DIVECHA - (1.)How the cavalier and casual approach to a case in exercise of the re-visional powers of the Sessions Court can result into perpetration of injustice is fully demonstrated in the present case. It is unfortunate that the aggrieved wife has to invoke the further revisional jurisdiction of this Court to seek redressal of her grievance against the judgment and order passed by the learned Additional Sessions Judge on llth August, 1989 in Criminal Revisional Application No. 4 of 1989. Thereby the learned Additional Sessions Judge, in exercise of his revisional powers under Sec. 399 read with Sec. 397 of the Code of Criminal Procedure. 1973 ('the Cr. P. C.' for brief) was pleased to upset the judgment and order passed by the learned 2nd Joint Judicial Magistrate (First Class) at Morvi in Misc. Criminal Application No. 129 of 1986.
(2.)The facts giving rise to this revisional application are not many and not much in dispute. The petitioner and respondent No. 1 herein were united by matrimonial tie sometime on 7/05/1984. It appears that they did not have smooth sailing so far as their matrimonial life was concerned. The wife appears to have some white spot on her body and, according to her, she was therefore disliked by her mother-in-law and at the instance of the latter by her husband. The couple was forced to stay separately at Jambuda from the joint family at Makawav. It appears that the wife was on the family way as a result of the wedlock and the husband, presumably at the instance of his mother, insisted on abortion of the foetus under some misapprehension that the child might also have some white spot on its body. The wife was stated to have been sent to her parental home. She is said to have given birth to a male child some time in 1985. No attempt appears to have been found made by or on behalf of the husband to get the wife back to her matrimonial home. There appears to have been filed cross-complaints against each other. In the background of such strained relations the wife was obliged to approach the Court of the Judicial Magistrate (First Class) at Morvi under Sec. 125 of the Cr. P. C. for maintenance. Her application for the purpose came to be registered as Misc. Criminal Application No. 129 of 1986. The husbind filed his reply and resisted her application on various grounds. The matter appears to have been assigned to the Court of the 2nd Joint Judicial Magistrate (First Class) at Morvi for trial and disposal. After recording evidence and hearing the parties, by his judgment and order passed on 17/12/1988 in Misc. Criminal Application No. 129 of 1986, the learned trial Magistrate was pleased to award maintenance at the rate of Rs. 250.00 per mouth to the wife and Rs. 150.00 per month to the minor child. The aggrieved husband carried the matter in revision before the Sessions Court at Rajkot. His revisional application came to be registered as Criminal Revision Application No. 4 of 1989. It appears to have been assigned to the Additional Sessions Judge at Morvi. After hearing the parties, by his judgment and order passed on llth August, 1989 in Criminal Revision Application No. 4 of 1989, the learned Additional Sessions Judge at Morvi was pleased to accept the revisional application and to set aside the award of maintenance of Rs. 250/ ~ per month made by the learned trial Magistrate in favour of the wife. The award of maintenance in favour of the minor child to the tune of Rs. 150.00 per month was however maintained. The aggrieved wife has thereupon invoked the revisional jurisdiction of this Court for questioning the correctness of the aforesaid judgment and order passed by the leained Additional Sessions Judge on llth August, 1989.
(3.)As rightly submitted by Shri Padia for the petitioner, the approach to the case made by the learned Additional Sessions Judge was quite cavalier and slipshod. The learned Additional Sessions Judge ought to have seen that he was seized of the matter in exercise of his revisional powers. It is a settled principle of law that revisional powers are not appellate powers. The learned Additional Sessions Judge appears to have entertained an illusory belief that he was exercising appellate powers with respect to the Revisional Application on hand. Without coming to the conclusion that the findings recorded by the learned trial Magistrate were perverse, the learned Additional Sessions Judge was pleased to upset the findings recorded by the learned trial Magistrate simply because on reappreciation of evidence on record he chose to come to a different conclusion. This approach of the learned Additional Sessions Judge cannot be upheld in law.