HON'BLE SRI JUSTICE G. BHAVANI PRASAD : +CRIMINAL PETITION Nos.6024, 6072 and 6090 of 2009
02/09/2009 Crl.P. No.6024 of 2009:
# Kothamasu Nagavenkata Suresh Babu ..... PETITIONER
Vs.
Kothamasu Sunbeetha and others .....RESPONDENTS
COUNSEL FOR THE PETITIONER: Sri T. Pradyumna Kumar Reddy
COUNSEL FOR 1 & 2 RESPONDENTS: -- COUNSEL FOR 3RD RESPONDENT: Public Prosecutor
Crl.P. No.6072 of 2009:
Bavirisetti Chandra Sekhara Rao ..... PETITIONER
Vs.
State of Andhra Pradesh rep. by its
Public Prosecutor and others .....RESPONDENTS
COUNSEL FOR THE PETITIONER: Sri T. Lakshminarayana
COUNSEL FOR 1ST RESPONDENT: Public Prosecutor
COUNSEL FOR 2 & 3 RESPONDENTS: --
Crl.P. No.6090 of 2009:
Kandukuri Ramesh Babu and others ..... PETITIONERS
Vs.
State of Andhra Pradesh rep. by its
Public Prosecutor and another .....RESPONDENTS
COUNSEL FOR THE PETITIONERS: Sri C.V. Bhaskara Reddy
COUNSEL FOR 1ST RESPONDENT: Public Prosecutor
COUNSEL FOR 2ND RESPONDENT: --
CITATIONS:
1. AIR 1975 SUPREME COURT 83 (1)
2. AIR 1970 SC 446
3. AIR 1978 SUPREME COURT 1807 (1)
4. AIR 1999 SUPREME COURT 536
5. (2002) 5 Supreme Court Cases 422
6. AIR 1997 SC 3280
7. AIR 2005 SUPREME COURT 1809 (1)
8. 2000 CRI.L.J. 333
9. (1991) CPJ 332
10. 1992(1) CPR 91
11. 1991(1) CPR 52 (N.C.)
12. AIR 1994 SUPREME COURT 2151
13. (2006) 2 Supreme Court Cases 641
14. AIR 2001 SC 3846
HON’BLE SRI JUSTICE G. BHAVANI PRASAD
Criminal Petition Nos.6024, 6072 and 6090 of 2009
COMMON ORDER:
Criminal Petition No.6024 of 2009 by the husband against the wife and minor son is for quashing the proceedings in M.C. No.31 of 2007 on the file of the Additional Judicial Magistrate of First Class, Gudivada for maintenance to the wife and minor son, on the ground that the wife already filed C.C. No.490 of 2007 and D.V.C. No.6 of 2008 on the file of the Additional Judicial Magistrate of First Class, Gudivada and H.M.O.P. No.81 of 2007 for divorce and I.A. No.125 of 2008 therein for maintenance before the Senior Civil Judge, Machilipatnam against the husband, while the husband filed O.P. No.45 of 2006 for restitution of conjugal rights. The husband claims that the wife cannot claim maintenance both in I.A. No.125 of 2008 and M.C. No.31 of 2007 simultaneously.
Criminal Petition No.6090 of 2009 is filed by the husband, mother-in-law and sister-in-law seeking quashing of the proceedings in D.V.C. No.2 of 2009 on the file of the Judicial Magistrate of First Class, Nandalur, as being violative of Article 21 of the Constitution of India and amounting to double jeopardy, as Crime No.65 of 2008 of Nandalur police station under Section 498-A of the Indian Penal Code is pending in pursuance of the complaint by the 2nd respondent and in view of the wife living separately from the husband since prior to the Protection of Women from Domestic Violence Act, 2005 coming into force as admitted by her in O.P. No.27 of 2006 on the file of Senior Civil Judge, Proddatur.
Criminal Petition No.6072 of 2009 is filed by the son against the parents for quashing the proceedings in M.C. No.49 of 2009 on the file of Family Court, Guntur filed by the parents for maintenance under Section 125 of the Code of Criminal Procedure, as D.V.C. No.5 of 2009 on the file of the IV Additional Judicial Magistrate of First Class, Guntur by the mother for residence, is pending and the son cannot be proceeded against for the same set of reliefs on the same set of facts and cause of action.
All the three petitions, though between different parties, are heard together as involving identical questions of law of frequent recurrence. The issues of fact raised by the petitioners respectively are not being gone into, as any deep probe into such questions of fact in issue is beyond the province of a restricted and summary enquiry in a proceeding under Section 482 of the Code of Criminal Procedure and these petitions cannot be the appropriate proceedings, wherein any conclusive findings of fact can be arrived at. As such, the consideration herein is confined to the maintainability or otherwise in law of the proceedings sought to be quashed.
Sri T. Pradyumna Kumar Reddy, Sri C.V. Bhaskara Reddy and Sri T. Lakshminarayana, learned counsel for the respective petitioners and Sri A. Ramesh, learned counsel representing the learned Public Prosecutor, are heard. At the request of the Court, Sri C. Padmanabha Reddy, learned senior counsel also assisted the Court in appreciation of the questions involved.
No notices are being ordered to the other respondents in the criminal petitions, as the matters are being disposed of at the stage of admission.
The legal rights and liabilities arising out of matrimony or relationship by blood or adoption are respectively governed by the relevant personal laws of the parties to a judicial proceeding qualified by any Statutes and Statutory Rules governing the subject matter of the dispute before the Judicial Forum.
The Hindu Marriage Act, 1955 codifying the law relating to marriage among Hindus, provided for petitions for restitution of conjugal rights under Section 9, judicial separation under Section 10, divorce on specified grounds under Section 13 and divorce by mutual consent under Section 13-B. The jurisdiction and procedure are prescribed by Chapter V of the Act. Section 24 provides for maintenance pendente lite and expenses of proceedings where it appears to the Court in a proceeding that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding. Section 25 provides for the Court exercising jurisdiction under the Act ordering that the respondent shall pay to the applicant, who may be the wife or the husband, for her or his maintenance and support, such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant having regard to the income and other property of the parties, their conduct and other circumstances of the case. The Court may also create a charge on the immovable property of the respondent and under Sub-section (2) thereof, the Court may, at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem just, if there is a change in the circumstances of either party. Sub-section (3) provides for such variance, modification or rescinding in case of remarriage or unchastity of the wife or the husband. Section 26 provides for interim or final orders in respect of custody, maintenance and education of minor children.
The Hindu Adoptions and Maintenance Act, 1956 provides for maintenance of wife, widowed daughter-in-law, children and aged parents, and dependents in Sections 18, 19, 20 and 22 respectively and Sections 23 and 25 provide for the considerations governing the award of amount of maintenance and alteration on material change in the circumstances, respectively.
Similarly, the Special Marriage Act, 1954 provides, in respect of marriages solemnized under that Act, for restitution of conjugal rights under Section 22, judicial separation under Section 23, nullity of marriage and divorce under Chapter VI and jurisdiction and procedure under Chapter VII including grant of alimony pendente lite under Section 36, permanent alimony and maintenance under Section 37 and custody of children under Section 38.
The matrimonial reliefs in respect of foreign marriages governed by the Foreign Marriage Act, 1969, are governed by the Special Marriage Act, 1954, as per Section 18 of the Foreign Marriage Act, 1969.
The Muslim Women (Protection of Rights on Divorce) Act, 1986 provides for an application for an order for a reasonable and fair provision and maintenance or the amount of mahr or dower or the delivery of the properties to a divorced woman under Sub-section (2) of section 3 and also an order for payment of maintenance in the circumstances governed by Section 4 apart from an option to be governed by Sections 125 to 128 of the Code of Criminal Procedure, under Section 5.
The Parsi Marriage and Divorce Act, 1936 governs the rights and liabilities arising out of the matrimonial relationship and the proceedings at the instance of the parties to the marriage or their children.
The Indian Christian Marriage Act, 1872 and the Divorce Act, 1869 similarly govern the marriages and their consequences in respect of persons professing Christian religion.
The Dowry Prohibition Act, 1961 is a secular legislation of general application irrespective of any affiliation to any religion penalizing giving or taking dowry under Section 3 and demanding dowry under Section 4.
The Indian Penal Code makes subjecting a woman to cruelty by the husband or the relative of the husband, an offence punishable under Section 498-A, while bigamy is punishable under Section 494 and Sections 495 to 498 provide for punishment in respect of other marriage offences.
A separate provision for taking cognizance of offences against marriage is made under Sections 198 and 198-A of the Code of Criminal Procedure and by Andhra Pradesh Act 3 of 1992, the offences under Sections 494, 495 and 496 of the Indian Penal Code are made cognizable and non-bailable, while the offence under Section 498A of the Indian Penal Code is made compoundable by Andhra Pradesh Act 11 of 2003.
These apart, a dowry death is made punishable under Section 304B of the Indian Penal Code.
The other Statutes referred to above also provide for different offences arising under them, the penalties therefor and the jurisdiction and the procedure in that regard.
The personal laws relating to maintenance, guardianship and succession including secular laws like the Guardians and Wards Act and the Indian Succession Act enable the aggrieved parties to obtain appropriate reliefs concerning such rights and liabilities.
The Family Courts Act, 1984 provided for exclusive jurisdiction to the Family Court within its territorial jurisdiction in respect of all suits and proceedings relating to marriage and family affairs as specified in the Statute.
Sections 125 to 128 of the Code of Criminal Procedure, 1973 in Chapter IX make provision for grant of maintenance to wife, legitimate or illegitimate minor child, legitimate or illegitimate major child not being a married daughter, but has any physical or mental abnormality or injury, or father or mother unable to maintain themselves. The provisions are intended to provide an expeditious relief in this regard to such persons in distress.
In addition to all the above, the Protection of Women from Domestic Violence Act, 2005 came into force to provide various reliefs specified in Sections 18 to 22 of the said Act to an aggrieved woman in a domestic relationship subjected to domestic violence within the parameters of the legislation.
Thus, the legal scenario presents the scope for multifariousness in reliefs and proceedings concerning the same rights and liabilities arising out of relationship by matrimony or by blood or by adoption and the grievance herein is against simultaneous prosecution of different proceedings in respect of the same sequence of events, but the same does not appear impermissible in law.
The Apex Court in Bhagwan Dutt v. Kamla Devi[1] pointed out that Section 488 of the Code of Criminal Procedure, 1898/Section 125 of the Code of Criminal Procedure, 1973 and Section 23 or other provisions of the Hindu Adoptions and Maintenance Act, 1956 are not inconsistent as held in Nanak Chand v. Chandra Kishore Aggarwal[2] and the scope of the two laws is different. It was pointed out that Section 488/Section 125 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties and is intended to serve a social purpose by providing a machinery for summary enforcement of the moral obligations of a man towards his wife and children so that they may not, out of sheer destitution, become a hazard to the well-being of orderly society. It was made clear that as against this, the provisions of the Hindu Adoptions and Maintenance Act, 1956 provide for the enforcement of the rights of Hindu wives or dependents under their personal law.
Dealing with Section 125 of the Code of Criminal procedure and an interim order for maintenance under Section 24 of the Hindu Marriage Act, the Apex Court in Captain Ramesh Chander Kaushal v. Veena Kaushal[3], pointed out that social justice is not constitutional claptrap but fighting faith which enlivens legislative texts with militant meaning. The award of maintenance under Section 24 of the Hindu Marriage Act pendente lite was distinguished from a final determination under the Hindu Adoptions and Maintenance Act and the incidental direction was pointed out to be no comprehensive adjudication, which has only marginal relevance for the Magistrate without barring his jurisdiction to award a higher maintenance under Section 125 of the Code of Criminal Procedure.
Similarly, in Sudeep Chaudhary v. Radha Chaudhary[4], the Apex Court felt the need for balancing the claims of the husband and the wife and passed an order fixing maintenance comprehending both the amount awarded under Section 125 of the Code of Criminal Procedure and the amount awarded in the matrimonial proceedings under the Hindu Marriage Act.
In Jagdish Jugtawat v. Manju Lata[5], an order based on a combined reading of Section 125 of the Code of Criminal Procedure and Section 20(3) of the Hindu Adoptions and Maintenance Act in respect of the right of minor girl for maintenance from parents till her marriage even after attaining majority, was upheld on the facts and circumstances of the case, which order avoided multiplicity of litigation. An earlier decision in Noor Saba Khatoon v. Mohd. Quasim[6], wherein Section 125 of the Code of Criminal Procedure and Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act were read together, was referred to with approval.
The absence of any inconsistency between Section 125 of the Code of Criminal Procedure and the provisions of the Hindu Adoptions and Maintenance Act was reiterated in Savitaben Somabhai Bhatiya v. State of Gujarat[7], wherein the Apex Court noted that the sections of Statutes calling for construction by Courts are not petrified print but vibrant words with social functions to fulfill and the brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. The Apex Court advised picking out selectively that interpretation out of two alternatives, which advances the cause of derelicts. The scope of Section 125 of the Code of Criminal Procedure and the Hindu Adoptions and Maintenance Act, 1956 was, hence, held to be different.
The issue is more or less directly in question in Vallabhaneni Yedukondalu v. Vallabhaneni Nageswaramma[8], wherein grant of interim maintenance under Section 24 of the Hindu Marriage Act was held to be in itself not a ground for rejecting a petition filed under Section 125 of the Code of Criminal Procedure. It was pointed out that if passing of an order granting maintenance under Section 24 of the Hindu Marriage Act calls for any alteration of the quantum of maintenance allowed under Section 125 of the Code of Criminal Procedure or justifies its cancellation during the period of pendency of the main proceedings before the Court, it is for the aggrieved to approach under Section 127 of the Code of Criminal Procedure for alteration in the maintenance ordered under Section 125 of the Code of Criminal Procedure.
Four precedents are cited in juxtaposition to the principles laid down in the above referred to cases and the first of them is M/s. Gitanjali Cements Pvt. Ltd., v. Applied Industrial Products (P) Ltd.[9], wherein the National Consumer Disputes Redressal Commission, of course, noted that the matter is sub judice before the High Court in a writ petition, but the Commission declining to entertain the claim under the Consumer Protection Act, 1986, is not only on that ground but also due to not regarding the complainant as a consumer and the dispute as not a consumer dispute under the Act apart from two other grounds. It is clear from the facts that the matter being sub judice before the High Court, was considered one of the relevant grounds more due to the nature of the dispute involved, which is not a consumer dispute but not on the ground of the pursuit of an alternative remedy barring the relief under the Special Statute.
Similarly, the State Consumer Disputes Redressal Commission, Madras opined in Ruby Food Products v. Branch Manager, Tamil Nadu Small Industries Development Corporation Limited[10], that when a matter directly and substantially in issue in both the proceedings, is the same and the matter is already sub judice before the Civil Court, it is not proper for the Commission to deal with the matter. That was also a case where concurrent adjudication was held to be not desirable but the decision of the National Commission inM/s. Special Machines, Karnal v. Punjab National Bank[11] relied on, itself specifically pointed out that the objection is not really on the ground of lack of jurisdiction but is one based on considerations of propriety and prudence keeping in view the necessity for avoidance of conflicting decisions and multiplicity of proceedings. Such considerations are not relevant herein, as the legal framework in respect of the rights and liabilities consequential to relationships through marriage, blood or adoption, is quite distinct and specific as will be hereinafter referred to.
A.P. State Financial Corporation v. M/s. GAR Re-Rolling Mills[12] is a decision on the scope of Sections 29 to 32 of the State Financial Corporations Act, 1951 and on the language of the provisions, the remedies were held to be mutually exclusive to the extent indicated in the decision. However, the Apex Court made it clear that the doctrine of election, which suggests that when two remedies are available for the same relief, the party to whom the said remedies are available, has the option to elect either of them, would not apply to cases where the ambit and scope of the two remedies is essentially different. It was, therefore, held that the Corporation can take recourse to the provisions of Section 29 by not pursuing the decree or order under Section 31, while it cannot simultaneously pursue the two remedies i.e. the Corporation cannot execute the order under Section 31 and yet simultaneously take recourse to proceedings under Section 29 for the same relief and emphasis was laid on harmonizing the two provisions as to facilitate the Corporation to recover its dues from the defaulting party. Thus, in fact, this decision enlightens the path to be pursued in interpreting such provisions.
Lastly, National Insurance Co. Ltd., v. Mastan and another[13] is about the death of or bodily injury to any person giving rise to a claim for compensation under the Motor Vehicles Act, 1988 as also the Workmen’s Compensation Act, 1923 and Section 167 of the Motor Vehicles Act, 1988 itself provides for a person entitled to compensation claiming such compensation under either of the Acts but not under both. The doctrine of election, which is a branch of rule of estoppel, was applied with reference to the specific provisions. This is clear from the supplementing judgment of His Lordship Hon’ble Sri Justice P.K. Balasubramanyan, but the questions involved in the present criminal petitions do not revolve round any such specific statutory provision.
While none of the other legislations referred to in this order appear to debar pursuance of different remedies under different statutes independent of each other either simultaneously or successively, the principles laid down by various precedents referred to also appear to exclude any application of the doctrine of election in its strict rigour to such contingencies, more so in view of the need to interpret the relevant provisions to effectuate the purpose and object of the beneficial legislations and to serve the cause of substantial justice to the persons for whose protection the laws are intended.
That this is so is also clear from Section 127 of the Code of Criminal Procedure, which provides in Sub-section (1) for alteration in maintenance or interim maintenance on proof of a change in the circumstances of either party and in Sub-section (2) for cancellation or variance of an order under Section 125 in consequence of any decision of a competent civil Court. Sub-section (3) provides for cancellation of the order in case of a divorcee under specified circumstances. Like the Magistrate having to take into account any decision of competent civil Court under Sub-section (2), the civil Court also shall have to take into account the sum which has been paid to or recovered by a person as maintenance or interim maintenance under Section 125, at the time of making any decree for recovery of any maintenance or dowry, as per Sub-section (4). Section 127 is, thus, explicit that the Magistrate acting under Section 125 or the competent civil Court acting otherwise will have to necessarily take into account any order made by the other or its consequences while granting any relief.
The Protection of Women from Domestic Violence Act, 2005 states in Section 36 that the provisions of the Act shall be in addition to and not in derogation of any other law for the time being in force and therefore, the rights, liabilities and proceedings under any other law in force remained unaffected by the Act. Section 26 of the Act states in Sub-section (1) that any relief available under Sections 18 to 22 may also be sought in any legal proceeding before a civil Court, family Court or a criminal Court affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of the Act. Thus, the right to reliefs under Sections 18 to 22 of the Act is made available even in other legal proceedings not prosecuted under this Act before Courts not exercising jurisdiction under this Act.
Similarly, Sub-section (2) of Section 26 enables any relief referred to in Sub-section (1) to be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal Court. Thus, apart from the right to relief under the Act under the specified provisions, the same reliefs are made available in suits or legal proceedings before the civil and criminal Courts also apart from the regular reliefs, which such Courts may grant. The only responsibility placed on the aggrieved person by Section 26 is under Sub-section (3), which made the aggrieved person bound to inform the Magistrate exercising jurisdiction under the Act, of the grant of any relief obtained by the aggrieved person in any proceeding other than the proceeding under the Act. It is, thus, clear that such other proceedings and a proceeding under the Act are independent of each other, becoming relevant to each other only for the purpose of moulding the ultimate relief to be granted respectively by taking note of the relief granted in the other proceedings.
The power to grant interim and ex parte orders under Section 23, temporary custody of any child or children to the aggrieved person or a person applying on her behalf under Section 21 or grant of such other reliefs as enabled by the statute, are independent of the reliefs or proceedings under the other laws. This Act is to provide for more effective protection to the rights of women guaranteed under the Constitution, who are victims of violence of any kind occurring within the family and this legislation cannot be so construed as to either have an adverse impact on rights, liabilities and proceedings under the other laws or to be adversely affected by the rights, liabilities and proceedings under the other laws.
Issues having both civil and criminal ramifications can result in both civil and criminal proceedings and in Kamaladevi Agarwal v. State of West Bengal[14], the Apex Court pointed out that a criminal prosecution cannot be thwarted at the initial stage merely because a civil proceeding is also pending, and held that merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. Observing that the onus of proving the allegations beyond reasonable doubt in a criminal case is not applicable in a civil proceeding, which can be decided merely on the basis of probabilities with respect to the acts complained of, the Apex Court also referred to the principle that the decisions of the civil Courts are binding on the criminal Courts, while the converse is not true. The nature and scope of civil and criminal proceedings and the standard of proof required in both the matters were stated to be different and distinct and it was concluded that criminal cases have to be proceeded with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of civil action in a different Court even though higher in status and authority cannot be made a basis for quashing of the proceedings. Thus, civil and criminal proceedings arising out of the same or similar cause of action are not mutually exclusive.
Thus, the very nature of such rights, liabilities and proceedings arising out of relationships in matrimony, blood and adoption as illuminated by the legislative scheme, policy, purpose and object, obligates the Court to adopt an interpretation permitting the pursuit of various alternative remedies simultaneously or successively with the only duty for the respective Courts being to note the scope, content and nature of the other proceedings and to mould the grant of respective reliefs with reference to the reliefs granted in such other proceedings or the change of circumstances brought about on the reliefs granted or the subsequent grant of reliefs in the other proceedings. Hence, in respect of such rights and liabilities, the filing, pendency and pursuit of the proceedings under a different provision under a different law are not per se a disabling factor against the prosecution of the proceedings under another provision under another law simultaneously or successively.
However, there may be cases where rights and liabilities arising out of relationship in marriage or by blood or by adoption crystallized into a final and irrevocable judicial decision concluding and foreclosing the legal obligations sought to be enforced through the subsequent proceedings, which may militate against the maintainability or continuance of the subsequent proceedings on established principles of law like, res judicata or constructive res judicata or estoppel or that the decision of a civil Court is binding on the criminal Court, and the like. The impact of finality of an earlier adjudication of the same issues on the legality and sustainability of such subsequent proceedings may make them amount to an abuse of the process of the Court. Interference with such proceedings to secure ends of justice will be on an altogether different legal premise, but not on the mere inconvenience of multiplicity of proceedings with the same factual background, if they are otherwise permissible in law.
Therefore, none of the three criminal petitions can succeed on the ground of some other proceedings being pursued earlier or simultaneously and they have to fail.
Accordingly, all the three criminal petitions are dismissed.
____________________
G. BHAVANI PRASAD, J
Date: 02-09-2009
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