RAMABEN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Would Revisional Courts have to keep in mind while hearing revisional applications more particularly arising from maintenance proceedings under Sec. 125 of the Code of Criminal Procedure, 1973 ('the Cr. P. C.' for brief) is the main question arising in this revisional application preferred by the unfortunate wife against the judgment and order passed by the learned Sessions Judge of Bulsar at Navsari on 17/05/1991 in Criminal Revision Application No. 34 of 1990. Thereby the learned Sessions Judge accepted the revisional application of respondent No. 2 herein and upset the order of maintenance passed by the learned Judicial Magistrate (First Class) at Gandevi on 28/02/1990 in Maintenance Application No. 9 of 1987. It may be mentioned that the learned trial Magistrate accepted the Maintenance Application preferred by the present petitioner and awarded to her maintenance at the rate of Rs. 400.00 per month.

(2.) The facts giving rise to this revisional application may be summarised in a nutshell. The petitioner and respondent No. 1 herein were united by a matrimonial the sometime in May, 1958. The matrimonial life between the two does not seem to have run a smooth course more particularly after the birth of a female child out of their wedlock. According to the wife, she was subjected to cruelty, both physical and mental, in her matrimonial home. It is also her case that some signature of hers was taken on a blank paper and that appears to have been converted into some divorce paper later on for the purpose of the husband's remarriage with another woman. She thereupon moved one application for maintenance under Sec. 125 of the Cr. P. C. before the Court of the Judicial Magistrate (First Class) at Gandevi for claiming maintenance from her husband respondent No. 2 herein. It came to be registered as Maintenance Application No. 9 of 1987. The husband resisted the Maintenance Application on several grounds. He inter alia put up a case that his marriage with her came to be dissolved way back and he begot four children out of his wedlock with the second wife. The Maintenance Application was also sought to be resisted on the ground that it was filed with an ulterior motive after passage of nearly 30 years from the date of dissolution of the marriage between the two. After recording evidence and hearing the parties, by his judgment and order passed on 28/02/1990 in Maintenance Application No. 9 of 1987, the learned Judicial Magistrate (First Class) at Gandevi accepted the wife's application for maintenance and awarded to her maintenance at the rate of Rs. 400.00 per month and also the costs of the proceeding at Rs. 100.00. Aggrieved thereby, the husband carried the matter in revision before the Sessions Court of Bulsar at Navsari. His revisional application came to be registered as Criminal Revision Application No. 34 of 1990. After hearing arguments, by his judgment and order passed on 1 7/05/1991 in Criminal Revision Application No. 34 of 1990, the learned Sessions Judge of Bulsar at Navsari set aside the impugned order of maintenance passed by the learned trial Magistrate. The aggrieved wife has thereupon invoked the revisional jurisdiction of this Court under Sec. 397 read with Sec. 401 of the Cr. P. C. for questioning the correctness of the impugned judgment and order passed by the learned Sessions Judge of Bulsar at Navsari.

(3.) Kum. Shah for the petitioner seems to be right in her two submissions to the effect that the learned Sessions Judge has transgressed the limits of his revisional powers for the purpose of interfering with the order of maintenance passed in favour of the wife and that the learned Sessions Judge has also overlooked the salutary dictum of law pronounced by the Supreme Court in its ruling in the case of Bai Tahira v. Ali Hussain Fissali, reported in AIR 1979 SC 362.