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Criminal case to be decided before civil suit of Hindu Marriage Case


S.B.: Hon’ble Shri Justice Subodh Abhyankar
Miscellaneous Petition No.345/2020

Anant s/o Om Prakash Parey


Sheetal w/o Anant Parey

* * * * *

Mr. Anant Parey, petitioner is present in person.
Mr. Prasanna R. Bhatnagar, learned counsel for the respondent.

* * * * *


(Passed on this 8th day of February, 2021)
This petition has been filed by the petitioner under Article 227 of the Constitution of India, assailing order dated 9th January, 2020 (Annexure P/1) passed in Hindu Marriage Case No.1834/2018 by 1st Additional Principal Judge, Family Court Indore (MP) whereby the petitioner’s application filed for deferring the civil suit (Hindu Marriage Case) until the criminal case between the same parties is decided, has been rejected; and he has been asked to file written statement positively by the next date of hearing (28.02.2020).

2. In brief, the facts of the case are that the petitioner and respondent are husband and wife having their marriage solemnized on 18.02.2017. However, soon thereafter, on account of matrimonial dispute between the parties, the respondent / wife (who is resident of Indore) started living separately in her parents’ house; and filed an application on 05.07.2018 under Section 9 of Hindu Marriage Act, 1955 (herein after referred to as the Act, for brevity) for restitution of conjugal rights. How ever, the petitioner (husband herein) failed to appear before the Court concerned for conciliation proceedings.

Taking the same to be a rejection by the petitioner / husband of intention of the respondent / wife to reside together, the aforesaid application under Section 9 of the Act was withdrawn by the respondent on 01.11.2018. And soon thereafter, on 14.11.2018, the respondent / wife also filed a complaint under Section 498-A of the Indian Penal Code, 1860 (IPC) at Women Police Station, Indore District Indore (MP) registered at Crime No.211/2018.

After his appearance in the Family Court in connection with case under Section 13 (1) of the Act, the petitioner on 05.09.2019 filed an application seeking time to file reply / written statement in the said case, praying therein that as both the cases, namely case under Section 13 of the Act as also under Section 498-A of IPC, have arisen out of the same set of facts, and if the petitioner is forced to file his written statement, it would amount of disclosing his evidence in the criminal Court also, where the same parties are contesting in criminal proceedings under Section 498-A of IPC.

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3. Mr. Anant Parey, the petitioner in person, has submitted that the impugned order is contrary to law and facts on record and is liable to be set aside, as the same runs contrary to the decision rendered by the Supreme Court in the case of M.S. Shariff v. State of Madras reported as AIR 1954 SC 397 in which it has been categorically held by the Supreme Court that simul taneous prosecution of civil and criminal proceedings regarding the same matter would only embarrass the accused. Hence, ordinarily in the absence of special circumstances, civil proceedings should be stayed pending the termination of the criminal case.

4. The petitioner has submitted that the aforesaid judgment has been wrongly distinguished by the learned Judge of the trial Court. Reliance has also been placed on an order / decision dated 11th September, 2014 (Annexure P/8) rendered by a coordinate bench of this Court in the case of Deeptanshu Shukla s/o Ramesh Chandra Shukla v. Pragya w/o Deeptanshu Shukla passed in Writ Petition No.13211/2013 (I) [which was finally disposed of on 8th December, 2014, as per High Court website, on account of the fact that evidence in criminal case was already recorded and it was listed for final hearing] wherein in similar circumstances, an application filed by the husband to defer the criminal case has been allowed and it has been held that continuation of civil proceedings while criminal proceedings are already pending, would only prejudice the defence of the husband. Thus, it is submitted by Mr. Parey that the impugned order be set aside and further proceedings of the civil suit be directed to be stayed till the criminal proceedings are concluded. It is further submitted that even in the criminal proceedings, respondent and other witnesses are deliberately not coming to the Court and thus avoiding giving statement in the Court only to further harass the petitioner, as he has to appear before the Court every now and then and has to come from outside, due to his employment as he is a Software Engineer and presently posted in Pune.

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5. Mr. Prasanna R. Bhatnagar, counsel for the respondent, on the other hand, has opposed the prayer and submitted that no case for intervention is made out, as the impugned order has been passed in a just and proper manner, also dealing with judgments relied upon by the petitioner herein. Thus, it is submitted that the judgments relied upon by the petitioner are distinguishable and as such, no prejudice in the present facts and circumstances of the case would be caused to the petitioner if he is asked to submit his written statement before the Court at defence stage of the criminal proceedings.

6. Counsel has further submitted that only due to COVID-19 situation, the respondent could not be examined by the Criminal Court and as such, there was no intention on her part not to participate in the prosecution of the petitioner after having lodged complaint of cruelty against the petitioner / husband. Thus, it is submitted that the petition being devoid of merits, be dismissed.

7. Mr. Bhatnagar has also relied upon the decision rendered by the Supreme Court in the case of Guru Granth Saheb Sthan Meerghat Vanaras v. Ved Prakash and others reported as (2013) 7 SCC 622.

8. Heard the parties and perused the record of the case.

9. From the record, it is found that the undisputed facts of the case are that the respondent / wife has filed an application under Section 13 of the Act on 02.11.2018 and subsequently, on 14.11.2018 she has also lodged a complaint under Section 498-A of IPC. Apparently, on account of matrimonial discord between the parties, the petitioner / husband is facing the divorce proceedings as also criminal proceeds in the Court of Judicial Magistrate First Class, Indore; and seeking a relief that the civil proceedings which have also arisen out of the same set of facts on the basis of which criminal case is lodged, should be stayed till the conclusion of the criminal proceedings, as it would be detrimental to his defence in the criminal case. This Court in Writ Petition No.1321/2013 (I) on 11.09.2014 has had an occasion to consider both the cases cited by the rial parties viz. M.S. Sharif and Guru Granth Saheb Sthan Meerghat Vanaras; and after detail discussion has arrived at the following conclusion: –

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“On considering the above submissions, I find that undoubtedly criminal case has to take precedence over the civil proceedings and invariably the civil proceedings are stayed till disposal of the criminal case as in the matter of Guru Granth Saheb Sthan (supra) relief on by the respondent. And moreover the Supreme Court in the said case also has cautioned that the civil proceedings should not be stayed if no prejudice is caused to the defence.

In the said case, however, the defendant had already filed written statement in the civil suit and the issues had been framed whereas in the present case the petitioner has obtained the stay on 29.11.2013 and it is submitted by him that he would compelled to furnish vital evidence which is likely to influence his trial in the criminal case since the first thing that the Family Court would require the petitioner to do is to file written statement and this would also place the petitioner at a disadvantage since the respondent wife would know and prepare for her cross examination on the stand taken by the petitioner.

And it is in this sense that I find that the application for vacating the stay vide IA No.400/20114 cannot be allowed in the interest of justice (Guru Granth Saheb, Radhika Konel and Usharani (supra) relied on). Unwarranted sympathy causes loss to the other side in this regard also. The application (IA 1400/2014) is dismissed as being without merit.”

10. On minute perusal of the decision rendered by this Court in the aforesaid case leads to only one inescapable conclusion that the proceedings of the civil Court have to be stayed, as this Court has no reason to take a different view which has already been taken by this Court.

11. Thus, in view of the aforesaid facts and circumstances of the case, Miscellaneous Petition No.345/2020 stands allowed; and order dated 9th January, 2020 (Annexure P/1) passed in Hindu Marriage Case No.1834/2018 by 1st Additional Principal Judge, Family Court Indore (MP) is hereby stayed till final disposal of the criminal case.

(Subodh Abhyankar)

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