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2010 Supreme(Ori) 337
2010 (II) OLR — 476
B.K. PATEL, J.
Smt. Chandrama Biswal @ Chanduri Biswal...Petitioner
Versus
Banchhanidhi Biswal...Opp. Party
CRIMINAL REVISION No. 874 of 2003
Decided on 23rd June, 2010.
For Petitioner:M/s. A.K. Choudhury, K.K. Das, P.C.S. Patra and C.R. Behera
For Opp. Party:M/s. N.K. Sahu, B. Swain, E. Ananta Sayaram and N.C. Sahu.
Headnote:1. CRIMINAL PROCEDURE CODE, 1973 - Sec. 125(4) - Maintenance granted by Trial Court - On appeal Additional Sessions Judge reversed the finding of Trial Court and set aside the same - Revision - Additional Sessions Judge has not assigned any reason to support the finding that petitioner was 'living in adultery' - Unsuccessful bid by the husband to castigate the wife as a person living in adultery entitles her to live separately from her husband and claim maintenance from him - The very allegation by the husband and members of his family that the wife is having extra-marital relationship with a person other than her husband in insulting and humiliating her amounting to cruelty - Held, the impugned order of the Additional Sessions Judge is not sustainable and liable to be set aside. (Paras - 11 to 14)
2. CRIMINAL PROCEDURE CODE, 1973 - Sec. 401 - Scope and ambit of appeal and revision are different - Revisional Court is not a Court of appeal - Detail stated.
The revisional jurisdiction is not to be ordinarily invoked or used merely because the lower Court has taken a wrong view of the law or misappreciated the evidence on record. If the revisional Court on appreciation of the evidence on record and reappraisal of the evidence, takes a view different from and contrary to the view taken by the lower Court, then also it cannot be a ground for interfering in revision. It is only when the Magistrate has not kept in view the correct position of law and has failed to appreciate the evidence in its true perspective, it would be within the jurisdiction of the revisional Court to appraise the evidence and come to a conclusion as to whether the conclusion of the trying Magistrate was justified or not. Where the conclusion of a Magistrate is grossly and palpably unjust or is based upon a manifestly erroneous approach and erroneous appraisal of the evidence, and further the Magistrate has misconceived the evidence and has come to an obviously wrong conclusion the revisional Court would be fully justified to go into the facts and correct the error that has cropped into the judgment of the trying Magistrate. In such a case, the revisional Court is not interfering on the ground of inadequacy of evidence, but on the ground that there has been a clear case of miscarriage of justice. (Para - 6)
3. CRIMINAL PROCEDURE CODE, 1973 - Sec. 125(1) - The Section casts legal obligation on the person having sufficient means to maintain his wife, minor children and parents unable to maintain themselves. (Para - 7)
4. CRIMINAL PROCEDURE CODE, 1973 - Sec. 125(4) - Expression 'living in adultery' does not denote an isolated act of immoral conduct - It denotes a course of continuous adulterous conduct.
(Para - 8)
JUDGMENT
B.K. PATEL, J. — This revision is directed against the order dated 2.9.2003 passed by the learned Ist Additional Sessions Judge, Aska in Criminal Revision Petition No. 23 of 1999 (110 of 1990 GDC) setting aside the order dated 30.7.1998 passed by the learned J.M.F.C., Aska in Misc. Case No. 31 of 1997 by which the opposite party-husband had been directed to pay Rs.200/- per month to the petitioner-wife towards her maintenance for the date of filing of the application under Section 125 of the Cr.P.C.
2. Till 1979, petitioner and opposite party along with their four daughters and two sons were residing in Nagaland where opposite party was employed. Three of their daughters got married by 1985. In order to get the daughters married and sons educated, the petitioner started residing in the opposite party’s native village Gudiali near Aska. Opposite party and the elder son remained in Nagaland. At present the petitioner is residing in Aska, whereas, after his retirement in 1996, the opposite party is living at Gudiali. Their youngest daughter married in 1998. It was alleged in the application for maintenance filed by petition¬er that opposite party not only subjected her to physical assault and mental torture but also stopped to provide food and clothing to her. He drove her out of the house in 1994. It was averred that opposite party earned Rs.7,000/- from vegetable business and received Rs.2,000/- towards pension per month in addition to income from agricultural land and that she has no income and residing in a rented house. Opposite party resisted the application for maintenance pleading that during his absence from village Gudiali petitioner went astray and led an adulterous life with one Ragunath Biswal, a widower belonging to village Ganga¬nathpur. The youngest daughter and youngest son, who were living with their mother, objected to her immoral conduct. Ultimately, petitioner left the house and started living with Ragunath Biswal in Aska. Also, opposite party denied to have any income from agriculture, business and pension. In order to substantiate their assertions, petitioner examined two witnesses including herself as P.W.1 and opposite party examined four witnesses including himself as O.P.W.2, his eldest son as O.P.W.1 and youngest daugh¬ter as O.P.W.4.
3. In awarding maintenance in favour of the petitioner the learned J.M.F.C., Aska appears to have disbelieved adultery on the part of the petitioner. It was held that opposite party ne¬glected to maintain her. On reappraisal of evidence on record, learned revisional Court took the view contrary to the finding of the learned J.M.F.C. and held that petitioner was living in adultery for which she was not entitled to maintenance in view of the provision under Section 125(4) of the Cr.P.C.
4. It was contended by the learned counsel for the peti¬tioner that on a threadbare analysis of evidence on record, learned Magistrate was not inclined to believe the allegation of adultery against the petitioner. In such circumstances, learned revisional Court was not entitled to enter into the arena of reappreciation or reappraisal of evidence. Referring to deposi¬tions of witnesses examined on behalf of opposite party it was contended that evidence on record does not indicate that peti¬tioner was ‘living in adultery’ as contemplated under Section 125(4) of the Cr.P.C.. In support of his contentions learned counsel for the petitioner relied upon decisions of this Court in Madan Mohan Rai v. Sm. Niladri Dei: (32) 1966 CLT 827, Smt. Rachita Rout v. Basanta Kumar Rout : 1987 CRI.L.J. 655, Baishnab Charan Jena v. Ritarani Jena : 1993 CRI.L.J. 238, Laxman Naik v. Nalita @ Lalita Naik : 2002 (II) OLR 230 and Smt. Arana Kar v. Dr. Sarat Kumar Dash @ Nachhi : 1994 (II) OLR 584.
5. Learned counsel for opposite party supported and de¬fended the order passed by learned revisional Court.
6. Scope and ambit of appeal and revision are different. The revisional Court is not a Court of appeal. Pl
