided for in different Acts, too wide an interpretation of the intention of the legislature as to the ceiling of maintenance, is neither called for nor merited. The learned Advocate contended that the law must have its roots in the needs of the society and it cannot ignore the dynamic social changes. He therefore contended that the words “not exceeding five hundred rupees in the whole” must be interpreted in the light of such social needs and against the backdrop of the successive changes in the Act, enhancing the amount of the maintenance from Rs. 50 under the old Code, to Rs. 100 under the Amending Act 18 of 1923 and finally to Rs. 500 by the Amending Act 26 of 1955. I hold however that it will neither be expedient nor proper to import the concept of a dynamic theory to interpret the provisions of a statute enjoining a summary proceeding. When Mr. Justice Mccardie observed in Ronald True's Case reported in the Notable British Trials, Vol on Ronald True, at p. 246 that “All law muat progress or it must perish in the esteem of man,” he did not certainly mean that existing legislations should be bypassed or wrongly interpreted to give effect to the purported progressive outlook. Nobody would, dispute that today when man has reached the moon, he need not remain shackled to age-old shibboleths and that laws may be changed to reflect the changing needs of the society. But so long as it is not changed or altered by the legislature, to suit such contingencies, the Courts must interpret the law as it is and not try to legislate in the garb of sophisticated interpretations. In view of the established principles whereby statutes are to be interpreted this theory is de hors both “the principle of ‘intent’ and that of ‘meaning’.” It would be pertinent in this context this to refer to the observations of Francis Bacon that “Judges ought to remember that their office is jusdicere and not jus dare; to interpret law, not to make law or give law.” I agree with the said observations and I hold that it is not possible to give effect to the dynamic theory of interpretation propounded by Mr. Nalin Chandra Banerjee within the frame work of the existing statute. The ancillary submission raised by Mr. Nalin Chandra Banerjee accordingly fails.

11. Before I part with the case, I must place on record the appreciation of this Court of the manner in which Mr. Jintendra Mohan Banerjee, Advocate, discharged his task as amicus curiae. The learned Advocate has spared no pains in placing before the Court the material decisions on the point, either in favour of or against the contentions raised, has materially assisted this Court in coming to the ultimate decision.

12. In the result, the order dated the 4th December, 1968, passed by Sri S.B Bhowmick, Presidency Magistrate, 7th Court, Calcutta in Case No. M/1023/67 under S. 488 of the Criminal P.C, is modified as follows; The said order, so far as it holds that there has been neglect or refusal to maintain on the part of the second-party-husband is hereby upheld; and it is directed that the second-party shall pay to the first-party a maintenance of Rs. 200 per month, and to the five daughters living with her and unable to maintain-themselves, a maintenance of Rs. 100 each per month, totalling Rs. 700 per month, taking effect from the date of the original order, payable by the seventh day of the following month. It is further directed that the arrears of the maintenance due, including the difference between the amount payable and actually paid under the orders of the Court, shall be paid within six months from the date of this order. The two Rules are disposed of accordingly.

13. The records are to go down as early as possible.

14. Order accordingly.