ARUNABEN MOHANLAL DAVE Vs. UPENDRA RAVISHANKER DAVE AND ANOTHER
LAWS(GJH)-1983-4-34
HIGH COURT OF GUJARAT
Decided on April 06,1983

Arunaben Mohanlal Dave Appellant
VERSUS
Upendra Ravishanker Dave And Another Respondents

JUDGEMENT

V.V. Bedarkar, J. - (1.) This application is preferred under Article 227 of the Constitution of India to set aside the orders of both the court below who rejected the application for maintenance filed by the present petitioner. The petitioner filed an application for maintenance claiming maintenance of Rs. 400/- per month from the husband on the ground that she was ill-treated for not bringing proper dowry and also on the ground that the husband wanted to divorce her and forcibly took writing from her. On appreciation of evidence led before the trial court, it dismissed the application. At the revision stage attempts were made by the learned appellate judge to have reconciliation. It was the case of the wife that she was ready to stay with the husband if he hired another house separate from his parents. Initially the husband was reluctant because he was the only son of his parents and he did not want to live separately from his parents. At the appellate stage the husband made clear statement that he would hire a house separately and would keep the wife provided she is ready. At the appellate stage the wife made a grievance that quite often the husband had given such promises but ultimately did not fulfil and she was threatened by the husband that even though he would tell in the Court that he was ready to take the wife if she would go with hire he would see to it that she does not survive. This application given by her is at Exhibit 13, at the revisional court. As per the observation of the learned Sessions Judge, while dictating the judgment the wife was present from Gandhinagar and she got up and made a declaration that she was prepared to go and cohabit with the opponent husband and a pursis to that effect was issued. Unfortunately that pursis is not found on the record. On these understandings being filed by the parties the learned Sessions judge disposed of the petition with the direction to the parties to cohabit together within a period of three months from that day and the husband to take initiative to find out a separate house in the locality different from that of his parents and to go in person to fetch the wife from her parents. Some-how or other this did not materialise and the wife sent an application to the Chief Justice of this Court contending that the judgment delivered by the learned Sessions judge was wrong and her objection was not taken into consideration. Thereafter Mr. Contractor, the learned advocate, was appointed by the Legal Aid Committee and he filed the present petition.
(2.) It is the submission of Mr. Contractor that both the courts below have come to a perverse finding by mis-appreciating the evidence. It is his submission that during the trial the petitioner examined herself, her father and an independent person Gunvantrai Prajapati and also Dr. Parikh from whom she had taken treatment. The petitioner, her father and Gunvantrai specifically stated that on one occasion when the father of the petitioner and Gunvantrai had gone to her husband's place the doors were closed and that the father was ill-treated by respondent No.1 husband. It is, therefore, her contention that the learned trial judge did not believe the evidence of Dr. Parikh on extraneous grounds. Apparently this argument is very attractive because Dr. Parikh has produced the certificate. He has also mentioned about the treatment and the injury to the eye of the petitioner. It is also clear that the petitioner in her evidence stated that she was beaten and driven away on 24-9-1980. Treatment is also taken by her on 24-9-1980. So whatever the learned trial judge has observed about the certificate of Dr. Parikh trying to disbelieve the evidence that he has prepared false record would be holding against him on extraneous circumstances because he referred to the entire register produced about which no questions were put to the Doctor. Though this may be an aspect which requires comment the question to be considered here is as to whether merely on that ground the concurrent finding of both the courts below should be set aside.
(3.) It should be noted that according to the revisional court she had apparently visible mark of injury near her eye. In the notice correspondence no mention of such injury was made. Also in the petition filed for maintenance no specific mention of such injury is made. During her deposition also she did not say that she had obtained certificate from a Doctor, but she only said that she. would produce it. On this ground both the courts below doubted the veracity of such certificate or atleast about the case of the wife that she received injury because she was beaten by her husband. It may be stated at this stage that Dr. Parikh, the family doctor, who examined her found an injury near her eye on the very day, but the fact that there is no mention about this in the notice or in the petition would normally go to show that she must have received the injury at some place and taking advantage of that injury she might have gone to Dr. Parikh who gave a certificate. Dr. Parikh did not give any history of the injury. Neither on behalf of the petitioner nor on behalf of the respondent any question was put to the doctor as to what was the history of the injury. If the petitioner had received injury in a particular manner and if Dr. Parikh who is the family doctor was told this, he would have been put question even on behalf of the petitioner about the manner in which she received the injury. But nothing is elucidated on this account. Therefore, it is very difficult to connect the injury with the beating by husband on that particular day. Not only that, the incidents fount] from the narration of events clearly show that the wife was very much in the habit of going to her father's place off amid on. It should be noted that the marriage took place on 17-1 1-1979. The incident between the parties was on 24-9-1980, i.e. within 11 months only. During this period of 11 months it clearly transpires from the deposition of the wife herself that she has gone to her parents' house four times and still was insistent on going to her parents' house. Immediately after the marriage she had gone. Thereafter for the second time she went for the marriage of her girl friend. Then she went again when her grand-father had come and immediately after three months her parents had gone to Fetch her and because that was refused some bone of contention started. From the evidence recorded it clearly transpires that the father had merely sent two letters at Exh. 23 and 24. In Exh. 24 a request was made to send the petitioner to Dhraiigadhra for the Janmashtami holiday. however, as she was not sent, she went away on 24-9-1980. The petitioner is B.A., BEd. and her husband is also B.A, B.Ed. Therefore, it seems that there was some conflict of individual personality between both the educated spouses and that assertion by both resulted into clash. Therefore, considering that the clash can be reconciled, attempts were made by the learned Sessions judge but they failed. The question to be considered here is, whether in such a petition this court would interfere under the extraordinary powers under Article 227 of the Constitution. The Supreme Court, in the case of Jagir Singh v. Ranbir Singh (A.I.R. 1979 Supreme Court 381) had occasion to consider such a position. It should be noted that in that case an order was made for maintenance in favour of an adult son. After coming into operation of the new Criminal Procedure Code, especially Sections 125 and 127 of the Code, father made application before the trial Magistrate that his son had attained majority and was not unable to maintain himself by reason of any physical or mental abnormality or injury; then he should not he entitled to maintenance and the orders should be quashed. The learned Magistrate allowed the application of the fattier and quashed the order for maintenance made earlier in favour of the son. The learned Sessions judge dismissed the revision application filed by the son. Therefore, the son approached the High Court of Punjab and Haryana by way of revision and the High Court of Punjab and Haryana set aside the orders of both the Courts and restored the earlier order of granting maintenance. This was taken to the Supreme Court and the Supreme Court observed that second revision was not maintainable. It was urged before the Supreme Court that the revision application could be treated as one under Article 227 of the Constitution. Therefore, the Supreme Court observed; if the revision application to the High Court could not be maintained under the provisions of the Criminal Procedure Code, would the order of the High Court be sustained under Article 227 of the Constitution The Supreme Court further considered that the power under Article 227 is a discretionary power and it is difficult to attribute to the order of the High Court such a source of power when the High Court itself did not, in terms, purport to exercise any such discretionary power. Further it was observed that the power of judicial superintendence under Article 227 could only be exercised, sparingly, to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors So in view of this and in view of the concurrent findings of both the courts below on appreciation of the evidence and the conduct of the petitioner and when they came to the conclusion that she is not entitled to any maintenance, especially when attempts were made to provide a house for the petitioner and she did not respond to these attempts it will not be proper for this Court to interfere in the orders at this stage.;


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