KHONI Vs. HOSHIARU

JUDGEMENT

(1.) THE parties are husband and wife. The wife applied for maintenance under section 488 Cr. P. C. The trial magistrate found that the husband was Keeping a mistress, but he still refused to grand the maintenance on the ground that the wife was leading an adulterous life. In revision, the learned Sessions Judge has found that the trial magistrate was not justified in finding that the wife was leading an adulterous life. He has recommended that the order of the magistrate refusing to grant the maintenence be set aside and that the husband be directed to pay his wife a sum of Rs. 100/ -per month by way of maintenance allowance.

(2.) MR . R. P. Bakshi appearing for the husband has opposed the reference. His argument is twofold. Firstly, that a revisional court is bound by the findings of fact of the trial court and that the learned Sessions Judge was bound by the finding of the trial court to the effect that the wife was leading an adulterous life and that at any rate the finding to the contrary of the learned Sessions Judge is vitiated on the ground that he has not considered the entire evidence. Secondly, that even on the finding that the wife was leading a chaste life, the learned Sessions Judge was not legally justified to determine the maintenance allowance himself. He should have referred the question for determination of the trial Magistrate,

(3.) IT is true that a revisional court is bound by the finding of fact given by the trial court but that is so only if the finding is not perverse. It necessarily follows that the revisional court can look into the question whether such finding is perverse or not. A finding would be perverse either when it is based on no evidence or if the inferences drawn from proved and admitted facts are arbitrary and unreasonable. That naturally makes it necessary for the revisional court to have a look into the evidence. This is exactly what the learned Sessions Judge has done in the present case. He has noticed the evidence produced by the husband and said that such evidence even if taken at its wood does not reasonably suggest that the wife was leading an adulterous life and had given birth to illegitimate children. The approach is unexceptionable in law even where the revisional court is concerned. But then the revisional court should look into the entire evidence which is of vital nature. The learned Sessions Judge has no doubt omitted from consideration the statement of Bhagtu R. W. But his statement does not appear to be of vital importance He has said that Mst. Khoni had developed intimacy with one Dina and given birth to two children through him, without however indicating as to what the grounds of his belief were. He is not able to state as to when the children were born and what was the entry about their parentage in the chowkdari register. His evidence is obviously of non vital nature and its non -consideration would not vitiate the finding of the learned Session Judge. The first argument fails. Coming to the second argument there can be hardly any doubt that the determination of the quantum of maintenance allowance depended upon the consideration of the question as to whether the husband was possessed of sufficient means to pay the maintenance. That was a question of fact to be determined on evidence. The determination of this question properly belonged to the domain of the trial court. The learned Sessions Judge therefore ought to have properly remanded the case for determination of the proper maintenance allowance to the trial Magistrate. The result therefore is that this revision succeeds and is allowed in part. The order of the magistrate refusing to grant maintenance allowance is set aside. The magistrate is directed to determine the quantum of allowance and pass a fresh order in accordance with law on the assumption that the wife has established her right to get the maintenance. The magistrate will do so on the basis of the available evidence after hearing the parties or their counsel The parties are directed to appear before the trial Magistrate on 30.12 1980