ANANTA BHOOTTAMISRA Vs. SARASWATI BHOTTAMISRA

JUDGEMENT

(1.) The petitioner has assailed the revisional order passed by the learned Additional Sessions Judge, Koraput, reversing the order passed by a Judicial Magistrate, First Class, Jeypore, disallowing maintenance claimed by the opposite party as the married wife of the petitioner, for herself and their minor child, by accepting the petitioner's case that the opposite party had been living in adultery and was not entitled to maintenance. It is not disputed that the petitioner had married the opposite party and it was in evidence that some children born to them expired; While according to the opposite party, the child in respect of whom maintenance had been claimed by her had been born through their wedlock, the petitioners case was that this child was born not through him, but because the opposite party had been living in adultery. The learned Additional Sessions Judge has held that the verdict recorded by the learned Magistrate was unreasonable and unfounded and rejecting the case of the petitioner that the opposite party had been living in adultery; has granted maintenance at the rate of Rs. 90/- per month for the opposite party and Rs. 60/- per month for the child. The husband-petitioner has challenged this order as illegal and unfounded.

(2.) Mr. J. Patnaik, appearing for the petitioner, has submitted that the revisional court ought not to have reversed the findings of facts recorded by the learned Magistrate without justifiable reasons. It has also been submitted that if this Court holds, agreeing with the first revisional court, that the opposite party and her child were entitled to maintenance, the quantum of maintenance granted is quite heavy and ought to be reduced. Mr. Ramdas, appearing for the opposite party, has submitted that as an unreasonable view had been taken by the learned Magistrate the revisional court has correctly. reversed order and the amount of maintenance granted in respect of the opposite party and the child cannot be said to be heavy in these hard days when the prices of articles are soaring up.

(3.) I have perused the materials on the record and the order passed, by the learned Magistrate refusing maintenance and the order passed by the learned Additional Sessions Judge allowing the application and granting maintenance from the date of making the application. As rightly observed by the learned Additional Sessions Judge, it was for the petitioner to establish that his wife (opposite party) had been living in adultery. The learned, Additional Sessions Judge was not oblivious of the limited jurisdiction he had while sitting in a court of revision and being conscious of the fact that normally a. finding of fact is not to be interfered with by the revisional court unless the finding is perverse and is not supported by legal evidence, he has carefully discussed the entire evidence adduced from the side of the petitioner to establish his case that the opposite party had been living in adultery. He has examined the evidence of the petitioner and the evidence of each of his witnesses examined in this regard and for the reasons recorded by him, which need not be repeated, has come to find the evidence led in this regard that was not only vague, but also highly unreliable and improbable and could not have been accepted by the learned Magistrate in support of the case of the petitioner. A plea of the type raised by the petitioner was to be, but had not been established by clear and acceptable evidence and the vague evidence with regard to the company of the opposite party with some persons, without anything more, could not give an indication that she had been living in adultery. As the view taken by the learned Magistrate in this regard was unreasonable and could not have been taken on the materials available on the record, the learned Additional Sessions Judge came to the following conclusion