Sau. Ranjana Shivaji Rakhpasare vs Shri Shivaji Bapu Rakhpasare And ...
2003 Latest Caselaw 794 Bom

ORDER

J.G. Chitre, J.

1. The petitioner is hereby assailing correctness, propriety, and legality of the judgment and order passed by the Judicial Magistrate, F.C., Court No. 9. Pune in the matter of Criminal Misc. Application No. 18/1994, which was set aside by the 6th Additional Sessions Judge, Pune.

2. The facts giving rise to the Misc. Petition can be stated as mentioned hereunder in brief:

The present petitioner married with respondent Shivaji Rakhpasara on 29/11/1992 at Pashan, Pune and started cohabiting with him thereafter. She was thereafter left in her parents house by the mother of Shivaji Rakhpasara, her husband. There were attempts to see that these spouses should cohabit as husband and wife amicably but it failed. The petitioner was pregnant, but there was miscarriage and the medical practitioner who examined her, opined that the aid miscarriage was caused on account of lifting of heavy articles. That was correlated by the petitioner with the work of fetching water from water canal, which was at a distance of 100 meters from the house of Shivaji Rakhpasara. The petitioner also alleged that during her stay at her husband's house, she was illtreated by her husband Shivaji and his parents on account of non-payment of dowry articles and a quarrel took place as alleged by the petitioner between the parents of Shivaji and parents of petitioner Ranjana.

3. Both Ranjana and Shivaji examined witnesses in support of their respective cases. The learned Magistrate found that ranjana, present petitioner, proved that she was treated with cruelty and was neglected by Shivaji Rakhpasara. He also held that she did not have means to maintain herself and Shivaji, an able bodied person, failed to maintain her. Therefore, he directed that Shivaji should pay alimony to Ranjana at the rate of Rs. 300/- per month from the date of petitioner i.e. 8/3/1994.

4. The said order was challenged in the Sessions Court by Shivaji. The learned Additional Sessions Judge, who decided the said Revision Petition, came to the conclusion that the present petitioner Ranajan was a liar, because she alleged that Shivaji and his parents were demanding a sum of Rs. 50,000/- for purchasing T.V., gold and other costly article. He pointed out that the said demand could not have been made by Shivaji and his parents because both the spouses belong to Garudi community and father of the present petitioner could not have placed him in such financial stability, which would allow the parents of Shivaji to make demand of Rs. 50,000/- for purchasing T.V. etc. The learned Additional Sessions Judge also opined that at the time of giving evidence only Ranajan expressed an apprehension that it was not safe for her to stay at the house of her husband Shivaji Rakhpasare. The Additional Sessions Judge also opined that without sufficient cause the present petitioner Ranajan resided separately from her husband Shivaji and therefore, she was not entitled to get alimony from him.

5. Shri Kate, Counsel appearing for the petitioner, submitted that the learned Additional Sessions Judge did not consider the evidence properly and the reasons given by the trial Court in saddling respondent No. 1 with liability of paying alimony to present petitioner at the rate of Rs. 300/- per month are not proper. He submitted that thus the Additional Sessions Judge dislodged the judgment and order passed by the trial Court.

6. He further submitted that when the said revision petition was decided by the Additional Sessions Judge, Pune, he decided it in the absence of respondent No. 1 Shivaji and his advocate and therefore, that has also caused a serious illegality. He submitted further that keeping in view the rising prices, the alimony be enhanced to Rs. 500/- per month.

7. Shri Shringarpure submitted that just, proper and legal order be passed by this Court as this Court finds it proper.

8. Section 403 of the Code of Criminal Procedure Code, 1973 (hereinafter referred to as Code for convenience) Provides:

"Save as otherwise expressly provided by this Code, no party has any right to be heard either personality or by pleader before any Court exercising its powers of revision; but the Court may, if it thinks fit, when exercising such powers hear any party either personally or by pleacer (emphasis provided).

9. Section 397 of the code provides Sub-section

"(1) the High Court or Sessions Judge may call for and examine the record of any proceeding before are inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation has been provided to his sub-section which provides that all Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398."

10. Thus, reading these two provisions together in context with provisions of Section 398, 399, 400, the Court of Sessions, which includes Additional Sessions Judge, also has the power to call fro an examine the record of any inferior Court situated within its local limits for the purpose of satisfying itself about its correctness, propriety and legality. This power can be exercised by the Sessions Court including the Additional Sessions Court, if it comes to the notice that there is any gross error of the facts, appreciation of evidence perverseness or illegality, suo motu. It can do so, because it has been so empowered and it is having jurisdiction to correct the error of appreciation of the evidence, error of recording the evidence or error of law by removing the perverseness in the judgment, order passed by such inferior Court. It can do it also if such incorrectness, improperly or illegality has been brought to its notice by the aggrieved party by preferring a revision petition. When it is the duty of such revisional Court to correct the error of appreciation of evidence, error in recording the findings, error of illegality in existence in the proceeding conducted by the said inferior Court, judgment and order passed by such inferior Court, such jurisdiction and power cannot be fettered, restricted or shackled by presence or absence of any party or a lawyer appearing for any party involved in such revision proceeding. Revisional Court if it finds it necessary in the interest of justice, may give audience to any party involved in such proceedings. The Revisional Court should normally hear the party against whose interest the order is likely to be passed and such party can be included in the said proceeding or the hearing at any stage of the hearing of such proceeding before the revisional Court. At this juncture, it is important to note that a mischievous party to a litigation may obtain order of suspension or bail from such revisional authority after preferring the revision petition and thereafter may play delaying tactics fathoming its weakness in the cases. Such mischievous party or his lawyer may remain absent for the purpose of playing delaying tactics. Therefore, also the provision may have been made to empower such revisional Court for deciding such revisional proceeding in the absence of parties or lawyer of any party or the lawyer both of them or any other party which has been neglected and implead and permitted to put up its case, during the hearing of revisional proceeding. Indirectly the provisions of chapter XIII of the Code indicate a speedy procedure for the purposes of rectifying the error of appreciation of evidence, error in recording of the evidence of findings or error of law, as early as possible and to restore the things on a legal track. Therefor,e this Court dismisses the submission which has been advanced by the Shri Kate appearing for the petitioner that the 6th Additional Sessions Judge, Pune passed the said judgment and order in the absence of the present respondent No. 1, who happens to be the revisional petitioner in the said revision petition in the absence of petitioner or his lawyer on the part of 6th Additional Sessions Judge, Pune was correct, proper and legal. When a revisional authority finds it proper and necessary to dislodge the findings and resultant order passed by the trial Court or inferior Court, such revisional authority is obliged to give justifiable reasons, justifying its conclusion, findings and the resultant judgment and order. That cannot be done unless, the evidence has been examined. Therefore, it was the duty of 6th Additional Sessions Court, Pune to examine the evidence on record before dislodging the findings, the judgment and order passed by the trial Court (Court of J.M.F.C. 9th Court, Pune). For that purposes, 6th Additional Sessions Court Pune was under duty to elucidate its judgment with appropriate reference to the evidence on record. For the purpose of finding out the truth, the evidence has to be examined, and tested on anvil of human experience. Evidence has to be tested with prudence of normal human being. The inferences should not be drawn which do not have basis from the record in the shape of legal evidence.

11. The learned Additional Sessions Judge blamed the present revision petitioner for not fetching water for domestic use. But while doing so, the leaned Additional Sessions Judge did not inform himself that at the time of fetching the water petitioner was pregnant for the first time and the said source of water i.e. water canal was at the distance of 100 meters from the house. He did not inform himself that normally water is fetched from such sources in pots and utensils, which are of sizable size. As the medical practitioner, who examined the present petitioner after her miscarriage, opined, it should have been in all probability the result of lifting heavy articles. It was necessary for the learned Additional Sessions Judge to correlate these things for the purposes of drawing an appropriate inference. Had he done that, he would not have blamed the petitioner on that count and he would not have come to the conclusion that the petitioner was at fault in doing the domestic work. One or two things cannot allow a prudent person to draw an inference positively or in negative way. Evidence has to be assessed as a whole and then conclusion has to be drawn.

12. The learned Additional Sessions Judge blamed the present petitioner for not cohabiting with respondent No. 1, her husband Shivaji Rakhpasara, though there was a meeting of panchas of community for amicably settling spouses so dispersed. As normal social practice continues, the bridge may in all probability wait for being invited or called by the husband to reside in matrimonial home, at least custom and tradition do indicate that way. It is called "gauna", "paratpathavani", "mool", "Partavani". Therefore, the present petitioner might have been waiting for that. Initiative was to be taken by her husband Shivaji, keeping in view the existing social customs and tradition. But he did not do so. Therefor,e Shivaji was also equally blamable for that. When for a sufficient time the present petitioner did not visit his house, what prevented Shivaji from calling the present petitioner Ranjana to her matrimonial home to reside, as his wife? No explanation has been given by the husband Shivaji.

13. The learned Additional Sessions Judge blamed the present petitioner and stamped her contention as falsehood by pointing out that it has come in her evidence that Shivaji and his parents were demanding sum of Rs. 50,000/- for purchasing T.V. etc. He took that statement solitarily and blamed the petitioner as a liar. That was not fair and proper also. The reason given was that both were belonging to Garudi Community and therefore it could not have been expected that Shivaji and his parents would demand Rs. 50,000/- form the father of Ranjana. A person who used to demand has no limit for demanding. Selfishness may go to any extent and on number of occasions may surpass reasonability. Therefore, on account of big sum, Ranajan should not be stamped as a liar. Normally, when the parties go to litigation, they go on adding to their statements with exaggeration so as to make their case appealable. These spouses are coming from lower strata of the society, therefore, they are prone to go for exaggeration. Same would be the case in respect of their advocates and witnesses also, who try to support their side. Therefore, it was not proper and legal for the learned Additional Sessions Judge to pick solitarily statement and to stamp the petitioner as a liar and to rule out her evidence on other aspects of her case.

14. In any case, no provision was made for the maintenance of Ranjana when she was residing at her parents house. A wife cannot be left at her parents house after marriage without the husband making any provision for her maintenance, which includes food, clothes, provisions for her medical treatment and other needs. Food and shelter now a days is not only the requirement of a young woman, even a woman of middle age. Therefore, husband Shivaji Rakhpasara was under lawful duty to make provision for alimony for the petitioner when she was discharged from matrimonial home or at least when was residing separately from Shivaji and was staying at her parents house. In all probability in this case, she seems to have been discarded, because it has come in evidence that the mother of husband Shivaji left her in her parents house.

15. Thus, it was the duty on the part of husband Shivaji to bring it on record that he made provisions for her alimony when she was residing with her parents, at their house. But there was nothing on record. The learned Additional Sessions Judge did not refer to his important aspect of the matter, keeping in view the word "neglected" appearing in provision of Section 125 of the code. He should have also noticed that word "deserted" has also prominence in such cases. "Refused to maintain", "neglects", "doe snot make any provision for maintenance" are also important words, which are to be considered by the revisional Court while dealing with the deciding such petitioners which revolve around Section 125 of the Code. Unfortunately, the learned Sessions Judge lost the sight of that.

16. When a revisional authority decides to dissettle the conclusion and the judgment and order of the inferior Court, it has to point out as to how the inferior authority committed the error in appreciation of the evidence, recording of the evidence and error of law. It is the duty of the revisional authority to give guidelines and to make such inferior authority aware of its errors, which would provide an opportunity to that authority for rectifying such errors and not repeating it in future. Apart from that every order is to be speaking order and embodied with cogent and rational reasoning. The order which has been passed by the learned Additional Sessions Judge and which has been assailed by the present petitioner suffers from such infirmities heavily and therefore, this Court does not have any hesitation in coming to the conclusion that said order is not proper, correct and legal or factual and legal aspect, in respect of entitlement of the present petitioner to get alimony in view of provisions of Section 125 of the code.

17. Shri Kate prayed for enhancement of alimony keeping in view the escalating prices of these days. He is perfectly right on that point. Food is not the only requirement of a young woman. She needs shelter, clothes, provision for medical treatment, cosmetics etc. for how many days, month and years a young married woman can have shelter in her parental house? The parents are likely to give shelter but as they are also human beings they are also perishable in due course. Domestic tussle thereafter starts and such discharged woman finds it difficult to continue her protection in parental house on account of marriages of her brother and arrival of their brides. Therefore, as an independent citizen of democratic India, every woman is entitled to have her protection shelter in the nature of house and after marriage it is the duty of every husband to provide it, if she happens to be discarded, deserted and neglected. If the husband does not provide for that it is the legal entitlement of such woman to have it from the Court by getting an appropriate order in that context.

18. For the purpose of ascertaining the amount of alimony the Court has to keep in mind that wherewithal is not the only need and requirement for woman. Natural, human needs are also being taken care of. The provisions has to be made for her medical treatment, keeping in view the possibility of her age advancing towards elderlyness. Discarded, hapless women and minors cannot be left searching for sanctuary on roads risking their life, safety and virtue, which happens to be always vulnerable. Appropriate rational approach has to be taken by every Court, while deciding the quantum of alimony.

19. In these days, in fact Rs. 300/- per month happens to be insufficient to allow a young human being to survive in cities considering scarcity of rental house and demand of more rent and rising prices of good articles. But majority population of this country has learnt keeping both ends satisfying with meager amount available at disposal. But that stringency has a limit and therefore, a woman residing in a city like Pune should have been granted alimony, which was provided by Section 125 of the code in relevant days. Even trial Court has committed error on the point of alimony when it fixed it at Rs. 300/- per month.

20. Trial Court found that the husband Shivaji happens to be an able bodied person. It noted that he took evasive stance in contending that he did not have sufficient amount as income. It was pointed out that his father and his joint family owned considerable size of agricultural lands but even then the trial Court committed the error of fixing the alimony to the tune of Rs. 300/- per month. It should have been Rs. 500/- per month and from the date of application.

21. Thus, revision petition stand allowed. The judgment and order passed by 6th Additional Sessions Judge, Pune stands set aside. The judgment and order passed by the J.M.F.C. Court No. 9. Pune stands restored with some modification and modification on the point of quantum of alimony. It is hereby declared that the petitioner Ranjana is entitled to get alimony at the rate of Rs. 500/- per month from husband Shivaji. She is entitled to get arrears of alimony with modification mentioned above. She is entitled to get such an amount till she remarriages.

Parties concerned to act on a simple copy of this order, duly authenticated by the Court Stenographer/Sheristedar of this Court.