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2019 DIGILAW 1494 (KAR)

Lakshmi v. K. Mallikarjuna

2019-07-01

S.G.PANDIT

body2019
JUDGMENT : S.G. PANDIT, J. 1. The petitioner is before this Court under Article 226 of the Constitution of India praying to quash the order dated 13.03.2019 passed by the learned Principal Judge, Family Court, Ballari in M.C. No. 112/2017 on I.A. No. 13 by which the petitioner's application filed u/S 151 of CPC for stay of proceedings in M.C. No. 112/2017 is rejected. 2. The brief facts leading to the petition are as follows: The petitioner was married with one Pompapathy on 19.03.2008. Sister of Pompapathy by name Jademma was married to the brother of the petitioner by name Ramakrishna. As differences arose between Ramakrishna and Jademma, Jademma left matrimonial home and started living with her parents. As a consequence, the petitioner was also brought back to her parental home from her matrimonial home. Since then the petitioner is living with her parents. The petitioner states that she was working as Coolie in the respondent's garden. On 21.09.2013 at about 4.30 p.m. the respondent forcibly took the petitioner into his maize crop field and committed rape on her. After committing rape he took her to Chandaragi, to the house of one Mareppa and continuously committed rape. On 26.09.2013 respondent married the petitioner in the presence of his brother at Yerrithataswamy Mutt at Chellagurki. Thereafter the petitioner was asked to get divorce from her husband Pompapathy. In the year 2013 mutual divorce petition was filed by the petitioner and Pompapathy in M.C. No. 288/2013 and Ramakrishna and Jademma in M.C. No. 289/2013. In the meanwhile the petitioner became pregnant in the month of February, 2014. At the instance of respondent, the petitioner had to undergo abortion against her will. After that, the respondent took petitioner to her parents house and left her there at Ballari. 3. The petitioner filed complaint before the Rural Police and reported commission of offence on 07.05.2015 against the family members of the respondent and also against the Doctor who performed abortion on the petitioner. As the Police failed to register the complaint the petitioner filed complaint before the Superintendent of Police, Ballari, which came to be registered in Crime No. 197/2014. On 29.06.2017 the respondent filed petition u/S 11 of the Hindu Marriage Act, 1955, for declaration to declare the marriage between the petitioner and the respondent dated 26.09.2013 as nullity. The petitioner filed her objections to the petition. On 29.06.2017 the respondent filed petition u/S 11 of the Hindu Marriage Act, 1955, for declaration to declare the marriage between the petitioner and the respondent dated 26.09.2013 as nullity. The petitioner filed her objections to the petition. Subsequently, the petitioner amended her objection statement. The petitioner also filed suit in O.S. No. 19/2018 to declare that respondent is wedded husband of the petitioner and petitioner is wedded wife of respondent and also for a declaration that the marriage dated 26.09.2013 is valid. The said suit came to be dismissed on preliminary issue of maintainability. The mutual divorce petition filed by the petitioner and Pompapathy; and by Ramakrishna and Jademma, came to be allowed on 17.09.2014. 4. As stated above, the respondent had filed M.C. No. 112/2017 u/S 11 of the Hindu Marriage Act seeking declaration of marriage between the petitioner and respondent dated 26.09.2013 as nullity. The petitioner had appeared in the said petition and had filed her objection and also subsequently amended the objection statement. 5. The Criminal case filed by the petitioner against the respondent for the offence of rape and against the Doctor for forcible abortion was registered in Crime No. 197/2014 wherein after completion of the investigation charge sheet was filed in S.C. No. 115/2015 on the file of learned II Addl. Dist. & Sessions Judge, Ballari. The matrimonial case filed by the respondent is at the stage of evidence and the petitioner has to cross-examine the respondent. At that stage, on 06.03.2019 the petitioner filed an application u/S 151 of CPC with a prayer to stay further proceedings till completion of the evidence in S.C. No. 115/2015 on the file of the learned II Addl. Dist. & Sessions Judge, Ballari. The said Criminal Case is at the stage of Hearing Before Charge. 6. In the application for stay, the petitioner stated that, disclosing of her defence in the matrimonial case would prejudice her case in S.C. No. 115/2015. It is her case that the petitioner committed offence punishable under Section 376 of IPC and subsequently forced her to undergo abortion and if the petitioner cross-examines the respondent on these aspects, there would be nothing for her to cross-examine the respondent in the criminal proceedings. If she cross-examines the respondent she would suffer irreparable hardship and difficulty. On the other hand, if the proceedings are stayed, no prejudice would be caused to the respondent. If she cross-examines the respondent she would suffer irreparable hardship and difficulty. On the other hand, if the proceedings are stayed, no prejudice would be caused to the respondent. Hence she sought for stay of further proceedings in M.C. No. 112/2017. 7. The respondent opposed the application by filing objection. In the objection statement the respondent stated that only to drag on the proceedings and to harass the respondent, the petitioner has filed application u/S 151 of CPC seeking stay of further proceedings in the matrimonial case. If the petitioner cross-examines the respondent no prejudice will be caused to the respondent since two proceedings, i.e., in the matrimonial case and criminal case are entirely different and purpose of the two proceedings are also entirely different. He denied the allegations made in the application. 8. The trial Court by the impugned order rejected I.A. No. 13 filed by the petitioner under Section 151 of CPC to stay further proceedings till completion of evidence in S.C. No. 115/2015. Aggrieved by the same, the petitioner is before this Court. 9. Heard the learned counsel for the petitioner and the learned counsel for the respondent and perused the writ petition papers. 10. The learned counsel for the petitioner would submit that the respondent committed rape on the petitioner and also forced her to undergo abortion against her will. On the other hand, the respondent has filed a petition under Section 11 of the Hindu Marriage Act seeking declaration that marriage between the petitioner and the respondent is nullity. If the petitioner cross-examines the respondent in the matrimonial case, she has to open up her defence while cross-examining and if she discloses the defence it would greatly prejudice her defence in the criminal case pending in S.C. No. 115/2015. The petitioner intends to cross examine on the rape committed by the respondent and forcible abortion at his instance. The charge sheet filed against the respondent in S.C. No. 115/2015 is for the offence punishable u/S 376 and 504 of IPC and Sec. 3 and 4 of the Medical Termination of Pregnancy Act, 1971. 11. Per contra, learned counsel for the respondent would submit that the application is filed only with the sole purpose of dragging on the proceedings and he submits that no prejudice would be caused if the petitioner cross-examine the respondent in the matrimonial case. 11. Per contra, learned counsel for the respondent would submit that the application is filed only with the sole purpose of dragging on the proceedings and he submits that no prejudice would be caused if the petitioner cross-examine the respondent in the matrimonial case. The purpose of the two proceedings are entirely distinct and method of proceedings is also different. Hence, he submits that no prejudice would be caused to the petitioner. Thus he prays for rejecting the writ petition. 12. Having heard the learned counsel for the parties and having perused the writ petition, the only question which arises for consideration in this Writ Petition is as to: Whether the petitioner is entitled for relief of stay of further proceedings in M.C. No. 112/2017 till recording of evidence in S.C .No. 115/2015 pending on the file of the Court of II Addl. Dist. & Sessions Judge, Ballari? - - - 13. Admittedly, the respondent has instituted M.C. No. 112/2017 under Section 11 of the Hindu Marriage Act for declaration that the marriage of petitioner and respondent is a nullity. The petitioner states that the respondent married her on 26.09.2013, that too after committing rape on her on 21.09.2013. It is the further case of the petitioner that she became pregnant in the month of February 2014 and on 30.04.2014 she had to undergo forced abortion against her will. Against committing of rape and abortion against her will, she had complained, which was registered as Crime No. 197/2014. Subsequently, on filing of the charge sheet, case is pending in S.C. No. 115/2015 on the file of II Addl. Dist. & Sessions Judge, Ballari. 14. The matrimonial case is filed by the respondent seeking the relief of declaration that marriage between the petitioner and respondent is a nullity whereas S.C. No. 115/2015 is pending against the respondent for the offences alleged to have been committed by the respondent under Section 376 and 504 of IPC and Sec. 3 and 4 of the Medical Termination of Pregnancy Act, 1971. The criminal action is for penal action against the respondent. The purpose and method of two proceedings are entirely different. The yardstick for assessment of evidence in both the proceedings are also entirely distinct and different. The criminal action is for penal action against the respondent. The purpose and method of two proceedings are entirely different. The yardstick for assessment of evidence in both the proceedings are also entirely distinct and different. Evaluation of evidence in both the cases are for different purposes, i.e., in matrimonial case for declaration of marriage as nullity, whereas in criminal proceedings it is for penal action against the respondent. The finding recorded in civil proceedings would not be binding on the criminal court since the evidence required in criminal proceedings is beyond reasonable doubt. Therefore, pendency of criminal proceedings would not be a bar to proceed with the civil suit or matrimonial proceedings. The criminal proceedings would be for punishing a person for the offences alleged against him. 15. In the present case, the petitioner merely stated that her case would be prejudiced if she cross-examine the petitioner. She has not stated anywhere that how she would be prejudiced and there is nothing to show that petitioner would suffer prejudice if she cross examines the respondent in the matrimonial case. Moreover the petitioner has filed objection statement in the matrimonial case, which would disclose the defence of the petitioner. When she has already filed her objection statement and disclosed her defence, question of further suffering prejudice is not made out by the petitioner herein. 16. The trial Court under the impugned order has observed that onus is on the petitioner to show the injustice or prejudice that would be caused to her if she cross-examines the respondent, which she has failed to demonstrate. 17. Merely on the statement or apprehension, the petitioner cannot seek stay of proceedings till recording of evidence in the criminal case that too when the purpose of the two proceedings are entirely different. For the reasons stated above, I am of the view that the petitioner has not made out any ground to interfere with the order passed by the trial Court in M.C. No. 112/2017 on I.A. No.13. Hence, the Writ Petition is dismissed.