A.D. Mane, J.
1. These three Criminal Writ Petitions arise out of proceedings under Section 125 of the Code of Criminal Procedure initiated by the wife-petitioner in Writ Petition No. 56 of 1993 against her husband, who is also petitioner in companion Writ Petition Nos. 395 and 396 of 1992.
2. There involves a common question of facts and law and, therefore, these petitions can be disposed of by common judgment. The material facts giving rise to these writ petitions may be stated as follows :
The petitioner-wife married the respondent-husband on May 5, 1981 according to Hindu rites and customs. She stayed with the respondent-husband till September 9, 1984. She was, however, said to have been driven out of her matrimonial home. She, therefore, filed an application under Section 125 of Code of Criminal Procedure on April 22, 1985 claiming maintenance from the respondent-husband at the rate of Rs. 500/- per month. The acts and accusation of the petitioner-wife against the husband-respondent consist of mental cruelty, charge of infidelity of the respondent of having illicit relations with other ladies after marriage and charge of impotency qua to the petitioner. The petitioner-wife also referred to an instance of elderly member of the respondent's family launching a criminal complaint against her for having committed offence of destroying the house by fire.
3. The respondent-husband filed his written statement and denied the aforesaid allegations. According to the respondent, the petitioner-wife is a quarrelsome women. Since the date of marriage she has been indulging in quarrels with members of his family. She used to give threats to life and property. She has left matrimonial home of herself and she has refused to come back even though he has made several attempts to bring her back to his house.
4. The petitioner-wife and her father were examined in support of the claim for monthly maintenance, whereas, the respondent-husband examined himself and his father to refuse those charges.
5. The learned trial Magistrate believed the testimony of the petitioner-wife and her witnesses in regard to the ill-treatment meted out to her by the respondent-husband while discarding her allegations of infedility of the respondent of having illicit relations with other women after the marriage and charge of impotency qua to the petitioner. The learned Magistrate, therefore, by his order dated February 28, 1989 directed the respondent-husband to pay to the petitioner-wife a sum of Rs. 100/- per month by way of monthly maintenance allowance.
6. That order of the learned trial Magistrate was challenged in revision, both by the petitioner and the respondent. The petitioner filed a revision for enhancement of monthly maintenance allowance, whereas, the respondent filed his revision impugning the order of the learned trial Magistrate.
7. The learned Additional Sessions Judge, by his order dated September 5, 1992 allowed the petitioner's revision and directed the respondent to pay to the petitioner a sum of Rs. 300/- per month instead of Rs. 100/- as directed by the learned Magistrate as a monthly maintenance allowance and by his separate judgment of the say day, dismissed the respondent's revision with costs.
8. Criminal Writ Petition No. 56/1993 is filed by wife for further enhancement of the monthly maintenance allowance, whereas, Criminal Writ Petition Nos. 395 and 396/1992 have been filed by the respondent-husband against the order of enhancement of monthly maintenance allowance and dismissal of the revision, filed against the order of the learned trial Magistrate.
9. It would be convenient to deal with the Criminal Writ Petition No. 395 of 1992 challenging the order passed by the Courts below granting monthly maintenance to the petitioner-wife. Shri Badre, learned Counsel for the respondent has vehemently urged that the Courts below have not taken into account Sub-section (4) of Section 125 of the Code of Criminal Procedure, which disentitles the wife to receive allowance from the husband, if without any sufficient reasons she refuses to live with her husband. It has been submitted that the Trial Court has rightly disbelieved the testimony of the petitioner-wife in regard to the allegation of infedility of the respondent of having illicit relations with other woman after marriage as well as on charge of impotency. That being the case, the Courts below were not justified in holding that the petitioner was entitled to receive monthly maintenance allowance from the respondent since the very ground to claim monthly maintenance allowance is wanting.
10. On the other hand Shri Shinde, learned Counsel for the petitioner-wife urged that even though the Trial Court discarded the part of the testimony of the petitioner-wife in regard to her allegation of the respondent being impotent and his infedility of having illicit relations with other women after the marriage at the instance of his uncle, the learned trial Magistrate as well as the learned Additional Sessions Judge have concurrently found that other part of testimony of the petitioner-wife is acceptable in regard to the ill-treatment meted out to her by the respondent-husband. Therefore, according to the learned Counsel for the petitioner there is concurrent finding of fact on the question of ill-treatment being the foundation for claim of the monthly maintenance allowance. In this context Shri Shinde, learned Counsel for the petitioner-wife submitted that the High Court cannot, while exercising jurisdiction under Article 227 of the Constitution of India, interfere with the finding of facts recorded by the subordinate Courts. In support of this, reliance is placed on decisions of Supreme Court in case of Babhutmal Raichand Oswal v. Laxmibai R. Tarte : AIR1975SC1297 , and Mohd. Yunus v. Mohd. Muntauquim : [1984]1SCR211 .
11. The question, therefore, arises whether the High Court would be justified in interfering with the findings of facts recorded by the Courts below on the point of ill-treatment to the wife by the husband. It is true that the learned trial Magistrate while appreciating the testimony of the petitioner-wife did not believe that part of her evidence when she stated that the uncle of the respondent prevented the respondent to have co-habitation with her and that the respondent accordingly shown total disregard towards the petitioner and has indulged in having illicit relations with some other ladies. At the same time, the learned trial Magistrate, however, recorded his finding that the oral evidence of the petitioner about ill-treatment at the hands of the respondent is to be accepted. In this context, one of the instances referred to by the learned trial Magistrate is that of launching of criminal complaint against the petitioner-wife for having committed the offence of destroying the house by putting it on fire.
12. The learned Additional Sessions Judge while dealing with that part of the evidence has also concurred with the finding of the learned trial Magistrate by relying upon additional instances. In the first place, according to the learned Additional Sessions Judge, the say of the respondent that he has been living separate from his father is only to be mentioned and rejected. The theory of living separate from father appears to have been invented only to defeat the claim of the petitioner-wife for maintenance. The respondent is the only son of his father and they hold valuable property. Apart from that, unless there is truth in the evidence disposed of by the wife about the ill-treatment meted out to her by the respondent-husband, there is no reason for the petitioner-wife to remain away from the husband. The explanation offered by the respondent that the petitioner of her own left the house and she did not turn up inspite of his efforts appears to be a mere falsehood. In this context, it may be stated that the petitioner-wife had sent notice (Exh. 30) prior to filing of the complaint for maintenance. Although the notice was received by the respondent-husband, he never bothered to send the reply nor had he taken any steps to bring the petitioner-wife back to home. There is absolutely no evidence to show that any kind of attempt was made by the respondent-husband to unit together. The conduct of the respondent shows that he has shown total indifference towards the petitioner-wife. A consistent course of conduct inflicting, immeasurable mental agony and torcher may well constitute cruelty. It cannot be forgotten that launching of criminal complaint may also amount to cruelty, since after fling the complaint apprehension cropped up in the mind of the petitioner-wife that it will be harmful to live with the respondent-husband cannot be forgotten.
13. No doubt Shri Bedre, learned Counsel for the respondent invited my attention to the decision in case of Nirmal Manohar v. Manohar Shivram 1991 M.L.J. 267. The view taken in that decision is that wife's reckless, wild and baseless allegations entitle the husband to decree of divorce on the ground of cruelty. I fail to understand how this proposition can help the respondent in a proceeding for maintenance under Section 125 of Code of Criminal Procedure. Even if it is to be assumed that acts and accusations of the wife against the husband tentamount to mental cruelty of husband, that by itself will not diminish the value of the evidence of the petitioner-wife when she attributes the act of ill-treatment to the respondent while claiming maintenance under Section 125 of Code of Criminal Procedure. Shri Bedre, learned Counsel has pointed out that on the demand of the petitioner-wife, the respondent has started living separately but that has also no relevance inasmuch as there is absolutely no evidence to accept the fact that the respondent had lived separately from his father.
14. Quite apart, contention of Shri Shinde, learned Counsel for the petitioner-wife appears to be right that the High Court will not be justified to correct mere errors of facts by examining the evidence and re-appreciating it. In exercise of power of superintendence under Article 227 of the Constitution of India, the Apex Court in the decision referred to above, clearly laid down that the power of superintendence of High Court under Article 227 of the Constitution of India being extraordinary is to be exercised most sparingly and only in appropriate cases. This power, as in the case of certiorari jurisdiction, cannot be invoked to correct an error of fact which only a superior Court can do in exercise of its statutory powers as a Court of appeal.
15. It is thus clear that the Courts below have appropriately dealt with the evidence of parties and reached to the concurrent findings of fact, which require no interference in the writ jurisdiction under Article 227 of the Constitution of India. I, therefore, find no merit in the first contention of the learned Counsel for the respondent-husband that the Courts below have committed an error apparent on face of record in granting monthly maintenance allowance.
16. Sub-section (1) of Section 125 of Code of Criminal Procedure has clothed the wife with a right to receive monthly maintenance allowance in a summary proceeding under the Code. Shri Bedre, learned Counsel for the respondent, however, put in service in support of his arguments, Clause (4) of Section 125 of Code of Criminal Procedure to disentitle the wife with the right to receive maintenance in the proceeding. Sub-section (4) of Section 125 of Code inter alia provides as under :
'(4). No wife shall be entitled to receive an allowance from her husband under this Section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.'
In order to bring the case within the provision of Sub-section (4), it will have to be established that the petitioner-wife has, without any sufficient reason, refused to live with the respondent-husband. Significantly, the respondent-husband has not adduced any material to show that he has made any sincere attempt to bring the petitioner back to the matrimonial home and that inspite of that the petitioner-wife refused to stay with him. It may be stated that though a bold statement is made in the writ statement by the respondent-husband in that behalf, he has failed to bring any material on record in support of that statement in the evidence. The conduct of the respondent in not replying the notice (Exhibit 30) is also eloquent to note. As observed earlier, the entire conduct disclosed by the respondent is contrary to the fact that the petitioner of herself left the matrimonial home. The evidence as accepted by the Courts below un-erringly points out that the respondent without fault on part of the wife, actually deserted her and on account of ill-treat or harassment at his hands, the petitioner-wife was required to approach the Court. In the circumstances, f find that there is hardly any merit in the criminal writ petitions filed by the respondent-husband.
17. That takes me to the question on quantum of monthly maintenance allowance. Shri Shinde, learned Counsel for the petitioner-wife urged that while considering the evidence regarding the income of the respondent-husband, the learned Additional Sessions Judge has taken into account the only income derived from the agricultural lands. It has been contended that in addition to the income from agricultural lands, the respondent-husband is diving the income from dairy business, flour mill, gas agency etc. It has been submitted that if the income from all sources is taken into account and having regard to the status of the family, the petitioner ought to have granted monthly maintenance at the rate of Rs. 500/- per month.
18. Shri Bedre, learned Counsel appearing for the respondent urged that the learned Additional Sessions Judge has also fallen into an error in discarding the fact that the respondent is separate from his father and that he is in possession of hardly 1 Hectare of land and his income would not exceed more than Rs. 8,000/- per year. He, therefore, submitted that the petitioner is not entitled for enhancement of monthly maintenance allowance but the allowance granted to her by the learned Additional Sessions Judge, requires to be altered.
19. The learned Additional Sessions Judge, while dealing with the evidence on record has recorded his finding that the respondent has been living with his father. He is the only son of his father. There is no partition amongst the father and son in regard to the ancestral property, the land possessed by the family consists of 16 to 17 acres. Not only that, but there are wells n the lands. Some lands are bagayat lands. Moreover, apart from dairy business in the name of the respondent's father there is a flour mill and gas agency. The income derived from these sources cannot be overlooked. Even though there is no positive evidence about the exact income derived from all sources, the inference can be drawn that the respondent has a financial capacity to pay monthly maintenance allowance of more than Rs. 300/- to the petitioner-wife having regard to their status in life. Shri Shinde, learned Counsel for the petitioner, therefore, was justified in contending that the learned Additional Sessions Judge has over looked the other sources of income while enhancing the quantum of monthly maintenance allowance. In my opinion, in the given circumstances of the case, the petitioner-wife is entitled to receive Rs. 500/- instead of Rs. 300/- per mouth, especially having regard to the present days of inflation.20. In the result, Criminal Writ Petition No. 56/93 stands whereas Criminal Writ Petition Nos. 395 and 396 of 1992 fell. Rule is, accordingly, made absolute in Criminal Writ Petition No. 56/93 and Rule is discharged in both Criminal Writ Petitions 395 and 396 of 1992. The respondent-husband is directed to pay to the petitioner-wife a sum of Rs. 500/- per month as monthly maintenance allowance. The respondent-husband shall pay the difference in the amount of compensation as fixed by this Court and the Courts below from the date of application within a period of two months from today.