JUDGMENT
A.N. Divecha, J.
1. Would Revisional Courts have to keep in mind while hearing revisional applications more particularly arising from maintenance proceedings under Section 125 of the Criminal Procedure Code, 1973 (‘the Cr. P.C.’ for brief) is the main question arising in this revisional application preferred by the unfortunate wife against the judgment and order passed by the learned Sessions Judge of Bulsar at Navsari on 17th May, 1991 in Criminal Revision Application No. 34 of 1990. Thereby the learned Sessions Judge accepted the revisional application of respondent No. 2 herein and upset the order of maintenance passed by the learned Judicial Magistrate (First Class) at Gandevi on 28th February 1990 in Maintenance Application No. 9 of 1987. It may be mentioned that the learned trial Magistrate accepted the Maintenance Application preferred by the present petitioner and awarded to her maintenance at the rate of Rs. 400/- per month.
2. The facts giving rise to this revisional application may be summarised in a nutshell. The petitioner and respondent No. 1 herein were united by a matrimonial the sometime in May, 1958. The matrimonial life between the two does not seem to have run a smooth course more particularly after the birth of a female child out of their wedlock. According to the wife, she was subjected to cruelty, both physical and mental, in her matrimonial home. It is also her case that some signature of hers was taken on a blank paper and that appears to have been converted into some divorce paper later on for the purpose of the husband’s remarriage with another woman. She thereupon moved one application for maintenance under Section 125 of the Cr. P.C. before the Court of the Judicial Magistrate (First Class) at Gandevi for claiming maintenance from her husband respondent No. 2 herein. It came to be registered as Maintenance Application No. 9 of 1987. The husband resisted the Maintenance Application on several grounds. He inter alia put up a case that his marriage with her came to be dissolved way back and he begot four children out of his wedlock with the second wife. The Maintenance Application was also sought to be resisted on the ground that it was filed with an ulterior motive after passage of nearly 30 years from the date of dissolution of the marriage between the two. After recording evidence and hearing the parties, by his judgment and order passed on 28th February, 1990 in Maintenance Application No. 9 of 1987, the learned Judicial Magistrate (First Class) at Gandevi accepted the wife’s application for maintenance and awarded to her maintenance at the rate of Rs. 400/- per month and also the costs of the proceeding at Rs. 100/-. Aggrieved thereby, the husband carried the matter in revision before the Sessions Court of Bulsar at Navsari. His revisional application came to be registered as Criminal Revision Application No. 34 of 1990. After hearing arguments, by his judgment and order passed on 17th May, 1991 in Criminal Revision Application No. 34 of 1990, the learned Sessions Judge of Bulsar at Navsari set aside the impugned order of maintenance passed by the learned trial Magistrate. The aggrieved wife has thereupon invoked the revisional jurisdiction of this Court under Section 397 read with Section 401 of the Cr. P.C. for questioning the correctness of the impugned judgment and order passed by the learned Sessions Judge of Bulsar at Navsari.
3. Kum. Shah for the petitioner seems to be right in her two submissions to the effect that the learned Sessions Judge has transgressed the limits of his revisional powers for the purpose of interfering with the order of maintenance passed in favour of the wife and that the learned Sessions Judge has also overlooked the salutary dictum of law pronounced by the Supreme Court in its ruling in the case of Bai Tahira v. Ali Hussain Fissali, .
4. The distinction between the revisional powers and the appellate powers are succinctly pointed out in the ruling of the Allahabad High Court in the case of Emperor v. Jafar Khan, reported in (36) 1935 Cri.LJ 907. The relevant observations read:
It is very important and would save much waste of the time of the Courts if it was thoroughly realised that there is a distinction between a revision and an appeal. In the latter the appellant is given a statutory right to demand an adjudication from the Court either on a question of fact or on a question of law or upon both. When a matter comes upon revisional jurisdiction the applicant has no rights whatsover beyond the right of bringing his case to the notice of the Court. It is for the Court to interfere in exceptional cases where it seems that some real and substantial injustice has been done. That is the main point which the Court has to consider. A revisional application is not to be regarded as in some sort a second appeal on a question of law.
5. It is not in dispute in this case that the aggrieved husband had invoked the revisional jurisdiction of the learned Sessions Judge. The revisional jurisdiction does not ordinarily confer powers on the revisional Court to reappreciate the evidence on record unless a strong case is made out to the effect that the findings recorded in the judgment and order under challenge are perverse. Reappreciation of evidence cannot be resorted to in exercise of revisional powers simply because the revisional Court thinks that the view taken by the lower Court is erroneous. Findings of fact are not permitted to be disturbed in exercise of revisional powers unless such finding’s are shown to be perverse.
6. In its unreported rulings in Criminal Revision Application No. 333 of 1989 decided on 30th July, 1992 (Arunabehn T. Ramanuj v. Vasudev P. Nimavat reported in 1992 (2) GLH 148) and in Criminal Revision Application No. 138 of 1990 decided on 20th August, 1992, ( Kantilal Punjaji Chavda v. Nanubhai Kantilal Chavda and Anr.) this Court has held that revisional powers under the Cr.P.C. are not to be exercised for mere asking. They have to be exercised only in exceptional circumstances and only to do substantial justice between the parties. It has also been held by this Court that revisional powers are discretionary in nature and such powers will not be exercised for upsetting an order, even if it is found not in accordance with law, if ultimately it is found to have done substantial justice between the parties.
7. In the present case, it clearly transpires from the impugned judgment of the learned Sessions Judge that it was not shown to him that the findings recorded by the learned trial Magistrate were perverse. A finding can be said to be perverse if it is recorded ignoring some material evidence on record or is contrary to the evidence on record or is based on no evidence on record or is such as no reasonable man would record on the basis of the material on record. Even at the cost of repetition, it may be reiterated that the impugned judgment passed by the learned Sessions Judge docs not ex facie show that any objection to the findings of fact recorded by the learned trial Magistrate was raised on the ground of any perversity therein. In that view of the matter, the learned Sessions Judge had no business to reappreciate the evidence on record for the purpose of coming to the conclusions of fact different from that reached by the learned trial Magistrate.
8. It transpires from the judgment of the learned trial Magistrate that he carefully appreciated and scrutinised the evidence on record and came to the conclusion that the divorce between the wife and the husband was not proved. This finding of fact recorded by the learned trial Magistrate is not found to be perverse in any manner. If that be so, the learned Sessions Judge could not have upset that finding of fact on reappreciation of evidence on record. In fact, the conclusion reached by the learned Sessions Judge to the effect that the petitioner herein was a divorcee is based on no evidence on record. The husband came forward with a case that the divorce was obtained in accordance with the caste-custom. The husband and the wife are admittedly Hindus. Their matrimonial relations would be governed by the Hindu Marriage Act, 1955 (‘the Act’ for brief) as the marriage between the two took place in 1958. The dissolution of marriage should be in accordance with the relevant provisions of the Act. In order to have a valid dissolution of marriage through the customary law applicable to the parties under the Act, it is necessary to prove a custom at trial. No attempt appears to have been made by or on behalf of the husband to prove such custom at trial for establishing the customary dissolution of marriage. In absence of any such evidence on record, the learned Sessions Judge ought not to have jumped to the conclusion that the petitioner herein was a divorcee. That conclusion of fact reached by the learned Sessions Judge is to be branded nothing but perverse.
9. The learned Sessions Judge also appears to have lost sight of the fact that he was exercising revisional powers qua the order passed in the maintenance proceedings instituted in the lower Court. In this connection a inference deserves to be made to the observations made by Krishna Iyer, J. in his inimitable style in the ruling of the Supreme Court in the case of Bai Tahira (supra). The relevant observations read:
In this appeal, by special leave, we are called upon to interpret a benign provision enacted to ameliorate the economic condition of neglegated wives and discarded divorcees, namely Section 125, Criminal Procedure Code. Welfare laws must be so read as to be effective delivery systems of the salutary objects sought to be served by the legislature and when the beneficiaries are the weaker sections, like destitute women, the spirit of Article 15(3) of the Constitution must belight the meaning of the section. The Constitution is a pervasive omnipresence brooding over the meaning and transforming the values of every measure. So, Section 125 and sister clauses must receive a compassionate expansion of sense that the words used permit.
These observations made by the Apex Court in its aforesaid ruling in the case of Bai Tahira (supra) are required to be borne in mind by all Courts dealing with the maintenance proceedings in any form.
10. It may also be noted that the fact situation found in the aforesaid ruling of the Supreme Court in the case of Bai Tahira (supra) is some what similar to the fact situation found in the present case. In that case also the wife filed an application for maintenance before the concerned Judicial Magistrate (First Class) under Section 125 of the Cr. P.C. on the basis that she was a lawfully married wife of the respondent-husband. It was found at trial that she was a divorcee. Despite that position, the learned trial Magistrate awarded maintenance to her in view of the fact that a divorced wife is also entitled to maintenance under Section 125 of the Cr. P.C. In revision, the order of maintenance was upset by the concerned learned Sessions Judge. The wife’s attempt to invoke the revisional jurisdiction of the High Court of Bombay for questioning the correctness of the revisional order passed by the learned Sessions Judge proved in vain. In appeal before the Supreme Court, the order of maintenance passed by the learned trial Magistrate was restored. It has been held therein:
We hold that every divorcee, otherwise eligible, is entitled to the benefit of maintenance allowance and the dissolution of the marriage makes no difference to this right under the current Cede. In the normal course, an order for maintenance must follow, the quantum having been determined by the learned Magistrate at the trial level.
11. The aforesaid dictum of law pronounced by the Supreme Court in its aforesaid ruling in the case of Bai Tahira (supra), will be applicable the present case with all the greater force for the simple reason that the husband in the present case has not been able to establish at trial that the marriage between him and the present petitioner came to be validly dissolved.
12. In view of my aforesaid discussion, I am of the opinion that the impugned judgment and order passed by the learned Sessions Judge of Bulsar at Navsari on 17th May, 1991 in Criminal Revision Application No. 34 of 1990 cannot be sustained in law. It deserves to be quashed and set aside. The natural consequence would be to restore the judgment and order passed by the learned Judicial Magistrate (First Class) at Gandevi on 28th February, 1990 in Maintenance Application No. 9 of 1987.
In the result, this revisional application is accepted. The impugned judgment and order passed by the learned Sessions Judge on 17th May, 1991 in Criminal Revision Application No. 34 of 1990 is quashed and set aside. The judgment and order passed by the learned Judicial Magistrate (First Class) at Gandevi on 28th February, 1990 in Maintenance Application No. 9 of 1987 is restored. Rule is accordingly made absolute. It is hoped that the husband would pay up the arrears of maintenance under the order of the learned trial Magistrate as early as possible without forcing the petitioner-wife to move the machinery of law for the purpose.