1998 Supreme(MP) 102

Dipak Misra, J.
Phuljhar Basor (Smt.) V. Munnilal
Criminal Revision No. 682 of 1993 (J); Decided on 4.2.1998.

Headnote:(1) Criminal P.C., 1973 -- S. 397 -- revision under -- reversal of maintenance order on scrutiny and re-appreciation of evidence beyond permissible limits -- not permissible.

        (2) Criminal P.C., 1973 -- S. 125 -- allegations of husband about character and integrity of wife -- wife entitled to Li"Ve separately and claim maintenance -- it is a cruelty to her.

       ¼1½ naM Áfdz;k lafgrk] 1973 & /kkjk 397 & iqujh{k.k & vuqKs; lhek ds ijs laoh{kk rFkk lk{; ds iquewZY;kadu ij ls Hkj.kiks"k.k vkns‘k myVk tkuk & vuqKs; ughaA

        ¼2½ naM Áfdz;k lafgrk] 1973 & /kkjk 125 & ifr }kjk iRuh ds pfj= vkSj lR;kfu"Bk ds ckjs esa vfHkdFku & iRuh i`Fkd~ fuokl vkSj Hkj.kiks"k.k ds nkos dh gdnkj gS & ;g mlds Áfr dzwjrk gSA

        The wife alongwith minor children have approached this Court in revision preferred under section 401 of the Criminal Procedure Code (hereinafter referred to as the Code) challenging the order passed by the learned IVth Additional Sessions Judge, Chhatarpur in Criminal Revision No. 32/93. whereby he has reversed the order dated 10.2.93 in Criminal Case No. 14/91, passed by the J.M.F.C. Londi wherein the Court of first instance had allowed the prayer under section 125 of Code and had granted maintenance at the rate of Rs. 300/- per month to the wife, non-applicant No. 1 and at the rate of Rs. 100/- (Rupees one hundred only) each to the non-applicants Nos. 2 and 3, the minor daughter and son, respectively.

        Held : On a perusal of the order passed by the revisional Court, I find that the learned Additional Sessions Judge has scrutinised the evidence for the purpose of re-appreciation. The minor discrepancies and contradictions in the evidence of wife have been highlighted by the revisional Court to unsettle the findings of the learned Magistrate. To satisfy myself, I have perused the testimony of the wife/applicant. She has categorically deposed that she was ill-treated by her husband and was assaulted on number of occasions. It is also in her evidence that as she was treated cruelty she had left the matrimonial home. The aforesaid evidence of the wife has been disbelieved by the revisional Court on the basis of scrutiny and re-appreciation beyond the permissible limits of revisional jurisdiction. It is to be noted here that the appreciation of evidence by the learned Magistrate is neither perverse nor palpably erroneous. It is well settled in law that while exercising revisional jurisdiction a finding of fact can be successfully challenged if the same is absolutely unreasonable or perverse or is unacceptable being inconsistent with the evidence on record or the Court has considered materials which are partly relevant and partly irrelevant. Such is not the scenario in the case at hand. Thus in my considered opinion, the approach of the revisional Court is not correct and calls for interference by this Court.

        Quite apart from the above, on a perusal of the objection filed by the husband which has been taken note of by the learned Magistrate, it is noticeable that there are allegations by the husband pertaining to the character and integrity of the wife. He has alleged that she had run away with one Jhallu to Panjab and had stayed with him for 4 to 5 years. The attempt of the husband, as it appears, is to deprive the wife of grant of maintenance on the ground she has disentitled herself by her own conduct. Except taking such a plea, nothing has been brought on record to substantiate the same. It is well settled in law that if allegations of this nature are made and they remain unsubstantiated, it would be a justifiable ground on the part of the wife to desert the husband. In this context I may profitably refer to the decision rendered in the case of Smt. Shyamkali v. Bhaiyalal alias Ganesh, 1997 CrJR (MP) 280 wherein this Court registered its view to the effect that if false allegations of unchastity are made against a wife, it is a cruelty itself.

        Applying the aforesaid principle of law to the case in hand, it can be concluded that the revisional Court has fallen into error by not keeping the aforesaid aspect in view. Tested on the touchstone of aforesaid parameters, I am of the considered opinion that the order passed by the learned Additional Sessions• Judge is indefensible.

        The last plank of argument of Mr. Jain is that the husband is not in a financially sound position to pay maintenance to the wife and non-consideration of the said plea vitiates the order of the learned Magistrate. The aforesaid submissions of the learned counsel does not merit consideration as the Court of the first instance has dealt with it in proper perspective. This apart, financial condition is not the clinching factor for awarding maintenance. It is not the visible income alone which is to be considered. It is the duty of the husband to maintain the wife. He cannot avail the plea of absence of resources. The Court is required to see the potentiality of the husband who has to satisfy the legal obligation to maintain the wife. In view of this analysis, the contention of learned counsel for the non-petitioner is devoid of any substance.

        In view of the foregoing premises, the revision petition is allowed and the impugned order passed by the revisional Court is set aside. However, it would be open to the non-petitioner to pray before the executing Court for fixation of suitable instalments.