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Sau. Kalpana Ashok Takale Vs. Ashok Alias Adinath Sonaji Takale - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case Number Cr. Rev. Appln. No. 307 of 1982
Judge
Reported in(1984)86BOMLR152; 1984MhLJ765
AppellantSau. Kalpana Ashok Takale
RespondentAshok Alias Adinath Sonaji Takale
DispositionPetition allowed
Excerpt:
.....meaning consistent with intent of framers of law. - 1 could not secure good service at pune. the learned additional sessions judge on re-appreciation of the evidence found that the petitioner failed to prove that she was ill-treated by the respondent no. 1 he also held that the petitioner failed to prove that the respondent no. it is by now well settled that normally revisional jurisdiction is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on the point of law which has consequently resulted in miscarriage of justice. in appeal an appellant is generally given a statutory right to demand adjudication from the court either on a question of fact or on a question of law or on both, but when the matter comes up in..........(wife) sau. kalpana ashok takale has filed this petition challenging the order passed by the learned additional sessions judge, pune in criminal revision application no. 176 of 1981 allowing the revision application by the respondent (husband) and setting aside the order passed by the learned judicial magistrate, f.c. (a.c.) court, pune on june 26, 1981 in misc. case no. 552 of 1979 allowing the maintenance under section 125 of the criminal procedure code to the wife at rs. 100/- per month and to the minor child santosh at the rate of rs. 50/- per month. the learned additional sessions judge set aside the order directing the payment of the maintenance to the wife and reduced the amount of maintenance from rs. 50/- to rs. 40/- ordered to be paid to the minor child. this petition is.....
Judgment:

A.D. Tated, J.

1. The original petitioner (wife) Sau. Kalpana Ashok Takale has filed this petition challenging the order passed by the learned Additional Sessions Judge, Pune in Criminal Revision Application No. 176 of 1981 allowing the Revision application by the Respondent (husband) and setting aside the order passed by the learned Judicial Magistrate, F.C. (A.C.) Court, Pune on June 26, 1981 in Misc. Case No. 552 of 1979 allowing the maintenance under Section 125 of the Criminal Procedure Code to the wife at Rs. 100/- per month and to the minor child Santosh at the rate of Rs. 50/- per month. The learned Additional Sessions Judge set aside the order directing the payment of the maintenance to the wife and reduced the amount of maintenance from Rs. 50/- to Rs. 40/- ordered to be paid to the minor child. This petition is being treated as a petition under Section 482 of the Criminal Procedure Code.

2. The facts giving rise to this petition may be briefly stated. The petitioner and the respondent No. 1 were married on February 17, 1976 according to the Hindu rites. They resided at Pune. The parents of the respondent No. 1 resided at the village Walha. After the marriage the parties resided at Pune for about a year.

3. The father of the respondent No, 1 provided a room to the parties for about two months at his own house and thereafter a rented room was provided to them. The respondent No. 1 could not secure good service at Pune. The respondent No. I is a tailor by profession. As he could not get sufficient salary at Pune, he decided to return to his village Walha. He and his wife went to Walha and resided there for about one and half year. While the petitioner was carrying, she went to Pune in or about October, 1978 for delivery. She delivered a male child in February, 1979. The respondent No. 1 went to the petitioner at Pune on May 11, 1979. According to the respondent No. 1, the petitioner did not show him his son and turned him out of the house. According to the petitioner, the respondent No. 1 misbehaved at the house of his father-in-law and also threw the child on the wall and a report was made to the police station by the father of the petitioner.

4. The respondent No. 1 thereafter filed a petition for restitution of conjugal rights in the Court at Osmanabad on July 5, 1979, against the petitioner. Thereafter the present petition was filed by the wife on August 21, 1979 for maintenance under Section 125 of the Criminal Procedure Code. The wife alleged that the respondent No. 1 ill-treated her under the influence of drink at Walha. She also alleged that the respondent No. 1 contracted second marriage on June 15, 1979. Thus on the ground of ill-treatment and neglect and also on the ground 'of second marriage the petitioner sought maintenance for herself and for the minor child at the rate of Rs. 250/- for herself and Rs. 200'/- for the minor child. The respondent No. 1 denied that he ill-treated his wife. He also denied that he contracted second marriage. He submitted that he was always willing to maintain his wife, but she without any sufficient cause refused to join him at Walha, He also denied that he had sufficient income in order to enable him to pay a separate maintenance to his wife and child. He also denied that he had any land-property at Walha and out of the income thereof he could give such maintenance.

5. The learned Judicial Magistrate after considering the evidence adduced by the parties found that the respondent No. 1 neglected and refused to maintain his wife. Regarding the second marriage he held that it was not proved. On these findings the learned trial Magistrate ordered the respondent No, 1 to pay maintenance to the petitioner at the rate of Rs. 100/- per month and to her minor child at the rate of Rs. 50/- per month.

6. Feeling aggrieved with the order of the maintenance passed by the learned Judicial Magistrate, the respondent preferred Criminal Revision Application No, 176 of 1981 in the Court of the Additional Sessions Judge, Pune. The learned Additional Sessions Judge on re-appreciation of the evidence found that the petitioner failed to prove that she was ill-treated by the respondent No. 1 He also held that the petitioner failed to prove that the respondent No. 1 neglected or. refused to maintain her. According to the Additional Sessions Judge, the petitioner was habituated to the city life of Pune and therefore, she was not willing to join the respondent No. 1 at his village Walha. On this finding the learned Additional Sessions Judge quashed the order of maintenance passed by the learned Judicial Magistrate in favour of the petitioner-wife. Regarding the maintenance awarded to the child the learned Additional Sessions Judge reduced it from Rs. 50/- to Rs. 40/- per month.

7. In this petition the learned Counsel for the petitioner contends that the learned Additional Sessions Judge was not right in re-appreciating the evidence and reaching to a different conclusion. According to him, the learned Judicial Magistrate accepted the evidence of the petitioner that she was ill-treated by her husband at Walha and that the husband had neglected and refused to maintain her. He submits that the aforesaid finding of the Judicial Magistrate was recorded on the evidence on record and the learned Additional Sessions Judge was not right in re-appreciating the evidence and setting aside the finding of the verdict recorded by the learned Judicial Magistrate.

8. The learned Counsel for the petitioner in support of the above contention relied on the decision of this Court in Vimal Sukumar Patil v. Sukumar Anna Patil [1981] M. L.J. 82 : (1980) 83 Bom. L.R. 37. The facts of that case were similar to the facts of the present case. In that case also the learned Additional Sessions Judge had set aside the finding of fact recorded by the trial Magistrate on reappreciating the evidence on record. While considering the scope of revisional jurisdiction in that case Dharmadhikari J., at page 92 of the report observed as follows:

In any case, in his revisional jurisdiction, it was not open to the Additional Sessions Judge to interfere with the said finding of fact which was solely based on appreciation of evidence. It is by now well settled that normally revisional jurisdiction is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on the point of law which has consequently resulted in miscarriage of justice. The Revisional Court is not expected to act as if it is hearing an appeal. (See State of Orissa v. Nakula Sahu and Ors. : 1979CriLJ594 .) This is not a case wherein it is shown that any material piece of evidence was omitted from consideration by the trial Court when a finding of fact in this behalf, was recorded. To that extent it can safely be said that the learned Additional Sessions Judge has exceeded the jurisdiction vested in him by law as a revisional Court.

9. In the case of Pushpabai W/o Pandurang Wadkar v. Pandurang Balwant Wadkar I.L.R. [1975]Bom. 1300, Bhole J. of this Court observed as follows (at p. 1301):

The learned Additional Sessions Judge instead of merely finding out whether the order is correct and is passed in the interest of justice went on reassessing the evidence and has come to a different conclusion. There is after all a distinction between a revision and an appeal. In appeal an appellant is generally given a statutory right to demand adjudication from the Court either on a question of fact or on a question of law or on both, but when the matter comes up in revision, the applicant has no right whatsoever beyond the right of bringing his case to the notice of the Court and it is for the Court to interfere in exceptional cases, where it seems that some real and substantial injustice has been done. In a revision the only question is whether the appeal Court should interfere in the interest of justice.

In that case this Court rejected a reference made by the Additional Sessions Judge, Pune for setting aside the order of maintenance passed by the Judicial Magistrate under Section 488 of the Criminal Procedure Code (Old). The law embodied in Section 125 'of the Criminal Procedure Code is a social legislation meant for the benefit of the weaker section-of the society, as observed by Dharmadhikari, J. in the case of Vimal Patil referred to above at page 89 of the report. The Supreme Court while considering the provisions of Sections 488, 489 and 490 appearing in Chapter XXXVI of the old Criminal Procedure Code, 1898, in Bhogwan Dutt v. Smt. Kamla Devi : 1975CriLJ40 made it clear that the object of the provisions of Sections 488, 489 and 490 was to prevent vagrancy and destitution. These provisions are intended to fulfil a social purpose. Its object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children. By providing a simple, speedy but limited relief, it seeks to ensure that the heap of society and thereby driven to a life of vagrancy, immorality and crime neglected wife and children are not left beggared and destituted on the scrap for their maintenance, as observed by Dharmadhikari, J. in the case of Vimal Sukumar Patil, In this context a reference may also be made to the following observations of the Supreme Court in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal : 1979CriLJ3 (at p. 1809 para. 9):-

This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by Courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of 'the Constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance, So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause of the derelicts.

The social object in enacting those provisions for the benefit of the weaker sections of the society cannot be overlooked while applying those provisions to the cases under those provisions.

10. Turning to the facts of the present case it is in the evidence of the petitioner that while she lived with her husband for about a year at Walha, her husband harassed her. She also stated that her husband used to drink and beat her mercilessly. She -further states that her husband sold her ornaments. The respondent-husband Adinath denied that he harassed and ill-treated while she was with him at Walha. The learned trial Judicial Magistrate who heard the evidence of the witnesses and who had an opportunity to watch their demeanour preferred to rely on the testimony of the petitioner. It cannot be said that the finding of the Judicial Magistrate was not based on evidence. When a finding of the Magistrate is based on evidence and it is also in favour of the weaker sections of the society and also advances the intent of the legislation, it is no longer open for the revisional court to set aside that finding by reappreciating the evidence unless the finding is manifestly perverse. Therefore, the learned Additional Sessions Judge was not right in setting aside the finding on reappreciation of the evidence. I have gone through the evidence on record and find that the learned Additional Sessions Judge was not at all justified in discarding the evidence of the petitioner. It is not correct to generalise that a girl from the city like Pune when married to the man from the village like Walha will not like to reside in a village with her husband. Generally no wife brought up in Indian Culture whether she hails from village or city would like to stay away from her marital home unless she is compelled to do so. It may be mentioned that in this case it is not alleged by the respondent No. 1 that the petitioner has fallen from the path of virtue and on that account she wants to live away from him. Therefore, I find that the learned Additional Sessions Judge was not at all right in his observation that the petitioner being from the city like Pune and being accustomed to city life was not willing to join her husband at the village Walha. Consequently, the finding of the learned Additional Sessions Judge that the petitioner failed to prove that she was ill-treated, and neglected by her husband cannot be sustained. The finding of the learned Judicial Magistrate that the respondent No. 1 neglected and refused to maintain his wife is fully supported by the evidence on record and has to be restored. It may be further mentioned that there was no justification for the learned Additional Sessions Judge to reduce the maintenance amount of Rs, 50/- awarded to the child Santosh to Rs. 40/-. There is no golden scale for fixing the exact amount of maintenance. The maintenance amount has to be determined taking into consideration the requirement of the petitioner and also the paying capacity of the respondent No. 1. In the present days of high cost of living it cannot be said that the maintenance at the rate of Rs. 100/- for the wife and Rs. 50/- for the child is excessive under the circumstances of the present case. The learned Counsel for the respondent No. 1 contends that the respondent No. 1 is working as a tailor in the village and therefore, he cannot offer to pay Rs. 150/- per month to his wife and child towards their maintenance. I am unable to agree with the learned Counsel for the respondent No. 1. The respondent No. I is a tailor by profession. He has also some land at Walha, as has been stated by him in his petition for restitution of conjugal rights filed in the Court of Civil Judge, Senior Division, Osmanabad. The respondent No. 1 has not given a true picture of his income from the tailoring and agriculture. Under such circumstances it cannot be said that the learned Judicial Magistrate was not right in awarding maintenance to the petitioner-wife at the rate of Rs. 100/- and to the child at the rate of Rs. 50/- per month. The learned Counsel for the respondent No. 1 submits that the respondent No. 1 offered to maintain his wife and child with him and he is still ready to maintain them with him, and therefore, they are not entitled to maintenance. I am unable to agree with the learned Counsel for the respondent No. 1. The respondent No. 1 has started proceeding for restitution of conjugal rights against the petitioner. The petitioner has also filed a complaint under Section 494 / I.P.C. for bigamy against the respondent No. 1 in the Court of the Judicial Magistrate, Pune. I do not find that the offer of the respondent No. 1 to maintain his wife and child at his residence is bona fide. Hence the petitioner cannot be denied separate maintenance.

11. In the result, the petition succeeds. The judgment and order passed by the learned Additional Sessions Judge in Criminal Revision Application No. 176 of 1981 are set aside and the order passed by the learned Judicial Magistrate in Misc. Case No. 552 of 1979 on June 26, 1981 is restored. The respondent No. 1 shall pay costs of Rs. 250/- to the petitioner.


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