IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction Appellate Side
The Hon’ble Justice Jyotirmay Bhattacharya
C.O. No.4462 of 2007
Asok Kumar Pal
Smt. Sawan Pal
For a Petitioner : Mr. Sardar Amjad Ali, Ms. Kaberi Ghosh.
For a Opposite : Ms. Chama Mookherji, Parties. Mr. Surojit Roy Chowdhury, Ms. Chandrima Chatterjee.
Judgment On : 11 – 07 – 2008.
Two record are stability side by side. One of such record that was instituted on a censure of a wife/opposite celebration conflicting her father underneath Section 498A/406/120B of a Indian Penal Code, is now tentative for care before a schooled 1st Court of Judicial Magistrate during Sealdah. The other move is a fit for divorce that was also filed by a wife/opposite celebration conflicting her father on a belligerent of cruelty underneath Section 13(I)(ia) of a Hindu Marriage Act. Both a aforesaid record were thus, instituted during a instance of a wife/opposite party. First of such record was a rapist move that was filed by a wife, as aforesaid. The polite fit for divorce was filed subsequently. The allegations forming ‘cruelty’, on that a rapist move was initiated, are a allegations on that a Civil Suit was also founded.
There is no feud between a parties on a emanate that a matching set of contribution are a substructure of both a rapist move and a polite suit. Charge has already been framed in a rapist proceeding. Issues have also been framed in a polite suit.
Since a explain and counter-claim of a parties are matching in both a aforesaid record it is not utterly assumed that some of a issues and/or charges in those record will be identical.
Both a rapist move and a polite fit have grown for hearing. The interrogate of a wife/opposite celebration is now going on, in a rapist proceeding. In a polite fit a postulant has already submitted his justification in arch on affidavit. Cross-examination of a postulant is nonetheless to be commenced. At this theatre a petitioner/husband filed an focus underneath Section 151 of a Code of Civil Procedure in a polite fit inter alia praying for stay of serve move of a polite fit compartment a ordering of a aforesaid rapist move on a belligerent that if both a record are authorised to be proceeded with concurrently afterwards there will be annoyance of hearing not usually for a parties, yet also for a Court. It was purported by a postulant in a pronounced focus that if a polite fit is authorised to be proceeded with afterwards he will be compelled to divulge his full defence, in a polite fit and such avowal will impact his counterclaim in a rapist proceeding.
Such focus of a petitioner/husband was deserted by a schooled Trial Judge essentially on a belligerent that given a postulant has already filed created matter in a fit and a issues have already been framed, a postulant can't be affected, if a polite fit is authorised to be continued concurrently with a rapist proceeding. Thus, a schooled Trial Judge reason that yet matching set of contribution are concerned in both a rapist move as good as in a polite fit but, still then, there is frequency any luck of annoyance in a hearing of both a record simultaneously, as a counterclaim had already been disclosed by a postulant in a polite suit.
Challenging a appropriateness of a pronounced sequence a petitioner/husband has filed a benefaction focus underneath Article 227 of a Constitution of India before this Court. Mr. Sardar Amzad Ali, schooled Senior Advocate appearing for a postulant relied on several decisions of a Hon’ble Supreme Court as good as of this Hon’ble Court to uncover that when a pleadings of a parties are matching in both a rapist move as good as in a polite fit and when there is luck of annoyance of hearing given of such spirit of brawl in a pronounced proceedings, it will be judicious to stay all serve record of a polite fit compartment a ordering of a rapist proceeding. Following are a decisions that were relied on by Mr. Ali in support of his aforesaid submission:-
In a box of M.S. Sheriff Anr. -Vs- State of Madras Ors. reported in AIR 1954 SC 397.
In a box of Kusheshwar Deby -Vs- Bharat Cooking Coak Ltd. Ors. reported in AIR 1988 SCC 2118.
In a box of Dibakar Das -Vs- Registrar General, Appellate Side, High Court Anr. reported in (2006)2 CHN 48.
In a box of Captain M. Paul Anthony -Vs- Bharat Gold Mines Ltd. reported in AIR 1999 SC 1416.
In a box of Union of India -Vs- Monoranjan Mondal @ M.R. Mondal reported in (2005)1 CHN 222.
In a box of Senior Divisional Manager, National Insurance Co. Ltd.
Anr. -Vs- Satima Cold Storage Ors. reported in (1989)1 CHN 555.
Mrs. Chama Mookherji, schooled Advocate appearing for a conflicting celebration refuted such acquiescence of Mr. Ali by submitting that there is no tough and quick sequence that prescribes that in all cases where polite fit and rapist move are founded on a common footing, serve move of a polite fit should be stayed compartment a ordering of a rapist case. Mrs. Mookherji submitted that given a range of enquiry and a customary of reason in a rapist move as good as in a polite fit are conflicting from any other, polite fit can't be stayed merely given of pendency of a rapist proceeding. Mrs. Mookherji serve contended that in any rapist case, corruption complained of, is an corruption committed by a indicted conflicting a State and as such, a de-facto complainant can't get any use in such rapist case, even if, a indicted is eventually found to be guilty and is punished. But, in polite fit a plaintiff can certainly get a use if she succeeds in removing a direct in her favour. She serve contended that both a polite fit and a rapist move of such nature, direct rapid and swift disposal. As such, serve move of a polite fit can't be stayed. In support of such submission, Mrs. Mookherji relied on several decisions that are as follows :-
In a box of Kamala Devi Agarwal -Vs- State of West Bengal Ors. reported in AIR 2001 SC 3846.
In a box of Dipot Manager, A.P. State Road Transport Corporation – Vs- Hohd. Yousuf Miya Ors. reported in (1997)2 SCC 699.
In a box of State of Bihar -Vs- Murad Ali Khan Ors. reported in (1988)4 SCC 655.
In a box of Pratibha -Vs- Rameshwari Devi Ors. reported in 2007(6) SC 554.
In a box of State of Rajasthan -Vs- Kalyan Sundaram Cement Industries Ors. reported in (1996)2 Supreme 333.
Heard a schooled Counsel of a parties. Considered a materials on record including a sequence impugned.
On hearing of a decisions that were cited by Mr. Ali this Court finds that there is unity in all a pronounced decisions to a outcome that there is no tough and quick sequence ruling a field. It is usually when there is any odds of embarrassment, serve move of a polite fit can be stayed compartment a ordering of a rapist proceeding. Whether coexisting hearing of a rapist move and a polite fit will means any annoyance or not depends on a contribution and resources of any case. As such, a Court has to request a mind for ascertaining as to possibly coexisting hearing of a rapist move and a polite fit will means any embarrassment, in a benefaction set of facts.
The decisions that were cited by Mrs. Mookherji yet a preference in a box of State of Rajasthan -Vs- Kalyan Sundaram Cement Industries (supra), are mostly irrelevant for a benefaction purpose as those are a box where possibly a rapist move was quashed by conflicting High Courts given of pendency of a polite fit or a departmental enquiry in use matter was stayed given of a pendency of a rapist proceeding. In those set of contribution a Hon’ble Supreme Court interfered with a decisions of conflicting High Courts that were underneath plea before a Hon’ble Supreme Court. In a box of State of Rajasthan -Vs- Kalyan Sundaram Cement Industries Ltd. Ors. (supra), a Hon’ble Supreme Court, however, reason that stay of a polite fit can't be postulated when a counterclaim has already been filed by a suspect in a polite suit. In fact, a element that were laid down in a pronounced decision, supports a sequence impugned as a schooled Trial Judge deserted a petitioner’s request for stay on matching findings.
Keeping in mind a beliefs that were laid down in a aforesaid decisions cited by a parties, let me now cruise as to possibly a serve move of a fit should sojourn stayed compartment a ordering of a rapist move or not. It is good famous that a customary of reason in polite fit as good as in a rapist proceeding, is conflicting from any other. Civil fit is attempted on a basement of majority of probability. Criminal record are attempted on a basement of reason over reasonable doubt. When a customary of reason and a range of enquiry are conflicting from any other, no Court will feel any annoyance if both a rapist move and a polite fit are proceeded with simultaneously. That apart, a preference of a Criminal Court is not contracting on Civil Court. As such, polite fit should not usually be stayed for deliberation a predestine of a rapist move in a polite suit. But, still then, it is beheld by this Court that on some occasions, move of a Civil Suit was stayed during a pendency of a rapist proceeding, to equivocate embarrassment, on a partial of a Court for hearing of both a record simultaneously. One of such instances is a box of M.S. Sheriff Anr. -Vs- State of Madras Ors. (supra), wherein a Hon’ble Supreme Court stayed a serve move of a polite suits compartment a ordering of a rapist proceeding. In a pronounced preference we find that a rapist move was instituted for prejudicial capture and in a polite suit, indemnification were claimed on comment of such prejudicial confinement. Thus, prejudicial capture was a common emanate in both a rapist box as good as in a polite suit, and in fact, repairs is a material use on comment of prejudicial confinement. Under such circumstances, a Hon’ble Supreme Court stayed a serve move of a polite fit during a pendency of a rapist move for avoiding embarrassment.
Let me now cruise as to how distant a pronounced element is germane in a contribution of a benefaction case. No doubt cruelty is a belligerent for divorce. It is equally loyal that a cruelty is a substructure of a censure before a rapist Court. Undisputedly a acts forming cruelty, that were complained of in a rapist move are a acts of cruelty on that a direct for divorce was sought for. Thus, apparently contribution are matching in both a aforesaid cases yet small likeness of a contribution in both a cases are not sufficient to stay a serve move of a polite fit in all cases. Scope and ambit of hearing of both a record are to be deliberate before flitting an sequence of stay of serve move of a polite suit.
Section 498A of a Indian Penal Code deals with cruelty by father or kin of husband. The pronounced sustenance provides that whoever, being a father or a kin of a father of a lady subjects such lady to cruelty, shall be punished with seizure for a tenure that might border to 3 years and shall also be probable to fine. What amounts to cruelty for a purpose of a pronounced sustenance has also been simplified in a reason combined to a pronounced Section that provides that :-
a) Any wrong control that is of such a inlet as is approaching to expostulate a lady to dedicate self-murder or to means grave damage or risk to life, prong or health “whether mental or physical” of a lady or;
b) Harassment of a lady where such nuisance is with a perspective of coercing her or any chairman associated to her accommodate any wrong direct for any skill or profitable confidence or is on comment of disaster by her or any chairman associated to her to accommodate such demand. Thus, cruelty has a singular clarification as tangible in a pronounced provision.
But underneath a Hindu Marriage Act cruelty has not been defined. As such, any act or control that yet might not volume to cruelty within a clarification of a clarification of cruelty as given in Section 498A of a Indian Penal Code, might consecrate cruelty as envisaged underneath Section 13(1)(ia) of a Hindu Marriage Act.
Since a cruelty has not been tangible in a Hindu Marriage Act, it is formidable to conclude precisely as to what accurately cruelty means underneath Section 13(1)(ia) of a Hindu Marriage Act. Cruelty underneath Section 13(1)(ia) of a Hindu Marriage Act might extend to poise that might means pain and damage to a mind as good as to describe a continuation in matrimonial home an trouble where it becomes unfit for them to live together with mental agony, woe or distress. The doubt as to possibly an act complained of was vicious or not is to be dynamic from whole of a contribution and matrimonial family between a spouses courtesy being given to their culture, temperament, standing in life and state of health of a parties communication between them in their daily life. Cruelty for a purpose of matrimonial attribute means where one associate has so treated a other and manifested such feelings towards her or him as to have inflicted corporeal damage or to have caused reasonable confinement of corporeal sufferings or of being injured. Cruelty might be physical, mental or legal. In matrimonial laws it might be of gigantic variety. It might be by words, gestures or by small silence, assault or non-violence. To consecrate cruelty, a control complained of, should be so grave and pithy as to come to a end that a postulant associate can't be pretty approaching to live with a other spouse. It contingency be some-more critical than typical wear and rip of a married life. The accumulative conduct, holding into care a resources and credentials of a parties has to be examined to strech a end possibly a control complained of amounts to cruelty in matrimonial laws or not. Thus, cruelty postulates a diagnosis of a postulant with such cruelty as to reasonable confinement in a petitioner’s mind that it will be damaging or damaging for a postulant to live with a other spouse. Cruelty might be earthy or mental. Mental cruelty might include of written abuse and insult by regulating dirty and violent denunciation heading to consistent reeling of mental assent of a other party.
Thus, it appears that a ‘cruelty’ underneath a Hindu Marriage Act has a conflicting clarification altogether, than that of a judgment of ‘cruelty’ as envisaged in a Indian Penal Code. It indispensably follows that even a act complained of, in a rapist move might not consecrate cruelty within a clarification of Section 498A of a Indian Penal Code, but, still such act might consecrate a belligerent of divorce on a belligerent of cruelty where such acts are so grave and pithy as to come to a end that a postulant associate can't be pretty approaching to live with a other.
Since a judgment of cruelty underneath a Indian Penal Code is not accurately matching with a judgment of cruelty as envisaged underneath Section 13(1)(ia) of a Hindu Marriage Act, this Court can't reason that there will be any annoyance on a partial of a Civil Court in stability with a hearing of a fit during a pendency of a rapist proceeding.
That apart, a postulant has already disclosed his counterclaim in a polite suit. Since a counterclaim has already been disclosed by a postulant in a polite suit, it can't be pretty approaching that a conflicting mount will be taken by him in a rapist move conflicting matching acquisition. Thus, when a counterclaim has already been filed by a postulant in a polite fit and a range of enquiry in a polite fit has already been dynamic by framing of emanate therein, this Court relying on a preference of a Hon’ble Supreme Court in a box of State of Rajasthan -Vs- Kalyan Sundaram Cement Industries Ltd. Ors. (supra) as good as on a preference of a Hon’ble Court in a box of Senior Divisional Manager, National Insurance Co. Ltd. Anr. -Vs- Satima Cold Storage Ors. (supra), binds that serve move of a polite fit can't be stayed on comment of pendency of a Criminal proceeding.
In both a rapist move as good as in a Civil Suit, a hearing of a mother has commenced. Evidence-in-chief of a mother has already been resolved in both a rapist move as good as in a Civil Suit. Cross- hearing of a mother has commenced in a rapist move and a date has been bound in a Civil Suit for interrogate of a wife. This Court binds that if a Civil Suit is stayed during such modernized theatre of trial, afterwards a conflicting celebration will humour detriment and injury.
In my view, underneath such circumstances, a Civil Court will not find any embarrassment, if both a rapist record and a polite fit are attempted concurrently as a range of enquiry and a customary of reason in both a record are not identical. That apart, both a rapist move as good as a fit for divorce direct rapid disposal. Stay of any one of such fit and/or move will certainly have a wrong impact not usually on a multitude yet also on a parties in their matrimonial life.
Under such circumstances, this Court does not find any justification to meddle with a sequence impugned.
Urgent xerox approved duplicate of this order, if practical for, be given to a parties, as rapidly as possible.
( Jyotirmay Bhattacharya, J. )