Najeeb M. S vs Sajna

A. Badharudeen, J.

This Revision Petition filed under Section 19(4) of the Family Court Act r/w Sections 397 and 401 of Cr.P.C arises out of the judgment in M.C.No.95/2018 dated 27.02.2021 on the file of the Family Court, Muvattupuzha. The revision petitioner is the sole respondent in the M.C.

Heard both sides.

The Family Court considered O.P.No.672/2017, O.P.No.252/2018, O.P.No.415/2018 and M.C.No.95/2018 and in the M.C the learned Family Court Judge granted monthly maintenance to the 1st petitioner @ Rs.2,500/- and Rs.3,000/- each to petitioners 2 and 3. The above finding is under challenge in this Revision Petition. In this matter, the respondents, who are wife and children of the revision petitioner, who is the respondent in the M.C, claimed Rs.9,000/- and Rs.8,000/- respectively towards monthly maintenance. According to the original petitioners, they did not have any income to maintain themselves. Further, petitioners 2 and 3 are studying in 6th and 9th standards at the time of filing the petition and therefore, the above amount is required for food, cloth and medicine as well as educational expenses. The 1st petitioner given evidence supporting the said claim. Though it has been contended by the petitioners before the Family Court that the respondent/revision petitioner herein is having monthly income of Rs.50,000/- from his provision store, the said income was not established. Though the revision petitioner contended before the Family Court that the 1st petitioner has been working as a Telecaller in an institution owned by RW5, during examination RW5 had deposed that the same is a temporary employment. However, running of provision shop by the respondent is admitted though the income has not been established fully. In this matter, the Family Court is too lenient in the matter of quantum of compensation. That is to say, the Family Court granted monthly maintenance only Rs.2,500/- to the 1st petitioner and Rs.3,000/- each to petitioners 2 and 3, who are students admittedly.

It is the settled law that power of revision available to this Court under Section 401 of Cr.P.C r/w Section 397 is not wide and exhaustive to re-appreciate the evidence to have a contra finding. In the decision reported in [(1999) 2 SCC 452 : 1999 SCC (Cri) 275], State of Kerala v. Puttumana Illath Jathavedan Namboodiri, the Apex Court, while considering the scope of the revisional jurisdiction of the High Court, laid down the following principles (SCC pp. 454-55, para 5):

“5. …... In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. ...”

In another decision reported in [(2015) 3 SCC 123 : (2015) 2 SCC (Cri) 19], Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, the Apex Court held that the High Court in exercise of revisional jurisdiction shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. Following has been laid down in para.14 (SCC p.135) :

“14. …... Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 Cr.P.C is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaring unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.”

The said ratio has been followed in a latest decision of the Supreme Court reported in [(2018) 8 SCC 165], Kishan Rao v. Shankargouda. Thus the law is clear on the point that the whole purpose of the revisional jurisdiction is to preserve power in the court to do justice in accordance with the principles of criminal jurisprudence and, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence had already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the court which would otherwise tantamount to gross miscarriage of justice. To put it otherwise, if there is non-consideration of any relevant materials or fundamental violation of the principle of law, then only the power of revision would be made available.

It is relevant to note that in this matter, it has been established by the petitioners that they are not capable of maintaining themselves and the revision petitioner is running shop and deriving income from the said business. Therefore, the meagre income granted by the Family Court by way of maintenance is only to be justified.

Finding of the Family Court as to entitlement of maintenance by the original petitioners and the quantum thereof need no interference. In view of the matter, this R.P.F.C is devoid of any merit and is accordingly dismissed.