SHRIRAM Vs. MAYA

JUDGEMENT

(1.) In this revision application Shriram s/o Ramji has challenged the order passed by the Chief Judicial Magistrate, Nagpur, dated 5 -10 -1985, directing him to pay a monthly maintenance allowance of Rs. 100 p. m. to his wife the non -applicant Smt. Maya and maintenance allowance of Rs. 75 to the non -applicant Nos. 2 and 3 the minor daughters of the applicant Shriram.

(2.) SHRIRAM the applicant in this revision application is a Police Constable in the State Reserve Police Force. He was earning salary of Rs. 996 p.m. He was married with non -applicant No. 1 Smt. Maya on 4 -5 -1978. The couple got two daughters non -applicant Nos. 2 and 3. They lived together till the Deepawali of 1982 from which time Smt. Maya is residing with her parents. She was pregnant when she went to her father's house and begot the son at her father's house, who unfortunately did not survive. On 3rd September, 1983, Maya served a notice to the applicant, her husband for maintenance of Rs. 500 per month and for payment of Rs. 10,000 to the father of Maya for allegedly spending that much amount for the maintenance of Maya and her two children on the ground that the applicant has refused and neglected to maintain her. This notice was replied to by the applicant by reply dated 12th September, 1983, denying the allegations of ill -treatment, beating and bad habits of drinking with friends. Non - applicant Maya filed an application for maintenance under Section 125, Cr.P.C. on 3 -10 -1983, alleging that she was beaten and ill -treated and was not treated properly as her wife ; that she had no sufficient means to maintain herself and her children and that the applicant had sufficient means to maintain them and had refused and neglected to maintain her. The aforesaid allegations were denied by the applicant by his reply before the learned Magistrate. The parties went on trial. The wife Maya examined herself and her father Dattu Natthuji while the applicant examined himself and his elder brother Manikrao and one Pundlik Gavane. The learned Magistrate after considering the evidence of the parties led before it believed the testimony of the wife Maya about beating and ill -treatment by the husband (the applicant) and recorded the finding that the wife had proved that despite sufficient means the husband refused to maintain her and on further finding that the wife and her children were unable to maintain themselves, passed the impugned order which has been assailed in this revision application.

(3.) I have heard Shri Y. B. Phadnis for the applicant and Shri Rajkarne for the non -applicants. It was vehemently contended before me that it was the wife who was at fault and was taking advantage of her own wrong. She did not want to go back to her husband despite the attempts made by the husband a number of times and that since the husband was willing to maintain her and her children the learned trial Court was in error in coming to the conclusion that the husband had refused and neglected his wife and the two children. It was also contended that the solitary testimony about beating of Smt. Maya should not have been believed by the learned Magistrate, in view of the contradictions brought out in her evidence. In particular it was pointed out that although it was a case of the wife Maya that on the day of Deepawali festival she was beaten mercilessly and was reached to her parents' house by the husband. She admitted in the cross -examination that she was taken to his house by her father as she was pregnant. It was also brought to my attention that although it was contended by the wife that her husband had not turned to her house and had not enquired about the welfare of the applicant, in her evidence Maya stated that the husband was insisting on the day of delivery that she should go back with him soon after the delivery and that she had declined and that it was on the Dasara day that he had quarrelled with her father and that since then he did not care for her. In short the learned counsel for the applicant wanted me to reappreciate the evidence and come to a fresh finding as regards the refusal and neglect of the husband and as regards the alleged ill -treatment and beating by the husband to the wife. I am afraid that in a revision application such a course cannot be taken. It is now well settled that the revisional jurisdiction has to be exercised only in exceptional cases and interference is called for only when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in miscarriage of justice. The revisional Court is, therefore, least expected to act as if it was hearing an appeal. See State of Orissa v. Nakula Sahu and others, AIR 1979 SC 663. The Supreme Court in the aforesaid case has further observed that inspite of the wide language of Section 435, Cr. P. C. 1898, which empowered it to satisfy itself as to the correctness, legality or propriety of any findings, sentence or order recorded or passed by the inferior Court situate within the limits of its jurisdiction and as to the regularity of any proceeding of such inferior Court and in spite of the fact that under Section 439 of the Code it can exercise inter alia the power conferred on a Court of appeal under Section 423 of the old Code, the High Court is not expected to act under Section 435 or Section 439 as if it is hearing an appeal. The power being discretionary has to be exercised judicially and not arbitrarily or lightly.