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 the Petitioner : Mr. Sardar Amjad Ali, Ms. Kaberi Ghosh.
For the Opposite : Ms. Chama Mookherji, Parties. Mr. Surojit Roy Chowdhury, Ms. Chandrima Chatterjee.
Judgment On : 11 – 07 – 2008.
Two proceedings are continuing side by side. One of such proceedings which was initiated on the complaint of the wife/opposite party against her husband under Section 498A/406/120B of the Indian Penal Code, is now pending for consideration before the learned 1st Court of Judicial Magistrate at Sealdah. The other proceeding is a suit for divorce which was also filed by the wife/opposite party against her husband on the ground of cruelty under Section 13(I)(ia) of the Hindu Marriage Act. Both the aforesaid proceedings were thus, initiated at the instance of the wife/opposite party. First of such proceedings was the criminal proceeding which was filed by the wife, as aforesaid. The civil suit for divorce was filed subsequently. The allegations constituting ‘cruelty’, on which the criminal proceeding was initiated, are the allegations on which the Civil Suit was also founded.
There is no disagreement between the parties on the issue that the similar set of facts are the foundation of both the criminal proceeding and the civil suit. Charge has already been framed in the criminal proceeding. Issues have also been framed in the civil suit.
Since the claim and counter-claim of the parties are identical in both the aforesaid proceedings it is not quite unnatural that some of the issues and/or charges in those proceedings will be identical.
Both the criminal proceeding and the civil suit have matured for hearing. The cross-examination of the wife/opposite party is now going on, in the criminal proceeding. In the civil suit the petitioner has already submitted his evidence in chief on affidavit. Cross-examination of the petitioner is yet to be commenced. At this stage the petitioner/husband filed an application under Section 151 of the Code of Civil Procedure in the civil suit inter alia praying for stay of further proceeding of the civil suit till the disposal of the aforesaid criminal proceeding on the ground that if both the proceedings are allowed to be proceeded with simultaneously then there will be embarrassment of trial not only for the parties, but also for the Court. It was alleged by the petitioner in the said application that if the civil suit is allowed to be proceeded with then he will be compelled to disclose his full defence, in the civil suit and such disclosure will affect his defence in the criminal proceeding.
Such application of the petitioner/husband was rejected by the learned Trial Judge primarily on the ground that since the petitioner has already filed written statement in the suit and the issues have already been framed, the petitioner cannot be affected, if the civil suit is allowed to be continued simultaneously with the criminal proceeding. Thus, the learned Trial Judge held that though similar set of facts are involved in both the criminal proceeding as well as in the civil suit but, still then, there is hardly any chance of embarrassment in the trial of both the proceedings simultaneously, as the defence had already been disclosed by the petitioner in the civil suit.
Challenging the propriety of the said order the petitioner/husband has filed the instant application under Article 227 of the Constitution of India before this Court. Mr. Sardar Amzad Ali, learned Senior Advocate appearing for the petitioner relied upon various decisions of the Hon’ble Supreme Court as well as of this Hon’ble Court to show that when the pleadings of the parties are identical in both the criminal proceeding as well as in the civil suit and when there is possibility of embarrassment of trial because of such identity of dispute in the said proceedings, it will be expedient to stay all further proceedings of the civil suit till the disposal of the criminal proceeding. Following are the decisions which were relied upon by Mr. Ali in support of his aforesaid submission:-
In the case of M.S. Sheriff Anr. -Vs- State of Madras Ors. reported in AIR 1954 SC 397.
In the case of Kusheshwar Deby -Vs- Bharat Cooking Coak Ltd. Ors. reported in AIR 1988 SCC 2118.
In the case of Dibakar Das -Vs- Registrar General, Appellate Side, High Court Anr. reported in (2006)2 CHN 48.
In the case of Captain M. Paul Anthony -Vs- Bharat Gold Mines Ltd. reported in AIR 1999 SC 1416.
In the case of Union of India -Vs- Monoranjan Mondal @ M.R. Mondal reported in (2005)1 CHN 222.
In the case of Senior Divisional Manager, National Insurance Co. Ltd.
Anr. -Vs- Satima Cold Storage Ors. reported in (1989)1 CHN 555.
Mrs. Chama Mookherji, learned Advocate appearing for the opposite party refuted such submission of Mr. Ali by submitting that there is no hard and fast rule which prescribes that in all cases where civil suit and criminal proceeding are founded on a common footing, further proceeding of the civil suit should be stayed till the disposal of the criminal case. Mrs. Mookherji submitted that since the scope of enquiry and the standard of proof in the criminal proceeding as well as in the civil suit are different from each other, civil suit cannot be stayed merely because of pendency of the criminal proceeding. Mrs. Mookherji further contended that in every criminal case, offence complained of, is an offence committed by the accused against the State and as such, the de-facto complainant cannot get any relief in such criminal case, even if, the accused is ultimately found to be guilty and is punished. But, in civil suit the plaintiff can surely get the relief if she succeeds in getting a decree in her favour. She further contended that both the civil suit and the criminal proceeding of such nature, demand speedy and expeditious disposal. As such, further proceeding of the civil suit cannot be stayed. In support of such submission, Mrs. Mookherji relied upon various decisions which are as follows :-
In the case of Kamala Devi Agarwal -Vs- State of West Bengal Ors. reported in AIR 2001 SC 3846.
In the case of Dipot Manager, A.P. State Road Transport Corporation – Vs- Hohd. Yousuf Miya Ors. reported in (1997)2 SCC 699.
In the case of State of Bihar -Vs- Murad Ali Khan Ors. reported in (1988)4 SCC 655.
In the case of Pratibha -Vs- Rameshwari Devi Ors. reported in 2007(6) SC 554.
In the case of State of Rajasthan -Vs- Kalyan Sundaram Cement Industries Ors. reported in (1996)2 Supreme 333.
Heard the learned Counsel of the parties. Considered the materials on record including the order impugned.
On perusal of the decisions which were cited by Mr. Ali this Court finds that there is uniformity in all the said decisions to the effect that there is no hard and fast rule governing the field. It is only when there is any likelihood of embarrassment, further proceeding of the civil suit can be stayed till the disposal of the criminal proceeding. Whether simultaneous trial of the criminal proceeding and the civil suit will cause any embarrassment or not depends upon the facts and circumstances of each case. As such, the Court has to apply its mind for ascertaining as to whether simultaneous trial of the criminal proceeding and the civil suit will cause any embarrassment, in the present set of facts.
The decisions which were cited by Mrs. Mookherji excepting the decision in the case of State of Rajasthan -Vs- Kalyan Sundaram Cement Industries (supra), are mostly irrelevant for the present purpose as those are the case where either the criminal proceeding was quashed by different High Courts because of pendency of the civil suit or the departmental enquiry in service matter was stayed because of the pendency of the criminal proceeding. In those set of facts the Hon’ble Supreme Court interfered with the decisions of different High Courts which were under challenge before the Hon’ble Supreme Court. In the case of State of Rajasthan -Vs- Kalyan Sundaram Cement Industries Ltd. Ors. (supra), the Hon’ble Supreme Court, however, held that stay of the civil suit cannot be granted when the defence has already been filed by the defendant in the civil suit. In fact, the principle which were laid down in the said decision, supports the order impugned as the learned Trial Judge rejected the petitioner’s prayer for stay on identical findings.
Keeping in mind the principles which were laid down in the aforesaid decisions cited by the parties, let me now consider as to whether the further proceeding of the suit should remain stayed till the disposal of the criminal proceeding or not. It is well known that the standard of proof in civil suit as well as in the criminal proceeding, is different from each other. Civil suit is tried on the basis of preponderance of probability. Criminal proceedings are tried on the basis of proof beyond reasonable doubt. When the standard of proof and the scope of enquiry are different from each other, no Court will feel any embarrassment if both the criminal proceeding and the civil suit are proceeded with simultaneously. That apart, the decision of the Criminal Court is not binding upon Civil Court. As such, civil suit should not ordinarily be stayed for considering the fate of the criminal proceeding in the civil suit. But, still then, it is noticed by this Court that on some occasions, proceeding of the Civil Suit was stayed during the pendency of the criminal proceeding, to avoid embarrassment, on the part of the Court for trial of both the proceedings simultaneously. One of such instances is the case of M.S. Sheriff Anr. -Vs- State of Madras Ors. (supra), wherein the Hon’ble Supreme Court stayed the further proceeding of the civil suits till the disposal of the criminal proceeding. In the said decision I find that the criminal proceeding was initiated for wrongful confinement and in the civil suit, damages were claimed on account of such wrongful confinement. Thus, wrongful confinement was a common issue in both the criminal case as well as in the civil suit, and in fact, damage is the consequential relief on account of wrongful confinement. Under such circumstances, the Hon’ble Supreme Court stayed the further proceeding of the civil suit during the pendency of the criminal proceeding for avoiding embarrassment.
Let me now consider as to how far the said principle is applicable in the facts of the instant case. No doubt cruelty is the ground for divorce. It is equally true that the cruelty is the foundation of the complaint before the criminal Court. Undisputedly the acts constituting cruelty, which were complained of in the criminal proceeding are the acts of cruelty on which the decree for divorce was sought for. Thus, apparently facts are similar in both the aforesaid cases but mere similarity of the facts in both the cases are not sufficient to stay the further proceeding of the civil suit in all cases. Scope and ambit of trial of both the proceedings are to be considered before passing an order of stay of further proceeding of the civil suit.
Section 498A of the Indian Penal Code 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 extent 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. Thus, cruelty has a limited meaning as defined in the said provision.
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 Indian Penal Code, may constitute cruelty as envisaged under Section 13(1)(ia) of the Hindu Marriage Act.
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.
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 Indian Penal Code. 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 Indian Penal Code, 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.
Since the concept of cruelty under the Indian Penal Code 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.
That apart, the petitioner has already disclosed his defence in the civil suit. Since the defence has already been disclosed by the petitioner in the civil suit, it cannot be reasonably expected that a different stand will be taken by him in the criminal proceeding against identical acquisition. Thus, when the defence has already been filed by the petitioner in the civil suit and the scope of enquiry in the civil suit has already been determined by framing of issue therein, this Court relying upon the decision of the Hon’ble Supreme Court in the case of State of Rajasthan -Vs- Kalyan Sundaram Cement Industries Ltd. Ors. (supra) as well as on the decision of the Hon’ble Court in the case of Senior Divisional Manager, National Insurance Co. Ltd. Anr. -Vs- Satima Cold Storage Ors. (supra), holds that further proceeding of the civil suit cannot be stayed on account of pendency of the Criminal proceeding.
In both the criminal proceeding as well as in the Civil Suit, the examination of the wife has commenced. Evidence-in-chief of the wife has already been concluded in both the criminal proceeding as well as in the Civil Suit. Cross- examination of the wife has commenced in the criminal proceeding and a date has been fixed in the Civil Suit for cross-examination of the wife. This Court holds that if the Civil Suit is stayed at such advanced stage of trial, then the opposite party will suffer loss and injury.
In my view, under such circumstances, the Civil Court will not find any embarrassment, if both the criminal proceedings and the civil suit are tried simultaneously as the scope of enquiry and the standard of proof in both the proceedings are not identical. That apart, both the criminal proceeding as well as the suit for divorce demand speedy disposal. Stay of any one of such suit and/or 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 impugned.
Urgent xerox certified copy of this order, if applied for, be given to the parties, as expeditiously as possible.
( Jyotirmay Bhattacharya, J. )