Full Judgment
B.K. Sharma, J.
1. Heard the learned Counsel for the revisionist and the learned A.G.A. and also Mr. S.D. Singh, learned Counsel for the opposite party No. 1-Mithai.
2. This revision has to be allowed. Smt. Rajmati moved an application under Section 125, Cr .P.C. for maintenance before the Special Judicial Magistrate, Saidpur, District Ghazipur on 21.10.1981. The husband Mithai contested the same. The learned Magistrate after recording the evidence of the parties and hearing the parries' Counsel found that it was an admitted case between the parties that the parties had married and that the wife Smt. Rajmati was not living with the husband. On an assessment of the evidence, the learned Magistrate found that the husband Mithai used to beat and ill-treat her and turned her out from the house and also found that the husband had remarried. He also found that she was unable to maintain herself. He further found that the husband had sufficient income from agriculture as labour to maintain her. He has dealt with the offer by the husband to keep the wife with himself and to maintain her and the refusal of the wife to live with him. He came to the conclusion on the basis of the material on record that she had sufficient ground to decline to live with him. The treatment with cruelty is itself a sufficient ground for the wife to decline to live with the husband even if he offered to keep her and to maintain her. In this case, the learned Magistrate has also found that the husband had remarried. That was another ground on which she could legally decline to accept the offer of the husband to live with him and still maintain her claim for maintenance under Section 125, Cr.P.C. The judgment and order dated 29.4.1989 was consequently passed by Sh.. A.K. Gupta, learned Special Judicial Magistrate, Ghazipui in the case (Case No. 86 of 1987) Smt. Rajmati v. Mithai.
3. The husband has challenged this by way of Criminal Revision No-181 of 1989 which eventually came up for hearing before the then Vth Additional Sessions Judge, Ghazipur. The Additional Sessions Judge allowed the revision by his judgment and order dated 6.11.1989 and set aside every material findings of the learned Magistrate except to the extent that both had married and that the wife was not living with the husband.
4. Feeling aggrieved by the aforesaid judgment and order by the lower Revisional Court, the wife Smt. Rajmati has preferred the present revision. The learned Counsel for the revisionist has challenged the judgment and order of the Revisional Court mainly on the ground that the learned lower Revisional Court travelled beyond his jurisdiction inasmuch as he made a reassessment of evidence about each and every point of fact involved in the case. The learned lower Revisional Court could interfere only if there was any illegality in the order passed by the Magistrate or there was any material irregularity in procedure and not otherwise. He did not have any general power to reassess the evidence and substitute his own findings for the findings of fact arrived at by the learned Magistrate.. No good ground could be shown by the learned Counsel who appeared for the husband Mithai, to justify interference with the Magistrate's order by the lower Revisional Court. I am satisfied that there was no legal ground available for the lower Revisional Court to interfere with the findings of fact arrived at by the learned Magistrate.
5. Consequently, this revision is allowed and the judgment and order dated 6.11.1989 passed by the lower Revisional Court in Criminal Revision No. 181 of 1989 is quashed and the judgment and order dated 29.4.1989 passed by the learned Magistrate is consequently restored and is upheld. The stay order dated 9.1.1990 stands discharged.
6. Let a copy of this judgment be sent in a week to the learned Magistrate for information.
7. Let a copy, of this judgment be issued to the learned Counsel for the revisionist within a week from today on payment of usual copying charges.