A.P.RAVANI, J. - (1.) The petitioner-wife field application for maintenance under the provisions of Section 125 of the Criminal Procedure Code. The application was heard and decided by the learned Metropolitall Magistrate (Court No. 12) Ahmedabad. The learned Metropolitan Magistrate held that Opponent No. 1-husband was guilty of cruel treatment to the petitioner-wife and the petitioner wife was entitled to stay separate and claim maintenance. He therefore passed an order directing opponent No. 1- husband to pay maintenance at the rate of Rs. 200/- per month from the date of the application i.e. November 17 1982 The learned Magistrate also directed opponent No. 1-husband to pay an amount of Rs. 100/- as costs of the application. Against the judgment and order passed by the learned Magistrate the petitioner-wife as well as opponent No. 1-husband both preferred Criminal Revision Applications in the Court of learned City Sessions Judge Ahmedabad. The petitioner-wife filed application for enhancement of maintenance while opponent No 1-husband filed application praying that the order of maintenance passed by the Trial Court should be quashed a and set aside.
(2.) The learned City Sessions Judge after hearing the parties allowed the application filed by opponent-husband and quashed and set aside the judgment and order of maintenance passed by the Trial Court. By the same order the learned City Sessions Judge dismissed the Revision Application filed by the petitioner-wife. The petitioner-wife has challenged the legality and validity of the order allowing the Revision Application filed by the opponent-husband and quashing and setting aside the order passed by the Trial Court. The learned City Sessions Judge thought that there was misreading of evidence by the Trial Court. In paragraph 6 of the judgment he has observed as follows: " In his judgment the learned Metropolitan Magistrate has observed that when the wife and infant were in the hospital and the wife was sick the Husband had not taken care of the wife and had not paid any money for the medical treatment and that itself would show that the husband any how tortured the wife". The learned City Sessions Judge thought that the above observations were not borne out from the record of the case and therefore on this count there was misreading of evidence. He observed that the deposition of the husband on this point was very clear. The Husband said that he used to go to the hospital and made payment towards expenses required to be incurred by the petitioner-wife. The learned City Sessions Judge further observed as under: "This part of the deposition of the husband given by him from the witnessbox has not been effectively challenged. 255 The aforesaid observations made by the learned City Sessions Judge appear to he totally erroneous. In fact there was challenge to this part of the evidence. The learned Magistrate has considered this aspect by referring to the evidence of both the petitioner-wife as well as that of the husband. The relevant observations made by the learned Magistrate are as follows: If the learned City Sessions Judge had read this part of the judgment of the learned Magistrate carefully he would have noticed that these observations were made by the learned Magistrate after referring to the deposition of the petitioner-wife as well as that of the opponent-husband. Whether challenge made to the deposition of the husband was effective or not was a matter to be considered by the learned Magistrate. The learned Magistrate on appreciation of oral evidence came to the conclusion that the deposition given by the opponent-husband was not at all believable. Therefore in the facts and circumstances of the case. it was not open to the learned City Sessions Judge to say that the learned Metropolitan Magistrate had misread the evidence and thereby he had committed an error. With respect an error has been committed by the learned City Sessions Judge and not by the learned Magistrate. The learned City Sessions Judge ought not to have invented excuses for interfering with the just and proper judgment and order passed by the learned Magistrate. Whether the evidence of a witness is effectively challenged or it has been challenged in a weak manner is altogether a different thing. Simply because the learned City Sessions Judge thought that challenge was not effective there is no warrant for jumping to the conclusion that the learned Magistrate had misread the evidence.
(3.) Another ground on the basis of which the learned City Sessions Judge thought it fit to reappreciate the evidence is also not sustainable. According to the learned City Sessions Judge the finding arrived at by the learned Magistrate that even during the pendency of the case the husband had not shown any anxiety to take the wife was also the result of the misreading of the evidence. The entire observations made by the learned Magistrate if read in proper context clearly show that the learned Magistrate has specifically taken into consideration the offer made by the opponent-husband. The relevant observations on this point are as follows: Had the learned City Sessions Judge read these observations properly in its entirety and in its proper context it would have been clear to him that the learned Magistrate had read the evidence taken the same into consideration and had come to the conclusion that the offer made by the opponent-husband was not genuine and realistic. On the contrary the opponent-husband had failed to give any satisfactory explanation 256 regarding reluctance of the wife to stay with him.;