J.P. Desai, J. -
(1.) The petitioner in this Revision Application Ramaben Ramsurbhai filed Miscellaneous Criminal Application No. I of 1980in the Court of the Judicial Magistrate, First Class at Surendranagar on behalf of herself of her two minor children, son Mansukh, aged about 10 }cars and daughter Janbai, aged about 8 years, for their maintenance from Valabhai Punabhai Gandhvi, admittedly the husband of Ramaben and father of Mansukh and Janbai.
(2.) It was the case of the petitioner that she was married to the opponent about 15 years back and she gave birth to a son and a daughter during their stay as husband and wife but after the birth of Janbai, the opponent began to ill-treat the petitioner Ramaben and also used to beat her and was driven away and had to go to the place of her father and she was taken back after giving assurance that the will not be beaten again, but even thereafter the opponent continued the harassment,ill-treatment and beating and, thereafter, she was driven away about six months before the filing of the application and, therefore, she was obliged to stay with her brother along with her two minor children.It was her case in the petition that the opponent had not cared to maintain her or her minor children and therefore, she was obliged to file this petition for maintenance. The opponent resisted the application and denied the allegation about ill-treatment and beating. He denied that he had driven away the petitioner. He contended that the petitioner had gone to the place of her brother at her own instance and relatives were sent to fetch her, but no such assurance as alleged by her was given. The learned Judicial Magistrate before whom the evidence of the petitioner Ramaben, Ex. 22, her brother Karsan, Ex. 23 and one Dhanabhai Naranbhai Gandhvi, Ex. 24 was recorded on behalf of the petitioner and before whom the evidence of the opponent Valabhai Punabhai,Ex. 27 and his witness Harsor Govind Ex. 30 and Rambhai Narayanbhai,Ex. 31 was recorded on behalf of the opponent, reached the conclusion,on appreciating the said evidence, that the petitioner was able to establish her case and accordingly held that she was entitled to maintenance for herself and also for her two minor children. He reached the conclusion on the evidence recorded before him that the opponent was in a position to pay, Rs. 150/- per month to the petitioner for her maintenance and Rs. 75/- per month for the maintenance of each of the two children and accordingly directed that amount be paid from the date of the application. Being dissatisfied with the same, the original opponent filed Criminal Revision Application No. 5 of 1981 before the Court of Sessions at Surendranagar. The learned Sessions Judge who heard this revision application reached the contrary conclusion and held that the petitioner was not able to establish her case and that the learned Magistrate had erred in awarding maintenance for the petitioner wife. He held that the petitioner was guilty of running away from the place of her husband and was not inclined to stay with the husband for no fault of the husband and, therefore, she was not entitled to any maintenance. So far as the minor children are concerned,the minor children would, on the face of it, be entitled to maintenance even if there was no justification on the part of Ramaben to refuse to stay with her husband and, therefore, the learned Sessions Judge very rightly held that the minor children were entitled to maintenance.In fact, it appears that the learned advocate for the original opponent did not urge before the learned Sessions Judge anything so far as the maintenance awarded to the two minor children is concerned. The learned Sessions Judge accordingly partly allowed the revision application and set aside the order of the learned Judicial Magistrate so far as it pertained to the grant of maintenance to Ramaben, while he confirmed the order passed by the learned Judicial Magistrate so far as it pertained to the grant of maintenance to the minor children. Being dissatisfied with the order passed by the learned Sessions Judge, the petitioner Ramaben has filed this Revision Application before this Court. It may be mentioned here that the order of maintenance in favour of the two children has not been disturbed by the learned Sessions Judge and hence they ought not to have been made parties to this Revision Application. Only Ramaben alone should have filed this Revision Application.But it is not necessary to pass a formal order striking out the names of the minors as parties to this revision application because it will be only an empty formality.
(3.) The learned advocate Mr. J.M. Panchal who appears on behalf of the petitioner Ramaben submitted that the learned Judicial Magistrate,on appreciating the evidence recorded before him, reached the conclusion on a question of fact, viz. whether the opponent was ill-treating Ramaben and whether there was justification on the part of Ramaben in refusing to stay with the opponent and the learned Sessions Judge was not justified in re-appreciating the evidence and reaching a contrary conclusion. There is force in this submission of Mr. Panchal. I may,however, mention here that the Learned Judicial Magistrate, with respect to him, has narrated the evidence of the witnesses and there is no much of discussion of the evidence in his judgment. But unfortunately that is also so with regard to the judgment of the learned Sessions Judge because he has also, with respect to him, reiterated what is stated in the application, in the written statement and in the evidence of the witnesses. The learned Judicial Magistrate did not at all consider the evidence of witness Dhanabhai, Ex. 24 who had gone to call the petitioner even according to the opponent and his witnesses, while the learned Sessions Judge did consider the evidence of this Dhanabhai but he missed an important aspect of the evidence of Dhanabhai while discussing his evidence at para 14 of his judgment that Dhanabhai,Ex. 24 had stated that the petitioner was residing at the place of her brother for the last about one and half years and that he had gone to call her at the instance of the opponent and the petitioner and her brother told him at that time that every time this happened,meaning thereby that every time the petitioner was ill-treated and that the petitioner may be sent if Dhanabhai was inclined to say so,whereupon Dhanabhai went to the opponent and the opponent told him that she will not be ill-treated any more and Dhanabhai accepted the responsibility and the petitioner was taken to the place of her husband and there was no untoward incident for about eight months, but thereafter there was recurrence of the past incident and thereafter he did not go to fetch the petitioner. This part of the material evidence of Dhanabhai has not been considered by the learned Sessions Judge, with respect to his, at all. If he has taken into consideration this aspect of the evidence of Dhanabhai, he might not have disturbed the finding of the learned Judicial Magistrate who had, of course, not even discussed the evidence of Dhanabhai. So far as Dhanabhai is concerned, nothing substantial has come out in cross-examination of this witness which will show that he has any reason to falsely depose in favour of the petitioner. Even a suggestion was made to in cross-examination tha the had not at all gone to fetch the petitioner, while it is the case of the opponent even in his written statement that Dhanabhai was one of the persons who had gone to fetch the petitioner. He has even stated in his deposition at Ex. 27 that Dhanabhai was one of the persons who had gone to call the petitioner. Harsor Govind, Ex. 30 and Rambhai,Ex. 31 also deposed that Dhanabhai was one of the persons who had gone to fetch the petitioner, take the evidence of this Dhanabhai into consideration, it can be said that the learned Judicial Magistrate did not commit any error in relying on the evidence of the petitioner and her brother and reaching the conclusion that the petitioner was entitled to maintenance for herself. It can be said, looking to the evidence of Dhanabhai, that even though the learned Judicial Magistrate did not take into consideration the evidence of this Dhanabhai and reached the conclusion in favour of the petitioner simply on the evidence of the petitioner and her brother in favour of the petitioner, the finding reached by the learned Judicial Magistrate did not call for interference in revision. The learned Judicial Magistrate also, of course, did not appreciate the evidence of the opponent and his witnesses except referred to the said evidence. The learned Sessions Judge has also, with respect to him, reproduced the evidence of this witness and has not shown as to how he was inclined to discard the evidence of the petitioner, her brother and Dhanabhai and rely upon the evidence of the opponent and his witnesses. In this view of the matter. I am inclined to say that the learned Sessions Judge, with respect to him,committed an error in reversing the decision of the learned Judicial Magistrate while hearing a revision petition against his judgment.;