Madras High Court
S.Aravind Peace Adhiban vs P.S.Minni Starina Evangelin on 6 March, 2023
C.M.A(MD)NO.1116 OF 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE N.SATISH KUMAR
C.M.A(MD)No.1116 of 2022
and
C.M.P(MD)No.11385 of 2022
S.Aravind Peace Adhiban :Appellant/Respondent/Petitioner
.vs.
P.S.Minni Starina Evangelin :Respondent/Petitioner/Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 55 of the
Indian Divorce Act against the fair and decretal order made in
I.A.No.4 of 2021 in I.D.O.P.No.150 of 2019, dated 25.08.2022, on
the file of the Principal District Court at Tirunelveli.
For Appellant :Mr.Rajkumar Paul
For Respondent :Mr.K.Althaf Sheriff
for M/s.Ajmal Associates
JUDGMENT
*************
This Civil Miscellaneous Appeal is filed against the order
passed by the Principal District Judge,Tirunelveli rejecting the
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C.M.A(MD)NO.1116 OF 2022
application filed by the appellant for initiating the proceedings
under Section 340 of the Criminal Procedure Code, for the alleged
perjury.
2.The main ground on which the said application filed is that
when the appellant has filed I.D.O.P for divorce before the Family
Court, Thanjavur in I.D.O.P.No.101 of 2007, the respondent took a
stand that she lived with her husband only in Vellur and
Thoothukudi. Based on the above stand, the appellant filed I.D.O.P
for divorce before the Court of Vellore and subsequently, the above
said case has been transferred to the file of Principal District
Judge, Tirunelveli and numbered as I.D.O.P.No.150 of 2019. In the
meanwhile, the respondent also filed an application under the
Domestic Violence Act before the Judicial Magistrate Court,
Tirunelveli in D.V.C.NO.7 of 2017 and subsequently, it appears that
the said proceedings was also transferred to the Principal District
Court, Tirunelveli. When these matters are pending, an application
is filed by the appellant before the Principal District Judge,
Tirunelveli, for inititiation of proceedings for the alleged perjury
under Section 340 of Cr.P.C. The main ground in this application is
that the respondent has taken a stand that except vellore and
Thoothukudi, she has not resided in any other place with her
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C.M.A(MD)NO.1116 OF 2022
husband, whereas, in the pleadings filed before the Family Court,
Vellore, she had taken a different stand that she lived with her
husband apart from vellore and Thoothukudi, also in Tirunelveli.
Therefore, the Petition has been filed. The learned Principal
District Judge, after analysing the various other factors,
considering the statements of the parties given before the various
other forums, one before the Judicial Magistrate Court and Family
Court, Thanjavur and the Petition filed before the Family Court,
Vellore, the Principal District Judge has come to the conclusion that
those statements are inconsistent with each other. Mere
inconsistent stand taken by the parties will not be sufficient to
initiate proceedings and accordingly rejected the application.
Chellenging the same, the present Civil Miscellaneous Appeal is
filed.
3.Mr.Rajkumar Paul, learned counsel appearing for the
appellant mainly contended that the appellant having taken a
stand that she never lived in Tirunelveli, other than Vellore and
Thoothukudi, in the earlier proceedings, have filed DVC
proceedings before Principal District Judge, Tirunelveli stated
therein as if she has lived with her husband in Tirunelveli. That
apart, for the first time, in Family Court, Vellore, a stand has been
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C.M.A(MD)NO.1116 OF 2022
taken as if she has lived in Tirunelveli apart from Vellore and
Thoothukudi. Hence his contention that when she has given one
one kind of statement before one Court and making
a different statement before another Court will clearly attract the
case of perjury. To show a different stand taken by the appellant,
she has relied upon the evidence given by the respondent before
the Family Court, Thanjavur and also before the Judicial
Magistrate Court at Tirunelveli. Hence this contention is a clear
case of perjury and therefore, the order of the trial judge needs to
be set aside.
4.Heard Mr.Rajkumar, learned counsel appearing for the
appellant and Mr.K.Althaf Sheriff, learned counsel appearing for
the respondent and perused the materials available on record.
5.I have perused the entire order and various proceedings.
The main ground on which the action sought to be initiated under
Section 340 of Cr.P.C is that the respondent/wife has given
evidence in one of the proceedings between the parties that she
lived only in Vellore and Thoothukudi. It is relevant to note that
the earlier statements or evidence given by the living persons
cannot be taken as evidence. These portions can be used only for
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C.M.A(MD)NO.1116 OF 2022
the purpose of contradictions, to contradict the evidence in the
subsequent proceedings. When the earlier proceedings have been
contradicted before the learned judicial Magistrate Court,
Tirunelveli, the respondent in fact, has given an explanation to the
effect that she also lived in Tirunelveli and that due to
typographical mistake, the error seems to have reflected in the
typed-set, whereas, she has maintained a stand that she lived with
her husband in Tirunelveli also. These aspects can be extensively
cross-examined by the appellant. However, the evidence of P.W.1 in
this regard could not be shaken. Be that as it may, even assuming
that some inconsistent stand taken in the evidence, in two
different proceedings, those evidence can be used for contradiction
and used before the Courts at the time of appreciation of evidence
while finally adjudicating the matter. Relationship between parties
become strained to such an extent that they are not getting well
for many years and many proceedings were initiated one after
another. Therefore, such mere inconsistent statements will not
mean that those statements have been given with an intention to
attract the case of perjury. The learned District Judge has rightly
relied upon the decision in the case of Veerappa Sivappa .vs.
Krishna Triyambak reported in 1977 CRLJ 1367 to the
proposition that every incorrect or false statement does not make
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C.M.A(MD)NO.1116 OF 2022
it incumbent on the Court to order prosecution. Similarly, the
learned Judge has also relied upon the decision in the case of
K.Gounden .vs. M.S.P. Rajesh reported in AIR 1966 SC, the
Honourable Apex Court has held that mere inconsistent or wrong
statement are not good grounds to initiate the perjury
proceedings against the respondent until the said statement was
given by the person with an intention to affect the administration
of the Court proceedings.
6.In such view of the matter, the inconsistent plea made
either by the husband or wife in their matrimonial dispute in
different Courts, this Court is of the view that those statements can
be used only to discredit the witness in the appropriate issue which
is pending before the concerned Court. Therefore, every
inconsistent statement will not attract the prosecution. Hence, I do
not find any merit in the appeal and the same is liable to be
dismissed.
7.Accordingly, the Civil Miscellaneous Appeal is dismissed.
The learned Principal District Judge, Tirunelveli is directed to
expedite the trial of I.D.O.P.No.150 of 2019, on its file, as
expeditiously as possible, preferably within a period of three
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C.M.A(MD)NO.1116 OF 2022
months from the date of receipt of a copy of this order. No costs.
Consequently, connected Civil Miscellaneous Petition is dismissed.
06.03.2023
Index:Yes/No
Internet:Yes/No
NCC:Yes/No
vsn
To
1.The Principal District Judge,
Tirunelveli.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A(MD)NO.1116 OF 2022
N.SATISH KUMAR.,J.
vsn
JUDGMENT MADE IN
C.M.A(MD)No.1116 of 2022
and
C.M.P(MD)No.11385 of 2022
06.03.2023
https://www.mhc.tn.gov.in/judis
