ORDER
T.K. Chandrashekhara Das, J.
1. The petitioner is the wife of the first respondent. She had made an application for maintenance before the Chief Judicial Magistrate, Kolhapur in Criminal Misc. Application No. 1880/83. The Magistrate found that she was neglected to be maintained by her husband. The first respondent had contracted a second marriage. The petitioner thereupon made a complaint under section 495 of I.P.C. and filed a petition under section 125 of Cr.P.C. for maintenance. Because of the conduct of the respondent husband, in contracting the second marriage all along the petitioner was staying with her parents. The learned Magistrate has found on 19-1-1983 a compromise had been arrived at between the parties. On the basis of the compromise, it was agreed by the petitioner that she will stay with the first respondent notwithstanding his second marriage. On that understanding the complaint filed by her against him under section 495 and the application under section 125, Cr. P.C. were withdrawn.
2. The learned Magistrate has further found that in the pretext of registration of compromise documents, the petitioner was taken to Sub Registrar’s office on 31-5-1983 and a document was about to be registered. When the documentation has been entered in the final stage of registration, she came to know that a disparaging remark about her character was contained in the document that she was living in adultery with one Adappa Kamble. Knowing that this disturbing recital, contained in the document to be registered, she refused to register the document and came back. This unregistered document was produced by the husband before the learned Magistrate as Exh. 47. It is in these back ground that the applicant has filed this second application for maintenance.
3-4. The husband naturally took up a stand that the petitioner was living in adultery and repeated the same allegations in the reply and contested the
application for maintenance. The learned Magistrate has found that living in adultery has not been proved. The learned Magistrate has further found that even one instance of alleged illicit relation with the aforesaid Adappa Kamble has also not been proved by examining independent witnesses or producing any circumstantial materials. Accordingly, the learned Magistrate rejected the case of the husband and awarded maintenance of Rs. 250/- per month. Aggrieved by that order the first respondent herein filed revision before the Additional Sessions Judge, Kolhapur. The learned Judge by his judgment dated 11-5-1990 set aside the order of the learned Magistrate and the application for maintenance filed by the petitioner was dismissed
5. 1 heard the Counsel for the petitioner Shri P.V. Patil and Shri Dinesh Adsule A.P.P. for the State. On perusal of the order of the Additional Sessions Judge, it can be seen that the entire exercise made by the learned Sessions Judge is only on the basis of surmises and conjectures. In fact the Revisional Court seems to have taken up the task of re-appreciating the evidence and tried to upset the finding of the original authority on facts. I am afraid whether this is possible while exercising the jurisdiction under section 397 of Cr. P.C. The revisional Court’s jurisdiction to interfere is called for only where the original authority’s findings became perverse or where the relevant materials have not been taken into account or any irrelevant materials have been taken into account by the authority who passes the order under revision. None of these illegality has been pointed out by the revisional Court in this case. Instead as an Appellate Court, he re appreciated the evidence, and substitute its finding. The Revisional Court has strongly relied upon Exh. 47 which is a document, the contents of which has been stoutly disputed by the petitioner all along the proceeding. The revisional Court has not found out any independent materials to corroborate the contents in Exh. 47. The finding of the revisional Court that the burden of the husband has been discharged by producing document Exh. 47 and on examining himself, is also quite illegal.
6. In view of this the order of the revisional Court is illegal and is liable to be set aside, and the order of the Magistrate is to be confirmed.
In the result the writ petition is allowed. The rule is made absolute in terms of prayer Clause (a). No order as to costs. C.C. is expedited. The order of the Magistrate is restored.
Prayer Clause (a) :-
“the judgment and order dated 11-5-1990 passed by the Additional Sessions Judge, Kolhapur in Criminal Revision Application No. 30/ 1989 and 57/1989 be quashed and set aside.
7. Petition allowed.