ORDER Yashoda Nandan, J.
1. This is a revision filed by the husband and is directed against the order passed by the learned Sub-Divisional Magistrate, Sadar at Muzaffarnagar in procedure (hereinafter referred to as the Code) allowing a maintenance allowance of Rupees 70/-to be paid by the husband to his wife Zaibul Nissa (opposite Party).
2. On the 23rd September, 1970, opposite party Smt. Zaibul Nissa filed an application under Section 488 of the Code, claiming a maintenance allowance of Rupees 100/- per month from her husband Mohd. Ayyub. It was alleged by her that she had been married to Mohd. Ayyub about 11 or 12 years back and had lived with him as his wife performing all her duties and obligations as such. It was alleged that in the beginning the relations between the husband and wife were cordial but subsequently the applicant developed bad habits and he became a drunkard and gambler consorting with persons of ill-repute. It was further alleged that when she tried to persuade her husband to mend his ways, he ill-treated her, and ultimately after giving her a beating he took all her ornaments and jewellery and turned her out of his house. According to the opposite party, during the later days of her living with him, her husband neglected to provide her even with food and other necessities of life. The case of the opposite party was that when her husband turned her out, she had taken shelter in her father's house. The opposite party went on to allege that the applicant was a fairly well-to-do person but, nonetheless, refused to maintain her. According to the opposite party, after she had been forsaken by her husband, he contracted a second marriage. The applicant filed his written statement denying the material allegations made by the opposite party. He admitted that Smt. Zaibul Nissa was his wife and that she had lived with him as such. He, however, denied that he was either incompetent or impotent or that he ever harassed his wife. He asserted that he had no bad habits and was neither a drunkard nor a gambler. He alleged that throughout the period his wife stayed with him, he had provided her with all necessities of life including clothes and ornaments. She had been, according to him, maintained by him in sufficient comfort. About 10 months earlier, her father, mother and brother had taken her away with them on the pretext that she had to join some marriage. According to the applicant, his father-in-law, who had taken away his wife by mis-representation, had, in spite of repeated requests, refused to send her back. The applicant claimed that when he requested his father-in-law to send back his wife, he asked for a sum of Rs. 1, 000/-, and threatened to sell her off to some other party in case he did not comply with his demand. In such a situation, according to Mohd. Ayyub, he had been compelled to take proceedings for restitution of conjugal rights. Mohd. Ayyub did not admit the assertion of the opposite party that he was a well-to-do person. He disclosed in his written statement that the agricultural land belonged to his father and he and his brothers and. father lived jointly. He denied that he had the capacity to pay Rs. 100/- as maintenance allowance to his wife. He offered to maintain his wife provided she was prepared to live with him at his father's house. Both the parties examined themselves and produced evidence in support of their respective cases. The learned Magistrate ultimately passed the order impugned. A revision filed by the applicant before the learned Sessions Judge failed.
3. Learned Counsel appearing for the applicant has contended, firstly, that an order under Section 488 (1) of the Code cannot be passed merely because the husband has remarried. He submitted that while the fact of the husband having contracted a second marriage or taken a concubine may be material under Section 488 (3) of the Code, it is of no relevance at the stage of Section 488 (1). There is, in my opinion, no force in this contention. It is true that before an order is passed under Section 488 (1) of the Code all that the Magistrate has to see is that the husband or the father has sufficient means and yet neglects or refuses to maintain his wife or his legitimate or illegitimate child as the case might be unable to maintain itself. Sub-Section (1) of Section 488 is, however, controlled by Sub-Section (4) of that provision. Even if the Magistrate finds that a husband has sufficient means and is neglecting and refusing to maintain his wife, who is unable to maintain herself, he can pass no order, directing a husband to pay maintenance allowance to his wife if the wife is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. Such is the requirement of Section 488 (4). For the purposes of Section 488 (3), the legislature has provided that "if a husband has contracted marriage with another wife or keeps a mistress it shall be considered to be just ground for his wife's refusal to live with him." Something which the legislature has considered 'to be just ground' for the purposes of Sub-Section (3) of Section 488 cannot but be held to be 'sufficient reason' for the purpose of Sub-Section (4). In the present case, the wife has not claimed maintenance allowance on the ground that her husband had taken a second wife, but on the allegation that her husband had developed bad habits and had beaten and turned her out of his house and had thus refused and neglected to maintain her. The second marriage took place, even according to the opposite party, after she had been turned out from the matrimonial home by the applicant. The allegation made by the opposite party with regard to the applicant having taken to himself a second wife was meant only to show that she had sufficient reason within the meaning of Section 488 (4) for refusing to live with her husband. It is not possible to accept the contention of learned Counsel for the applicant that the learned Magistrate has passed an order under Section 488 (1) of the Code against him merely because he had taken to himself a second wife.
4. Learned Counsel, appearing for the applicant further contended that the applicant had set up a version of his own as to why his wife was living away from him. He had already asserted that his wife had been taken away by her parent and brother by trickery and they had thereafter refused to send her back and that her father was demanding a sum of Rs. 1, 000/- as consideration for restoring his wife to him. He stated on oath that he had never beaten or ill-treated her and had not turned her out of the matrimonial home. He led evidence to corroborate his testimony. It was urged that while dealing with the evidence led by the applicant he has not cared to assess it on merits at all. The contention of the learned Counsel for the applicant is that his client was entitled to an appraisal of the evidence led by him before the case set up by the opposite party was accepted by the learned Magistrate. This submission has force and must prevail. I have gone through the order of the learned Magistrate, and in my view the learned Magistrate has not applied his mind to the evidence led by the applicant at all. By merely mentioning the nature of evidence led by the applicant, he cannot be held to have been absolved of the duty of scrutinizing the evidence and giving reasons for rejecting one version and accepting the other.
5. It has further been contended that before fixing the quantum of the maintenance allowance, it was the duty of the learned Magistrate to record a finding about the means of the applicant himself. It is urged that the learned Magistrate has not given a finding as to what was the nature of the means of the applicant from out of which he was required to pay maintenance allowance of Rs. 70/- per month. There is force in this contention also. The quantum of allowance directed to be paid by the husband to the wife has evidently to bear some relevance to the means he has to pay the allowance ordered. It may be mentioned here that in assessing the means of a husband, the Court is not confined to taking into account his actual earning for the time being. There may be cases where an able-bodied and qualified person may not earn anything merely because he is either too lazy to put to use his resources or because he has indulgent relations to provide for his requirements, In such cases, the court must also take into account the potential earning capacity of the husband. Without giving any thought to the means of the husband a Magistrate at best can make an arbitrary decision with regard to the quantum of maintenance allowance to be paid. Such a course is neither desirable nor permissible. In the instant case, the learned Magistrate does not seem to have given any thought to the question as to what are the means existing or potential of the applicant justifying an order for payment of Rs. 70/-per month as maintenance allowance to the opposite party.
6. For the reasons given above, the revision is allowed. The order of the learned Sessions Judge and that of the learned Magistrate are set aside. The case will go back to the learned Magistrate for decision according to law. If necessary, he shall allow the parties to lead further evidence with regard to the means of the applicant to pay a maintenance allowance to his wife. The interim order, if any, passed by this Court, is vacated.