The present petition has been filed by the petitioner-original respondent under Articles 14, 21, 226 and 227 of the Constitution of India as well as under Section 125 of the Criminal Procedure Code challenging the impugned order passed by the Learned 3rd Additional Sessions Judge, Surendranagar in Criminal Revision Application Nos.66 & 68 of 2011 dated 20th April, 2012 modifying/revising the maintenance granted to the respondent-wife by the learned Judicial Magistrate, First Class while passing order in Criminal Misc.
Application No.345 of 2009 dated 19th September, 2011 on the grounds stated in the application.
Heard learned counsel, Mr.P.J. Kanabar for the petitioner.
Learned counsel, Mr.Kanabar has submitted that the Revisional Court has not appreciated the contentions raised by the petitioner and has also failed to consider the entire evidence on record. Learned counsel, Mr.Kanabar has also submitted that proviso to Section 125(3) of the Criminal Procedure Code provides that it is for the wife to establish that she has been deserted to claim maintenance. He submitted that in fact the wife was deserted and her brother had taken her. He submitted that this has not been appreciated by the Courts below while granting maintenance. He has also referred both orders in detail and has tried to submit that the aspect of income as well as discussion with regard to other property or financial condition has been misread and, therefore, the present petition may be allowed. In support of his submissions, he has referred to and relied upon the judgment of the Bombay High Court in case of Anita Vs. State of Maharashtra & Anr., reported in II (2007) DMC
661. Though the contentions have been raised that the Revisional Court has failed to appreciate that the order passed by the Court of Magistrate after considering the material and evidence on record does not call for any exercise of discretion for revision of the maintenance. The fact remains that both the Courts below have discussed with regard to the income of the respondent-husband, who is a doctor and has also considered the financial position, his earning capacity, his actual earning and other aspects. The Revisional Court has also in fact discussed in detail with reference to the income and income return of the respondent-husband and his other property and/or the status. In fact, it has discussed that there were two dispensaries, for which, the discussion has been made. There is also discussion with regard to the deposition of the respondent-husband in the cross-examination admitting that he does not maintain account and, thereafter, stating that he maintains the account. He has stated that he had not filed return for three years, whereas income tax returns have been placed on record at Exhs.54, 55 & 72. Therefore, considering the income aspect, financial position and other aspect, the Revisional Court has revised the maintenance, which cannot be said to be erroneous and it would call for any interference in exercise of extra ordinary jurisdiction and under Articles 226 and 227 of the Constitution of India. In fact, there is no jurisdictional error nor it can be said that the judgment and order is perverse or contrary to any provisions of law. It is a discretionary order depending upon the appreciation of evidence, which is just and proper and does not call for any interference.
The submission made by learned counsel, Mr.Kanabar referring to Section 125(3) of the Criminal Procedure Code that it is for the wife to establish that she has been deserted though in fact she had gone away with her brother is a matter of appreciation of evidence. In the discussion, there is no such contention raised and in fact, proviso to Section 125(3) of the Criminal Procedure Code that the husband is ready to maintain his wife and if she refuses, the Magistrate may consider the ground is raised only at this stage for negating the right of the wife and discharge of obligation.
Therefore, there is no reason to interfere with the impugned order and the present petition deserves to be dismissed and accordingly stands dismissed in limine.
(RAJESH H.SHUKLA, J.) /patil Top