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1997 DIGILAW 941 (RAJ)

Geeta Bai v. Chandmal

1997-08-05

M.A.A.KHAN

body1997
JUDGMENT 1. - This is an application under section 397(3) r/w Section 401 Cr.P.C. against the order dated 12.2.1993 whereby the learned Addl. Sessions Judge Jhalawar set aside the order of the Judicial Magistrate Jhalawar dated 24.4.1991 granting maintenance allowance @ Rs. 300/- p.m. w.e.f. 11.10.1985 under section 125 Cr.P.C. to the applicant Sint. Geeta Bai. 2. Heard the learned counsel for the parties and examined the record of the lower Courts including the impugned order. 3. Ordinarily this Court does not interfere with the exercise of the revisory powers by the Sessions Judge in a matter unless it is satisfied on the examination of the record of the inferior Courts that the learned Sessions Judge had failed to examine the correctness of the findings of his inferior Court in the light of the record of such inferior Court and the circumstances of the case, and has without any justification upset the findings of fact as had been recorded by his inferior Court on appreciation of the evidence on the record of the case. On examining the record of the inferior Courts in this case I feel satisfied that the learned Addl. Sessions Judge was not at all justified in exercise of his powers under section 397(1) r/w Section 399 Cr.P.C. to have upset the findings of fact as recorded by the learned Magistrate after appreciating the evidence led by both the parties before me. The impugned order has therefore, to be set aside. 4. On 11.10.1985 the applicant Smt. Geeta Bai had filed her application under section 125 Cr.P.C. in the Court of the learned Magistrate contending therein that two years back she was married to Chandmal non-petitioner and lived with him at his village Mandawar and at the place of his service at Bhawani Mandi Distt. Jhalawar for about 5 or 6 months and then one day, feeling annoyed with her on some petty matter turned her out of his house taking 250 gms silver and gold ornaments from her, that she sought help from Chandmal's elder brother at Mandawar but got none and thereafter she made several efforts through the husband of her sister at Jhalawar for allowing her to join his company but the non-petitioner did not allow. She had thus contended that the non-petitioner having sufficient means to maintain her refused to do so and deserted her when she had no means to support herself. She had thus contended that the non-petitioner having sufficient means to maintain her refused to do so and deserted her when she had no means to support herself. The non-petitioner had, on the other hand contended, that on the death of his wife he had engaged the petitioner to look after his three children but she left of her own after serving him for two or three months only. He had further stated that the applicant was not his legally married wife but was the legally married wife of NAW No. 2 Ishwar Lal of village Chaurana in Ratlam district of Madhya Pradesh State. Believing the testimony of five witnesses including the applicant herself the learned Magistrate held that the applicant was the legally married wife of Chand Mal non-petitioner who had refused to maintain her despite having sufficient means to do so. Reversing such finding of fact, recorded by the learned Magistrate, the learned Addl. Sessions Judge held that the applicant was the legally married wife of NAW 2 Ishwar Lal and since she had not obtained divorce from him she could not have become the legally married wife of Chand Mal Non-applicant. So as to successfully claim maintenance under section 125 Cr.P.C. from him. 5. Revisory jurisdiction under section 397 Cr.P.C. though disfavours re-appraisal or reap-precaution of the evidence, on the record of the inferior Court, by the Revisional Court yet the exercise of such jurisdiction expects and, in fact, requires it to examine such record for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court. Re-appraisal or re-appreciation of evidence may involve examination of the record but the fundamental distinction between "appreciation" and "examination" lies in the purpose for which they are done. "Appreciation" means estimation, judgment, adequate recognition. "Examination" means detailed inspection, testing of knowledge or ability. In the context we are talking of, appreciation is made of evidence for the purpose of arriving at the value and worth of such evidence in order to record a finding about its acceptability or otherwise. Examination of the record of the inferior Court is done for the purpose of satisfying as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed. Examination of the record of the inferior Court is done for the purpose of satisfying as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed. "Satisfaction" as to the correctness of a finding of fact, recorded by the inferior Court, includes the reasonable,ness in the views and conclusions of the inferior Court. In other words, the Revisional Court, on examination of the record of the inferior Court, may feel satisfied with the correctness of a finding of fact, as recorded by such inferior Court, if such a finding may reasonably be arrived at on appreciation of evidence relevant to such finding. 6. In the instant case the learned Addl. Sessions Judge appears to have confined his examination of the record of the Magistrate to the observations and comments made by the learned Magistrate with regard to the testimony of NAW 2 Ishwar Lal. Examination of the record of the lower Court means the examination of the evidence available on such record, examination of the proceedings taken by the inferior Court and, of course, examination of the findings recorded and conclusions arrived at by such Court. The learned Magistrate had recorded his findings of fact and the final conclusion on the basis of the testimonies of five of applicants and four of non-applicants witnesses. Applicants evidence disclosed that Smt. Geeta's, parents had died in their village Khaudar and therefore, her marriage with the non-applicant was arranged by her elder sister Smt. Leela Bai living with her husband and grown up children at Jhalawar. The applicant had no brother. The factum of applicant's marriage with the non-applicant had been stated & proved by AW 1. Smt. Geeta Bai, AW 2 Dwarka Lal, AW 3 Roop Narain, AW 4 Lal Chand & AW 5 Davenra Kumar. These witnesses included Geeta's sister's husband, their grown up sons & neighbours who all had participated in the marriage ceremony. In non-applicants evidence NAW 1 Chand Mal had himself admitted that after the death of his wife, leaving behind one son and two daughters, he had himself asked Giri Raj of Jwalawar Smt. Geeta's elder sister's husband) who was of his Biradari, to find out some lady who may look after his kiddies. He had though stated that he had engaged the applicant as a maid-Servant at Rs. He had though stated that he had engaged the applicant as a maid-Servant at Rs. 200/- p.m. to look after his children in his absence to the Textile Mills Bhawani Mandi where he was employed, and had examined NAW 3 Mool Chand, Vijay and NAW 4 Shyam Lal in support of such a version; yet such a version was, on the face of it untrue. If the services of the applicant were to be utilised for looking after the three children of tender age, then the version that the applicant used to come in morning & evening hours only was not correct. NAW 4 Shyam Lal had stated that like others he and Chand Mal non-applicant used to live in separate rooms in the same building and that applicant Smt. Geeta Bai also used to live with Chandmal in his room. Non-applicants' own evidence thus supported applicants version. 7. In so far as the question of the alleged marriage of Smt. Geeta Bai with NAW 2 Ishwar Lal was concerned and which marriage the learned Addl. Sessions Judge, appears to have wrongly believed, it was to be noted that he was a relation of Chandmal non-applicant and there was absolutely no corroboration to his false testimony. If he was to be believed by the learned Addl. Sessions Judge on the point of his assertion of his marriage with the applicant and also producing two children by her for him, one of whom had allegedly died, the learned Addl. Sessions Judge should have also believed him on the point that the witness had contracted a "Nata" marriage with one Smt. Sehwanti Verma of village Bhagarda, after the applicant had allegedly left his company, without obtaining any decree of divorce as per the usage and custom prevalent in his Biradari he could have contracted a second marriage with another woman without obtaining divorce from his already living wife. The statement of a witness, if it is to be read in evidence, must be read in whole and not in part. It was thus quite evident that the findings recorded by the learned Magistrate about applicants marriage with Chand Mal non-applicant and the laters turning her out after some time and despite having sufficient means refusing or neglecting to maintain her, were based on proper appreciation of the evidence on record and such findings and conclusions based thereupon were quite reasonable. It was thus quite evident that the findings recorded by the learned Magistrate about applicants marriage with Chand Mal non-applicant and the laters turning her out after some time and despite having sufficient means refusing or neglecting to maintain her, were based on proper appreciation of the evidence on record and such findings and conclusions based thereupon were quite reasonable. There were no good reasons for the learned Addl. Sessions Judge to have reversed the judgment and order, as made by the learned Magistrate. 8. On examination of the record of the inferior Courts I am satisfied that at the relevant time the non-applicant had sufficient means to maintain the applicant but refused to maintain her and that the applicant had no means to maintain her. Before the Revisional Court the non-applicant appears to have filed some certificate from a Pradhan Adhyapak of certain higher primary school. The period of length of service of the applicant with the alleged school has been left blank and the authenticity of such a document is not beyond doubt. If the non-applicants desired an alteration, modification, or cancellation of Magistrates order under section 125(1) Cr.P.C. he may do that under section 125(3) Cr.P.C. In so far as the correctness, legality and validity of the orders passed by the learned Magistrate under section 125(1) & (2) Cr.P.C. are concerned the same deserve to be approved of and reviewed and restored. 9. In the result the impugned judgment and order of the learned Addl. Sessions Judge, Jhalawar are hereby set aside and the judgment & order of the learned Magistrate restored. The application stands allowed.Revision allowed. *******