Amit Singh vs State Of U.P. And Anr.
2022 Latest Caselaw 5608 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved on: 3.3.2022
 
Delivered on: 30.6.2022
 
Court No. - 11
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 17365 of 2021
 
Petitioner :- Amit Singh
 
Respondent :- State Of U.P. And Anr.
 
Counsel for Petitioner :- Sushil Kumar Singh
 
Counsel for Respondent :- G.A.,Anurag Singh,Kunwar Ravi Prakash
 

 
Hon'ble Suresh Kumar Gupta,J.

1. By means of the present petition, the petitioner is praying for quashing and stay of divorce suit proceeding, U/s-13 of H.M. Act, Regular Suit No. 337 of 2017, pending before Principal Judge-4, Family Court, Lucknow (Smt. Yogita Singh versus Amit Singh).

2. Brief fact of the case is that marriage of petitioner was solemnized with Opposite Party No. 2 on 24-05-2014 as per Hindu rites and rituals. The petitioner was in London, England in respect of the service with regards to the job and also took her (Opposite Party No. 2) with him to London Cityland. On 5.7.2015, the Opposite Party No. 2 instituted frivolous complaint of domestic violence against the petitioner in London in order to create false grounds of divorce. When the petitioner was in police custody, opposite party no.2 immediately ran away with valuable items, cash and jewellery of the petitioner from London to her parental home at Kanpur. On coming back to India, Opposite Party No. 2 lodged the F.I.R. on 22-07-2015 as Crime No. 28 of 2015, U/s- 498-A, 323, 406, 504, 506 I.P.C. and 3/4 D.P. Act against the petitioner and other family members. All the accused persons in the said Crime No. 28 of 2015 were granted bail and the petitioner was granted interim bail on 07-11-2015, then, the Opposite Party No. 2 filed a false Criminal Complaint No. 4216 of 2015, U/s- 323, 504, 506 I.P.C. creating a false ground of assault to her at the Court premises at Kanpur, which was challenged by the petitioner and other family members before this Court at Allahabad and this Court at Allahabad quashed the proceedings against all family members of the petitioner. But the proceeding against the petitioner is continuing before the court of magistrate at the stage of Section 244 CrPC. Thereafter the Opposite Party No. 2 filed a case/complaint U/s-12 of Domestic Violence Act on 01-03-16 at Kanpur, copy of which is yet to be provided to the petitioner. Thereafter the Opposite Party No. 2 also filed a Criminal Complaint U/s-138 of N.I. Act on 26-04-2016 for dishonour of cheque which was obtained by the father of the Opposite Party No.2 from the father of the petitioner in his absence by exercising undue influence and coercion. The proceeding has been stayed by this Court vide order dated 04-09-2018.

3. The present case/suit filed by Opposite Party no.2 before the Family Court at Lucknow U/s 13 of H.M. Act on 17-03-2017, the petitioner filed preliminary objection under Order 7 Rule 11 of C.P.C. challenging Lucknow as the jurisdiction of the present divorce suit filed by the Opposite Party No. 2 herself in which she claimed to be a resident of Kanpur and all those cases are running in Kanpur, which was rejected by this Court vide order dated 13-12-2018. In the present case of divorce proceeding, the petitioner filed an application for stay the proceeding and awaiting the result of Complaint Case No. 4216 of 2015 filed by the Opposite Party No. 2 and the said case is at the stage of recording evidence U/s- 244 Cr. P. C., but she did not appear there, and is avoiding the process of Court. Thereafter, the petitioner moved an application before the Family Court Lucknow stating therein that till all the prosecution evidences of Opposite Party No. 2 in her Complaint Case No. 4216 of 2015, U/s-323, 504, 506 I.P.C. is not completed, the petitioner may not be forced to file his Written Statement in the present divorce suit matter, otherwise his defence would be disclosed and the petitioner's right to silence guaranteed by the Constitution of India in Article 20 (3) and a fair trial guaranteed under Article-21 will both stand violated causing his gross miscarriage of justice. But the family court, Lucknow rejected the prayer of the petitioner vide order dated 01-02-2021.

4. The petitioner relies upon the judgment dated 11-09-2014, passed in Writ Petition No. 13211 of 2013 and the judgment dated 08-02-2021 in the matter of Anant versus Sheetal in Misc. Petition No. 345/2020, passed by High Court of Madhya Pradesh, Jabalpur Bench at Indore and also relies on the judgment of the Supreme Court in the case of M.S. Sheriff vs. State of Madras (1954) A.I.R. page no. 397 dated 18.3.1954. Thus, the petitioner submits that the impugned order dated 01-02-2021 is bad in law and deserves to be stayed and further divorce proceedings u/s 13 of the Hindu Marriage Act pending before the Family Court, Lucknow may also be stayed.

5. The counsel for opposite party no.2, on the basis of counter affidavit filed by him, submits that this Court by means of orders dated 04.08.2017 and 14.11.2019, passed in writ petition numbers 17655 (M/S) of 2017 and 31176 (M/S) of 2019 respectively has been pleased to direct for expeditious disposal of the applications filed by the applicant for expeditious disposal of the divorce suit No. 337 of 2017. It is further submitted that the petitioner has tried to obtain order for staying the proceedings for Regular Suit till termination of the criminal proceedings, though, there are two orders of this Court, wherein after considering the request of the answering respondent, directions have been issued for deciding the application filed by the answering respondent for expeditious disposal of the divorce suit.

6. The counsel for the opposite party no.2 further submits that the present writ petition has been filed on 13.08.2021 challenging the order dated 01.02.2021 passed by the Additional Principal Judge-4, Family Court, Lucknow, whereby the application of the petitioner seeking opportunity to file written statement after completion of criminal proceedings was rejected. On 24.02.2020, the last opportunity for filing written statement was granted to the petitioner but he has not chosen to file written statement till date. By means of the order dated 12.04.2021, the Family Court, Lucknow closed the opportunity for filing of written statement by the petitioner and the direction was issued for proceeding under Order VIII Rule 10 Code of Civil Procedure.

7. The counsel for opposite party no.2 submits that after passing of the order dated 12.04.2021, the present writ petition has been filed after a considerable delay, when the proceeding has reached at the stage of arguments only with the ulterior motive of delaying the proceedings and further harassing the opposite party no. 2. It is further submitted that the aforesaid case laws relied upon by the petitioner are not applicable in the present case. Only lingering on practice has been adopted by the petitioner. Thus, the petition is liable to be rejected.

8. The counsel for the respondents has relied on the judgements in the case of Ashok Kumar Pal vs. Smt. Sawan Pal (2008) SCC Online Calcutta 462, K. Sitaram Patro and others vs. K. Saraladevi Patro (2016) SCC Online Orissa 209 and M.S. Sheriff vs. State of Madras AIR 1954 SC 397.

9. Heard Mr. Sushil Kumar Singh, learned counsel for petitioner, learned AGA for the State as well as Mr. Anurag Singh, counsel for opposite party no.2 and perused the material available on record.

10. On perusal of the record, it transpires that the criminal proceedings as well as civil proceeding for divorce on ground of cruelty and polygamy was raised by the respondents against the petitioner. It is also admitted fact that the civil suit for divorce petition is still pending at the stage of Order VIII Rule 10 of CPC. The main ground of this petition raised by the petitioner is that the civil proceeding against the petitioner may be stayed, otherwise the petitioner's right to silence guaranteed under Article 20(3) and fair trial and lawful arrest of a person guaranteed under Article 20 of the Constitution of India would stand violated causing his gross injustice. Submission of the counsel for the petitioner is to stay the civil proceeding at this stage without disclosing his defence.

11. Both civil and criminal proceedings can be initiated by the victim/respondents simultaneously with distinct impetus and objective. The Supreme Court in P. Swaroopa Rani vs. M. Hari Narayana (AIR 2008 SC 1884) held that: "...It is, however, well-settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case."

12. Earlier in M. S. Sheriff vs. The State of Madras and Others (AIR 1954 SC 379), a constitution bench of the Supreme Court while discussing the precedence of both criminal and civil matter as to which proceeding should be stayed observed as under:

"...As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment."

"...Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust. This, however, is not a hard and fast rule. Special considerations obtaining in any particular case might made some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under section 476. But in this case, we are of the view that the civil suits should be stayed till the criminal proceedings have finished."

13. The Supreme Court in Syed Askari Hadi Ali Augustine Imam and Ors. vs. State (Delhi Admn.) and Ors. (AIR 2009 SC 3232) discussed the same issue and reiterated as under:

"...Indisputably, in a given case, a civil proceeding as also a criminal proceeding may proceed simultaneously. Cognizance in a criminal proceeding can be taken by the criminal court upon arriving at the satisfaction that there exists a prima facie case.

The question as to whether in the facts and circumstances of the case one or the other proceedings would be stayed would depend upon several factors including the nature and the stage of the case."

10. It is, however, now well settled that ordinarily a criminal proceeding will have primacy over the civil proceeding. Precedence to a criminal proceeding is given having regard to the fact that disposal of a civil proceeding ordinarily takes a long time and in the interest of justice the former should be disposed of as expeditiously as possible."

14. The High Court of Andhra Pradesh discussed the same point in N. Gurucharnam vs. The State of Andhra Pradesh (2013 CriLJ 1061) held as under:

"...When there are both civil and criminal liabilities in respect of an issue against a person, he is liable to be prosecuted both on the criminal side and on the civil side."

15. Section 498A of the Penal Code, 1860 deals with cruelty by husband or relatives of husband. The said provision provides that whoever, being the husband or the relatives of the husband of a woman subjects such woman to cruelty, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. What amounts to cruelty for the purpose of the said provision has also been clarified in the explanation added to the said section which provides that:

a) Any unlawful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health "whether mental or physical" of the woman or;

b) Harassment of the woman where such harassment is with a view of coercing her or any person related to her meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

16. Thus, cruelty has a limited meaning as defined in the said provision.

17. But under the Hindu Marriage Act cruelty has not been defined. As such, any act or conduct which though may not amount to cruelty within the meaning of the definition of cruelty as given in section 498A of the Penal Code, 1860, may constitute cruelty as envisaged under section 13(1)(ia) of the Hindu Marriage Act.

18. Since the cruelty has not been defined in the Hindu Marriage Act, it is difficult to define precisely as to what exactly cruelty means under section 13(1)(ia) of the Hindu Marriage Act. Cruelty under section 13(1)(ia) of the Hindu Marriage Act may extend to behaviour which may cause pain and injury to the mind as well as to render the continuance in matrimonial home an ordeal where it becomes impossible for them to live together with mental agony, torture or distress. The question as to whether an act complained of was cruel or not is to be determined from whole of the facts and matrimonial relations between the spouses regard being given to their culture, temperament, status in life and state of health of the parties interaction between them in their daily life. Cruelty for the purpose of matrimonial relationship means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury or to have caused reasonable apprehension of bodily sufferings or of being injured. Cruelty may be physical, mental or legal. In matrimonial laws it may be of infinite variety. It may be by words, gestures or by mere silence, violence or non-violence. To constitute cruelty, the conduct complained of, should be so grave and weighty as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be more serious than ordinary wear and tear of the married life. The cumulative conduct, taking into consideration the circumstances and background of the parties has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in matrimonial laws or not. Thus, cruelty postulates a treatment of the petitioner, with such cruelty as to reasonable apprehension in the petitioner's mind that it will be harmful or injurious for the petitioner to live with the other spouse. Cruelty may be physical or mental. Mental cruelty may consist of verbal abuse and insult by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

19. Thus, it appears that the ''cruelty' under the Hindu Marriage Act has a different meaning altogether, than that of the concept of ''cruelty' as envisaged in the Penal Code, 1860. It necessarily follows that even the act complained of, in the criminal proceeding may not constitute cruelty within the meaning of section 498A of the Penal Code, 1860, but, still such act may constitute a ground of divorce on the ground of cruelty where such acts are so grave and weighty as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other.

20. Since the concept of cruelty under the Penal Code, 1860 is not exactly identical with the concept of cruelty as envisaged under section 13(1)(ia) of the Hindu Marriage Act, this Court cannot hold that there will be any embarrassment on the part of the Civil Court in continuing with the trial of the suit during the pendency of the criminal proceeding.

21. In divorce petition, several opportunities were given to the petitioner to file written statement, but he failed to do so and as such the opportunity for filing his defence through written statement has been closed. Thus, the divorce petition is still pending at the stage of maturity and this Court had already directed the learned civil court to decide the suit expeditiously.

22. In my view, in these circumstances, the civil court will not find any embarrassment, if both the criminal proceeding and the civil suit are tried simultaneously as the scope of enquiry and the standard of proof in both the proceedings are not identical. Stay of any one of such suit/proceeding will surely have a wrong impact not only on the society but also on the parties in their matrimonial life. Under such circumstances, this Court does not find any justification to interfere with the order of learned civil court and thus, the petition being devoid of merit is, accordingly, dismissed.

23. Interim order, if any, stands vacated.

Order Date :- 30.6.2022

Shravan