1. This is an application in revision against the order of the Fourth City Ala gist vale under Section 488 of the Cr PC, ordering the payment of Rs. 50/- per mensom as maintenance to the respondent.
2. The respondent is represented by Mr. Purushotham Rao, Advocate.
3. Mr. Appa Rao, the learned Advocate for the petitioner draws my attention to para. 5 of the petition of the respondent in the lower Court dated 19-7-1950, in which she admits that the is serving as a school-mistress in the Model Primary School and is drawing a total salary of Rs. 148/- made up of Rs. 104/- as basic pay and Rs. 44/- as allowances.
4. It is argued before me that under the circumstances the order of the lower Court should be set aside as there is no urgency for the decision of the question of maintenance. Mr. Appa Rao has cited ‘Mohamed Ali v. Sakina Begum, 45 Cri. L.J 254 (Lah.)’ in which it has been held that the Magistrate's power to make an order under Section 488 of the Cr PC is discretionary and where, therefore the evidence in a case shows that the wife has a private income of her own which is sufficient to keep her (wife) from starvation, an order granting her maintenance is bad. I agree with the said statement of the law as propounded by Mr. Justice Blacker of the Lahore High Court. The wording of Section 411 of the H. Cr PC. Section 488 Sub-section (i) is that the Magistrate concerned may order the payment of monthly allowance towards maintenance to wife or child. Thus, from the word may it is clear that discretion has been given to the Magistrates to pass an order under the Section. This discretion should be exercised judicially. The object of the proceedings for maintenance under the Section is to prevent vagrancy by compelling the husband or the father to support his wife or child who is unable to support itself. I am fortified in this view by the ruling cited in ‘Ibrahim Mohamed v. Kurshed Bai, 42 Cri. L.J 639 (Bom.)’. It is to be noted that the provisions of this chapter are not in the nature of penal provisions. The allowing of maintenance is not a punishment, under the penal laws of the country. Its purpose is the enforcement of a duty wherever necessary. In ‘Sardar Muhammad v. Nur Muhammad, 18 Cri. L.J 811 (Lah.), it has been held that the object of maintenance proceedings is not to punish a parent for his past neglect. In the case before me the respondent has admitted that she is earning Rs. 148/- per mensem. She claims Rs. 50/- per mensem towards her maintenance. Thus, it is clear that she is getting a sufficient salary for the purpose of her maintenance. Whether under her civil rights she is entitled to get maintenance from her husband under the Mohamedan Law though she is earning herself is a question which must be decided by the Civil Court. The Criminal Court cannot decide this question. Thus, in the case, the discretion vested in the Criminal Court for exercise of powers under Sec. 488 must be exercised in favour of the non-applicant that is the present revision petitioner.
5. Mr. Purushotham Rao, the learned Advocate for the respondent has relied upon 20 Dec. L.R 342 : 17 Dec. L.R 149 : 30 Dec. L.R 53 and 15 Dec. L.R 125. All these rulings are but relevant and there is no discussion in these rulings with regard to the discretion of the Court either to refuse or to exercise the powers given under the Section. In 30 Dec. L.R 53 the question was whether the refusal of the wife to stay with her husband was justified in view of the fact that the husband had married for the second time. In 20 Dec. L.R 342, the question was whether the husband had sufficient means to maintain the wife. In 17 Dec. L.R 149, the question was whether the petitioner was a lawfully wedded wife of the counter petitioner. In 15 Dec. L.R 124, there was no discussion with regard to this question, of discretion which I have referred to. Thus these rulings have no bearing on the point at issue. The lower Court has not adduced any adequate reasons for granting maintenance though the respondent is getting enough salary from the school. I therefore allow this revision petition with costs, set aside the order of the lower Court and dismiss the petition of the respondent for maintenance.
6. Revision allowed.