D.C. Gheewala, J.
1. The wife, who had the misfortune of seeing that her matrimonial life had gone to rocks and who had applied to the tears Judicial Magistrate, First Class, Surendranagar under Section 125 of the Criminal Procedure Code to get maintenance had also the misfortune of seeing that the application was rejected and when carried before the learned Sessions Judge at Surendranagar it met the same fate, has filed this Special Criminal Application. The spouses were married some two and a half years before the application was filed in 1983. The wife was staying at Surendranagar and the husband was staying at Botad. In the application the averments are made to the effect that she was subjected to physical and mental torture and that she was not liked by her husband. She has further averred in the petition that she has been driven out and the husband is earning Rs. 2,000/- per month. She has claimed Rs. 500/- per month as maintenance.
2. The respondent-husband had resisted the petition and has inter alia contended that the petitioner-wife was never subjected to any physical or mental torture; that the relations between the spouses were quite cordial; that the wife herself had gone away to her parental home and that she was never driven away. Regarding the income of the respondent, it was averred in the written statement that the business was carried on in partnership and the income was much less than what the wife had alleged. The husband, therefore, prayed that the petition be dismissed.
3. The learned Judicial Magistrate, F.C. Surendranagar, after recording the evidence, came to the conclusion that the wife had deserted the husband and she was not prepared to go back to the matrimonial home. It was further held that the evidence regarding physical and mental cruelty was not that cogent. The petition was, therefore, dismissed. The learned Session Judge also confirmed the said finding. The wife has, therefore, preferred the present Special Criminal Application challenging the said orders.
4. It may be stated at the out set that if a rigidly hyperechnical view of the evidence were to be taken in this case, the findings reported by the Courts below would be sustained. Similarly, if a highly technical view is to be taken of the position of law that when there are concurrent findings of two Courts below more especially the findings of the learned trial Magistrate has gone against the wife and which court had the additional advantage of viewing the witness before its own eyes, then also the Special Criminal Application of the wife could be made light work of. However, it appears that the evidence of the wife and her father and the averments in her petition have not been read and interpreted and appreciated in the way in which evidence and pleadings should be appreciated in such matters, to the petition the wife has averred that when her father had been to her place, her husband had tried to pour kerosene over her and set her ablaze. Her father stayed mere for the whole day. Therefore, both the Courts have taken a short shrift and have found that the evidence of the wife suffers from exaggeration and that is why the petition requires to be dismissed. That averment may or may not be true. However, in the petition it has been specifically averred by the wife that she was subjected to physical and mental torture; that he was taunted often; that she was told in no uncertain terms that the husband did not like her. If under such circumstances we were to accept that the husband had riot driven out the wife and the wife had ultimately decided to go away to her parental home, can it be said by any stretch of imagination that it was the wife who had deserted the husband or that she had no justifiable cause for leaving the matrimonial home? In her evidence she has stated that she tolerated such a situation for a long time. But there is always a limit to the tolerance threshold of a person and if that threshold is crossed the barriers which have kept the emotional outburst intact for some time might burst at the end. In this case it is actually which has happened the wife might have tolerated the illtreatment for some time but thereafter she might have left the house of the husband. Attempts been made by the husband to bring her back because the utility of the wife as a wife, through it was not so pronounced to the husband, she was a necessary ingredient of the house and she seems to have been needed as a beast of burden rather than a life companion. Particular emphasis has been laid by the trial Court on the admission of the Wife which is to the effect that as there was no other family member in the house, the entire household work had to be done by the wife. This admission has been sought to be misconstrued as her inability to cope up with the work and it is sought to be held that because she did not want to work she had left the matrimonial home. This does not seem to be correct.
5. Mr. Jasani, learned advocate for the respondent-husband took me through the evidence of the petitioner-wife and her father as well as through her petitioner and tried to give a comparative table of the error or ommisions which were to be found in the three exhibits on the, record of the case. The wife, having not stated certain things in the pleadings, has stated those things in her evidence The wife having not stated certain things they were stated by her father. The wife having stated certain things they were not stated by her father. Particular emphasis was laid by Mr. Jasani on these aspects of the oral evidence as well as averment in the application. The father of the petitioner-wife has state that the daughter has made any grievance of any mal-treatment before and she had only that quarrels between the spouses were such that they could not be narrated to the father. Mr. Jasani vehemently urged that no averment is made in the application, Ex. 1, that there was any such dispute between the spouses of such nature which could not have been narrated to the father. I quite agree with Mr. Jasani that if these omissions were to be highlighted in the way in which they were sought to be highlighted by Mr. Jasani and also by both the Courts below, then it can conveniently be said that either the wife has improve upon her version or that her evidence suffers from falsehood and prevarications. But it is not so. She has categorically stated that she was subjected to mental torture. Mental torture may assure different forms and for the husband to tell the wife that he does not like her would perhaps be the greatest mental torture to which a lady can be subjected. If subsequently attempts were made to call her back to her matrimonial home that itself would not prove the bona fides of the husband. Reading of the evidence by both the Courts below seems to have been actuated from a particular angle and hence both the Courts below have fallen in an error in not reading the evidence in proper perspective. They have therefore, been left high and dry without getting the gist of the evidence. The evidence of the wife and her father definitely indicated one fact that she is not prepared to go back to the husbands house and there she is unhappy. If they were married for a period of about five years prior to the date of her giving deposition in the Court on oath and if for the initial period of about two years the marriage was running on an even keel then, without any justifiable cause, the petitioner-wife would not have taken an extreme step of going back to the parental home and thereafter turning her back to the matrimonial home for all times to come. The facts of the case do indicate that the marriage initially was a success. Mr. Jasani also argued that the wifes contention that the husband came home late and under influence of intoxicant is also disproved in her cross-examination because it was only her surmise that as he came late be must have been drunk. As to how the wife came to that conclusion and the time when she did she will not be able to give any specific detail. For ought we know the husband may or may not have fallen in evil company. He may or may not be habituated to take drinks but one thing which does transpire from the evidence is that the husband had lost liking for the wife and it was so pronounced that she 'was categorically told about it. This would be the grossest form of mental torture and cruelty and would entitle the wife to live separately and claim maintenance. I, therefore, feel that though concurrent findings have been recorded by the two Courts, that fact alone should not come in the way of this Court to render justice. The fact that a Special Criminal Application has been addressed to this Court must be with a view to get justice and to correct error, if any to be found and when this Court finds that the appreciation of evidence by the Courts below is faulty, then it cannot set its imprimatur on a facetious ground that as there are concurrent findings this Court will not disturb them. The Special Criminal Application, therefore, requires to be allowed and it requires to be held that the wife is entitled to maintenance.
6. As both the Courts below had dismissed the wifes application, they had not addressed themselves to the aspect of quantum of maintenance. Mr. Jasani urged that the husband is a partner in a family firm of grocery. His assessment order for the year shows the income to be nearly Rs. 400/-per month. Mr. Jasani, therefore urged that even if maintenance were to be awarded it could not be at a fabulous rate of Rs. 300/- per month as claimed by the wife because the husband himself is not earning that much. The business of the husband is being run in partnership. It is a family firm. Under the circumstances the question as to whether the Court should take the said assessment order as sacrosanct would be very much open. The income of the husband therefore can very well be estimated because it is admittedly a big firm doing good business. The income of the husband from all sources can be estimated at Rs. 700/- to Rs. 800/-per month and if the wife were to be maintained in the same standard as will be commensurate with the income of the husband and status of the husband then she cannot be awarded anything less than Rs. 350/- per month. This would hardly come to Rs. 12/- per day and the wife is not capable of earning anything herself. Under the circumstances I feel that her claim of maintenance at the rate of Rs. 500/- per month does not require to be allowed in toto and that it should be pruned down. I feel that Rs. 350/-per month the husband can conveniently afford to pay to the wife and the wife deserve the said amount.
7. It is, therefore, ordered that this application is allowed and rule is made absolute. The husband is directed to pay maintenance to the wife at Rs. 350/- per month from the date of application before the learned Magistrate, and for the costs of the proceedings before the three Courts, the respondent husband shall pay Rs. 1,000/-to the petitioner-wife.