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1985 DIGILAW 114 (GUJ)

Jarinaben Jaffrbai Ajmeri v. Jafarbhai Abdulbhai Ajmeri

1985-06-25

D.C.GHEEWALA

body1985
JUDGMENT : D. C. Gheewala, J. The present revision application is directed against the order passed by the learned Additional Sessions Judge, Mehsana in Criminal Revision Application No. 42 of 1984, which in turn was directed against the order of the learned JMFC Kalo in Criminal Misc. Application No. 100 of 1982. The petitioner-wife filed an application under section 125 of the Cri. Procedure Code and alleged that the spouses were married and on 22-5-1981 delivered a son who died on the same day. The respondent-husband started mal-treating her and was beating and she was driven out. She, therefore, filed an application and the learned Magistrate after recording evidence came to the conclusion that she would be entitled to claim Rs. 150/- per month from 6-10-1982 which was the date of her application. After the application another son was born and he was awarded Rs. 75/- per month. Being aggrieved by the said order, the respondent husband carried the matter before the learned Additional Sessions Judge, who reversed the order, while the confirmed the order for awarding maintenance of the son. There the amount also be reduced to Rs. 60/- per month. The wife's claim for maintenance was totally disallowed. 2. Being aggrieved by the said order, this court has been moved by the petitioner-wife. 3. The only reason given by the learned Additional Sessions Judge for disallowing the wife's claim seems to be that the applicant-wife was not able to produce any documentary evidence in the form of Medical Certificate to substantiate her say that she was beaten by respondent-husband. This seems to be a surprising strain of reasoning on the part of the learned Additional Sessions Judge. It is most unlikely that she would be treated by a Doctor and she would be in a position to get a medical certificate. The quarrels between the spouses unless they assume such irreversible dimensions are never made known to the outsider. This would be a matter of common knowledge and for the learned Additional Sessions Judge to except that the wife should have produced the medical certificate for showing that the husband was indulging in physical violence upon her person was taking too rigid a view which is not warranted in such type of cases. This would be a matter of common knowledge and for the learned Additional Sessions Judge to except that the wife should have produced the medical certificate for showing that the husband was indulging in physical violence upon her person was taking too rigid a view which is not warranted in such type of cases. The reasoning given by the learned Additional Sessions Judge for reversing the order of the learned Magistrate, appears to be most untenable and once wife's testimony was accepted by the learned Magistrate, who had an additional advantage of viewing her before his own eyes, it was a thoroughly misconceived exercise on the part of the Additional Sessions Judge to reappreciate her evidence from a different angle and that too in a revision application. The petition, therefore requires to be allowed. 4. The learned Additional Sessions Judge's niggardly attitude in reducing the amount of maintenance of Rs. 75/- granted to the son to Rs. 60/- per month also cannot be appreciated and in that view of the matter, the amount of maintenance awarded to the child by the learned Magistrate requires to be restored. In view of the above discussion, the net result is that the petition requires to be allowed. The order of the learned Magistrate awarding maintenance to the wife at the rate of Rs. 150/- is restored and that of the learned Additional Sessions Judge setting it aside is set aside. Similarly the order of the learned Magistrate granting maintenance to the child at the rate of Rs. 75/- per month is restored and the learned Additional Sessions Judge's order effecting reduction in the said paltry amount by Rs. 15/- per month is also set aside. Petitioner shall also be entitled to realise the costs of the present proceedings from the respondent and the said costs are qualified at Rs. 200/-. Rule made absolute. Petition allowed.