Geeta Devi v. Shambhu Singh
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.824 of 2011 ====================================================== Suman Kumar @ Shambhu Singh son of Sri Bhola Singh, Resident of Village-Supaul, P.S. Patory, Distt- Samastipur .... .... Petitioner 1. The State Of Bihar 2. Geeta Devi wife of Ram Ashish Singh @ Jai Prakash Singh, R/O Versus Village- Mirpur, P.S. Jandaha, Distt-Vaishali .... .... Opposite Parties. ====================================================== Appearance : For the Petitioner : Mr. Surendra Kumar, Adv. For the State : Dr. Mayanand Jha, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV ORDER 3 01-10-2013 Petitioner/husband has challenged the order dated 25.02.2011 passed by Principal Judge, Family Court, Samastipur in Misc. Case No. 84/1994 (Geeta Devi v. Shambhu Singh @ Suman Kumar) whereby and whereunder the prayer made on behalf of petitioner to cancel the initial order dated 11.10.1996 whereby maintenance has been granted in favour of Geeta Devi has been rejected. 2. To support its plea, it has been submitted that wife/Geeta Devi had filed complaint case under Section 498A along with other allied Sections whereunder acquittal was recorded on the ground that Geeta Devi had failed to prove the
Legal Reasoning
factum of alleged marriage. The aforesaid order was challenged before the High Court under SLA No. 52/1999 (Annexure-4) and the same was dismissed in default which was never restored. 2 Being armed with the aforesaid judgment a petition was filed with a prayer to sterile the effect of order dated 11.10.1996 and the same was rejected. Being aggrieved thereby, Cr.Misc.No.
Decision
3693/2001 (Annexure-2) was filed and the same was disposed of on 04.03.2009 with the following observations:- “In view of the aforesaid discussions, this quashing application is disposed of with a direction to the learned Magistrate to reconsider the petitioner’s prayer for dropping the proceeding which was earlier rejected by order dated 10.01.2000. The court below shall pass an appropriate order in accordance with law as early as possible preferably within three months from the date of receipt of a copy of this order.” 3. Thereupon the question was re-opened and by order impugned the prayer has been rejected. Hence, this revision petition. 4. It has been contended on behalf of the petitioner that in light of order dated 04.03.2009 passed in Cr.Misc. No. 3693/2001 the learned Principal Judge, Family Court should not have rejected the prayer because of the fact that by order dated 04.03.2009, there was specific direction to the learned lower court which it should have properly taken into consideration and executed. Therefore, the order impugned is in violation of direction of superior Court. 5. Now coming to the facts of the case, it has also been 3 submitted that the learned lower court should have taken into account the finding recorded by the criminal court over status of the parties which after considering the evidence adduced on behalf of prosecution had concluded that there was prima facie no evidence to suggest that Geeta Devi was legally married wife of petitioner Suman Kumar @ Shambhu Singh. This is the subsequent event after passing of initial order dated 11.10.1996 justifying application of Section 127 of the Cr.P.C. which ought to have been taken into consideration by the learned lower court on account thereof, should have scrapped the earlier order dated 11.10.1996. 6. The learned APP opposed the prayer and submitted that times without number it has been held by the Hon’ble Apex Court that criteria for consideration of status of the parties in a criminal proceeding as well as in a proceeding under Section 125 Cr.P.C. are distinct and distinguishable to each other. Therefore, the order impugned had rightly been passed by the learned lower court. 7. From the order impugned, it is evident that emboldened with the judgment of acquittal in the case under Section 498A of the IPC on the ground that Geeta Devi could not succeed to place a cogent and reliable evidence regarding the 4 factum of marriage, petitioner is now brandishing the sword over continuance of order dated 11.10.1996 and on that very score, it is second round of litigation. 8. With regard to alteration/modification of the order passed under Section 125 of the Cr.P.C., apart from presence of embargo under Sub-Clause(4) as well as (5) of Section 125, 127 of the Cr.P.C. elaborately deals with the same. Under Subsection-2 thereof, it is apparent that the order has been found amenable in terms of finding recorded by the Civil Court. For better appreciation Section 127 (2) of the Cr.P.C. is incorporated herein below. “Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under Section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.” 9. Criminal Court is not identified as Civil Court. Basically, before introduction of Family Court Act all kinds of suit either declatory or under Hindu Marriage Act or Hindu Minority and Guardianship Act, Hindu Succession Act etc, was to be drawn before the Civil Court which now in terms of Section-7 (1) of the Family Court Act is to be adjudicated upon in similar way before the Family Court and on account of thereof, the applicability of Subsection 2 of Section 127 Cr.P.C. is to be looked under same 5 fragrance. Section 7 (1) of the Family Court Act, itself speaks regarding the nature of dispute prevailing amongst the spouses to be taken up for adjudication which also includes declaration of status of the spouse. While dealing with trial of the penal offence the declaration to that effect is not found within exclusive domain of Criminal Court though it may acquit the accused on account of deficient evidence on that very score. Therefore, the finding recorded by Criminal Court while proceeding with trial of criminal offence is non recognizable under Subsection-2 of the Section 127 of the Cr.P.C. The order dated 04.03.2009 also perceived the aforesaid legal effect, however, opined that the finding has got persuasive value. 10. The Hon’ble Apex Court in the case of Dwarika Prasad Satpathy v. Bidyut Prava Dixit as reported in (1999) 7 SCC 675 had occasion to see the requirement to prove the criminal case as well as in a proceeding under Section 125 of the Cr.P.C. and after parallel scrutiny thereof held in para-8 and 9 which are as follows:- “8. The learned counsel for the appellant next relied upon the case of Bhaurao Shankar Lokhande v. State of Maharashtra AIR 1965 SC 1564 and contended that two ceremonies are essential to the validity of a Hindu marriage, i.e., invocation before the sacred fire and saptapadi and are required to be established before holding the marriage performed in the temple was a valid one. In that case, that 6 that the conclusion the Court arrived at the prosecution for the alleged offence under Section 494 IPC, had failed to establish that the marriage was performed in accordance with the customary rites as required under Section 7 of the Hindu Marriage Act; it was certainly not performed in accordance with the essential requirements for a valid marriage under Hindu law and, therefore, the accused cannot be convicted under Section 494 IPC. In our view, in the said case the Court was considering the evidence which was led before the trial court in a criminal trial for the offence punishable under Section 494 IPC. In a prosecution for bigamy, the second marriage has to be proved as a fact. The said decision would have no bearing in the proceeding under Section 125 CrPC, which is of a summary nature. a for remedy summary 9. It is to be remembered that the order passed in an application under Section 125 CrPC does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide providing maintenance to a wife, children and parents. For the purpose of getting his rights determined, the appellant has also filed a civil suit, which is pending before the trial court. In such a situation, this Court in S. Sethurathinam Pillai v. Barbara (1971) 3 SCC 923 observed that maintenance under Section 488 CrPC 1898 (similar to Section 125 CrPC) cannot be denied where there was some evidence on which conclusion for grant of maintenance could be reached. It was held that order passed under Section 488 is a summary order which does not finally determine the rights and obligations of the parties; the decision of the criminal court that there was a valid marriage between the parties will not operate as decisive in any civil proceeding between the parties.” 11. The Hon’ble Apex Court has reiterated the aforesaid principle in the case of Savitaben Somabhai Bhatiya v. State of Gujarat as reported in (2005) 3 SCC 636 under para- 7 13 which is as follows:- 13. In Dwarika Prasad Satpathy v. Bidyut Prava Dixit (1999) 7 SCC 675 it was held that the validity of the marriage for the purpose of summary proceedings under Section 125 of the Code is to be determined on the basis of the evidence brought on record by the parties. The standard of proof of marriage in such proceedings is not as strict as is required in a trial of offence under Section 494 of the Indian Penal Code, 1860 (in short “IPC”). If the claimant in proceedings under Section 125 succeeds in showing that she and the respondent have lived together as husband and wife, the court has to presume that they are legally wedded spouses, and in such a situation one who denies the marital status can rebut the presumption. Once it is admitted that the marriage procedure was followed then it is not necessary to further probe as to whether the said procedure was complete as per Hindu rites, in the proceedings under Section 125 of the Code. It is to be noted that when the respondent does not dispute the paternity of the child and accepts the fact that marriage ceremony was performed though not legally perfect, it would hardly lie in his mouth to contend in proceedings under Section 125 of the Code that there was no valid marriage as essential rites were not performed at the time of the said marriage. The provision under Section 125 cannot be utilised for defeating the rights conferred by the legislature on the destitute women, children or parents who are victims of social environment. The provision is a measure of social justice and as noted above, specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution. 12. Apart from this, though Section 498A attracts prosecution of husband or the relative of the husband of a woman on account of torture and cruelty meted out to her do not attract 8 the Court to dip into the matter going beyond its jurisdictional avenue. “The basic principle for conduction of trial of a criminal case is whether prosecution has succeeded in proving charge beyond shadow of doubt”. 13. There is presumption in favour of accused with regard to his innocence and this status continues till judgment. At the time of judgment the criminal court has to proceed to see whether prosecution has been able to place cogent, trustworthy, creditworthy and reliable evidence inconsonance with all sorts of clouds prevailing in the prosecution case further goes even to the extent of benefit of doubt in case certain form of doubt is created during course of appreciation of evidence. Law goes to such extent that in case there is two views coming out from the evidence then, in that event, the view leaning in favour of accused should be accepted. This does not mean that the matter in issue which is beyond purview of criminal jurisdiction and in case so decided will adversely affect upon the prospect of the parties because of the fact that the aforesaid judgment will have no legal identity to affect. 14. The issued has been settled at rest by the Hon’ble Apex Court in the case of Kanwar Singh Saini v. High Court of Delhi, as reported in (2012) 4 SCC 307 at para 22 which is as 9 follows:- legal proposition “22. There can be no dispute regarding the settled that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court, and if the court passes order/decree having no jurisdiction over the matter, it would amount to a nullity as the matter goes to the roots of the cause. Such an issue can be raised at any belated stage of the proceedings including in appeal or execution. The finding of a court or tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Acquiescence of a party equally should not be permitted to defeat the legislative animation. The court cannot derive jurisdiction apart from the statute. [Vide United Commercial Bank Ltd. v. Workmen (AIR 1951 SC 230), Nai Bahu v. Lala Ramnarayan (1978) 1 SCC 58 Natraj Studios (P) Ltd. v. Navrang Studios (1981) 1 SCC 523, Sardar Hasan Siddiqui v. STAT AIR 1986 All 132 , A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 603 Union of India v. Deoki Nandan Aggarwal 1992 Supp (1) SCC 323, Karnal Improvement Trust v. Parkash Wanti, (1995) 5 SCC 159 U.P. Rajkiya Nirman Nigam Ltd. v. Indure (P) Ltd. (1996) 2 SCC 667, State of Gujarat v. Rajesh Kumar Chimanlal Barot, (1996) 5 SCC 477 Kesar Singh v. Sadhu, (1996) 7 SCC 711 Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999) 3 SCC 722 and CCE v. Flock (India) (P) Ltd. (2000) 6 SCC 650]” 15. In Pyla Mutyalamma v. Pyla Suri Demudu as reported in (2011) 12 SCC 189, the nature of evidence require to substantiate the claim under Section 125 of the Cr.P.C., has been prescribed under paras- 20, 21 and 22 which are as follows:- “20. We may further take note of an important legal aspect as laid down by the Supreme Court in Yamunabai Anantrao Adhav v. Anantrao Shivram 10 Adhav (1988) 1 SCC 530, that the nature of the proof of marriage required for a proceeding under Section 125 Cr P.C need not be so strong or conclusive as in a criminal proceeding for an offence under Section 494 IPC since, the jurisdiction of the Magistrate under Section 125 Cr.P.C being preventive in nature, the Magistrate cannot usurp the jurisdiction in matrimonial dispute possessed by the civil court. The object of the section being to afford a swift remedy, and the determination by the Magistrate as to the status of to a final the parties being subject determination of the civil court, when the husband denies that the applicant is not his wife, all that the Magistrate has to find, in a proceeding under Section 125 CrPC, is whether there was some marriage ceremony between the parties, whether they have lived as husband and wife in the eyes of their neighbours, whether children were born from the union. Pillai It was still further v. 21. in laid down Sethurathinam Barabaraa Dolly Sethurathinam (1970) 1 SCWR 589 that if there was affirmative evidence on the aforesaid points, the Magistrate would not enter into complicated questions of law as to the validity of the marriage according to the sacrament element or personal law and the like, which are questions for determination by the civil court. If the evidence led in a proceeding under Section 125 CrPC raises a presumption that the applicant was the wife of the respondent, it would be sufficient for the Magistrate to pass an order granting maintenance under the husband wishes to impeach the validity of the marriage, he will have to bring a declaratory suit in the civil court where the whole questions may be gone into wherein he can contend that the marriage was not a valid marriage or was a fraud or coercion practised upon him. the proceeding. But if 22. Fortifying this view, it was further laid down by the Supreme Court in Rajathi v. C. Ganesan (1999) 6 SCC 326 also, that in a case under Section 125 CrPC, the Magistrate has to take prima facie view of the matter and it is not necessary for the Magistrate to go into matrimonial disparity between 11 the parties in detail in order to deny maintenance to the claimant wife. Section 125 CrPC proceeds on de facto marriage and not marriage de jure. Thus, validity of the marriage will not be a ground for refusal of maintenance if other requirements of Section 125 CrPC are fulfilled.” 16. As such, in the background of requirement of Section 127 (2) of the Cr.P.C. whereunder the only order passed by the Civil Court is to be taken into account for the purpose of erasing the previous order as well as taking into account the relevant judicial pronouncements as referred above, this Court feels the prayer of the petitioner not maintainable. Consequent thereupon, the instant petition is rejected. (Aditya Kumar Trivedi, J) Patna High Court October 1st 2013 Perwez/AFR