Gujarat High Court
Arunaben Tuljaram Ramanuj vs Vasudev Pranjivan Nimavat And Anr. on 30 July, 1992
Equivalent citations: II(1993)DMC209, (1993)2GLR1233
JUDGMENT A.N. Divecha, J.
1. How the cavalier and casual approach to a ease in exercise of the revisional powers of the Sessions Court can result into perpetration of injustice is fully demonstrated in the present case. It is unfortunate that the aggrieved wife has to invoke the further revisional jurisdiction of this Court to seek redressal of her grievance against "the judgment and order passed by the learned Additional Sessions Judge on 11th August, 1989 in Criminal Revisional Application No. 4 of 1989. Thereby the learned Additional Sessions Judge, in exercise of his revisional powers under Section 399 read with Section 397 of the Code of Criminal Procedure, 1973 (the Cr. P.C. for brief) was pleased to upset the judgment and order passed by the learned 2nd Joint Judicial Magistrate (First Class) at Morvi in Misc. Criminal Application No. 129 of 1986.
2. The facts giving rise to this revisional application are not many and not much in dispute. The petitioner and respondent No. 1 herein were united by matrimonial tie sometime on 7th May. 1984. It appears that they did not have smooth sailing so far as their matrimonial life was concerned. The wife appears to have some white spot on her body and, according to her, she was therefore disliked by her mother-in-law and at the instance of the latter by her husband. The couple was forced to stay separately at Jambuda from the joint family at Makawar. It appears that the wife was on the family way as a result of the wedlock and the husband, presumably at the instance of his mother, insisted on abortion of the foetus under some misapprehension that the child might also have some white spot on its body. The wife was stated to have been sent to her parental home. She is said to have given birth to a male child some time in 1985. No attempt appears to have been found made by or on behalf of the husband to get the wife back to her matrimonial home. There appears to have been filed cross complaints against each other. In the background of such strained relation the wife was obliged to approach the Court of the Judicial Magistrate (First Class) at Morvi under Section 125 of the Cr. P.C. for maintenance. Her application for the purpose came to by registered at Misc. Criminal Application No. 129 of 1986. The husband filed, his reply and resisted her application on various grounds. The matter appears to have been assigned to the Court of the 2nd Joint Judicial Magistrate (First Class) at Morvi for trial and disposal. After recording evidence and hearing the parties, by his judgment and order passed on 17th December 1988 in Misc. Criminal Application No. 129 of 1986, the learned trial Magistrate was pleased to award maintenance at the rate of Rs. 250/- per month to the wife and Rs. 150/- per month to the minor child. The aggrieved husband carried the matter-in-revision before the Sessions Court at Rajkot. His revisional application came to be registered as Criminal Revision Application No. 4 of 1989. It appears to have been assigned to the Additional Sessions Judge at Morvi. After hearing the parties, by his judgment and order passed on 11th August, 1989 in Criminal Revision Application No. 4 of 1989, the learned Additional Sessions Judge at Morvi was pleased to accept the revisional application and to set aside the award of maintenance of Rs. 250/- per month made by the learned trial Magistrate in favour of the wife. The award of maintenance in favour of the minor child to the tune of Rs. 150/- per month was however maintained. The aggrieved wife has thereupon invoked the revisional jurisdiction of this Court for questioning the correctness of the aforesaid judgment and order passed by the learned Additional Sessions Judge on 11th August, 1989.
3. As rightly submitted by Shri Padia for the petitioner, the approach to the case made by the learned Additional Sessions Judge was quite cavalier and slipshod. The learned Additional Sessions Judge ought to have seen that he was seized of the matter in exercise of his revisional powers. It is a settled principle of law that revisional powers are not appellate powers. The learned Additional Sessions Judge appears to have entertained an illusory belief that he was exercising appellate powers with respect to the revisional application on hand. Without coming to the conclusion that the findings recorded by the learned trial Magistrate were perverse, the learned Additional Sessions Judge was pleased to upset the findings recorded by the learned trial Magistrate simply because on reappreciation of evidence on record, he chose to come to a different conclusion. This approach of the learned Additional Sessions Judge cannot be upheld in law.
4. It may be mentioned at this stage that, on careful scrutiny of the evidence on record, the learned trial Magistrate came to the conclusion that the wife in the instant case was deserted by her husband. The learned Additional Sessions Judge has reached the contrary conclusion. This he could have done provided he had found the findings recorded by the trial Magistrate to be perverse. It is not necessary to repeat the settled position of law with respect to perversity of a finding. A finding can be said to be perverse only if it is contrary to the evidence on record or there is no evidence on the basis of which such finding is recorded or that it is recorded as a result of misreading of the evidence or is such as no prudent person would record on appreciation of the evidence on record. In order to brand a finding to be perverse, it has to be shown how that finding is perverse. It has to be shown how that finding is contrary to the evidence on record or is based on no evidence or is as a result of misreading of evidence or is such that no prudent person would record on the basis of the evidence on record. Nothing of the sort is done by the learned Additional Sessions Judge in the instant case. With respect, the learned Additional Sessions Judge has simly come to the contrary conclusion that the husband could not be said to have deserted the wife in view of the evidence on record. Even at the cost of repetition, I reiterate that the revisional powers under the Cr. P.C. do not confer the appellate powers on the Sessions Court permitting it to reappreciate the evidence on record. I again repeat and reiterate that the Sessions Court, in exercise of its revisional powers, can reappreciate the evidence on record only if it is found that the findings recorded by the Court below were perverse. In absence of such positive conclusion reached by the lower Revisional Court, it had no business to reappreciate the evidence on record. I think the contrary conclusion reached by the lower Revisional Court to the effect that the husband could not be said to have deserted the wife cannot therefore be sustained in law.
5. Shri Shah for respondent No. 1 herein has taken me through the evidence on record to convince me that the findings recorded by the learned trial Magistrate were perverse. According to Shri Shah for respondent No. 1, the learned trial Magistrate has appreciated the evidence of the wife alone and has not appreciated the evidence of the husband and his witnesses while deciding the fate of the maintenance application. This submission urged before me by Shri Shah for respondent No. 1 deserves to be stated only to be rejected. The learned trial Magistrate, with respect, has carefully scanned and scrutinised the evidence on record. He has taken into consideration not only the husband's evidence but also the oral evidence given by his witnesses. The husband's assertion in his oral testimony to the effect that he had gone to his wife's parental home for bringing her back to their matrimonial home home is disbelieved in view of certain contradictions found in the oral testimony of the witnesses examined on his behalf. The learned trial Magistrate has given cogent and convincing reasons for accepting the wife's case in preference to the version given by the husband in his oral testimony and also through the oral evidence of his witnesses. The aforesaid instance furnishes a proof positive to the effect that the learned trial Magistrate has carefully considered the evidence on record including that adduced on behalf of the husband. The grievance that the approach of the learned trial Magistrate was one sided as submitted by Shri Shah for respondent No. 1 cannot therefore be accepted.
6. It may be mentioned that the learned Additional Sessions Judge has not believed the wife's case also on the ground that she tried to prove at trial what was not pleaded by her in her application for maintenance. It appears that the learned Additional Sessions Judge was under an erroneous impression that the law of pleadings as applicable in civil cases is also applicable to maintenance proceedings under Section 125 of the Cr. P.C. The doctrine of variance between pleadings and proof is more known to civil law than to the proceedings for maintenance under Section 125 of the Cr. P.C. It would be sufficient for the wife only to plead that she is unable to maintain herself and that the husband has sufficient means to provide maintenance to her and yet neglects to do so in order to claim maintenance from her husband. It is not expected of her to give details in her application about how her matrimonal life did not run its smooth course and so on and so forth. Loose pleadings by themselves would not prove fatal to an application under Section 125 of the Cr. P.C. With respect, the approach of the learned Additional Sessions Judge in that regard cannot be sustained in law.
7. In this connection a reference deserves to be made to the unreported ruling of this Court in Criminal Revision Application No. 1266 of 1983 decided on 27th March, 1984 some extract of which is found published in 1985 G.L.H. (N.O.C.) 5. It appears that in her application in that case the wife did not plead in specific words that she was unable to maintain herself for the purpose of claiming maintenance under Section 125 of the Cr. P.C. This Court has in that case held that it is not necessary that she should plead in specific words, nor it may be that she should also assert during her deposition, that she is unable to maintain herself. It has been further held that it is however the duty of the Court to find out whether she is able or unable to maintain herself. In view of the aforesaid unreported ruling of this Court, the approach of the learned Additional Sessions Judge in finding fault with the wife in coming out with some details during her deposition not referred to in her application for maintenance cannot be upheld in law.
8. I have seen a copy of the application for maintenance made by the present petitioner under Section 125 of the Cr. P.C. as furnished by Shri Padia. She has specifically stated in her application that she was subjected to both mental and physical torture. To show dislike towards a person on account of white spot on the body would subject that person to mental torture. She has tried to prove this case at trial. It cannot be said that she has proved what was not pleaded by her in her application. The application for maintenance under Section 125 of the Cr.P.C. cannot be read in a pedantic and technical manner.
9. Shri Shah for respondent No. 1 has urged that the husband's income is too meagre to provide maintenance to his wife and that she is able to earn her own living. I think the learned trial Magistrate has carefully appreciated the evidence on record and has found the husband to be possessed of sufficient means to provide maintenance to his wife and that she is unable to maintain herself. This finding recorded by the learned trial Magistrate is supported by the evidence on record. Even otherwise, it would not be open to this Court to upset that finding in exercise of its revisional powers.
10. Besides, this Court had an occasion to construe the expressions "having sufficient means" and "unable to maintain" occurrings in Section 125 of the Cr.P.C. in its ruling in the case of Nirmala Bhanji v. Jayantilal Vithaldas reported in (1976) 17 G.L.R. at page 457. It has been held therein :
"Merely because a person is found to be able-bodied, and capable of making earning it cannot be said that he is able to earn. There are many persons who are able-bodied but are still not able to make any earning. This particular fact cannot be over-emphasised in context of the economic conditions prevailing in our country which is full of able-bodied and educated unemployed in large number. Therefore, it cannot be said that merely because a person is able bodied and does not suffer from any physical or mental disability, he is always able to earn. Ability to earn requires something more than a fit state of mind and body. It requires opportunity to earn it requires education or experience; it many a times requires finance, push and pull. If these are not available to an able-bodied person, then however capable physically and mentally he may be, he should be considered as a person who is not able to earn. The expression "having sufficient means" in Sub-section. (1) of Section 125 of the Code of Criminal Procedure, 1973 - has got altogether a different connotation from the one contained in the express unable to maintain". A person who is able-bodied and who does not suffer from any physical or mental incapacity can be considered as a person who has got "sufficient means" because his physical and mental capacity provides him "suficient means" to earn. Therefore, even if he does not actually earn anything, he cannot escape from his liability to pay maintenance. But such a person cannot be considered to be a person who is "able" to maintain himself unless it is shown that he has got some means of earning. Therefore, the concept of able bodied person canot be imported while interpreting the expression "unable to maintain."
The view that if the wife is able-bodied and possessed an earning potentiality she should be presumed to be a person who is able to maintain herself, is accepted, then the whole purpose of preventing vagrancy which is contemplated in Section 125 of the Code of 1973, would be lost, and there would be husbands who would be encouraged to neglect to maintain their wives at a mature age when inspite of having an able body, they would be totally incapable to earn their livelihood. If such neglected wives are not able to seek any employment or to make any earning then their applications would be thrown out simply on the ground that they are found to be possessing a body which is physically fit. In a country, in which female illiteracy and general unemployment are rempant, and in a society where economic independence of females is still a rarity, such a situation would obviously become intolerable and could never have been desired by the Legislature which enacted Section 125 of the Code in its pursuit of an enlightened policy of preventing vagrancy".
The view expressed by this Court in its aforesaid ruling in the case of Nirmala Baja (supra) deserves full concurrence. It is not possible for me to improve upon it in any manner. It is an authority on the point.
11. In view of my aforesaid discussion, I am of the opinion that the impugned judgment and order of the learned Additional Sessions Judge cannot be upheld in law. It deserves to be quashed and set aside in this revisional application.
12. In the result, this revisional application is accepted. The judgment and order passed by the learned Additional Sessions Judge on 11th August, 1989 in Criminal Revision Application No. 4 of 1989 upsetting the award of maintenance in favour of the present petitioner is hereby quashed and set aside. The award of maintenance passed by the learned trial Magistrate is ordered to be restored in toto. Rule is accordingly made absolute with costs.
13. Misc. Criminal Application No. 2651 of 1989 has been made by the petitioner for stay of the operation of the impugned judgment and order passed by the learned Additional Sessions Judge as aforesaid. This Court by its order passed on 20th February, 1990 in this Misc. Criminal Application has directed respondent No. 1 to continue to pay maintenance to the petitioner at the rate of Rs. 250/- per month from the date of the order, that is, from 20th February, 1990. Since by this judgment the impugned judgment and order passed by the learned Additional Sessions Judge is quashed and set aside, no further orders are required to be passed in this Misc. Criminal Application at this stage. Rule is accordingly discharged in this Misc. Criminal Application however with no order as to costs.