Gujarat High Court
Arefabanu Majidkhan Pathan vs Mohammad Hanif Hussainmiya And Anr. on 30 March, 1994
Equivalent citations: 1995CRILJ2881, (1994)1GLR886, 1995 CRI. L. J. 2881, 1995 (2) SCC 23, (1995) 1 CHANDCRIC 92, (1994) 3 ALLCRILR 740, (1995) 1 CURCRIR 48, (1994) 3 CRIMES 871, (1995) 1 HINDULR 292, (1995) 1 EASTCRIC 206, 1995 CRILR(SC MAH GUJ) 19, 1995 ALLAPPCAS (CRI) 31, (1995) MATLR 117, (1994) 2 GUJ LH 95, (1995) 1 CRIMES 142, 1995 SCC (CRI) 306, 1994 CRILR(SC MAH GUJ) 426, (1995) 1 JT 135 (SC)
ORDER S.D. Dave, J.
1. The learned Magistrate acting under provisions contained under Section 126 of the Code of Criminal Procedure, 1973 would award maintenance to a destitute wife and her minor daughter. The Sessions Court in revisional jurisdiction under Section 397 of the Code would interfere. The interference is on the broad principle of a custom prevalent in a particular community. The finding of fact rendered by the trial Court is upset on such considerations. This is all what the present. Criminal Revision Application would demonstrate.
2. The petitioner wife Arebanu Pathan had approached the Court of learned JMFC Surat by filing the maintenance application No. 8 of 1985 against the husband under the provisions contained in Section 125 of the Code of Criminal Procedure 1973. The case taken up by the petitioner-wife against the erring husband was that her marriage with the opponent husband was solemnised on 13-2-1983 according to the Muslim Personal Law and that the opponent husband had started subjecting her to mental and physical cruelly, and ultimately somewhere in the month of July 1983 she was driven out of the matrimonial house when she was in the family way. According to her, a relation or an acquaintence who had seen her being driven out of the matrimonial house had adviced her to reach her parental house by the S. T. bus and later on she was able to do so. In course of time she had delivered a daughter but at that time also the opponent husband had failed to show any primary courtesy. Her case further is that therafter the opponent husband had never cared for maintaining her and the minor daughter. So far as the financial condition of the opponent husband is concerned, the petitioner wife would urge in the petition that the husband works as a diamond cutter and earns an amount of Rs. 2000/- per month, it is on this basis that the petitioner wife had prayed for the maintenance in sum of Rs. 500/ for herself and at the rate of Rs. 250/- for the minor daughter. The petitioner wife's case came to be challenged by the opponent husband by filing the written statement at Exhibit 9 inter alia denying all the allegations of the wife regarding maintenance, mental and physical cruelty and driving her out of the matrimonial house. The opponent husband has denied the specific allegations of the petitioner wife that she was driven away by him. The opponent husband would also deny the case of the petitioner wife that he used to earn an amount of Rs. 2000/- per month while working as a diamond cutter. Putting forth his case the opponent husband would aver that the wife had left the matrimonial house according to the caste custom as she was in the family-way and that, later on she was not reverted to the matrimonial house. Considering the above said case of the parties and placing reliance upon the evidence which was made avialable to the learned trial Magistrate has come to the conclusion that the opponent husband had failed and neglected to maintain the wife and the minor daughter and that, therefore he should pay an amount of Rs. 400/- per month as the maintenance for the wife along with a further amount of Rs. 200/- per month as the maintenance for the minor daughter Parvin. These orders dated 17-2-86 were taken in revision by the opponent husband by filing Criminal Revision Application No. 52 of 1986. The learned Addl. Sessions Judge, Surat vide the orders dated 31st May, 1988 has come to the conclusion that the petitioner wife was not able to establish her case regarding the failure or refusal on the part of the husband to maintain her. It was also the view taken by the learned Addl. Sessions Judge that the wife was not able to establish cither mental or physical cruelty. These findings to be rendered by the learned Addl. Sessions Judge have resulted in the allowing of the Revision in part under which the orders in respect of the maintenance to the wife have been up set. Any how the orders regarding the maintenance to the minor have been confirmed and upheld. This re visional orders dated 31st May, 1988 are in challenge before me.
3. The learned counsel Mr. Akshay Mehta who appears on behalf of the petitioner wife would urge that the learned Addl. Sessions Judge while exercising his powers under Section 397 of the Code of Criminal Procedure, 1973 has clearly erred in upsetting the finding of fact recorded by the learned trial Magistrate. Mr. Akshay Mehta would urge that the scope of interference at the revisional stage was a circumscribed one and that, excepting some special circumstances, the revisional Court could not have so lightly interfered with the orders under revision. The opponent No. 1 husband though served is not present. The learned Government counsel Mr. S. P. Dave who appears on behalf of opponent No. 2 the Stale has endorsed the view expressed by the learned counsel Mr. Mehta for the petitioner wife, and has urged that, there was no genuine reason for the revisional Court to cause any interference in the orders pronounced by the trial Court.
4. The learned Magistrate had come to the conclusion that the case of the petitioner wife was duly established and that her evidence showed that she was subjected to mental and physcial cruelty and was ultimately driven out of the matrimonial home. The learned Magistrate has also recorded a finding that the opponent husband had failed and neglected in maintain the wife, a minor daughter, and that, looking to his income the wife was entitled to the maintenance at the rate of Rs. 400/- per month from the date of application for maintenance. It is indeed true that the entire case of the petitioner wife was resting upon her own evidence. The learned Addl. Sessions Judge was scious of his limited jurisdiction while acting under Section 387 of the Code of 1973 and he has stated so very precisely while commencing lo write his orders. Any how, the learned Addl. Sessions Judge was of the view that as the parties to the proceedings belong to Muslim community in which the husband is always at liberty to divorce the wife under a simple procedure and where the husband enjoys unilateral liberty of having more than one wives, ordinarily the muslim wife should establish her case with the coroboration by independent and reliable evidence.
5. It should not be overlooked that the provisions contained in Chapter 9 of the Code of Criminal Procedure, 1973 provide for a speedy, cheap and efficacious remedy for the maintenance of the wives, children and parents. Under this chapter the wifes who comes before the Court praying for a maintenance either for herself or the minor or both is required to show that the husband having sufficient means has neglected or refused to maintain her. This could be done on the basis of her own evidence, provided, the evidence tendered by her inspires confidence. It is now clear and if not it should be made more clearer by saying that the insistence should not be for medical evidence or the evidence of the persons residing in the vicinity. A wife could be subjected to mental cruelty without there being any physical cruelty and that even in case of physical cruelty the wife may not always go to police station or to a hospital or to a medical expert. In such circumstances therefore there could be no insistence upon the medical evidence. In the same way the insistence of evidence of the persons residing in the vicinity also does not appear to be wholesome because those persons who reside in the vicinity of the matrimonial house may not all be willing to help the petitioner wife. It cannot be deduced in such circumstance that the case of the petitioner wife can be believed or accepted by the Court only if there is the supporting evidence.
6. Moreover so far the proof of the petitioner's case is concerned the facts of she or the husband belonging to a particular community is wholly unwarranted. It cannot be urged even for a moment that a husband who has got the other ways means of getting rid of the matrimonial bondage either by giving a speedy divorce or by resorting to a second marriage would never subject the wife to mental or physical cruelty. The whole question which falls for the consideration of the Court is as to whether there was a refusal or neglect on the part of the husband to maintain the wife. This question is requird to be decided upon the evidence which is being brought on the record and not on such surmises, conjuctures and inferences. This phylosophy has no place in the judicial process where wife approaches the Court with a case of getting some maintenance with which she will be able to pull on either her ownself or with the minor. It is therefore clear that the approach adopted by the learned Addl. Sessions Judge appears to be wholly unwarranted and irrelevant and non-germane to the issues which were required to be decided by him.
7. If this thought-process adopted by the learned Addl. Sessions Judge is overlooked it appears that the case of the petitioner wife was duly establishhed. At the very outset she comes before the Court with a case of mental and physical cruelty, assault and driving her out of the matrimonial house. During her own evidence she supports her case to the fullest extent. The evidence brought forth by the opponent husband was found not to be convincing. On the appreciation of the entire material the learned trial Magistrate was satisfied that it was a case of failure and/or refusal on the part of the husband to maintain the wife and daughter. This finding in the opinion of this Court could not have been interfered on the basis of some thought-process which appears to be wholly irrelevant and non-germane to the issues which were required to be decided by the revisional Court.
8. The learned Addl. Sessions Judge was conscious of the circumscribed jurisdiction which he was exercising. It is indeed true that the jurisdiction which the learned Addl. Sessions Judge was exercising was limited and qualified. The interference of the Court would be justified where the decision rendered by the Court below is patently or grossly erroneous or there was no compliance with the provisions of law and that there was a violation of the statutory requirements. The interference could also be caused if it is found that the finding of fact, which was germane to the main issue to be decided by the revisional Court was not in consonance with the evidence which were brought before the trial Court. The revisional jurisdiction would have also afforded an opportunity of interference to the revisional Court if some evidence which was required to be considered for deciding the issues between the parties either was not at all considered or was considered in such a fashion that it could not have been done so by a Judicial Tribunal reasonably conversant with the principles which govern the field. The learned Addl. Sessions Judge, though was conscious and has reproduced in his orders the scope of limited jurisdiction has clearly overlooked the aspects under which his revisional jurisdiction was circumscribed. It is therefore clear that the learned Addl. Sessions Judge was clearly at an error in deciding the whole case on the basis of some custom, usage or legal freedom which according to him would be found present in a particular community. It appears that the learned Addl, Sessions Judge while reversing the order of maintenance to wife has clearly overlooked the principles governing his revisional jurisdiction and has preferred to embark upon an inquiry regarding the wife living in a particular community, which again was never germane to the decision of the issues between the parties.
9. All what has been said by me stands duly supported by the views expressed by the learned single Judge in Arunaben Tuljiram Ramanuj v. Vasudev Pranjivan Nimavat, (1993) 34 (2) Guj LR 1232. The Supreme Court pronouncement in Pathumma v. Muhamad , reaffirms the view that the revisional Court would not be justified in subsisting its own view for that of the Magistrate on the question of fact.
10. Looking to all what has been stated above, it is clear that the present Criminal Revision Application succeeds and the same requires to be allowed, and the same is hereby allowed. The revisional orders setting aside the orders of learned Magistrate awarding the compensation to the petitioner wife at the rate of Rs. 400/- per month from the date of application till realisation are set aside. The petition of the petitioner wife for maintenance al the above said rate is hereby allowed. The opponent No. 1 husband shall pay the maintenance to the petitioner wife at the above said rate from the date of application till the realisation of the due amount, and shall continue to pay the same in future till the orders are not upset or modified. Rule is made absolute accordingly.