Smt. Zaitoon vs State of Uttar Pradesh and Another

R.P. Shukla, J.—This Criminal Revision is directed against the judgment and order dated 23-1-1984 passed by the Third Additional Sessions Judge, Bulandshahar in Criminal Revision No. 200 of 1983, Salimuddin v. State of U.P. and Ors. setting aside the judgment and order dated 26-9-1983 passed by the First Additional Judicial Magistrate in case No. 61 of 1982 Smt. Jaitoon v. Salimuddin, u/s 125 of the Code of Criminal Procedure.

Smt. Jaitoon, hereinafter called as the applicant applied for maintenance in the Court of First Addl. Judicial Magistrate, Bulandshahar, alleging that she was legally wedded wife of Salimuddin, the Respondent and a female child was born out of this wed lock who later died. Thereafter she could not bear any other child and hence her husband started treating her cruelly. On 1-3-1982 he told her that he would not maintain her any more and that he wanted to contract a second marriage. On her refusal to go back to her parents he gave her beating with Lathi and Stick. The neighbours intervened alongwith her maternal uncle Shamsher. She sent for her father who came from Bulandshahar. Salimuddin also misbehaved with her father and turned her out after having relieved her of her ornaments and clothings. She left with her father in rage and she made a report in the police station and got herself medically examined. Seven or eight days after this incident her father alongwith some other persons went to persuade Salimuddin for re-conciliation but Salimuddin did not agree. The applicant further alleged that the income of Salimuddin was Rs. 3000/- per month and she claimed Rs. 300/- per month as maintenance for herself.

The applicant in support of her case besides herself examined Nazir, Abul Hafiz, Dr. O.N. Srivastava, who had medically examined her on 2-3-1982 and found seven injuries on her person and Constable Mahabir Singh, who proved the first information report lodged by her.

Salimuddin, the Respondent filed his written statement on 6-5-1982 admitting that the applicant was her wedded wife alleging that it was the applicant who refused to live with him and that he was still willing and ready to maintain her as his wife. He has said in his written statement that he worked as a Carpenter and his monthly income was only Rs. 400/- per month. Salimuddin, besides himself, examined one Jumma to support his case. The facts that the applicant was the wife of Salimuddin and that a female child was born to her and died and that thereafter she could bear no other child and that the applicant was living separately from 1-3-1982, have not been disputed. After having considered the evidence of the parties the Magistrate found that the behaviour of the Respondent, Salimuddin, was cruel towards the applicant and he neglected to maintain the applicant. He also found that the applicant was justified in living separately because of the cruelty of her husband and that she was unable to maintain herself and he awarded Rs. 150/- per month from the date of application i.e. 7-4-1982, as maintenance.

Aggrieved by this order Salimuddin preferred a revision. In the revision the Third Additional Sessions Judge, Bulandshahar, admitted in evidence certified copy of the judgment of the Second Additional Sessions Judge dated 19-9-1983 allowing Criminal Appeal No. 94 of 1983. The aforesaid appeal was preferred by Salimuddin against the judgment and order of his conviction recorded by the Magistrate on 29-6-1983 in a case prosecuted on the basis of the first information report made by the applicant, after she was beaten by Salimuddin. The Sessions Judge also admitted in evidence the certified copy of the plaint of a Civil suit No. 280 of 1983 filed by Salimuddin on 29-9-1983 against the applicant for restitution of conjugal rights. Certified copy of the order of High Court dated 26-11-1983 in Criminal Misc. Case No. 10193 of 1983 Smt. Jaitoon v. Salimuddin, wherein Hon''ble Mr. Justice A.S. Srivastava has observed that no Court while deciding other proceeding should be prejudiced by observation of the Appellate Court made while deciding criminal appeal No. 94 of 1983 was also admitted in evidence. On the basis of the judgment in criminal appeal No. 94 of 1983 and copy of the plaint of civil suit No. 280 of 1983 the learned Sessions Judge reversed the finding of the learned Magistrate and allowed the revision and set aside the order of the Magistrate.

I have heard the learned Counsel on either side and perused the judgment of the Courts below. I am in agreement with the contention of the learned Counsel for the applicant that the learned Sessions Judge could not accept any evidence at the stage of revision. In case of appeal there is specific provision in the Code of Criminal Procedure that additional evidence can be accepted but in case of revision there is no such provision. The reason is obvious that the revisional Court has only to examine the illegality, impropriety or incorrectness in the judgment or the order sought to be revised. The Sessions Judge, therefore, committed illegality in admitting evidence in revision.

Provision for maintenance has been incorporated in the Criminal Procedure only to provide speedy remedy to a wife whose husband neglects or refuses to maintain her or treats her cruelly. The procedure for trial of the case u/s 125 of the Code of Criminal Procedure is given in Section 125 Code of Criminal Procedure and a perusal of the same would show that the proceedings u/s 125 Code of Criminal Procedure are not criminal proceedings but are proceedings partaking more of civil nature. The Magistrate believed Smt. Jaitoon, the applicant, whose statement was corroborated by the medical evidence and the first information report lodged by her against her husband and found that she was treated cruelly by her husband, Salimuddin. This evidence may fall short of warranting conviction of Salimuddin u/s 323 or 325 IPC but that would be quite a just ground for the wife to refuse to stay with heir husband. The proceeding u/s 125 Code of Criminal Procedure was quite independent of the criminal proceeding against the husband u/s 323 & 325 IPC. The observations made in Criminal Appeal No. 94 of 1983 could not be introduced into proceedings u/s 125 Code of Criminal Procedure to reverse the finding of facts recorded by the magistrate.

This is not a case where the magistrate has failed to consider the evidence on record or has taken any inadmissible evidence into consideration or has committed any other illegality sufficient to vitiate such consideration. In absence of these factors the finding of fact recorded by the magistrate should have been accepted by the Sessions Judge. It was not correct for the Sessions Judge to embark upon re-consideration of the evidence on the basis of the evidence admitted by him in revision i.e. judgment of appeal No. 94 of 1983 and the plaint of Suit No. 280 of 1983, hence the order of the magistrate allowing maintenance to Smt. Jaitoon is not liable to be quashed.

The principle of stare-decisis does not apply in cases which are independent to each other. The proceedings u/s 125 Code of Criminal Procedure are quite independent than a criminal trial u/s 323 or 325 and also that standard of proof required for conviction in a criminal trial cannot be the same for decision of a case u/s 125 Code of Criminal Procedure which are more or less summary proceeding.

In the light of the above discussions I find that the findings of Sessions Judge are wholly incorrect and illegal. His judgment and order is liable to be quashed. The magistrate after consideration of the entire evidence on record found the case of the applicant true and that of the husband untrue. He found that the applicant was treated cruelly and was turned out of his house. So it was not safe for her to continue to live with her husband. I do not find any perversity in the finding of the magistrate.

In the result the revision succeeds and the judgment and order of the Sessions Judge dated 23-1-1984 is hereby quashed. The judgment and order of the magistrate allowing maintenance to the applicant dated 29-6-1983 is upheld. The applicant shall not refund the amount of maintenance already received by her. The opposite party, Salimuddin shall pay the arrears of maintenance as allowed by the magistrate within two months from the date of this order, failing which the magistrate shall draw proceeding against him in accordance with the law.