Full Judgment
M.R. Hariharan Nair, J.
1. The wife, petitioner in M. C. No. 97 of 1990 on the file of the Judicial First Class Magistrate Court, Payyannur is aggrieved that the direction contained in the judgment passed in the said case that she should be paid maintenance at the rate of Rs. 200/- per mensem by the respondent herein was upset by the Sessions Court, Thalassery in Cri. R. P. No. 112 of 1992.
2. In the aforesaid petition before the Judicial First Class Magistrate, Payyannur the present petitioner had claimed maintenance for herself at the rate of Rs. 400/-per mensem besides maintenance for her two children who were petitioners 2 and 3 therein at the rate of Rs. 300/- per mensem and after trial the trial Court found it proper to grant maintenance to them at the rate of Rs. 200/- and Rs. 100/- respectively. The Sessions Court, in revision, upheld the finding regarding payment of maintenance to the children, but reversed the direction for payment of maintenance to the wife.
3. Mr. K. Ramakumar who appears for the revision petitioner submitted that the Sessions Court erroneously interfered with the findings of the trial Court which alone was the Court of facts. In the absence of any finding that the finding of the trial Court with regard to liability was perverse the Sessions Court, it is pointed cut, erred in deleting the direction for payment of maintenance to the wife. Case law was also relied on in this regard.
4. According to learned counsel for the respondent, there was evidence to show that the wife wilfully abstained from joining her husband as desired by him and in the circumstances the denial of maintenance to her was well justified. It is also pointed out that the trial Judge had accepted the evidence with regard to an affair that the husband allegedly had with a woman by name Sali, though such a contention was not at all there in the pleadings or even in the evidence adduced by the present petitioner.
5. I have gone through the evidence adduced in the case. What is available is only oath against oath of the rival parties and what can be looked into is only as to which of them appears to be more probable.
6. The marriage between the parties took place on 14-5-1984 and the parties separated only on 18-12-1989. In the meantime the petitioner had given birth to two children. It is her case that she finally separated herself from her husband on finding that continued residence with him would affect her health and that the behaviour of the husband had all along been with cruelty, mental and physical.
7. In her evidence petitioner had stated that the husband had demanded landed property as also ornaments at the time of marriage and that accordingly 40 cents of land was transferred in her name besides gold ornaments of 5 sovereigns. The fact that there was transfer of Ext. P-3 property in the name of the petitioner on 18-4-1984 (four days after the marriage) was admitted by the husband also. There was repeated request for more money by sale of the said property and when the wife did not agree thereto, she was treated cruelty and even denied food and clothing. She was beaten and told that if she wanted food she should suffer the beatings of the husband. She was ultimately forced to sell the property in her name to her brother on 19-5-1989 by executing Ext. P-3 document to which the husband was an attesting witness. The cruel acts of the husband continued even thereafter and ultimately the petitioner was admitted in the Ashoka Hospital, Kannur on 6-12-1989 for treatment of mental illness and on 18-12-1989 she returned to her house. According to her, during the period of treatment her husband or his people never turned up to enquire about her well being and she was not given any money for treatment also. Ext. P-2 discharge certificate proves the fact that the petitioner underwent the treatment as above. She says the mental illness arose from the continuous acts of cruelty from the husband and it cannot be said that this is improbable.
8. In the evidence of the husband as C.P.W. 1 the fact that 40 cents of land was assigned in the name of the petitioner soon after the marriage and that it was subsequently sold to the brother is admitted. He says the money was utilised for purchase of ornaments, but there is no reliable evidence in that regard. When asked about the classes in which his two children were studying, he expressed ignorance of that fact and that shows concern about his own children and family! He admits that the wife underwent treatment for mental illness; but would allege that it arose from a misunderstanding created on his wife by her own mother alleging that her husband was having an affair with another woman. As to why his mother in law should make such a false allegation, there is absolutely no explanation given by C.P.W. 1. He admitted that the petitioner has alleged that he had an affair with Sali, who according to him, resides in the neighourhood of the property owned by him, mentioned in Ext. P-1. He concedes that the petitioner was a woman pf no means and that she had to depend on him for her maintenance. But for very valid reasons she would not have refused to rejoin her husband even while facing absolute poverty. Thus, the evidence on record would probabilise the case of the petitioner. The purpose behind Section 125 of the Code of Criminal Procedure is avoidance of vagrancy. The trial Court which had the benefit of watching the performance of the parties in the box has chosen to accept the version of the wife in preference to that of the husband. Such a finding could have been reversed by the Sessions Court only on sufficient grounds.
9. The powers of the revisional Court are limited. The legal position that appellate jurisdiction is co-extensive with the original Court's jurisdiction with regard to appraisal and appreciation of evidence and reaching the findings of facts. While doing so, such appellate Court is free to reach its own conclusion on evidence untrammelled by any findings entered by the trial Court. The revisional Court, on the other hand, does not have that benefit, though it has also supervisory jurisdiction of a superior Court. While exercising the revisional powers the Court has to confine itself to the legality and propriety of the findings and also consider whether the subordinate Court has kept itself within the bounds of its jurisdiction including the question whether the Court has failed to exercise the jurisdiction vested in it.
10. A perusal of the judgment of the learned Sessions Judge does not show that it came to the conclusion that the findings of the trial Court are perverse. According to me, it has exceeded its jurisdiction in reappreciating the facts and in coming to a conclusion different from that of the trial Court. In that perspective, the impugned order of the learned Sessions Judge suffers from material illegality and impropriety.
11. During hearing, learned counsel for the respondent relied on the observations in Cri. R. P. No. 481 of 1979 (1981 Ker LT SN 12 (Case No. 21)) to contend that there is no pleading or proof to show that the husband was keeping a mistress. It was found in the said decision that 'mistress' necessarily means a woman illicitly occupying the place of a wife and not merely a woman with whom he commits a stray act of adultery, though such an act may lead to procreation of a child. The said finding has absolutely no application to the facts of this case because this is not a case where maintenance is sought on the ground that the husband is keeping a mistress which justifies separate residence of the petitioner. In fact, the argument of the husband itself is that the Courts erred in relying on the evidence with regard to the affair of the husband with Sali. In such circumstances, the said decision has absolutely no relevance, as far as the present case is concerned.
12. Mammad v. Rukhiya, 1978 Ker LT 875 : (1978 Cri LJ 1645) was relied on by the husband to show that he has no liability to pay maintenance to the wife because, the wife has refused to live with the husband. It is true that in her evidence as P.W. 1. The petitioner has stated in categoric terms that she was unwilling to live with the husband. The question whether she would still be entitled to get maintenance would depend upon the question whether her refusal to rejoin the husband is justified by circumstances. In this regard positive evidence of clear nature is difficult to be adduced. Necessary inferences have to be drawn from the proved facts and circumstances. This is a case where in consequence of joint residence for about 5 years after the marriage and due to the cruel treatment afforded to the wife she became a mental wreck and had to be hospitalised. In such a case it cannot be said that her apprehension that further joint residence with the husband might be detrimental to her life is unjustified. I am of the view that notwithstanding the refusal of the wife to cohabit with the husband any further she would be entitled to get maintenance from him, especially when admittedly she is a person of no means. The only item of immovable property that she got at the time of marriage, if her evidence is correct, has already been disposed of at the instance of her own husband. In these circumstances I find that the interference made by the learned Sessions Judge with regard to the grant of maintenance by the trial Court is unjustified, illegal and improper.
13. The revision is, hence, allowed and the direction that the present respondent should pay maintenance at the rate of Rs. 200/- to the petitioner with effect from 25-7-1992 is restored. The other directions in the said judgment, i.e. with regard to payment of maintenance to the children will also stand unmodified.