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2007 DIGILAW 515 (MP)

Suman Tamrakar v. Vinod Kumar Tamrakar

2007-05-01

RAKESH SAKSENA

body2007
ORDER 1. Petitioner has filed this revision against the order dated 23rd July 2002 passed by Presiding Officer, Family Court, Sagar, in MJC No. 45/ 02, whereby the application filed by the petitioner under section 125 of the Code of Criminal Procedure was dismissed. 2. Learned counsel for the petitioner submitted that the findings given by the trial Court in para 9, 11 and 12 are perverse. In para 9, learned trial Court found that the letters written by the petitioner Ex. D-4, D-5, D-7, D-8 and D-I0 indicated that behaviour of the non-petitioner towards petitioner was cordial and that she herself had apologized for her behaviour. In para 11, learned trial Court placed reliance on letters Ex. D-13 and D-14 written by the petitioner admitting her illicit relations with Balram, Om Prakash and Arun Yadav. Trial Court observed that though the petitioner stated that the aforesaid letters were got written by her under the threat given by non-petitioner, but he on the basis of writing found that they were written under normal condition, voluntarily. In para 12, learned trial Court observed that the petitioner and her parents did not lodge any report with the police about the cruel behaviour of her husband and that he compelled her to write letters Ex. D-13 and D-14. On the basis of above findings, learned trial Court carne to hold that petitioner was living separate out of her own accord, due to her old illicit affairs and that non-petitioner had never neglected her. 3. Learned counsel for the petitioner pointed out that a decree of divorce in Civil Suit No. 98-N96 was passed by V Additional Sessions Judge, Sagar on 31.3.1998. She had filed the application for divorce. In the judgment of Civil Court, it was found that non-petitioner Vinod Kumar had illicit relations with another woman and that he was subjecting the petitioner with cruelty for several reasons mentioned in the judgment. 4. On perusal of the evidence of petitioner before the trial Court, it appears that in para 20 of her deposition, though she admitted her writing in letters Ex. D-13 and D-14, but she categorically stated that these letters were got written by her under threat given by her husband. 5. Non-petitioner husband, though appeared as a witness before the trial Court, but he did not appear for the cross-examination. As such his statement is of no use. 6. D-13 and D-14, but she categorically stated that these letters were got written by her under threat given by her husband. 5. Non-petitioner husband, though appeared as a witness before the trial Court, but he did not appear for the cross-examination. As such his statement is of no use. 6. Learned counsel for the petitioner has filed the copy of judgment and decree of the divorce case before this Court. 7. Learned counsel for the non-petitioner submitted that the decree of divorce was passed on 31st March 1998, whereas the judgment of the Family Court was passed on 23.7.2002, but the petitioner did not produce the said judgment and decree before the trial Court. Though, in the cross-examination of petitioner before the trial Court, from para 15, it appears that non-petitioner had knowledge that the decree of divorce had been passed, yet none of them put the same on record. 8. It is settled position of law that the findings of the Civil Court supersede the findings of the Criminal Court, but neither the trial Court asked the parties to produce the judgment passed by the Civil Court, nor any of the party to the litigation produced the said document before it. 9. In view of the fact that the decree of the Civil Court was not considered by the trial Court, though it had been passed during the pendency of the case before it, it is apt to set aside the impugned order and remand the case to the trial Court for a fresh decision after taking into consideration the effect of the decree of the Civil Court. It is also observed that any of the party, if so wishes, may produce any additional evidence before the trial Court. After taking into consideration the decree of the Civil Court and the material on record, trial Court shall decide the matter afresh according to law. Case is remanded for fresh decision in the light of the aforesaid observations. It is expected that the trial Court shall hear and dispose ofthe matter as early as possible preferably within six months from the date of receipt of the record. 10. With the above observation, this revision is allowed. Impugned order is set aside. Office is directed to send back the record of trial Court immediately.