A.P. Ravani, J.
1. What is the limit up to which a wife should tolerate beating and ill-treatment by husband before asserting her right to stay separate from her husband and claim maintenance For being entitled to claim maintenance, is she required to take care of her minor child and claim custody of the child These are some of the questions which require to be resolved in this criminal revision application filed by the petitioner (wife) against an order passed by the trial Court refusing to grant her maintenance.
2. The petitioner who married opponent No. 2 (husband) somewhere in the year 1970, had preferred an application for maintenance under Section 125 of the Criminal Procedure Code inter alia on the ground that the opponent-husband had ill-treated her and had neglected to maintain her. The application was submitted on February 27, 1981, in the Court of J.M.F.C., Mangrol and was registered as Misc. Criminal Application No. 13 of 1981. According to her case, the opponent-husband had taken divorce from the first wife and there were two children - one son and one daughter - of the earlier marriage. After her marriage with the opponent No. 2, for about 10 years the parties pulled on together somehow well. In between this period, there were some disputes and bickerkings and on certain occasions petitioner-wife was either deserted (or as per the allegation of the opponent, had left the opponent-husband) and had gone to her parents' house. One more child - a daughter - was born after this marriage, who is aged about 10 years. She is at present with the opponent-husband. On the aforesaid allegations the application for maintenance was filed mainly on the ground that the petitioner was ill-treated, deserted and neglected without any reasonable ground whatsoever.
3. The opponent appeared in the proceedings of Misc. Cri. Appln. No. 13 of 1981 preferred by the petitioner-wife in the Court of J.M.F.C., Mangrol, and resisted the claim of maintenance made by the petitioner-wife. The petitioner examined herself, and her brother Nazir Hussain in support of her case while the opponent examined himself and his father and his uncle in support of his case. The trial Court after hearing the parties rejected the application by its judgment dated September 13, 1981. It is this order which has been challenged in this revision application by the petitioner-wife.
4. Counsel for the opponent-husband submitted that in view of Section 397 of the Criminal Procedure Code, revision application can also be filed in the Court of Sessions at Junagadh. Therefore, in his submission this revision application should not be entertained here and the petitioner-wife should be directed to approach the Sessions Court and ventilate her grievance against the impugned order. The contention so raised is too technical and academic as far as the facts and circumstances of this case are concerned. In this case the record and proceedings have been called before this Court. The advocates representing both the sides are available. The Court after hearing the Counsel for the petitioner-wife found prima facie case and admitted the revision application and the matter was admitted some time in May 1983. If the revision application is heard and finally decided here, no prejudice whatsoever is likely to be caused to the opponent-husband. Whenever the matter is pertaining to wife or any other person entitled to claim maintenance under the provisions of Section 125 of the Criminal Procedure Code, it should be the anxiety of the Court to see that the proceedings regarding the claim of maintenance gets terminated finally one way or the other as expeditiously as possible. If the matter is finally heard and decided here, it cannot be said that it will result into prejudice to either side. The matter will be decided here in this Court on merits and both the parties will get adequate opportunity to make their submissions. On the other hand, unnecessary and avoidable delay will not be caused. Moreover, this High Court has concurrent jurisdiction to entertain and decide such revision applications. The contention does not appear to be bona fide inasmuch as the Counsel for the opponent-husband has not been able to show any ground whatsoever in support of the said contention except to say that the Sessions Court has also concurrent jurisdiction in such matters. Hence, the contention so raised is hyper-technical and it also lacks in bona fides and hence the same is hereby rejected.
5. The parties belonged to Mohamedan community. There is no dispute with regard to the fact that the opponent-husband had married earlier and had given divorce to the previous wife. The opponent-husband had two children of the previous marriage, a daughter and a son and both the children were kept by him. Before about 12 years from the date of deposition of the petitioner-wife (June 24, 1982), the marriage of the petitioner with the opponent took place and a daughter Shabana was born out of this marriage. That initially the relations between the two spouses appear to have been good but after about two years the petitioner-wife was deserted and as stated by her, her father-in-law had taken her to the place of her aunt where she was forced to stay for about three years. Thereafter parties reconciled and they lived together. However, the ill-treatment continued and according to the deposition of the petitioner-wife, opponent-husband was ill-treating her; at times she was being beaten and tortured. In this connection she wrote a post-card. Exh. 16, in which she has stated about her plight. The post-card is addressed to the petitioner's brother Nazir Hussain, Exh. 18, wherein she has stated that she is being ill-treated. being abused and in desperation she has prayed to God and believing in God she was waiting for her result.
6. In support of her evidence, the petitioner-wife has examined her brother Nazir Hussain, Exh. 18, while the opponent-husband has examined himself and his father and one Karim Mammad, uncle of the opponent, Exh. 23 and Exh. 35 and Exh. 36 respectively. On appreciation of evidence the trial Court rejected the application - filed by the petitioner -wife and hence the present revision application by the petitioner-wife.
7. It was urged that the scope of revision application is limited and the Court cannot and should not re-appreciate the evidence unless any error of law which has resulted into miscarriage of justice is pointed out. The Counsel for the opponent-husband submitted that in this case no infirmity much less a serious infirmity has been pointed out by the Counsel for the petitioner-wife and in the submission of the opponent-husband the order passed by the trial Court is just and proper and it does not require to be interfered with. However, if one reads the judgment and order passed by the trial Court there is not one error but there are series of errors of law and not only that, but the entire approach adopted by the learned Magistrate, to say the least, is not in accordance with law. The learned Magistrate started the discussion with regard to the dispute between the parties by saying that the petitioner-wife had not cared to get the custody of minor child Shabana and therefore, he considered this aspect to be of much significance and suggestive as far as the conduct of the petitioner-wife was concerned. He has stated that this conduct is required to be taken into consideration by the Court while resolving the question as to maintenance claimed by the petitioner-wife. Assuming for a moment that the surmise made by the learned Magistrate that the petitioner-wife has neglected her child Shabana is correct, then even can it be said that it is a relevant factor which can be taken into consideration by the Court while deciding an application under Section 125 of the Criminal Procedure Code Section 125 of the Code does not specify anywhere that for being entitled to claim maintenance, the wife must prove that she is keen to take care of the child born out of the marriage. Therefore, it is clear that the learned Magistrate has completely misdirected himself when he considered that the conduct of the petitioner-wife towards her child should be borne in mind while deciding the question of maintenance. This was an irrelevant circumstance and by taking into consideration an irrelevant circumstance he has misdirected himself and has committed an error of law. Be it noted that ours is a society where nearly 40% of the people are living below the poverty line and vast majority of the people are living just above the subsistance level. In such a society a mother, howsoever desirous to look after her own child may not come forward and fight for the custody of her child. This will be the normal result inasmuch as she will not have necessary funds and capabilities to fight for her rights. It is not the case of the opponent-husband nor it has been brought on record that the petitioner-mother has been leading an extravagant life and yet she did not care for her child. Moreover, in a male-domineering society like ours, it may be perfectly legitimate for a mother not to insist for custody of her child. In such a situation, if she allows the custody of the child to remain with the father it cannot be said that she has no interest in the child or that she has neglected the child. Coming to the facts of this case, on the contrary, the petitioner-wife has stated in her deposition that when she was driven out from the house of the opponent-husband some time in June 1979, minor child Shabana was snatched away from her hands and she was not allowed to carry the child with her. The learned Magistrate has not referred to this part of the evidence of the petitioner-wife anywhere and has not assigned any reason as to why this part of her deposition is not believable. Therefore, this is also another serious error of law committed by the learned Magistrate inasmuch as he has without referring to this part of the evidence of the petitioner-wife discarded the deposition of the petitioner-wife and has branded her as a mother who does not care for her child.
8. The petitioner has deposed in her evidence that before she was driven away from the house of the opponent-husband she had written a letter addressed to her brother. This letter is exhibited in the case. In that letter she has written about the ill-treatment meted out to her in the house of the opponent-husband. This letter (Exh. 16) has been referred to by the learned Magistrate during the course of the judgment as a part of the argument advanced by the Counsel for the petitioner-wife. However, in the entire judgment he has given no reason as to why this letter is not believable and as to why this letter which is a post-card bearing postal stamp should be discarded from evidence. He merely pointed out the argument of both the Counsels on this point but did not give his finding as to why the letter cannot be taken into consideration; and as to why the letter cannot be taken as a contemporaneous conduct corroborating the evidence of the petitioner-wife. Counsel for the opponent was not able to point out to me that the learned Magistrate has given any finding with regard to this piece of evidence, i.e., letter, Exh. 16, to the effect that the letter is not reliable and therefore, it cannot be taken into consideration. The Counsel for the opponent, however, wanted to point out from the record of the case that in fact on this point the petitioner-wife was cross-examined and it has been brought on record that the post-card bears only the postal stamp of 'Mangrol' and not that of Porbandar, nor the post-card bears any date. Therefore, it was submitted that the post-card should be treated as having been concocted later on. This argument cannot be accepted for the simple reason that there are two postal marks - One is of Mangrol post office and it is dated September 4, 1979 and another postal mark is illegible. Simply because another postal mark is illegible and simply because the petitioner-wife has not put the date on the top of the post-card or below the post-card it cannot be said that the post-card and the writing thereof is concocted. However, it is not correct to say that no date is written in the postcard. At the top of the post-card in the left-hand side corner 'MI.-3' 'meaning thereby Date-3 is written. If one reads the contents of the post-card, it appears quite natural and no improbability or infirmity has been pointed out to me which would go to show that the contents of the post-card are false and not reliable.
9. In the post-card it is stated that she was being ill-treated and was being abused by the opponent-husband and she has stated that, if her mother-in-law (who was also residing at Mangrol) takes her from there, it would be better. She has stated that at the moment her brother should not do anything since she had also written a letter to her mother-in-law. She has also stated that she was being ill-treated and beaten probably because he (i.e. opponent-husband) was feeling that there was no one behind her, but she was tolerating everything and pinning her hope on 'Allah'. This is a contemporaneous piece of evidence which corroborates the deposition of the petitioner-wife as well as her brother Nazir Hussain, Exh. 18. The trial Court committed a serious error of law in discarding the post-card, Exh. 16, without assigning any reason whatsoever.
10. The trial Court rightly observed that in such type of matrimonial disputes there cannot be any other evidence regarding beating and/or ill-treatment except the oral deposition of the parties. However, he has not assigned any cogent reason as to why the deposition of the petitioner-wife should not be accepted. While considering the evidence of the opponent-husband the trial Court has taken into consideration medical certificates, Exhs. 24 to 33, purporting to describe the state of health of the opponent-husband. It was the case of the opponent that he was suffering from hernia and that he was operated also for that disease. The petitioner-wife in her deposition denied this fact. The opponent did not examine any doctor in support of his case that he was suffering from that disease. It is not understood how the aforesaid documents Exhs. 24 to 33 could have been exhibited at all without examining the doctors who issued the certificates. In absence of the examination of any doctor, the learned Magistrate ought not to have taken into consideration these documents at all. Thus, he has committed a serious error of law in taking into consideration the documents which are not legally proved. He has further committed an error in resting his judgment on these documents. One of the main basis of the judgment of the trial Court is that the petitioner-wife has not taken care of the sick and ailing husband. But this fact of sickness is denied by the petitioner-wife and the opponent-husband has not examined any doctor in support of his case that he suffered from any serious disease. At any rate it is not the case of the opponent-husband that on account of the so-called ailment from which he was suffering he has been totally incapacitated and he has been rendered useless for any fruitful.
11. It was the case of the petitioner-wife that she had come to Mangrol in a ST bus from Porbandar and then she had gone to her father-in-law's house where she was kept for 10 days and thereafter she was asked to go to her brother's place. To contradict the aforesaid version of the petitioner-wife the opponent-husband examined his father Abdul Kadar who has stated that he had inquired about the arrival timings of bus from Porbandar and he had come to know that no bus whatsoever had reached Mangrol on that day or on a previous day. Similarly, he has stated that a rickshawala had told him that the petitioner-wife had first gone to her brother's place from 'Amir Manzil' (a place where bus stops) and then had come to his own house. It is significant to note that so far as the evidence of Abdul Kadar, on this point is concerned, the evidence is hearsay inasmuch as no one from ST depot, nor any rickshawala has been examined. In the absence of examination of any person from ST depot or the rickshawala the evidence of Abdul Kadar remains hearsay and it cannot be looked into at all. Here also the learned Magistrate has fallen in error in resting his judgment on inadmissible piece of evidence.
12. The learned Magistrate appears to have been overwhelmed by the dispute between the parties with regard to ornaments. Both the sides may have to say something about ornaments and both the sides may have genuine claims for the same and/or either of the sides might be advancing his or her claim towards ornaments falsely. But there is no basis to come to a positive conclusion that the claim asserted by the petitioner-wife is totally baseless and false. The inference that ornaments being the property of Streedhan, it would never be parted by the petitioner-wife and would never be kept at the place of opponent is based on no evidence. Simply because the petitioner-wife asserted her claim towards ornaments and did not prepare herself to compromise on this issue, it cannot be said that her evidence is in any way impaired. On this count her evidence does not become unreliable. Thus, here also the learned Magistrate has committed an error inasmuch as he has appreciated the evidence by applying impermissible and erroneous principles of law.
13. In paragraphs 22 and 23 of the judgment, the learned Magistrate has summarised the following reasons for rejecting the application of the petitioner-wife:
(1) That the petitioner-wife had voluntarily left Porbandar and deserted the house of the opponent-husband.
(2) That her behaviour towards the children was not good and even Shabana, her own daughter, was afraid of her. On account of her nature another daughter of the previous marriage was staying with grand-father.
(3) That she had filed an application for maintenance to cover up her own defects.
(4) That without any reasonable cause she was not prepared to stay with the husband.
(5) That her conduct with her husband and towards children was not good.
(6) In this case the issue regarding ill-treatment and beating has not reached the climax so that the petitioner-wife can stay separate and claim maintenance.
(7) That the opponent is remaining sick and yet the petitioner-wife is not admitting the same.
(8) That she went to her parents' house first and thereafter to the house of her father-in-law when she came from Porbandar to Mangrol.
14. The aforesaid findings have been arrived at by the learned Magistrate on the basis of inadmissible evidence and on the basis of surmises. As discussed hereinabove the conduct of the petitioner-wife towards the children is not relevant for the purpose of determining the question as to maintenance. Even if the same is relevant and the same has to be taken into consideration, it cannot be said that the petitioner-wife was guilty of neglect towards her own child, i.e., Shabana. It is not understood as to what defects or lapses were to be covered by the petitioner-wife and if she filed an application for maintenance, how these defects and lapses were to be covered.
15. The finding arrived at by the learned Magistrate is to the effect that ill-treatment and beating is not to the extent which would require the petitioner-wife to stay separate and claim maintenance. This finding suggests that, even according to the learned Magistrate there was ill-treatment and beating to the petitioner-wife. But, according to the learned Magistrate, this was not to the extent that the petitioner-wife should leave the house of the husband and stay separate and claim maintenance. What is the extent to which a wife should tolerate the beating and ill-treatment The learned Magistrate has not spelt out the limit up to which, according to him, a wife should tolerate the ill-treatment and beating. This finding arrived at by the learned Magistrate has its roots in the old fashioned feudal socio-economic cultural set up of the society. It may be that a male having archaic and obsolete cultural notions may assert his claim and right to beat his wife up to a particular limit and may even rely upon the old rhyme:
A Dog, a Wife and a Walnut tree,
The more you beat them the better they be.
16. But how can there be such a finding by Court of law and justice after three and half decades of achievement of Independence Have the values enshrined in the Constitution no meaning Are we still living in primitive feudal cultural set up and is it our object to perpetuate the same To say the least, the finding arrived at by the learned Magistrate cannot be characterised as anything but perverse. In fact even if there be slightest ill-treatmeat, it would not be improper for any self-respecting woman to say that she would not like to stay with her husband. Furthermore, in cases where there is physical beating to the wife, howsoever mild it may be she would surely be entitled to stay separate and claim maintenance. There cannot be any standard limit up to which ill-treatment and physical beating can be permitted. This aspect of the problem can well be summed up by posing questions : Up to what limit a husband would permit himself to be physically beaten by his wife and to what extent allow himself to be ill-treated by her Why dual standards ?
17. The finding arrived at by the learned Magistrate that the petitioner-wife is staying separate without any reasonable cause and she refused to come to the house of the opponent-husband without any reasonable cause and therefore, as laid down under Section 125(A) Cr. P. C. she would not be entitled to claim maintenance is not sustainable. As stated hereinabove even if there be slightest beating, the wife will be entitled to stay separate and claim maintenance. No amount of subsequent entreaty and efforts to bring about the resettlement may persuade the petitioner-wife to come back and stay together. Once it is held that there was ill-treatment and beating by the opponent-husband, ordinarily it should be held that the petitioner-wife would be entitled to stay separate and claim maintenance. In above view of the matter the findings arrived at by the learned Magistrate cannot be sustained and are required to be quashed and set aside.
18. The petitioner-wife stated in her evidence that the opponent-husband is a mechanic and he is running a motor garage and he is earning about Rs. 2,000/- to Rs. 5,000/- per month. On the other hand, the opponent-husband has stated that formerly he was doing the business in Porbandar and now he has shifted to Mangrol and on account of sickness and other circumstances he is not in a position to work and he is required to stay with his father. In the opinion of the learned Magistrate the opponent would be earning about Rs. 400/- to Rs. 500/- per month. It is not disputed that the opponent is a motor mechanic and that he was running a motor garage at Porbandar. Simply because Mangrol is a small town where the garage is shifted it cannot be said that his income will be reduced to the extent of Rs. 400/- to Rs. 500/-per month. Now-a-days even an unskilled labourer would earn at least Rs. 500/-per month if gainfully employed. Therefore, in the facts and circumstances of the case, it would not be unreasonable to infer that the opponent-husband would be earning at least Rs. 1,500/- to Rs. 2,000/-per month. The petitioner-wife has claimed Rs. 400/- per month as maintenance for herself. Having regard to the fact that the opponent-husband has to maintain three children and himself and it would be reasonable to award Rs. 250/- per month to the petitioner-wife as and by way of maintenance.
19. In the result, the revision application is allowed. The judgment and order passed by the learned J.M.F.C., Mangrol, in Maintenance Application No. 13 of 1982 is quashed and set aside and the opponent-husband is directed to pay to the petitioner-wife Rs. 250/- per month as and by way of maintenance from the date of application. However, as far as the arrears are concerned, the same may be paid in 12 equal monthly instalments and when the instalments towards arrears are being paid the opponent-husband shall also pay the regular maintenance amount of Rs. 250/- per month and after the entire arrears are wiped out, he shall continue to pay only amount of maintenance of Rs. 250/- per month regularly. Rule made absolute to the aforesaid extent.
Counsel for the opponent-husband has prayed that the operation and implementation of the order passed hereinabove be stayed for a period of eight weeks so as to enable the opponent-husband to move the superior Court. It may be noted that the petitioner-wife has filed application for maintenance on February 27, 1981 and she is deprived of the maintenance for quite a long time and in the facts and circumstances of the case, I see no reason to stay the operation of this order. Hence the prayer is rejected.