Gopal Singh, J.@mdashThis is criminal revision by Dr. Didar Singh against his wife Revail Kaur directed against the judgment of the Additional Sessions Judge, Gurdaspur confirming that of the Judicial Magistrate Ist Class at Batala granting the wife maintenance allowance of Rs. 100 per mensem u/s 488(1), Code of Criminal Procedure.
2. The wife filed an application on March 26, 1970 alleging that about thirty years prior to the date of application, she remarried by Chadar Andazi to the husband after the death of Gurpal Singh, her previous husband, brother of Dr. Didar Singh, that the husband took to another wife, Gurbachan Kaur by name and began mal-treating and ignoring her, that he started criminal cases against her, that as a result of wedlock between the husband and the wife, two sons and a daughter were born and that for the last several years, he had neglected and refused to maintain her and the children. She further stated that the husband was Animal Husbandry Officer drawing Rs. 1,000 per mensem. She claimed maintenance allowance of Rs. 500 per mensem. In the written statement on behalf of the husband, it was denied that the wife ever married to him or that any child was born to her as a result of their wedlock and that he had only one wife, Gurbachan Kaur. He admitted that the wife was previously the wife of his brother, Gurpal Singh and that after his death, she had been living with the father of the husband in village Nawan Pind Milkhiwala and not with him at the places, where he had been posted in course of his employment. He added that his father transferred 70 kanals and 4 marlas of land in her name apart from 15 kanals and 6 marlas of land in the name of her two sons, Sarabjit Singh and Baldev Singh and 37 kanals and 4 marlas in the name of her daughter Surinder Kaur. He stated that income from these lands was not less than Rs. 3500 per annum and that that was sufficient to maintain her and the children. At the end, he prayed for dismissal of the application.
3. In support of claim for maintenance, the wife produced Charan Singh AW1 and Hargopal AW2 She herself appeared as AW3. In rebuttal, Amar Singh RW1, Brian Singh RW2, Chinda RW3 and Kamar Kishore RW4 supported the testimony of the husband, who himself appealed as RW5.
4. On appraisal of the evidence, the trial Magistrate found that the wife had been married by Chadar Andazi by the husband on December 26, 1938, that it was as a result of their wedlock that she gave birth to the said two sons and a daughter, that as the husband had neglected and refused to maintain her, she was entitled to claim the maintenance. The income or the husband was held to be Rs. 50 per msnsem. She was granted maintenance allowance of Rs. 100 per mensem. The plea of the husband that the lands in the names of the wife and her children yielded income to Rs. 3500 per annum and consequently she could not be granted maintenance allowance was found to be of no avail to the husband. It was held that a wife, even if she has a source of income, is entitled to maintenance allowance. The revision petition filed on behalf of the husband having met the fate of dismissal, the husband has invoked the revisional jurisdiction of this Court.
5. Shri D.S. Chahl appearing on behalf of the husband has raised the following punts:-
(1) That on the basis of the evidence led in the case, there is no justification for the finding that the wife had married the husband and the children born to her were born as a result of their wedlock.
(2) That as the (sic) in the names of wife and children yielded income of Rs. 3500 per annum sufficient to maintain her, she is not entitled to be granted any maintenance allowance.
Point No. 1
On behalf of the wife, there was proved entry Exhibit P.2 dated December 25, 1938 existing in bahi produced from the custody of Charan Singh. He is first cousin of the husband and thus belongs to his family. He has stated and that is also mentioned in the bahi entry that the husband married the wife on December 26, 1938, that marriage was performed by Chadur Andazi and Anand Karaj ceremony was held, that the marriage was performed in the presence of the entire brotherhood and that signatures of some persons out of the brotherhood, who attended the marriage, are appended to the memorandum drawn up. This memorandum is signed by the husband and bears in his hand, the date of the document. It is thumb marked by the wife. The document is attested by Charan Singh apart from its being attested by several other persons. This document was more than thirty years old when it was sought to be proved in Court on July 3, 1970. u/s 90, Indian Evidence Act, 1872, when any document purporting to be thirty years old is produced from proper custody, the Court may presume that the signature and other writing borne on the document are in the hand writing of that person, in whose handwriting they purport to be and that if a document has been executed or attested, it was duly executed and attested by the persons by whom it purports to have been executed and attested.
6. This bahi entry has been produced from the custody of Charan Singh, first cousin of the husband. It is signed by him. It exists in the bahi which he himself was then maintaining and in which other transactions are recorded and entries pertaining to income and expenditure made. As I have observed above, Charan Singh is one of the members of the family of the husband. It is not only signed by the husband, the wife and Charan Singh but other members of the brotherhood, to which the husband belonged. I have no doubt about its having been produced from proper custody. The document having been produced from proper custody and being more than thirty years old, it is legitimate: to presume that the document pertaining to the transaction of marriage between the husband and the wife recorded therein is signed by the husband and the wife, is attested by Charan Singh, who produced that document. This bahi entry belies the stand taken by the husband that he never married the wife.
7. The husband made two previous statements prior to the filing of the application by the wife u/s 488(1), Code of Criminal Procedure. In those statements he admitted that Revail Kaur was his wife. Copy of one of the previous statements is Exhibit P. 3. It was made by the husband as a witness in criminal case, State v. Sarabjit Singh and others decided on January 3, 1967. The husband stated as under:-
Sarabjit Singh is my son from Ravail Kaur, whom I married by Chadar Andazi after the death of my brother.
The second statement, which he made is dated November 10, 1967. Its certified copy is Exhibit P. 4. It was made in proceedings of an application filed u/s 488(1), Code of Criminal Procedure by Kulwant Kaur. She is their daughter. In that statement, the husband admitted that Kulwant Kaur was his daughter and her mother was Ravail Kaur. Hargopal and the wife herself deposed to the facts that she had been married to the husband and that the three children were borne out of their wedlock.
8. The husband examined Amar Singh, Bhan Singh and Chinda R.Ws. They are residents of village Nawan Pind Milkhiwala, to which the husband originally belongs. They denied that the wife married the husband. They, however, in their statements admitted that the three children, Sarabjit Singh, Baldev Singh and Kulwant Kaur were the grand-children of Kishan Singh, father of the husband. The husband had the aquacity to deny that he made the above two statements to the effect as mentioned therein. These statements were made on oath by the witness. They were recorded in course of judicial proceedings. There cannot be any doubt about the correctness of those statements. He has chosen to deny their correctness because of the false plea taken up by him in the proceedings of this case.
9. On the basis of the above evidence, I have no doubt that the wife had been married to the husband and that she gave birth to two sons and a daughter as a result of their wedlock. She has been neglected and refused to be maintained by the husband. The marriage of the wife with the husband having been established and she having been neglected and refused to be maintained by him, she is entitled to claim maintenance allowance against him.
Point No. 2.
10. Kamar Kishore Kanungo R.W. appeared to support the stand taken by the husband that the wife and her children lived together and had income from lands in their names sufficient to support the wife and children. This evidence has been led to show that she has her own source of income and she could not be granted any maintenance allowance even if the husband is held to be liable to pay that allowance. This witness proved produce estimates. Exhibits R. 1, R. 3, R. 5 and R.8 in respect of the lands mentioned in khasra girdawari R. 2. The aggregate of income in these produce estimates shows that the income of these lands is Rs. 3500/- per annum. It is, however, contended on behalf of the wife that, if the husband is found to have neglected or refused to maintain the wife, the husband will be liable to pay the maintenance allowance independent of the consideration of the income of the wife. Sub-section (1) of Section 488, under which maintenance allowance can be awarded to the wife against the husband runs 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 Chief Judicial or any other Judicial 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 while, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.
11. According to the above provision, if a husband or a father has sufficient means to maintain his wife or children, he is liable for the maintenance allowance of the wife or children if neglect or refusal to maintain the wife or the children has been proved. In so far as the children are concerned, it is provided that if a child is unable to maintain her or himself, only then could maintenance be allowed to the child but if the child is able to maintain itself, even if its father has neglected or refused to maintain him or her, he or she could not be granted any maintenance allowance. As the language of the provision shows, it is not so in case of a claim of maintenance made by wife against her husband. She is entitled to maintenance as a matter of right, if she succeeds in showing that her husband had neglected or refused to maintain her independent of the question whether she has sufficient means to maintain herself. It is inconsequential for grant of maintenance allowance to a wife whether she is or she is not able to maintain herself. The word ''itself'' qualifies the word ''child'' occurring before the expression, ''unable to maintain'' followed by the word ''itself''. The word ''itself'' refers only to the child and does not relate to the wife. It is only in relation to a child, who may belong either to masculine gender or to feminine gender that the word, ''itself'', which is a neutral gender could be used. With reference to wife, the appropriate pronounce to be used would be ''herself'' and not ''itself''. The legislature has advisedly used the word, ''itself'', which refers to a child and cannot refer to a wife, for whom the precise word would have been ''herself'' and not itself. With this construction placed upon the language of sub-section (1) of section 488, I have no doubt that the question of ability of a wife to maintain herself is irrelevant to the scope of that sub-section. The result of her being granted maintenance allowance must follow as a matter of consequence, if she has succeded in showing that her husband had neglected or refused to maintain her, independent of the consideration whether otherwise she is able to maintain herself or not. Thus, this point of argument also has no force.
12. For the foregoing reasons, I disallow the revision petition and uphold the judgments of the two Courts below granting maintenance allowance of Rs. 100/- per mensem to the wife.
