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Same relief (maintenance)cannot be asked twice in two different courts

Bombay High Court

Bench: B Wahane

Ravindra Haribhau Karmarkar
Mrs. Shaila Ravindra Karmarkar And Another

on 17/7/1991


1. In the instant application, the substantial question of law, in the
public interest, has been raised and requires decision from this
Court. The substantial question of law raised is as under :

“Whether a Judicial Magistrate First Class trying an application under
Section 125 of Cr.P.C., is obliged under law, to stay the proceedings,
on the ground that a Civil Court of competent jurisdiction has seized
the matter in a suit, in which identical pleadings are made, and same
reliefs are claimed by one and the same applicant/plaintiff, in whose
favour the Magistrate has already awarded interim maintenance ?”

2. The facts giving rise to the above question of law, in nutshell,
are as under :

The applicant and the non-applicant are the legally married spouses.
Their marriage was solmnised as per the customs and rites of Hindu
Religion, some times in the year 1969 at Buldana. Out of the wed-lock,
they have two issues viz. first issue is a son – Sagar who is living
with the applicant while the second issue a daughter Miss Anjali is
living with the non-applicant No. 1 Mrs. Shaila Karmarkar. The couple
had been to Canada and U.S.A. where they stayed for 12 to 13 years
along with their children. Both returned some time in the year 1984 to
India and stayed at Buldana till 1986. During this period, their
relations became strained and ultimately on 19/5/86, the non-applicant
filed an application u/S. 125 of Cr.P.C. against the applicant for
maintenance for her and the daughter. Along with the application for
maintenance, the wife had also filed an application for interim
maintenance @ Rs. 500/- p.m. for both the non-applicants, on the very
day. The learned trial Court, after hearing the parties and
considering the facts, awarded Rs. 250.0 p.m. to the wife and Rs.
150/- p.m. to the daughter, as interim relief. Since the day of the
order, the applicant has paid Rs. 24,000/- to the non-applicants as
maintenance allowance and that too in advance. Mr. Vidwanash, the
learned counsel for the applicant submitted that the applicant has
made the payment in advance till October 1991.

3. On 15th or 16th of October 1986, the non-applicant No. 1 wife filed
a regular Civil Suit No. 227/86 for permanent alimony and also for
arrears of maintenance. Along with the plaint, an application for the
attachment of the property before judgment was also filed. On
28-4-1989, the Joint Civil Judge, Jr. Dn., Buldana passed the
following order on the said application :

“Perused the application and say at Exh. 64. The prayer of the
applicant is that Order of attachment before Judgment be passed or
direct the defendants to furnish solvent surety of Rs. one lakh. By
way of Exh. 64, the defendants showed their willingness to furnish
surety of one lakh. Hence, the defendants are directed to furnish
solvent surety of Rs. one lakh”.

In compliance with the above order, on behalf of the defendants, Shri
W. Y. Godbole, resident of Nagpur has furnished the solvent surety
before the Joint Civil Judge, Jr. Dn., Buldana. On 20/3/1991, the
applicant has filed his written statement in the said Civil Suit,
denying the claim of the non-applicants. The case is now posted for
filing the documents.

4. The applicant filed an application to stay the proceedings of Misc.
Criminal Case No. 114/86 before the Judicial Magistrate, First Class,
Buldana, till the decision of the Regular Civil Suit No. 227/86. The
application was opposed. After hearing the parties, the learned
J.M.F.C., Buldana, rejected the application filed by the applicant for
stay of the Misc. Criminal Case No. 114/86 vide his order dated

5. Being aggrieved by the order passed by the learned J.M.F.C. Buldana
in Misc. Criminal Case No. 114/86 dated 24-1-1991, the applicant
approached this Court.

6. Mr. Vidwans, the learned counsel for the applicant submitted that
though the non-applicant wife instituted two proceedings, one in the
Criminal Court and another in the Civil Court, but the reliefs are one
and the same. The relief sought in the application u/s. 125 of Cr.P.C.
is to the following effect “to direct the opponent to pay the
subsistence allowance of Rs. 500/- p.m. each to both the applicants
Nos. 1 and 2″.

In the Reg. C.S. No. 227/86, the relief claimed as per prayer clause
(i) is that “It is, therefore, prayed that this Hon’ble Court be
pleased to decree the claim of the plaintiffs by passing necessary
orders of maintenance against the defendant, directing him to pay
arrears of Rs. 7000/- to the plaintiffs and further be ordered him to
provide maintenance allowance @ Rs. 500/0 p.m. each to plaintiffs i.e.
total Rs. 1000/- p.m. from the date of filing of this suit and onwards

The prayers made in the application u/s. 125 of Cr.P.C. and in the
Reg. C.S. No. 227/86 are one and the same.

7. Mr. Vidwans, the learned counsel for the applicant submitted that
practically pleadings are identical and verbatim in both the cases. He
took me through the pleadings of both cases and demonstrated that
practically the paras are identical as much as they are in verbatim.
Following paras of the application u/S. 125 of Cr.P.C. are identical
to the paras of the plaintiff in Reg. Civil Suit.

Therefore, according to Mr. Vidwans, in both the litigations, the fate
would be based on the same evidence.

8. The findings given by the Civil Court are binding on the Criminal
Court. Therefore, as the matter is seized with the Civil Court i.e. in
respect of the maintenance allowance and that too the similar amount
which she alleged to be entitled in the application u/s. 125 of
Cr.P.C., instead multiplying the litigations and to harass the
applicant to lead the evidence in different two courts, in the
interest of justice, the application pending in the court of J.M.F.C.,
Buldana be stayed till the decision in the Reg. C.S. No. 227/86. It is
further submitted that any verdict given by the Criminal Court is not
binding on the Civil Court but it is vice versa. The reliefs being the
one and the same, the evidence will be common, so also the documents,
it is the interest of both the parties to get the verdict from the
Civil Court.

9. Mr. Vidwans, the learned counsel for the applicant relied upon the
case of M/s. Bush India Ltd. v. Lekharaj Pohoomal Kewalramani reported
in 1984 Criminal Law Journal 346 (Bombay). Their Lordships observed in
para 7 as follows (at page 348) :

“I fail to understand what is the qualitative difference between the
two stands. The parties are merely formulating the same propositions
in the two proceedings in different words. The distinction made by the
learned Judge is without any difference, as observed by the learned
Magistrate and as is also apparent from the record, the dispute in the
criminal complaint also revolves on the pivot whether or not
respondents are the sole agents of the petitioners for sale and export
of the petitioner’s goods to the countries concerned. The learned
Addl. Sessions Judge’s interpretation is clearly wrong so far as this
aspect is concerned”.

In para 8, Their Lordships observed that :

“The other two reasons given by the learned Magistrate and indicated
in para 6 supra, are also sound and the learned Addl. Judge has not
bothered himself to consider them. The learned Magistrate’s order
staying the prosecution was eminently just and the learned Addl.
Sessions Judge should not have interfered with it in revision”.

The reliance also been placed on the case of William J. W. Ross v.
Eleanor Agnes Ross reported in AIR 1932 Sind 210 (DB) : (1933 (34) Cri
LJ 548). In that case before their Lordships, the wife instituted the
proceedings u/Ss. 488 and 489 of Cr.P.C. and the husband had already
instituted the proceedings for divorce in the Divorce Corut. Their
Lordships observed that –

“I am of opinion that the learned Magistrate would have exercised a
better discretion on receiving an application u/s. 488 against a
husband who had already instituted proceedings in the divorce Court,
if he had referred the applicant for her remedy to the Civil Court. I
do not think that it was the intention of the legislature in S. 489 to
encourage applicants to resort to criminal Courts up to the very time
when an order was passed by a competent Civil Court. As the Civil
Court was seized of the matter, it seems to me clear, it is better
that the Civil Court should dispose of it, and in the circumstances
which have arisen in the present case, I am of opinion that a High
Court would stay proceedings in a criminal Court until the conclusion
of the divorce petition. We accordingly direct the learned Magistrate
to stay the hearing of the application u/s. 488, Cr.P.C., by
adjournment from time to time until the conclusion of the divorce

10. On behalf of the non-applicants, Mr. Khapre, the learned counsel,
opposed the application and submitted that the remedies in the
criminal Court and Civil Court are altogether different. According to
him, the proceedings instituted in the Criminal Court u/s. 125 of
Cr.P.C. are the summary proceedings for the immediate relief to the
wife and other dependents. In the proceedings u/s 125 Cr.P.C. the
Court has jurisdiction to grant maintenance allowance to extent of Rs.
500/0 to each claimant. If this amount is inadequate according to
clainming spouse or other claimants, the only remedy available is
Civil Suit or petition u/s. 25 of the Hindu Marriage Act, 1955.

11. In a case u/S. 125 of Cr.P.C. the non-applicant Smt. Shaila
Karmarkar, entered in the witness box and now the case is posed for
her cross-examination. He further submitted that the principles of res
judicata are not applicable in the instant case because though the
reliefs claimed in both the proceedings are one and the same, the
effect is not one. He further submitted that this Court has no power
under any statute to stay the proceedings. To substantiate his
submissions, he placed reliance on the case of Mohanlal v. Sau.
Kamlabai reported in 1985 II DMC 322 (Bom) (Nagpur Bench, S.B.). In
the case before his Lordship, the wife instituted the proceedings u/s.
125 of Cr.P.C. and also husband filed an application for Judicial
Separation and alimony in the Civil Court against the applicant under
the provisions of the Hindu Marriage Act. An ex parte order was passed
against the husband and she was awarded maintenance of Rs. 300/- p.m.
The Civil Court granted Rs. 100/- p.m. as permanent alimony to the
wife. In that case, the issue was raised to the effect that the
principle of res judicate is applicable. His Lordship held that the
Section 11 of the C.P.C. as such, is not, in terms, applicable to the
proceedings u/s. 125 of Cr.P.C.

12. In the instant case before me, the question of res judicata is not
involved. Shri Vidwans, the learned counsel for the applicant also has
not raised this issue. Therefore, the observations made in the case
supra are not of any assistance to the non-applicants.

13. Reliance also been palaced on the case of In re Taralakshmi
Manuprasad reported in AIR 1958 Bom 499 (DB) : (1939 (40) Cri LJ 91).
In that case their Lordships observed that :

“The mere existence of a decree of a Civil Court directing a certain
sum to be paid for maintenance does not oust the jurisdiction of a
Magistrate in a proper case to make an order u/s. 488. Of course the
existence of such a decree is relevant when the Magistrate is
considering what form of order he should make u/s. 488 and the
Magistrate should make it clear in his order that anything paid under
the decree of the Civil Court will be taken into account against
anything which he may order to be paid”.

In the instant case before me, there is no decree passed by the Civil
Court. For the same relief, the non-applicant wife knocked the doors
of the Civil Court as well as of Criminal Court. So, the facts of the
case which was before their Lordships of the Bombay High Court are
altogether different having no relation with the facts and
circumstances before me and, therefore, it is also not of any

14. Reliance has also been placed on the case of A. Joseph Fernando v.
Maria Navis reported in (1987) II DMC 342 (Madras, S.B.). It is held
that :

“The maintenance proceeding u/s. 125, Cr.P.C. was initiated earlier
though the order in the civil suit was passed earlier. In such
circumstances it is manifest that a petition u/s. 125 of Cr.P.C. is
perfectly maintainable notwithstanding a Civil Court’s order for
maintenance. The criminal proceedings can not be quashed”.

In the instant application, the applicant has not prayed for quashing
the criminal proceedings i.e. application presented u/s. 125 of
Cr.P.C. The only limited prayer is that the matter being seized with
the Civil Court, till the disposal of the Reg. C.S. No. 227/86, the
proceedings instituted u/s. 125 of Cr.P.C. be stayed. Therefore, the
facts of the case decided by the learned Court in the case supra and
the facts before me, being altogether different, this case is also not
of any assistance to the non-applicants.

15. In a case of Challapalli Sugars Ltd. v. Swadeshi Sugar Supply Pvt.
Ltd. (DB), in respect of the same subject matter, there were two suits
instituted though the relief was based on different cause of action.
The subject-matter in controversy in both the suits being the same,
arises out of the same contract and from the same transaction, the
later suit was stayed till the decision of the earlier suit.

16. Considering the facts and circumstances and the submissions made
by the learned counsel for the parties, the relief in both the cases,
being one and the same, and the Civil Court being seized with the
matter, in the interest of justice, the proceeding pending in the
court of J.M.F.C. Buldana, be stayed till the decision of the Reg.
C.S. No. 277/86.

17. The non-applicants could not be allowed to ride two horses at a
time (two simultaneous proceedings in two different Coruts) and could
not be permitted to continue the maintenance proceedings u/s. 125 of
Cr.P.C. when they had already chosen the alternative remedy in Reg.
C.S. No. 227/86. It is well settled law that the judgment of Civil
Court shall prevail over the judgment of Criminal Court. The natural
justice demands that parallel proceedings cannot be allowed to
continue in different Courts.

18. The Civil Judge, Sr. Dn. Buldana, is directed to expedite the
matter. Staying the proceedings pending in the Court of J.M.F.C.,
Buldana, will not cause any pre-judice to the non-applicants because
they are already receiving the maintenance allowance @ Rs. 250/- p.m.
for wife and Rs. 150/- p.m. for the daughter.

19. In these terms the application is allowed. Rule made absolute.

20. Ordered accordingly.

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