C.A.Rahim - (1.) THIS revision has been directed against the judgment and order of Special Judge, Bijnor, dated 7.11.83 passed in Criminal Revision No. 84 of 1983. By that judgment, the learned lower Revisional Court has allowed the revision and dismissed the application for maintenance filed by Smt. Munni Devi for her and her children. Learned Munsif Magistrate, Nagina in Case No. 24 of 1983 allowed the application for maintenance of Smt. Munni Devi and others and awarded Rs. 150 towards maintenance.
(2.) THE learned lower appellate court dismissed the application on the ground that the factum of second marriage of Kulvir Singh has not been proved and the finding of learned Magistrate was perverse. Sri B. S. Jauhari Advocate appearing for the revisionist has submitted that learned lower appellate court has substituted his own finding in revisional jurisdiction which is not permissible under the law. He has also stated that the finding of lower appellate court is not based on facts of record. It appears from the judgment that he based his findings on the evidence by which the second marriage of Mulvir Singh was sought to be proved was hearsay. The learned counsel has pointed out the relevant portion of the judgment of the learned Magistrate that P.W. 4 Banshi Singh has stated that he saw Omwati in the house of Kulvir Singh. It is in evidence that Omwati is the lady with whom Kulvir Singh was married for the second time.
(3.) LEARNED counsel has also referred to a copy of the Family Register (B- 29) in which it was recorded that Omwati was the wife of Kulvir Singh. LEARNED counsel has also submitted that the learned Sessions Judge did not discuss this part of the evidence and gave the findings arbitrarily. With regard to the power of revisional Court to discuss the evidence and re-assess the evidence of the trial court, learned counsel has referred the case of Smt. Pathumma and another v. Muhammad, AIR 1986 SC 1486, wherein it is held that questions to whether the applicant was married wife or whether child was an illegitimate child were permanently questions of fact the High Court was not justified in substituting its own view for that of Magistrate on question of fact. In the instant case, the learned lower Revisional Court has not only tried to re-assess the evidence but also substituted his own findings not based at all on the evidence that has been tendered by the applicant and accordingly, I find that the power exercise by the learned Judge was arbitrary and hence it should be set aside.;