Reserved Court No. - 23 Case :- CRIMINAL REVISION No. - 1812 of 2008
Revisionist :- Smt. Babita
Opposite Party :- State Of U.P. & Another
Counsel for Revisionist :- Vivek Saran
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Pramod Kumar Srivastava, J.
1. Present revisionist Smt. Babita had filed two petitions against her husband Jai Bhagwan Singh (present O.P. No.-
2) before the Court of Principal Judge, Family Court, Meerut. First petition was case no. 726/ 2006 for relief of divorce under section 13 of Hindu Marriage Act, and second petition was case no. 295/ 2006 for maintenance under section 125 CrPC. Both cases were consolidated, and after receiving objections and evidences of the parties, and after affording opportunity of hearing, the Principal Judge, Family Court had dismissed both the petitions by joint judgment dated 01-05-2008. The revisionist had preferred present rvision against the portion of said judgment relating to dismissal of petition for maintenance under section 125 CrPC.
2. Heard learned counsels for the parties and perused records.
3. Admitted case of the parties is that the revisionist and O.P. no.-2 are legally wedded wife and husband whose marriage still subsists, but they are living separately. Wife-revisionist had filed petition under section 125 Cr.P.C. for her maintenance, in which the Court below had afforded opportunity of hearing and thereafter dismissed the same on ground that wife-revisionist is living separately out of her own will without any justification, in spite of willingness and efforts of her husband to keep her with him. Since revisionist is not willing to reside with her husband without any justification therefore she is not entitled to any maintenance. After considering and discussing the evidences adduced by the parties the court below had held that allegations made by revisionist and reasons given by her for living separately had not been proved. The judgment of trial court has been passed after appreciation of facts, circumstances and evidences, and after application of mind.
4. The contention of learned counsel for the revisionist was that since opposite parties had not appeared to oppose the revision, therefore adverse inference should be drawn against opposite-parties regarding finding of facts. This contention is legally unacceptable. In proceedings of revision, which is initiated basically on instance and discretion of superior Court in exercise of its Neutral Citation No. - 2015:AHC:90952
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supervisory jurisdiction, only merit of the order in question has to be seen in accordance with provisions of section 397 CrPC. Like trial or appellate Court finding of fact or evidences cannot be appreciated in such proceeding. In "Munna Devi vs. State of Rajasthan & another; 2002 Cri.L.J. 225" Hon'ble Apex Court had held that:
"The revision power under the Code of Criminal Procedure cannot be exercised in a routine manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do."
5. In "K. Pandurangan vs. S.S.R. Velusami & another, 2004 S.C.C. (Cri) 48" Hon'ble Apex Court had held that:
"Under the provisions of the Code of Criminal Procedure, 1973, the court has suo moto power of revision, if that be so, the question of the same being invoked at the instance of an outsider would not make any difference because ultimately it is the power of revision which is already vested with the High Court statutorily that is being exercised by the High Court. Therefore, whether the same is done by itself or at the instance of a third party will not affect such power of the High Court."
6. Therefore this argument of revisionist side has to noted only to be rejected that in absence of counter-affidavit/ objection in proceedings of revision the adverse inference should be drawn against opposite parties.
7. Learned counsel for the revisionist contended that court below had misread the evidence on record and had wrongly recorded findings without any cogent reason, and the findings recorded by the court below was baseless. He also contended that impugned order is not reasoned and against law and procedure. He relied his contentions on verdict of Hon'ble Apex Court reported in
"Jaiminiben Hirenbhai Vyas v. Hirenbhai Rameshchandra Vyas, (2015) 2 SCC 385" in which it has been held:
"However, Section 125 CrPC must be construed with sub-section (6) of Section 354 CrPC which reads thus:
"354. Language and contents of judgment.— * * *
(6) Every order under Section 117 or sub-section (2) of Section 138 and every final order made under Section 125, Section 145 or Section 147 shall contain the point or points for determination, the decision thereon and the reasons for the decision."
(emphasis supplied)
Therefore, every final order under Section 125 CrPC [and other sections referred to in sub-section (c) of Section 354] must contain points for determination, the decision thereon and the reasons for such decision. In other words, Section 125 and Section 354(6) must
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be read together.
8. Section 125 CrPC, therefore, impliedly requires the court to consider making the order for maintenance effective from either of the two dates, having regard to the relevant facts. For good reason, evident from its order, the court may choose either date. It is neither appropriate nor desirable that a court simply states that maintenance should be paid from either the date of the order or the date of the application in matters of maintenance. Thus, as per Section 354(6) CrPC, the court should record reasons in support of the order passed by it, in both eventualities. The purpose of the provision is to prevent vagrancy and destitution in society and the court must apply its mind to the options having regard to the facts of the particular case."
9. A perusal of impugned judgment reveals that trial Court had afforded opportunity of hearing to parties, received their evidences, considered their contentions and also framed points of determination before passing the impugned judgment. On every point of determination evidences and arguments were considered and thereafter conclusions were reached and findings were recorded. Findings of facts given by trial Court are based on evidences on record and are apparently correct. After discussing the evidences Court below had gave finding that Smt. Babita (revisionist) has no justification for living separately from her husband, there was bona fide offer/ option available to her to live with her husband which is not accepted by her, she had failed to discharge her matrimonial duties, and her case has not been proved. Judgment in question has been passed after application of mind. There appears no factual, legal or procedural error in the judgment in questions.
10. In ruling Jagannath Choudhary & ors vs. Ramayan Singh & another, AIR 2002 S.C. 2229, Hon'ble Supreme Court had held as under :
"Where the court concerned does not appear to have committed any illegality or material irregularity or impropriety in passing the impugned judgment and order, the revision cannot succeed. If the impugned order apparently is presentable, without any such infirmity which may render it completely perverse or unacceptable and when there is no failure of justice, interference cannot be had in exercise of revisional jurisdiction.............It is not an appeal wherein scrutiny of evidence is possible, neither the revisional jurisdiction is open for being exercised simply by reason of the factum of another view being otherwise possible."
11. The judgment in question is based on finding fact. This finding of fact has been reached by the Court below on basis of evidences adduced before it. These findings are apparently correct and based on available evidences. Such findings cannot be interfered through exercise of revisional jurisdiction on ground that on basis of those evidences another conclusion, other than the one reached by
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trial is also possible. On the basis of above discussion, I am of the opinion that impugned judgment and order suffers from no infirmity or impropriety that may warrant interference of revisional jurisdiction in this regard. Therefore this revision fails, and is hereby dismissed.
Order Date :- 10.07.2015
SR