Bombay High Court Dnyandeo Dhakane vs State Of Maharashtra And Anr. on 12 July, 2006Equivalent citations: 2006 CriLJ 4581, I (2007) DMC 306 Author: A V Mohta Bench: A V Mohta
Anoop V. Mohta, J.
1. The petitioner-husband has challenged the concurrent findings given by both the Courts below in granting maintenance to the respondent-wife, solely on the ground that the criminal case filed against the petitioner-husband under Section 498A was resulted into an acquittal. The acquittal order means the allegations made by the respondent-wife about harassment and ill-treatment goes. In such circumstances, there was noreason that both the Courts should reopen and reconsider the same issue and grant maintenance by overlooking the fact of failure on the part of the respondent-wife to prove the allegations of harassment.
2. The learned Counsel for the petitioner has strongly relied on a decision in Shankar Anant Bandal v. Smt. Suman Shankar Bandal , wherein, this Court has observed that, “both the Courts erred in placing reliance on the happenings said to have taken place on 10-4-1978, more particularly in view of the clean acquittal which the opponent-petitioner had secured. Since this was the basis on which the maintenance was granted, the order and proceedings needs to be quashed” and thereby allowed the said application of the husband and rejected the application filed by the wife under Section 125 of Cr.P.C.
3. The learned Counsel for the petitioner has further relied on para 4 of the Apex Court’s decision in Masud Khan v. State of Uttar Pradesh in reference to the principle of estoppel, which is reproduced as under:
4. But that apart, this matter could be decided on another point. The question of issue-estoppel has been considered by this Court in Pritam Singh v. State of Punjab , Manipur Administration v. Thokchorn Bira Singh and Piara Singh v. State of Punjab . Issue-estoppel arises only if the earlier as well as the subsequent proceedings were criminal prosecutions. In the present case while the earlier one was a criminal prosecution the present is merely an action taken under the Foreigners (internment) Order for the purpose of deporting the petitioner out of India. It is no a criminal prosecution. The principle of issue-estoppel is simply this; that where an issue of fact has been tried by a competent Court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might, be permitted by law. Pritam Singh’s case (supra) was based on the deci sion of the Privy Council is Sambasivam v. Public Prosecutor, Federation of Malaya : 1950 AC 458. In that case Lord Macderrnott speaking for the Board said: The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication.
It should be kept clearly in mind that the proceeding referred to herein is a criminal prosecution. The plea of issue-estoppel is not the same as the plea of doubt jeopardy or autrefois acquit. In the King Wilkes Dixon, J. referring to the question of issue-estoppel said: it appears to me that there is nothing wrong in the view that there is an issue-estoppel. If it appears by record of itself or as explained by proper evidence, that the same point was determined in favour of prisoner in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoner There must be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner. The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding. But if such a condition of affairs arises I see no reason why the ordinary rules of issue-estoppel should not apply Issue estoppel is concerned with the judicial establishment of a proposition of law or fact between parties. It depends upon well known doctrines which control the relitigation of issues which are settled by prior litigation.
The emphasis here again would be seen to be on the determination of criminal liability. In Marz. v. The Queen 96 CLR 62 the High Court of Australia said:
The Crown is as much precluded by an estoppel by judgment in criminal proceedings as is a subject in civil proceedings…. The law which gives effect to issue-estoppel is not concerned with the correctness or incorrectness of the finding winch amounts to an estoppel, still less with the process of reasoning by which the finding was reached in fact It is enough that an issue or issues have been distinctly raised or found. Once that it done, then, so long as the finding stands, if there be any subsequent litigation between the same parties, no allegations legally inconsistent with the finding, may be made by one of them against the order.
Here again it is to be remembered that the principle applies to two criminal proceedings and the proceedings with which we are now concerned is not a criminal proceedings. We therefore, hold that there is no substance in this contention.
The facts are totally distinct and distinguishable.
4-A. The Apex Court in Ravinder Singh v. State of Haryana while considering the issue of estoppel based on Section 300 of Cr.P.C. in para 19 observed as under:
19. In order to invoke the rule of issue-estoppel not only the parties in the two trials must be the same but also the fact-in-issue proved or not in the earlier trial must be identical with what is sought to be reagitated in the subsequent trial.
5. The Apex Court in Subrarnanium Sethuraman v. State of Maharashtra (2004) 13 SCC 324 : AIR 2004 SC 4711 has further observed that for the issue of estoppel the conduct of the party also needs to be taken into account and further observed that “Be that as it may, we cannot prevent the accused persons from taking recourse to a remedy which is available in law”. Thereby further held that the party cannot be denied the statutory right available to him in law.
6. The issue of estoppel is a criminal matter has a different foundation to be looked into. The burden lies specifically on the person, who holds and who wants to take shelter of the principle of estoppel. The requirement is that both the proceedings should necessarily be criminal proceedings. In the present case, the scheme of Sections 125 to 127 of Cr.P.C. in reference to a grant of maintenance, needs to be considered. These proceedings are quasi-civil in nature. It provides complete code for deciding rights of the claimant. Apart from that, the principle of granting a maintenance under Section 125 has various other factors and facets. The cause of action claiming a maintenance is different. The allegations of the cruelty or the harassment is one factor, to consider the reason for desertion or refusal or neglect by the husband.
7. The Court may consider this facet while deciding the defence of the spouse/husband a reason for non-entitlement of the maintenance. But that itself cannot be the reason to reject the wife’s claim for the maintenance, only because in of her proceeding, the husband has been acquitted of charges under Section 498A or 406 of IPC. There is no legal bar under Sections 125 to 127, to claim maintenance once a party has been acquitted under Section 498A or 406 of IPC. “The proceedings under Sections 125 to 127 have different purpose to achieve. The issues, as raised and/or essential to decide the maintenance matter are different and are not the same. Assuming for a moment that the issue of cruelty and harassment, as declared in favour of the husband was resulted into the order of acquittal under Sections 498A and 406, that itself is no reason to dismiss the maintenance application, as it was also based on other and additional facts and circumstances. The foundation of the maintenance application is totally different and also the issues, even though the parties may be the same. The statutory remedy available under the act for claiming maintenance cannot be denied to such claimant on such a plea of estoppel.
8. The incident, which the learned Counsel appearing for the petitioner is relying, might have resulted into the order of acquittal, that, itself cannot be a ground to refuse maintenance. The whole concept of granting maintenance under the scheme as provided under Section 125 which includes basically that; the opponent/husband wilfully refused or neglected the claimant/wife the claimant/wife is unable to maintain himself or herself the other party/husband has sufficient means to pay the maintenance. Apart from this, the Court further needs to consider the capacity and ability of the other party or husband to maintain her or him, a legally wedded husband or wife. The obligation of the husband, considering the husband and wife relationship, cannot be overlooked only because the wife failed to prove her case based on one incident of the harassment. The overall assessment of the fact, surrounding circumstances and totality of I the matter is the foundation for such claim of the maintenance.
9. In the present case, both the Courts after considering the evidence led by the parties, come to the conclusion that the husband wilfully refused and neglected the wife respondent. She further proved her inability to maintain herself. The petitioner lias sufficient means to pay maintenance. Therefore, based on the material available and the husband’s income, the Courts have ordered the maintenance @ Rs. 300/- p.a. to the wife.
10. Admittedly, the respondent is a legally wedded wife. There is no divorce. The application for restitution of conjugal rights, which was filed could not be further prosecuted by the petitioner husband. Therefore, his own case of the conjugal rights, as contemplated under the Hindu Marriage Act, itself remained to be decided.
11. The additional averments made in the complaint in paras 1, 2 and 3 along with her own affidavit or testimony cannot be overlooked. There are other incidents and reasons of harassment and demand averred by the wife, apart from the incident referred above.
12. The facts of Sections 498A and 317 read with Section 34 of IPC are also means physical as well as mental torture. There is nothing on record to support that the petitioner husband took steps to call her back and/or expressed any willingness to cohabit with her. The fact of filing criminal complaint by the wife, itself might be the reason for not persuading her to come to the matrimonial house. The dismissal of the application for restitution of conjugal rights itself, further shows that allegations made therein remained to be proved by the husband.
13. The case of husband that the respondent-wife herself voluntarily left the matrimonial house by making the false allegations and filed the complaint against him, under Sections 498A and 307 of IPC which was dismissed, that itself, no way supports his case for want of supportive materials.
14. The reliance has been placed also on a decision in Shankar Kishan Gohane v. Kalpana Shankar Gohane 1998 (2) Mah LJ 553, wherein this Court has held that recording of evidence is a mandatory in a proceeding under Section 125 of Cr.P.C. The said ruling is also not supporting the case of the petitioner husband. Both the parties have led the evidence. The burden of proving the allegations or counter-allegations therefore, looses its strength. Both the Courts after assessing the evidence between the parties, come to a concurrent findings, which if the facts and circumstances of the case cannot be said to be perverse.
15. In so far as the quantum of maintenance is concerned, both the Courts after considering and assessing the material, have granted maintenance amount of Rs. 300/-p.m. in favour of the respondent-wife. That order being passed on the assessment of the facts. Therefore, no interference with the quantum of maintenance amount as awarded.
16. Taking all into account, the petition therefore, is dismissed. Rule discharged. Interim relief also stands vacated. No order as to costs.