SHEEDA KHATUN MOHMAD ATHAR Vs. MOHMAD ATHAR MOHMAD TAHER
HIGH COURT OF GUJARAT
SHEEDA KHATUN MOHMAD ATHAR
MOHMAD ATHAR MOHMAD TAHER
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A.P.Ravani, J. -
(1.) This revision application is filed by the original applicant-wife whose maintenance application under section 125 of the Criminal Procedure Code was allowed by the trial court but rejected by the Sessions Court Surat, in Criminal Revision Application No. 44 of 1982.
(2.) The marriage between the parties took place on February 9, 1979 at village Rander, District Surat. Parties are Mohammedans. They lived together at Surat for sometime and after about three months, according to the petitioner wife, she was neglected and cruelly treated by the opponent-husband. It was also complained that the opponent-husband was trying to contract a second marriage and that was the reason why the petitioner-wife was being treated cruelly and being neglected. The petitioner-wife gave notice, Exh. 35, on May 25 1979 and claimed maintenance from the opponent-husband. In this notice certain allegations with regard to the negligent behaviour of the opponent husband and the cruel treatment meted out to her by the opponent-husband were made. That notice was replied to by the opponent-husband denying the allegations made therein. Ultimately the petitioner-wife filed application for maintenance being Misc. Application No. 65 of 1979 in the court of JMFC Surat, on June 27, 1979. The trial Court after recording evidence and after hearing the parties and after considering the entire evidence on record came to the conclusion that the petitioner-wife was deserted and the opponent husband had neglected to maintain her. The trial court also came to the conclusion that the husband had entered into second marriage with one lady from Devbandh. On these grounds the trial court came to the conclusion that the petitioner-wife was entitled to live separate and also entitled to claim maintenance from the opponent-husband. Hence the trial Court by its judgment and order dated February 12, 1982 directed the opponent-husband to pay to the petitioner-wife Rs. 300 per month as and by way of maintenance from the date of application, i.e. June 27, 1979. Being aggrieved by this judgment and order of the trial court, the opponent-husband preferred Criminal Revision Application No. 44 of 1982 in the court of the learned Additional Sessions Judge, Surat. The learned AddI Sessions Judge heard the revision application and while deciding the same, he entered into realm of appreciation of evidence. On reappreciation of the evidence on records, he came to the conclusion that certain facts were not mentioned in the notice given by the petitioner- wife and they were later on stated either in the application or in her deposition. These facts were with regard to the incidents of May 3 and 4, 1979. Certain other facts which the petitioner-wife stated in her deposition with regard to the allegation of her character made by the husband and about the removal of ornaments from her body by the opponent-husband and his sister were not stated in the notice, according to the learned AddI Sessions Judge. On these and other grounds, the learned AddI Sessions Judge, after reappreciating the evidence, disbelieved the evidence of the petitioner-wife and her witnesses and reversed the judgment and order passed by the trial Court by his judgment and order dated June 4, 1982.
(3.) The learned AddI. Sessions Judge has clearly exceeded his jurisdiction. While exercising revisional powers, the court is not expected to act as if it is hearing an appeal and reappreciate the evidence. This is a well-settled principle of law see case of State of Orissa v. Rakula Sahu and others. This is not a case in which any material evidence was left out from consideration by the trial Court, and it cannot be said that the trial Court had committed any error of law apparent on the face of the record or had adopted an unreasonable or perverse approach while appreciating the evidence. In this view of the matter, it is clear that the learned AddI. Sessions Judge exceeded his powers while exercising revisional jurisdiction and erroneously quashed the judgment and order passed by the trial Court. In this view of the matter, the judgment and order passed by the learned AddI Sessions Judge, Surat in Criminal Revision Application No. 44 of 1982 is quashed and set aside and the order passed by the trial court in Criminal Application No. 65 of 1979 is restored.;
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