AREFABANU MAJIDKHAN PATHAN Vs. MOHAMMAD HANIF HUSSAINMIYA SHAIKH

JUDGEMENT

(1.) The learned Magistrate acting under provisions contained under Sec. 125 of the Code of Criminal Procedure, 1973 would award maintenance to a destitute wife and her minor daughter. The Sessions Court in revisional jurisdiction under Sec. 397 of the Code would interfere. The interference is on the broad principle of a custom prevalent in a particular community. The finding of fact rendered by the trial Court is upset on such considerations. This is all what the present Criminal Revision Application would demonstrate.

(2.) The petitioner wife Arefbanu Pathan had approached the Court of learned J.M.F.C. Surat by filing the Maintenance Application No. 8 of 1985 against the husband under the provisions contained in Sec. 125 of the Code of Criminal Procedure 1973. The case taken up by the petitioner-wife against the erring husband was that her marriage with the opponent-husband was solemnised on 13-2-1983 according to the Muslim Personal Law and that the opponent-husband had started subjecting her to mental and physical cruelty, and ultimately somewhere in the month of July 1983 she was driven out of the matrimonial house when she was in the family way. According to her, a relation or an acquaintance who had seen her being driven out of the matrimonial house had advised her to reach her parental house by the S. T. bus and later on she was able to do so. In course of time she had delivered a daughter but at that time also the opponent-husband had failed to show any primary courtesy. Her case further is that thereafter the opponent-husband had never cared for maintaining her and the minor daughter. So far as the financial condition of the opponent-husband is concerned, the petitioner-wife would urge in the petition that the husband works as a diamond cutter and earns an amount of Rs. 2000.00 per month. It is on this basis that the petitioner-wife had prayed for the maintenance in sum of Rs. 500.00for herself and at the rate of Rs. 250.00 for the minor daughter. The petitioner-wife's case came to be challenged by the opponent-husband by filing the written statement at Exhibit-9 inter alia denying all the allegations of the wife regarding maintenance, mental and physical cruelty and driving her out of the matrimonial house. The opponent-husband has denied the specific allegations of the petitioner-wife that she was driven away by him. The opponent-husband would also deny the case of the petitioner-wife that he used to earn an amount of Rs. 2,000.00 per month while working as a diamond cutter. Putting forth his case the opponent husband would aver that the wife had left the matrimonial house according to the caste custom as she was in the family-way and that, leter on she has not reverted to the matrimonial house. Considering the above said case of the parties and placing reliance upon the evidence which was made available the learned trial Magistrate has come to the conclusion that the opponent-husband had failed and neglected to maintain the wife and the minor daughter and that, therefore, he should pay an amount of Rs. 400.00 per month as the maintenance for the wife along with a further amount of Rs. 200.00 per month as the maintenance for the minor daughter Parvin. These orders dated 17-2-1986 were taken in revision by the opponent-husband by filing Criminal Revision Application No. 52 of 1986. The learned Addl. Sessions Judge, Surat vide the orders dated 31/05/1988 has come to the conclusion that the petitioner-wife was not able to establish her case regarding the failure or refusal on the part of the husband to maintain her. It was also the view taken by the learned Addl. Sessions Judge that the wife was not able to establish either mental or physical cruelty. These findings to be rendered by the learned Addl. Sessions Judge have resulted in the allowing of the Revision in part under which the orders in respect of the maintenance to the wife have been upset. Any how the orders regarding the maintenance to the minor have been confirmed and upheld. This revisional orders dated 31/05/1988 are in challenge before me.

(3.) The learned Counsel Mr. Akshay Mehta who appears on behalf of the petitioner-wife would urge that the learned Addl. Sessions Judge while exercising his powers under Sec. 397 of the Code of Criminal Procedure, 1973 has clearly erred in upsetting the finding of fact recorded by the learned trial Magistrate. Mr. Akshay Mehta would urge that the scope of interference at the revisional stage was a circumscribed one and that, excepting some special circumstance, the revisional Court could not have so lightly interfered with the orders under revision. The opponent No. 1 husband though served is not present. The learned Government Counsel Mr. S. P. Dave who appears on behalf of opponent No. 2 the State has endorsed the view expressed by the learned Counsel Mr. Mehta for the petitioner-wife, and has urged that, there was no genuine reason for the revisional Court to cause any interference in the orders pronounced by the trial Court.