DHANLAXMIBEN ANILKUMAR PADHIAR Vs. ANILKUMAR CHATURBHAI PADHIAR

JUDGEMENT

(1.) BOTH these applications arise out of the tame judgment and order passed by the lower Appellate Court and, therefore, they are heard together and are disposed of by this common judgment. Dhanlaxmiben, the petitioner in these applications applied for maintenance in the Court of J.M.F.C., Vadodara. She had claimed maintenance on the ground that she was often ill -treated and beaten by her husband and that lastly in the month of April, 1981 she was again driven out of his house. Thereafter the husband has not cared for her maintenance. The learned Magistrate believed the evidence of the applicant and her witness and came to the conclusion that she was beaten and driven out of the house and was thus entitled to receive maintenance from the husband. The learned Magistrate awarded Rs. 75/ - p.m. as the amount of maintenance to the petitioner - wife. The wife feeling aggrieved by the aforesaid judgment preferred Criminal Revision Application No. 113 of 1984 with a view to get more maintenance. The husband also feeling aggrieved by the said judgment preferred Criminal Revision Application No. 79 of 1984. The learned Additional Sessions Judge allowed the application filed by the husband and rejected the application filed by the wife. Therefore, she has filed Special Criminal Application No. 888/85 against that part of the judgment of the lower appellate court whereby her criminal revision application was dismissed. The Criminal Revision Application No. 420/85 is also filed by the wife because the criminal revision application filed by the husband before the learned Additional Sessions Judge was allowed.

(2.) WHAT is urged by the learned Advocate for the petitioner is that the learned Sessions Judge committed an error in accepting the evidence of the husband and his witnesses and setting aside the order passed by the learned Magistrate. It was urged that the evidence of the wife and her witnesses is more reliable and therefore the learned Magistrate had thought it fit to accept the same and therefore it was not proper for the Additional Sessions Judge to interfere with the order of the learned Magistrate while exercising his revisional powers. It appears that the learned Magistrate was very much inclined do accept the evidence of the applicant and her witnesses because her husband in his cross -examination stated that he was prepared to keep his wife after executing a writing to the effect that he would not beat his wife. The learned Magistrate thought that it was an admission on his part that he used to beat his wife. If the evidence of the husband is read as a whole, it becomes clear that he never wanted to admit nor has he admitted that he was beating his wife. He only wanted to show that he was willing to keep her on any terms. He was even willing to stay separately from his parents if that was the desire of the wife. He also showed his willingness to execute any type of writing if that would satisfy his wife. Therefore, his willingness to keep her after executing a writing that he would not beat her cannot be said to be an admission on his part that he was in the past beating his wife. It also appears that the learned Magistrate was not inclined to give due importance to the admission made by the father of the applicant that it was the husband who had brought Dhanlaxmi on scooter to his house and he left her there. The learned Magistrate held that her version that she was beaten and driven out from the house is quite consistent with the circumstance that her husband had taken her to her father's house on a scooter. It appears that the learned Sessions Judge in view of these two infirmities in the judgment of the learned Magistrate thought it fit to reappreciate the evidence and record his own findings. It cannot be said that the learned Sessions Judge has committed any error in reappreciating the evidence and recording his own findings in view of the aforesaid infirmities in the judgment of the trial court. That which was regarded as an admission cannot be regarded as the admission of beating nor is it possible to believe the version of the applicant that she was beaten and driven out from his house is consistent with the circumstances that it was her husband who had brought her on a scooter to her father's house and left her there. The learned Sessions - Judge after reappreciating the evidence on record recorded a finding that it is not proved that she was beaten and driven away by the husband. That is a finding of fact and unless it is shown that the finding is unreasonable this Court will not interfere. No defect in appreciation of the evidence or any other error is pointed out which would justify interference by this Court while exercising its revisional powers. Therefore, the revision application filed by the applicant wife will have to be dismissed. In that view of the matter, the Special Criminal Application filed by her for enhancement of maintenance will also fail. Rule is, therefore, discharged in each of these applications. Revision dismissed.