JUDGMENT Virendra Saran, J.
1. Ashok Kumar Tewari has filed this application against the order dated 11.4.1994 of Sri Jhamman Lal, Special Judge. Sitapur partly allowing criminal revision No. 226 of 1992. Smt. Shishu Pala on her own behalf and on behalf of minor child Naunit Kumar filed application under Section 125 Cr. P.C. The case was registered as Mis. Criminal Case No. 87 of 1992 and was decided by Sri Prahlad Singh, Munsif Magistrate, Biswan district Sitapur.
2. The learned Magistrate directed Ashok Kumar Tewari to pay monthly maintenance at the rate of Rs. 500/- to Smt. Shishu Pala and Rs. 290/- to the minor child Naunit Kumar. The applicant filed Criminal Revision in the Court of Sessions. The revision was partly allowed and the order passed by the learned Magistrate was modified to this extent that the amount of maintenance was directed to be made payable from the date of the order passed by the learned Magistrate in place of the date of the application. The applicant has come up to this Court by way of filing this application under Section 482 Cr. P.C.
3. I have heard Sri Virendra Bhatia, learned Counsel for the applicant and Sri Anoop Srivastava on behalf of the contesting respondent.
4. Learned Counsel for the applicant has contended that the amount of monthly maintenance awarded to the two recipients, namely, the wife and the child, is Rs. 500/- and Rs. 200/- per month respectively. The total comes to Rs. 700 per month. According to the learned Counsel, under Section 125 Cr. P.C. the amount of maintenance cannot exceed Rs. 500/- in the whole. He has referred to the relevant portion of Section 125 Cr. P.C., which states:
"a 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, father or mother, 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 may from time to time direct." (Italics Supplies)
5. I am unable to accept the contention of the learned Counsel for the simple reason that the words--"five hundred rupees in the whole" have to be read in a reasonable manner and in the context of the independent right of the wife and of the child to receive maintenance. There is no dearth of judicial pronouncements which lay-down that under Section 125 Cr. P.C. the wife and the child have independent right to receive maintenance, the other of them has an independent right to get maintenance. While construing the provisions of an enactment, the Court should avoid a construction which may lead to absurdity or cause hardship. If the contention of the learned Counsel for the applicant is accepted, it would result in starvation and vagrancy and the very purpose of enacting Section 125 Cr.P.C. would be I lost. The Supreme Court in the case of Captain Ramesh Chandra Kaushal v. Mrs. Veena Kaushal and Ors.; AIR 1978 Supreme Court 1807 has had the occasion to interpret the words--"in the whole" occurring in Section 125 Cr. P.C. The Supreme Court approved the view of the Bombay High Court in the case of Prabhavati v. Sumantilal: AIR 1954 Bombay 546, and the view of the Calcutta High Court in the case of Md. Basir v. Noor Jahan Begum; (1971 Cr. L.J 547). Speaking for the Court, Krishna Iyer, J. observed :
"The words which connote that the total, all together, cannot exceed Rs. 500/-, namely "in the whole" have been inherited from the previous Code although some ambiguity in the sense of the Clause is injected by these words. Clarity, unfortunately, has not been a strong point of our draftsmanship, at least on occasions and litigation has been engendered by such deficiency. Luckily, these words have been subject to decisions which we are inclined to adopt as correct. A full Bench of the Bombay high Court in Prabhavati v. Sumantilal AIR 1954 Bombay 546 : (1954 Crl. L.J, 1734 FB) has held that the sum specified is not compendious but separate, Chagla C.J. explained the position correctly, if we may say with respect:
"The suggestion that the jurisdiction of the Magistrate is limited to allowing one hundred rupees in respect of maintenance of the wife and the children jointly is, in our opinion, an impossible construction once it is accepted that the right of the wife and each child is an independent right. Such a construction would lead to extremely anomalous results. If, for instance, a wife applies for maintenance for herself and for her children and the Magistrate allows a maintenance of one hundred rupees, and if thereafter an illegitimate child were to come forward and to make an application for maintenance, the Magistrate having allowed an allowance to her up to the maximum of his jurisdiction Would be prevented from making any order in favour of the illegitimate child. Or, a man may have more than one wife and he may have children by each one of the wives. If the suggestion is that maintenance can be allowed in a compendious application to be made and such maintenance cannot exceed one hundred rupees for all the persons applying for maintenance, then in a conceivable case, a wife or a child may be deprived of maintenance altogether under the Section.
The intention of the Legislature was clear and the intention was to cast an obligation upon a person who neglects or refused 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."
Meeting the rival point of view Chief Justice Chagla held :
".........we are unable to accept the view taken by the Division Bench that the jurisdiction of the Magistrate is confined in making a compendious order allowing one hundred rupees in respect of all the persons liable to be maintained."
A recent ruling of the Calcutta High Court in Md. Basir v. Noor Jahan Begum, 1971 Crl. L.J. 547 (Cal.) has taken a similar view reviewing the case law in India on the subject. We agree with Talukdar, J. who quotes Mr. Justice Mocardie :
"All law must progress or it must perish in the esteem of man."
In short, the decided cases have made a sociology approach to conclude that each claimant for maintenance, be he or she wife, child, father or mother, is independently entitled to maintenance upto a maximum of Rs. 500/-.
Indeed, an opposite conclusion may lead to absurdities. If a woman has a dozen children and if the man neglects the whole lot and, in his addiction to afresh mistress, neglects even his parents and all these members of the family seek maintenance in one petition against the delinquent respondent, can it be that the Court cannot award more than Rs. 500/- for all of them together ?
On the other hand if each filed a separate petition there would be a maximum of Rs. 500/- each awarded by the Court. We cannot, therefore, agree to this obvious jurisdictional inequity by reading a limitation of Rs. 500/- although what the Section plainly means is that the Court cannot grant more than Rs. 500/- for each one of the claimants. "In the whole" in the context means taking all the items of maintenance together, not all the members of the family put together. To our mind, this interpretation accords with social justice and semantics and, more than all, is obvious :
"It is sometimes more important to emphasize the obvious than to elucidate the obscure."-- Attributed to Oliver Wendell Homes.
We admit the marginal obscurity in the diction of the Section but mind creativity in interpreting the provisions dispels all doubts. We own that Judges perform a creative function even in interpretation.
"All the cases in this book are examples, greater or smaller, of this function," writes Prof. Griffith in the Politices of the Judiciary.
The conclusion is inevitable, although the argument to the contrary is ingenious, that the Magistrate did not exceed his powers while awarding Rs. 1,000/- for mother and children all together."
6. In view of the law laid down by the Supreme Court the submissions of the learned Counsel for the applicant cannot be accepted.
7. The revision is hereby dismissed. Stay order dated 23.4.1994 is hereby vacated.