PRAMILABAI Vs. JOTI

JUDGEMENT

(1.) IN this Writ Petition under Article 227 of the Constitution of India, the petitioners, who are respectively wife and son of respondent no. 1, challenge the validity of the order of the learned Additional Sessions Judge, Latur in Criminal Revision Application No. 86 of 1982, whereby he confirmed the order of the learned Judicial Magistrate, First Class, Ausa in Miscellaneous Criminal Application no. 108 of 1981 whereby the learned Magistrate had rejected the application of the wife for maintenance under section 125 of the Code of Criminal Procedure.

(2.) IN my opinion, this petition is well founded, as I find that the evidence on record has not been appreciated at all. What both the Courts have done is to mechanically interpret the evidence without recourse to reason, realities of life, probabilities and ordinary human conduct. But before going into this question, I will dispose of the preliminary objection raised on behalf of respondent no. 1 husband. It is urged that having regard to certain authorities this petition is not maintainable in view of Section 397(3) of the Code of Criminal Procedure. The first judgment which is unreported is Criminal Writ Petition No. 32 of 1985 where it was held that interference in exercise of powers under Article 327 of the Constitution of India demands existence of exceptional circumstances and it is not a substitute for revisional authority. I am in entire agreement with the view expressed in this judgment. I am not at all considering whether decision on facts different from the one taken by the two Courts ought to be taken by me. In my opinion, both the Courts have failed in duty by not applying well established principles of appreciation of evidence, but have done a mechanical appreciation of the evidence. This judgment does not assist respondent No. 1. For the same reasons the judgment of this Court in Hemchandra v. Hemangi, 1982(1) Bombay Cases Reporter 777 has no application. I should not be understood to have taken a different view on the facts. The reason I am inclined to interfere, is that the two Courts who are invested with authority to decide the facts and application of law, have acted mechanically. What they have done is not appreciation of evidence at all. For this reason the case has to be considered by them over again after application of correct principle of appreciation of evidence.

(3.) THE learned Magistrate has discarded the evidence of wife for these reasons. The wife stated that the husband demanded gold, wrist -watch and radio and the ill -treatment started about 2 -1/2 years after the marriage. Contradicting her, father says that ill -treatment started after one year. According to the trial Magistrate, whose order has been confirmed by the learned Sessions Judge, this is an important discrepancy. Whether it is 2 -1/2 years or one year, the discrepancy does not mean that there was no ill -treatment. The learned Magistrate has lost the substance and got hold by a ma.ter of superficial significance. A contradiction in order to be destructive must affect the fact which has been deposed to and not a peripheral matter.