Research › Search › Judgment

Rajasthan High Court · body

2000 DIGILAW 1420 (RAJ)

Reshma Ram v. Devi Bai

2000-12-01

BHAGWATI PRASAD

body2000
JUDGMENT 1. - This misc. petition has been filed against the order of the revisional court whereby the order of the Magistrate granting maintenance to the wife was upheld.The principal argument of learned Counsel for the petitioner is that respondent Devi Bai is not the wife of the petitioner and since she is not wife, no maintenance could be granted to her. Liability of petitioner would arise only if respondent Devi Bai is held to be his wife. The finding of holding respondent as wife cannot be recorded in the proceedings under Section 125 Criminal Procedure Code because earlier there was a criminal prosecution launched against the petitioner whereby the petitioner was prosecuted under Sections 498-A and 406 Indian Penal Code. These proceedings were terminated against the complainant by giving benefit of doubt to the petitioner. In those proceedings, it was held that fact of marriage with the respondent has not been proved. 2. Learned counsel for the petitioner raises the question that issue estoppel comes into play since question of marriage of petitioner with respondent has already been decided in criminal trial and decision of criminal trial has been produced as Ex.D/1. He relies on Supreme Court decision reported in AIR 1974 SC 28 , Masud Khan v. State of Uttar Pradesh wherein it has been held that an issue which has already been decided cannot be re-agitated. 3. Per contra, learned Counsel for the respondent relies on 1987 All.L.J. 535, Smt. Zaitoon v. State of Uttar Pradesh wherein it has been held as under:- "The proceedings under Section 125 Criminal Procedure Code was quite independent of criminal proceedings against the husband under Sections 323 and 325 Indian Penal Code and observation made in these proceedings could not be introduced into proceedings under Section 125 to reverse the finding of fact recorded by Magistrate." 4. I have considered the arguments of learned Counsel for the parties and case law cited by them. 5. It is true that in criminal proceeding, if a point is raised, that cannot be raised again for another criminal prosecution. But if the proceeding is like the present one i.e. under Section 125 Criminal Procedure Code or collateral proceeding in connection with Foreigners (Internment) Order under its Para 5, as held in Masud Khan's case (supra) are not effected by principle of issue estoppel. But if the proceeding is like the present one i.e. under Section 125 Criminal Procedure Code or collateral proceeding in connection with Foreigners (Internment) Order under its Para 5, as held in Masud Khan's case (supra) are not effected by principle of issue estoppel. Learned counsel for the petitioner relying on another Supreme Court decision reported in 1956 AIR 415 (P&H), Pritam Singh and another v. State of Punjab has urged that once an accused is acquitted, another trial on the same facts cannot be held. There is no denial of the preposition of law as has been held in the case of Pritam Singh (supra) but present case is not a second trial and proceedings under Section 125 Criminal Procedure Code are not in the nature of prosecution. They are precise criminal proceedings held as summary proceedings. 6. It was open to the petitioner to go to civil court to get a declaration regarding status of his and respondent. That being the position, it cannot be said that respondent is not the wife of petitioner. In earlier criminal prosecution, he was given benefit of doubt. In a trial standard of proof is strict. Such finding will not debar a court from holding in a subsequent proceedings under Section 125 Criminal Procedure Code that respondent is wife. In view thereof, the petitioner's case fails on this count. If the respondent is held wife, then liability of the petitioner cannot be doubted for paying maintenance to her. 7. Learned counsel for the petitioner further urged that court has held that there was a 'Nata' marriage. But that varies from the stand of the respondent. This is a question of fact which cannot be permitted to be agitated in the proceedings under Section 482 Criminal Procedure Code. 8. Both the courts below have concurrently held against the petitioner. No case for interference is made out in the petition in the nature of second revision under the extra-ordinary jurisdiction of this Court under Section 482 Criminal Procedure Code unless extra-ordinary circumstances are brought to the notice of the Court. The misc. petition having no force is dismissed.Petition dismissed. *******