MIRABEN BHUPATRAI PANDYA Vs. GYANDEV BALVANTRAI UPADHYAY

JUDGEMENT

(1.) THIS petition is filed by the original applicant -wife because the order of the trial Magistrate awarding her Rs. 200 p.m. as the amount of maintenance came to be reduced by the learned Additional Sessions Judge, Bhavnagar to 150 p.m.

(2.) THE applicant -wife had filed that application under section 125 of the Criminal Procedure Code, alleging that her husband, a registered medical practitioner though unqualified, was earning not less than Rs. 1,100 to Rs. 1,200 p.m. They say of the husband on the contrary was that because of the cut -throat competition in a small place like Ghogha, he was hardly making his own ends meet and his income was Rs. 200 or Rs. 300 p.m. or Rs. 300 to Rs. 400 p.m. as he differently stated at different times. The learned Magistrate, however, found that whatever might be the real situation, the husband was guilty of suppressing best evidence from the court because at any rate he could have produced some case papers or register to show that the visit of patients at his place was very thin. Nothing of the sort was done and he banked only on his oral words sought to be supported by some obliging hands in the village. Obviously, the applicant -wife would not be in a position to adduce satisfactory evidence about the actual average income of the husband. The learned Magistrate took judicial notice of the fact that in these days when even ordinary people like labourers earn Rs. 300 to Rs. 400 p.m. the husband must be earning about Rs. 1,000 p.m. When a party who is capable of adducing the best evidence keeps back the same from the Court, an adverse inference is not only inevitable, but is permissible also. The learned Magistrate, therefore, granted the comparatively small amount of Rs. 200 p.m. to the wife towards her monthly maintenance.

(3.) WHEN the matter came before the learned Additional Sessions Judge in exercise of his revisional jurisdiction, as distinct from the appellate jurisdiction, he embarked on a sort of re -appreciation of the evidence. The learned Judge has clouted correctly the legal principles in paragraphs 29 and 30 of his judgment, but then ignoring the fact that the husband had kept back the contemporary documentary evidence, likely to clear the whole picture, went on appreciating the evidence and in final anaylsis preferred the evidence of the husband to that of the wife and to the circumstantial evidence.