IMPORTANT POINT
Order passed by Magistrate rejecting interim maintenance application u/s 25 Cr. P.C. on the ground that applicant wife is living with her parents & hence not starving is unreasonable & perverse.

ORDER

J.U. Mehta, J. The petitioner is the original applicant who has claimed maintenance under section 125, Cr. P.C. by filing Misc. Criminal Application No. 48 of 1988 on 3.3.1988 before the learned judicial Magistrate, I class. Surat for gelling maintenance from respondent No.1 on the ground that the petitioner is the married wife of respondent No.1 and without any cause or reason she was deserted by respondent No.1. On 19.8.1988 the petitioner filed -an application at Ext. 8 praying for interim maintenance till the final disposal of the main application, inter alia, alleging that the petitioner has no independent income of her own and she has to live a life depending upon her parents who are economically poor and if the interim maintenance is not awarded, she will have to starve. She has filed this application on solemn affirmation.

2. 1he learned Magistrate, after hearing the parties, rejected the application of the present petitioner for granting her interim maintenance. The order is annexed at Ext. A to this petition.

3. Being aggrieved by the said order of the learned Magistrate, the present petitioner preferred Criminal Revision Application No. 118 of 1989 before the Court of the learned Additional Sessions Judge, Surat. After hearing both the parties, the learned Additional Sessions Judge rejected the said Revision Application by order dated 16.2.1991.

4. Being aggrieved by the said order passed by the Courts below, the original applicant has come before this Court under Article 227 of the Constitution challenging the legality and validity of the orders passed by the Courts below.

5. Miss Patel, learned Advocate appearing on behalf of the petitioner submitted that both the Courts below erred in interpreting the ratio laid down by the Supreme Court in the case of Smt. Savitri v. Govind Singh1. She also contended that both the Courts below failed to appreciate that the petitioner had filed the Maintenance Application on 3.3.1988 and till 21.9.1989, i.e. the day on which the learned Judicial Magistrate, F.C. Surat rejected the application for interim maintenance of the petitioner, the main application was not, disposed of and that the wife had to depend upon the parents for her maintenance, who were economically poor and under these circumstances, the learned Judicial Magistrate, I class, ought to have granted the application for interim maintenance filed on behalf of the petitioner. She contended that without discussing any evidence produce on record, the learned Magistrate rejected the application for interim maintenance on the ground that the petitioner cannot be said to be starving as she is living with her parents. She submitted that the judgment and order of both the Courts below are unreasonable and perverse and, therefore, this is a fit case in which this Court should interfere under Article. 227 of the Constitution of India.

6. The learned Advocate Mr. Jariwala appearing for Mr. S.N. Shelat for respondent No.1, original opponent contended that in view of the limited scope in the present petition, the petition is required to be rejected. He submitted that both the Courts below have given a finding of fact that the present applicant is living with her parents and it cannot be said that she will have to starve and, therefore, the lower Courts have rejected the interim maintenance application and in these circumstances, it would not be justifiable for the High Court to exercise its jurisdiction under article 227 of the Constitution and interfere with the findings of fact recorded by the lower Courts. Mr. Jariwala submitted that the function of the High Court is limited to see that the subordinate Court or Tribunal functions within the limits of its authority and it cannot correct mere error of facts by examining the evidence and depreciating it. He relied upon the judgment of the Supreme Court in the case of Babhutmal Raichand Oswal v. Laxmibai R. Tarte2 and the judgment of the Supreme Court in the case of Ganpat L