LILABEN HAZARAK CHANDBHAI Vs. LALJIBHAI HIRABHAI BHAGAT

JUDGEMENT

(1.) THE petitioner wife had initially filed proceedings under section 125 of the Cri. P. Code, against opponent No. 1 -Husband for claiming maintenance. An award of maintenance was passed in her favour. As the amount of maintenance fell in arrears she had filed execution proceedings and at that time respondent No. 1 husband prayed that as he was prepared to take back the wife, and as he was desirous of maintaining her the award be set aside.

(2.) IT may be noted that the main ground on which the petitioner -wife had filed proceedings to claim maintenance was that the husband was casting aspersions against the character' of the wife and he was subjecting her to mental cruelty and physical violence. The husband in support of his say that he was prepared to take back the wife, examined witnesses as well. The learned Magistrate did not find that the offer to accept the wife was genuine but he definitely came to the conclusion that the offer was made more with a view to wriggle out of the responsibility of giving maintenance rather than a genuine desire to accept the wife. He, therefore, held against the husband and the matter was carried before the learned Sessions Judge by way of revision. The learned Sessions Judge came to the conclusion that as the wife had not stepped in the witness box the husband's say that he was prepared to accept the wife should be accepted. He, therefore, reversed the finding of the learned Magistrate and hence the present petition by way of a Special Criminal Application under Article 227 of the Constitution of India has been filed.

(3.) MR . S. D. Patel, the learned advocate appearing for the respondent No. 1 -husband raised a preliminary objection against the maintainability of such a petition under Article 227 of the Constitution and in support of his contention relied upon the Supreme Court decision reported at AIR 1984 SC P. 38. The observations of the Supreme Court made in para 7 of the said judgment can be extracted below with advantage. "A more decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227. The supervisory jurisdiction conferred on the High Court under Article 227 of the Constitution is limited ' to seeing that inferior Court or Tribunal functions within the limits of its authority", and not to correct an error apparent on the face of the record much less on error of law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or re -weigh the evidence upon which the determination of the inferior court or Tribunal purpotrs to be based or to correct errors of law in the decision." Relying upon these observations, Mr. Patel urged that even if there is an error of law Article 227 could, not entitle the High Court to correct the same because the High Court would not be sitting as an appellate authority and hence any exercise to correct the judgment of the Courts below would be in clear violation of the self imposed restrictions against the exercise of the jurisdiction under section 227 of the Constitution.