Court:BOMBAY HIGH COURT
Bench: JUSTICE D.B. Deshpande
RIYASATBI SHAIKH JANI AND ANOTHER Vs. SHAIKH JANI SHAIKH KASAM AND ANOTHER On 8 December 1981
Wife not entitled to maintenance as she has not led any evidence to show that husband refused or neglected to maintain her.
Both these criminal revision applications arise out of the same judgment by the learned Civil Judge, (Junior Division) and Judicial Magistrate, First Class, Gangapur in Miscellaneous Criminal Application No. 2 of 1976 on his file and they arise out of the following facts.
2. Initially, Riyasatbi (hereinafter referred to as “the wife”) filed an application for maintenance for herself and for daughter Najmabi (original petitioner No. 2) against Shaikh Jani (hereinafter referred to as “the husband”) at the rate of Rs. 175/- per month. It is not disputed that Riyasatbi and Shaikh Jani were married to each other and the marriage is still subsisting. The wife alleged that the relations between the couple were cordial for about five to six years after the marriage and thereafter the husband started ill-treating her on flimsy grounds. The wife further alleged that on one occasion the husband beat her so heavily with an iron rod that she was admitted to the hospital. She alleged further that thereafter the husband drove her out of the house along with the child and thereafter did not care for their maintenance at all. She further alleged that the husband was having sufficient means and hence this application.
3. The husband resisted this application and he denied ill-treatment and beating as alleged by the wife. He offered to maintain her in his house. He contended that the wife herself left his house of her own accord without his consent and against his will. According to him, he tried to bring her back to his house but the wife herself refused to accompany him. He further contended that he issued a notice to her calling upon her to stay with him, but she refused to do so. He contended further that his wife is able to maintain herself. He denied that he had any income from any landed property.
4. The learned Magistrate recorded the evidence and ultimately held that the petitioners proved that the opponent neglected and refused to maintain them and so he awarded Rs. 40/- p.m. for the wife and Rs. 25/- per month for the child from the husband.
5. Being aggrieved by this order of granting maintenance, the husband preferred Criminal Revision Application No. 4 of 1979 in the Sessions Court at Aurangabad, and being aggrieved by the meagre amount of maintenance, the wife preferred Criminal Revision Applications No. 10 of 1979. Both these criminal revision applications were heard together by the learned Additional Sessions Judge, Aurangabad, and were disposed of by a common judgment. The learned Additional Sessions Judge found that the finding of the trial Court that the husband refused or neglected to maintain the wife was not at all supported by the record of the case. The learned Additional Sessions Judge held that the wife has miserably failed to prove that she was ill-treated by her husband at any time and consequently, the learned Judge held that the trial Court was wrong in awarding separate maintenance to the wife but, according to the learned Additional Sessions Judge, the order of maintenance in favour of the child was actually legal and proper. The learned Additional Sessions Judge, therefore, dismissed the criminal revision application filed by the wife and partially allowed the criminal revision application filed by the husband. In the last mentioned application, he set aside the order of the trial Court granting maintenance at Rs. 40/- per month to the wife, but confirmed the order of the trial court granting maintenance at Rs. 25/- per month to the child. Feeling aggrieved by these two orders, the wife has preferred these two criminal revision applications in this Court.
6. Shri R.G. Bhadekar, learned advocate appearing on behalf of the wife, urged before me that the learned Additional Sessions Judge exceeded his jurisdiction in disturbing the finding of the trial Court that the wife was entitled to separate maintenance at Rs. 40/- per month. According to Shri Bhadekar, what the learned Additional Sessions Judge did was to reappreciate the entire evidence on record and to come to his own conclusion on the basis of factual evidence on record. Shri Bhadekar placed reliance upon a decision of this Court in1981 Mh.LR 313, Vimalr v. Sukumar. Therein it is observed by this Court as follows :—
“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.”
While making these observations, this Court relied upon a decision of the Supreme Court in AIR 1979 SC 663, State of Orissa v. Nakula Sahu and Others. There can hardly be any dispute about the proposition of law that is laid down by this Court in the aforesaid ruling. As against this Shri A.M. Dabir, learned advocate appearing for the husband contended before me that the finding of the trial Court was perverse and was not based on any evidence whatsoever on record and, therefore, the learned Additional Sessions Judge was right, according to him in interfering with the finding of the trial Court so far as the maintenance to the wife was concerned, We shall, therefore, proceed to the judgment of the trial Court to find out whether the trial Court had really considered all the aspects in deciding the case.
7. If we come to paragraph 4 of the judgment of the trial Court, there is nothing in this paragraph which is worth considering. In this paragraph, the learned Magistrate made a reference to the stories put up by the rival parties and the learned Magistrate observed that as there were no pleadings by either side, it was useless to consider that evidence and in this manner, he has rightly ignored that evidence. Then we come to paragraph 5 of his judgment and therein he has referred to the evidence of the wife. He referred to the fact that the wife was staying with her brother at Ghodegaon for the last two years, and then relying upon the fact that during these two years, the husband did not provide anything either in cash or in kind to the wife, he jumped to the conclusion that the wife Was entitled to separate maintenance and similarly he relied upon the petitioner’s (that is wife’s) sole testimony that her husband and his mother mercilessly beat her and drove her out of the house. This is thus, clear that only paragraph 5 is worth considering for ascertaining whether the trial Court has rightly considered all the aspects of the case. Unfortunately we find that the trial Court has not at all considered the oral evidence on record. Shri Dabir was to a certain extent right when he urged that there is no evidence of any doctor, etc, to show that the wife was beaten by the husband. 1 find from the facts stated by the trial Court in paragraph 2 of the judgment that the wife alleged that it was only once that her husband heavily beat her with iron rod for which she was admitted to the hospital. In this background, the learned Additional Sessions Judge was right when he observed that no evidence was led to show that the wife was really admitted to the hospital and that she had sustained any injuries, so that this circumstantial evidence could be read in support of the statement of the wife that she was assaulted by her husband and by her mother-in-law. The trial Court has not considered this aspect at all. The learned Magistrate has observed that it is impossible for a lady to get independent and actual eye-witness about the ill-treatment. About this observation, it may be said that it is correct one, because no person would beat his wife in the presence of strangers. But, at the same time, when the wife says that the was admitted to a hospital, it was incumbent upon the wife to lead evidence from that hospital to show that she was actually admitted to the hospital for injuries on her person. There is no such evidence on record and the learned Magistrate has totally ignored this aspect of the case. Merely on the solitary testimony of the wife, the learned Magistrate has jumped to the conclusion that she was beaten by her husband and that it was sufficient for her to claim separate maintenance. It will, therefore, be seen that the finding of the trial Court is based on no evidence whatsoever. The learned Magistrate has failed to take into consideration all these facts and, therefore it was incumbent upon the learned Additional Sessions Judge to deal with this matter exhaustively. It is, therefore, clear that there was an apparent error of law committed by the trial Magistrate in ignoring the material evidence on record and, therefore, in my opinion, the learned. Additional Sessions Judge was justified in going through all these facts while deciding the case. Hence, it is not a case of excess of jurisdiction by the revisional Court.
8. Then the next question for my consideration is whether the wife has really led any evidence to show that the husband refused or neglected to maintain her and the learned Additional Sessions Judge has considered all the aspects in details and has come to the conclusion that the wife has failed to prove this fact and it is a finding of fact, which is not vitiated by any error and hence, it is binding upon me and I would not interfere with that finding of the learned Additional Sessions Judge. In my opinion, therefore, the learned Additional Sessions Judge was right in passing the orders in both the revision applications before him.
9. The result is that there is no merit in both these criminal revision applications, and, therefore, they are dismissed and the rule discharged.
Revision Petition dismissed.