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Judgment
R. M. Savant, J.—The above Revision Application is directed against the judgment and order dated 18.10.2008 passed by the learned Additional Sessions Judge-1, Panaji, by which the Revision Application filed by the Respondent No.1 herein came to be allowed by the learned Sessions Judge and, resultantly, the order dated 02.04.2008 passed by the learned J.M.F.C. ( B-Court ) at Mapusa, came to be set aside and consequently, the application for maintenance filed by the Applicants herein dated 10.3.2006 came to be dismissed. The parties would be referred to as per their status in the Trial Court.
The facts necessary to be cited are stated thus :
The marriage between the Applicant No.1 and Respondent No.1 was solemnized on 23.4.1999. Out of the said wedlock a daughter was born on 04.04.2000 who is Applicant No.2. It is the case of the Applicant No.1 that the Respondent No.1 was ill-treating her and also mentally torturing her on account of the fact that the Applicant No.1 had given birth to a girl whereas the Respondent No.1 was desirous of having a boy child. It is the case of the Applicant No.1 that on account of the said ill-treatment she had to leave the matrimonial house and start residing with her parents. The Applicant No.1 thereafter for a short time on account of the intervention of the relations came back to the matrimonial home but as the ill-treatment continued she had to go back to her parents'' house which she did in the beginning of the year 2001. It is further case of the Applicant No.1 that the Respondent No.1 has brought another woman by name Sunanda Rohidas Shirodkar in the house with whom he is now residing. According to the Applicant No.1 the Respondent No.1 was ill-treating also in view of the fact that he wanted a divorce from her. The Respondent No.1 has filed proceedings for divorce in the year 2005. The said divorce is sought on the ground of abandonment.
The Applicant No.1 herein thereafter filed an application for maintenance on 10.3.2006 u/s 125 of Criminal Procedure Code. The Applicant No.1 sought maintenance to the extent of Rs.8000/-per month from the Respondent No.1 on account of herself and her daughter i.e. the Applicant No.2. The case of the Applicants in the said application for maintenance is that the Respondent No.1 is the absolute owner, in possession of a workshop, and is manufacturing rolling shutters, steel furniture, collapsible doors, grills, gates and all other types of steel fabrication and trusses, besides undertaking auto mechanical, tin works and painting jobs, thereby earning a minimum of Rs.20,000/-per month as net profit. Besides, the said business, it was the case of the Applicants that the Respondent No.1 has taken contract of ferry toll collection of Naroa -Diwar ferry since 2004 and is thereby earning of Rs. 15,000/-per month as net profit from the said contract.
The said case of the Applicants in the application for maintenance was denied by the Respondent No.1. It is the case of the Respondent No.1 that inspite of the Respondent No.1 wanting the Applicant No.1 to stay with him, the Applicant No.1 was not desirous of staying in the matrimonial house and was not behaving with the Respondent No.1 in a proper manner. The ill -treatment to the Applicant No.1 has been denied by the Respondent No.1. In so far as the income aspect is concerned, it is the case of the Respondent No.1 that he was working as a welder in the garage at Mayem of one Priyanka Panjikar and that presently the brother of the Respondent No.1 is looking after the Respondent No.1 as the Respondent No.1 is unemployed and suffering from unal calculus and has to take treatment in GMC, as a result of which he is not in a position to do any work. In so far as the contract of ferry toll is concerned, the case of the Respondent No.1 is that in the said contract losses were suffered and by a letter dated 30.11.2005 the said contract was terminated by the Government of Goa. It is further the case of the Respondent No.1 that the Applicant No.1 is a hawker by profession and that she is financially well sound to maintain herself and her child and that she is staying with her parents at Moida, and that the father of the Applicant No.1 is a retired Government servant and financially sound.
The parties in support of their respective cases led evidence. In so far as the Applicant No.1 is concerned she has examined five witnesses whereas the Respondent No.1 has examined three witnesses. The Trial Court on the basis of the material that was before it allowed the maintenance application and granted Rs.6000/-as maintenance to both the Applicants. The Trial Court has held that in so far as the Applicant No.1 leaving the matrimonial house and residing with her parents is concerned, the same was on account of the ill-treatment of the Applicant No.1 by the Respondent No.1 which ill-treatment the Trial Court was of the view was on account of the girl child being born to the Applicant No.1. The Trial Court was of the view that the Applicant No.1 was forced to leave the matrimonial house on account of the said ill-treatment. In so far as the aspect of the income of the Respondent No.1 is concerned, the Trial Court on the basis of the evidence came to a conclusion that the income of the Respondent No.1 from the garage was Rs.15,000/-per month and was Rs.10,000/-from the ferry toll contract. As mentioned hereinabove, the application for maintenance was allowed by granting maintenance of Rs.6000/-to the Applicants.
Aggrieved by the order passed by the learned J.M.F.C., the Respondent No.1 herein filed a Revision Application being No.54/2008. The Revisional Court on a consideration of the evidence on record came to a finding that the findings recorded by the learned J.M.F.C. that the income of the Respondent No.1 was Rs.15,000/-from the garage and Rs.10,000/-from the ferry toll contract was not borne out by the evidence on record and, therefore, the said finding as regards the income of the Respondent No.1 was perverse. The Revisional Court also came to a finding that the Applicant No.1 would not be entitled to maintenance on the application of Section 125(4) of the Criminal Procedure Code as she has left the matrimonial house without any sufficient reason and that she has refused to live with the husband. Therefore, on the said two counts the Revision Application came to be allowed and the order dated 2.4.2008 granting maintenance of Rs.6000/-to the Applicants was set aside and, consequently, the application for maintenance was dismissed.
It is against the order dated 18.10.2008 passed by the learned Additional Sessions Judge, Panaji in the said Criminal Revision Application No.54/2008, that the instant Revision Application is filed. As is well settled by a catena of judgments of the Apex Court that the Revisional jurisdiction of this Court is a very restricted jurisdiction and this Court cannot embark upon reappreciation of evidence, and the Revisional jurisdiction is normally to be exercised where there is a glaring defect in the procedure or there is a manifest error or patent error committed in ignorance of law which has resulted in flagrant miscarriage of justice. A useful reference could be made to the judgment of the Apex Court reported in Duli Chand Vs. Delhi Administration, . It is in the context of the law laid down by the Appellate Court that the facts in the instant case would have to be considered.
In the instant case, it would be pertinent to note, the Applicant No.1 has left the matrimonial house in the year 2001, the suit for divorce has been filed by the Respondent No.1-husband sometime in the beginning of the year 2005. It is much after that i.e. on 10.3.2006 that the Applicants herein filed an application for maintenance. In so far as the income of the Respondent No.1 is concerned the Applicant No.1 has based her case on the income of the Respondent No.1 from the garage known as Sadanand Engineering Works. It is the case of the Applicant No.1 that the Respondent No.1 is earning about Rs.20,000/-from the said garage. The evidence which has come on record indicates that the said garage was transferred by the Respondent No.1 to one Priyanka Panjikar sometime in the year 2002 and, therefore, on the date when the application for maintenance was filed, the said garage was no more in the name of the Respondent No.1 though some documents like payments of professional tax in respect of the said garage were in the name of the Respondent No.1. Another aspect to be considered is that it has come in the evidence that the Respondent No.1 was suffering from kidney stone and was therefore required to be treated at G.M.C., Bambolim. The very capacity of the Respondent No.1 to work in the garage and carry out the nature of the work as alleged by the Applicant No.1 was therefore very much in question. The Trial Court has rejected the evidence which has come on record in the matter of the garage being in the name of Priyanka Panjikar and without there being any concrete evidence as regards the income earned by the Respondent No.1 from the said garage has assumed that the Respondent No.1 might be earning about Rs.15,000/-per month from the said garage. As regards the income from the ferry toll collection the Trial Court without there being any concrete evidence in respect of the said income assumed that the Respondent No.1 might be earning Rs.10,000/-from the said ferry toll collection, whereas it has come in evidence that the said contract of ferry toll was terminated soon after the maintenance application being filed i.e. on 31.03.2006, therefore, there was no cogent evidence before the Trial Court as regards the income of the Respondent No.1 from the aforesaid two businesses and merely on the basis of conjectures and surmises that the Trial Court has fixed the income of the Respondent No.1 as Rs.15,000/-per month from the said garage and Rs.10,000/-from the ferry toll contract. The Revisional Court, therefore, in the exercise of Revisional jurisdiction has rightly recorded a finding, that the findings recorded by the Trial Court as regards the income of the Respondent No.1 were perverse as there was no concrete and cogent evidence to that effect on record. The Revisional Court, therefore, rightly concluded that the Applicant No.1 had failed to prove that the Respondent No.1 was having sufficient means as on 10.02.2006 and thereafter.
In so far as findings of the Revisional Court as regards the entitlement of the Applicant No.1 for maintenance u/s 125 of Criminal Procedure Code is concerned, in my view, in the light of the evidence which is on record, the Revisional Court had erred in holding that the Applicant No.1 having left the matrimonial house for no sufficient reason would not be entitled to claim maintenance. The evidence on record, in my view, prima facie points out to the ill-treatment to which the Applicant No.1 was subjected to in the matrimonial house and, therefore, in my view, the application as filed by the Applicant No.1 was maintainable, however, for the reasons stated hereinabove as the Applicant No.1 has failed to prove by cogent evidence that the Respondent No.1 had sufficient means, the impugned order of the Revisional Court dated 18.10.2008 therefore cannot be faulted with. However, in the course of the hearing of the above Revision Application, the learned Counsel for the Respondent No.1 on the instructions of the Respondent No.1 who is personally present in the Court made a statement that the Respondent No.1 is willing to pay an amount of Rs. 1500/-per month towards the maintenance of the daughter which amount this Court may suitably increase for the subsequent years and may put a sealing at some point of time. The said statement made on behalf of the Respondent No.1 by his Counsel is accepted as an undertaking to this Court. The Respondent No.1 would pay towards the Applicant No.2 for maintenance a sum of Rs. 1500/-per month on or before 10th of each month starting from 01.03.2010. Thereafter, there would be an increase of Rs.100/-per year in the subsequent years and finally the amount of maintenance would be frozen at Rs.2000/-per month in the year 2015 which the Respondent No.1 would pay towards the Applicant No.2 for maintenance till the Applicant No.2 attains majority. Subject to the above, no case for interference in the Revisional jurisdiction is made out. The Revision Application is accordingly dismissed.