Sec. 9 of Hindu Marriage Act - Binding nature of criminal court judgments on civil courts ? = Finding of criminal court is not binding on Civil Court - the Maintenance case can not be considered as wife like wise the finding in 498 A case that she is a not wife can not be considered .
The respondent/she has to prove her case independent of the orders in criminal case = she examined the Purohit who performed the marriage and Temple clerk where the marriage was performed with due receipts apart from their oral evidence enough to pass a decree for restitution conjugation in the absence contra evidence from the Husband
=
It
is true that maintenance under Section 125 Cr.P.C would not be granted unless
the respondent in the maintenance case is the husband of the petitioner in the
maintenance case.
Indeed, the finding in M.C.No.135 of 1995 as confirmed by
this Court in Crl.R.C.No.1101 of 1996 is that the respondent herein is the
legally wedded wife of the appellant. However, as rightly submitted by the
learned counsel for the appellant, any observation in criminal proceedings is
not per se binding on the civil court. Added to it, proceedings under Section
125 Cr.P.C are summary in nature. We therefore agree with the contention of the
learned counsel for the appellant that mere allowing M.C.No.135 of 1995 cannot
be a ground to hold that the appellant is the legally wedded husband of the
respondent. =
Ex.B-1 certified copy of
judgment in C.C.No.394 of 1997 in which the appellant was acquitted.
The
learned counsel for the appellant would appear to suggest that it is an instance
to show that the appellant is not the husband of the respondent.
As already
asserted by the learned counsel for the appellant himself, any finding by a
criminal court does not bind the civil court in respect of the same lis.
Added
to it, the criminal court did not hold that the appellant was not the husband of
the respondent.
Mere acquittal for the offences under Sections 420 and 498-A,
IPC cannot be read as evidence that the appellant was not the legally wedded
husband of the respondent.
Viewed in any angle, the judgment in Ex.B-1 cannot
help the appellant in establishing that there is no jural relationship of man
and wife between the appellant and the respondent.
13. As already pointed out, there is overwhelming evidence to support the claim
of the respondent that she is the wife of the appellant.
There is no contrary
evidence barring for the ipsi dixit of the appellant as R.W.1.
We therefore consider that the respondent has clinchingly established her case
that she is the legally wedded wife of the appellant.
14. There is no evidence from the appellant explaining his desertion. On the
other hand, the respondent has established that the appellant deserted her with
effect from 30-01-1993. In that view of the position, the trial court is
perfectly justified in granting a decree of restitution of conjugal rights.
There are no merits in this appeal.
The appeal accordingly is dismissed. No costs.
HON'BLE SRI JUSTICE V.ESWARAIAH AND HON'BLE SRI JUSTICE K.G.SHANKAR
Civil Miscellaneous Appeal No.4345 of 2003
12-12-2012
Gangula Kiran Babu
Smt. Nookala Madhavi Latha
Counsel for the appellant: Sri C.Upendra
Counsel for the respondent: Sri V.V.N.Narasimham
<Gist:
>Head Note:
?Cases referred:
Nil.
Judgment: (per K.G.Shankar, J.)
The appellant resisted the petition laid by the respondent under Section 9
of the Hindu Marriage Act, 1955, seeking for the restitution of the conjugal
rights.
The husband contended that there was no jural relationship of husband and wife
between him and the respondent.
The trial court held that the appellant is the
husband of the respondent and granted decree for restitution of conjugal rights.
Assailing the same, the present appeal is laid.
2. The appellant and the respondent were contemporaries in the college.
Both of
them were students of BITS, a private Engineering College at MVP Colony,
Visakhapatnam.
They thus knew each other.
3. The case of the respondent is:
(a)
The appellant and the respondent belong to different communities.
The respondent is about 8 years elder to the appellant.
However, they fell in love with each other.
They got their marriage solemnized at Simhachalam Devasthanam,
Visakhapatnam, on 06-10-1992 in the presence of P.W.2, sister of the respondent
and Pavan Kumar, a close friend of the appellant.
The appellant and the
respondent started living together at the house of the sister of the respondent.
(b)
The appellant went on postponing to inform
his parents about his marriage with the respondent.
The respondent consequently requested her relatives and well-wishers, by name
Annapoorna and K.Rohini to inform the parents of the appellant about the
marriage of the appellant and the respondent.
When Annapoorna and Rohini
accordingly informed the parents of the appellant on 23-12-1992 about the
marriage, they declined to accept the respondent as daughter-in-law owing to the
disparity of the age and also because of the appellant and the respondent belong
to different communities.
The appellant in his turn deserted the respondent on
30-01-1993. The best efforts on the part of the respondent to restore the
matrimony proved futile.
(c) The respondent lodged a complaint with III Town Police Station,
Visakhapatnam, when she did not even know the whereabouts of the appellant. The
Police registered First Information Report in Crime No.216 of 1993 as 'man
missing' on the complaint of the respondent. The parents of the appellant
produced the appellant before the Police but refused to accept the respondent as
the daughter-in-law of the family.
(d) The respondent consequently lodged a complaint before the II Metropolitan
Magistrate, Visakhapatnam, under Sections 420 and 498-A, IPC on 07-7-1993.
The respondent also filed M.C.No.135 of 1995 seeking maintenance. The
respondent was granted maintenance at Rs.250/- per month by the trial court.
The revision of the appellant in Crl.R.C.No.1101 of 1996 before this Court was
dismissed on 24-12-1998. The appellant has not been honouring the order of
maintenance and has also deserted the respondent.
Hence, the petition for
restitution of conjugal rights.
4. The appellant, on the other hand, denied his marriage with the respondent.
He denied about the mediation by Annapoorna and K.Rohini. He pointed out that
the complaint lodged by the respondent was numbered as C.C.394 of 1997 on the
file of the III Metropolitan Magistrate, Visakhapatnam, and that the case ended
in acquittal after full-fledged trial. He also asserted that he has been paying
maintenance awarded by the trial court regularly.
He ultimately contended that
as there is no jural relationship of man and wife between him and the
respondent, the petition for restitution of conjugal rights deserves to be
dismissed.
5. The respondent examined herself as P.W.1.
She examined 5 other witnesses as P.Ws.2 to 6.
The appellant examined himself as the only witness (R.W.1) on his side. Exs.A-1
and A-2 are the copies of the orders in M.C.No.135 of 1995 and Crl.R.C.No.1101
of 1996 from M.C.No.135 of 1995. Further, Exs.X-1 to X-4 were also marked.
6. Sri C.Upendra, learned counsel for the appellant, contended that there is no
legal relationship between the appellant and the respondent, so much so, the
question of restitution of conjugal rights does not arise. P.W.1 is no other
than the respondent herself. P.W.2 is her elder sister. Both of them certainly
are interested in the respondent in trying to prove her case.
7. The respondent relied upon Exs.A-1 and A-2 in support of her contention.
It
is true that maintenance under Section 125 Cr.P.C would not be granted unless
the respondent in the maintenance case is the husband of the petitioner in the
maintenance case. Indeed, the finding in M.C.No.135 of 1995 as confirmed by
this Court in Crl.R.C.No.1101 of 1996 is that the respondent herein is the
legally wedded wife of the appellant. However, as rightly submitted by the
learned counsel for the appellant, any observation in criminal proceedings is
not per se binding on the civil court. Added to it, proceedings under Section
125 Cr.P.C are summary in nature. We therefore agree with the contention of the
learned counsel for the appellant that mere allowing M.C.No.135 of 1995 cannot
be a ground to hold that the appellant is the legally wedded husband of the
respondent.
The respondent has to prove her case independent of the orders in
M.C.No.135 of 1995.
8. The respondent examined P.W.3. He was
a neighbour of P.W.2. He claimed that the appellant and the respondent resided
in the house of P.W.2 for about 5 months as man and his wife.
At the same time, he admitted that albeit he was
invited for the marriage, he could not attend the same as the marriage between
the appellant and the respondent was celebrated on Dasara day. Thus, the effect
of the evidence of P.W.3 is that he knew the appellant and the respondent
residing in the house of P.W.2 as man and his wife. Again, as rightly submitted
by the learned counsel for the appellant, merely because the appellant and the
respondent resided as man and wife, they cannot be treated as man and wife
unless it is substantially proved where one of the parties is disputing the
marriage.
9. The respondent examined P.Ws.4 and 5.
P.W.5 is the authorized Archaka of Simhachalam Devasthanam.
He deposed that he performed the marriage of the appellant and the respondent.
Ex.X-3 contains the signature of P.W.5 confirming the evidence of P.W.5 that he
performed the marriage of the appellant and the respondent.
10. P.W.4 is an employee of Simhachalam Devasthanam.
He produced the Down Hills
Choultries Leeding Register from 01-9-1992 to 10-10-1992.
Ex.X-3 is copy of the same.
It contains the signatures of the appellant and the respondent as the
bridegroom and the bride.
Ex.X-4 is the copy of the receipt passed by the
Devasthanam for the collection of fee for performing the marriage.
11. Indeed, P.W.4 was deposing on the strength of documentary evidence. He was
not present at the time of the marriage of the appellant and the respondent. Be
that as it is, the evidence of P.W.5 coupled with Exs.X-3 and X-4 clinchingly
establishes that the marriage of the appellant and the respondent was solemnized
on 06-10-1992 at Simhachalam Devasthanam, Visakhapatnam.
Such evidence is
supported by the evidence of P.W.3, who found the appellant and the respondent
residing in the house of P.W.2 proclaiming themselves to be the man and wife.
Such is the overwhelming evidence in favour of the respondent showing that she
is the legally wedded wife of the appellant.
12. The learned counsel for the appellant put forth
Ex.B-1 certified copy of
judgment in C.C.No.394 of 1997 in which the appellant was acquitted.
The
learned counsel for the appellant would appear to suggest that it is an instance
to show that the appellant is not the husband of the respondent.
As already
asserted by the learned counsel for the appellant himself, any finding by a
criminal court does not bind the civil court in respect of the same lis.
Added
to it, the criminal court did not hold that the appellant was not the husband of
the respondent.
Mere acquittal for the offences under Sections 420 and 498-A,
IPC cannot be read as evidence that the appellant was not the legally wedded
husband of the respondent.
Viewed in any angle, the judgment in Ex.B-1 cannot
help the appellant in establishing that there is no jural relationship of man
and wife between the appellant and the respondent.
13. As already pointed out, there is overwhelming evidence to support the claim
of the respondent that she is the wife of the appellant.
There is no contrary
evidence barring for the ipsi dixit of the appellant as R.W.1.
We therefore consider that the respondent has clinchingly established her case
that she is the legally wedded wife of the appellant.
14. There is no evidence from the appellant explaining his desertion. On the
other hand, the respondent has established that the appellant deserted her with
effect from 30-01-1993. In that view of the position, the trial court is
perfectly justified in granting a decree of restitution of conjugal rights.
There are no merits in this appeal.
The appeal accordingly is dismissed. No costs.
___________________
V.ESWARAIAH, J.
___________________
K.G.SHANKAR, J.
12th December, 2012.
The respondent/she has to prove her case independent of the orders in criminal case = she examined the Purohit who performed the marriage and Temple clerk where the marriage was performed with due receipts apart from their oral evidence enough to pass a decree for restitution conjugation in the absence contra evidence from the Husband
=
It
is true that maintenance under Section 125 Cr.P.C would not be granted unless
the respondent in the maintenance case is the husband of the petitioner in the
maintenance case.
Indeed, the finding in M.C.No.135 of 1995 as confirmed by
this Court in Crl.R.C.No.1101 of 1996 is that the respondent herein is the
legally wedded wife of the appellant. However, as rightly submitted by the
learned counsel for the appellant, any observation in criminal proceedings is
not per se binding on the civil court. Added to it, proceedings under Section
125 Cr.P.C are summary in nature. We therefore agree with the contention of the
learned counsel for the appellant that mere allowing M.C.No.135 of 1995 cannot
be a ground to hold that the appellant is the legally wedded husband of the
respondent. =
Ex.B-1 certified copy of
judgment in C.C.No.394 of 1997 in which the appellant was acquitted.
The
learned counsel for the appellant would appear to suggest that it is an instance
to show that the appellant is not the husband of the respondent.
As already
asserted by the learned counsel for the appellant himself, any finding by a
criminal court does not bind the civil court in respect of the same lis.
Added
to it, the criminal court did not hold that the appellant was not the husband of
the respondent.
Mere acquittal for the offences under Sections 420 and 498-A,
IPC cannot be read as evidence that the appellant was not the legally wedded
husband of the respondent.
Viewed in any angle, the judgment in Ex.B-1 cannot
help the appellant in establishing that there is no jural relationship of man
and wife between the appellant and the respondent.
13. As already pointed out, there is overwhelming evidence to support the claim
of the respondent that she is the wife of the appellant.
There is no contrary
evidence barring for the ipsi dixit of the appellant as R.W.1.
We therefore consider that the respondent has clinchingly established her case
that she is the legally wedded wife of the appellant.
14. There is no evidence from the appellant explaining his desertion. On the
other hand, the respondent has established that the appellant deserted her with
effect from 30-01-1993. In that view of the position, the trial court is
perfectly justified in granting a decree of restitution of conjugal rights.
There are no merits in this appeal.
The appeal accordingly is dismissed. No costs.
HON'BLE SRI JUSTICE V.ESWARAIAH AND HON'BLE SRI JUSTICE K.G.SHANKAR
Civil Miscellaneous Appeal No.4345 of 2003
12-12-2012
Gangula Kiran Babu
Smt. Nookala Madhavi Latha
Counsel for the appellant: Sri C.Upendra
Counsel for the respondent: Sri V.V.N.Narasimham
<Gist:
>Head Note:
?Cases referred:
Nil.
Judgment: (per K.G.Shankar, J.)
The appellant resisted the petition laid by the respondent under Section 9
of the Hindu Marriage Act, 1955, seeking for the restitution of the conjugal
rights.
The husband contended that there was no jural relationship of husband and wife
between him and the respondent.
The trial court held that the appellant is the
husband of the respondent and granted decree for restitution of conjugal rights.
Assailing the same, the present appeal is laid.
2. The appellant and the respondent were contemporaries in the college.
Both of
them were students of BITS, a private Engineering College at MVP Colony,
Visakhapatnam.
They thus knew each other.
3. The case of the respondent is:
(a)
The appellant and the respondent belong to different communities.
The respondent is about 8 years elder to the appellant.
However, they fell in love with each other.
They got their marriage solemnized at Simhachalam Devasthanam,
Visakhapatnam, on 06-10-1992 in the presence of P.W.2, sister of the respondent
and Pavan Kumar, a close friend of the appellant.
The appellant and the
respondent started living together at the house of the sister of the respondent.
(b)
The appellant went on postponing to inform
his parents about his marriage with the respondent.
The respondent consequently requested her relatives and well-wishers, by name
Annapoorna and K.Rohini to inform the parents of the appellant about the
marriage of the appellant and the respondent.
When Annapoorna and Rohini
accordingly informed the parents of the appellant on 23-12-1992 about the
marriage, they declined to accept the respondent as daughter-in-law owing to the
disparity of the age and also because of the appellant and the respondent belong
to different communities.
The appellant in his turn deserted the respondent on
30-01-1993. The best efforts on the part of the respondent to restore the
matrimony proved futile.
(c) The respondent lodged a complaint with III Town Police Station,
Visakhapatnam, when she did not even know the whereabouts of the appellant. The
Police registered First Information Report in Crime No.216 of 1993 as 'man
missing' on the complaint of the respondent. The parents of the appellant
produced the appellant before the Police but refused to accept the respondent as
the daughter-in-law of the family.
(d) The respondent consequently lodged a complaint before the II Metropolitan
Magistrate, Visakhapatnam, under Sections 420 and 498-A, IPC on 07-7-1993.
The respondent also filed M.C.No.135 of 1995 seeking maintenance. The
respondent was granted maintenance at Rs.250/- per month by the trial court.
The revision of the appellant in Crl.R.C.No.1101 of 1996 before this Court was
dismissed on 24-12-1998. The appellant has not been honouring the order of
maintenance and has also deserted the respondent.
Hence, the petition for
restitution of conjugal rights.
4. The appellant, on the other hand, denied his marriage with the respondent.
He denied about the mediation by Annapoorna and K.Rohini. He pointed out that
the complaint lodged by the respondent was numbered as C.C.394 of 1997 on the
file of the III Metropolitan Magistrate, Visakhapatnam, and that the case ended
in acquittal after full-fledged trial. He also asserted that he has been paying
maintenance awarded by the trial court regularly.
He ultimately contended that
as there is no jural relationship of man and wife between him and the
respondent, the petition for restitution of conjugal rights deserves to be
dismissed.
5. The respondent examined herself as P.W.1.
She examined 5 other witnesses as P.Ws.2 to 6.
The appellant examined himself as the only witness (R.W.1) on his side. Exs.A-1
and A-2 are the copies of the orders in M.C.No.135 of 1995 and Crl.R.C.No.1101
of 1996 from M.C.No.135 of 1995. Further, Exs.X-1 to X-4 were also marked.
6. Sri C.Upendra, learned counsel for the appellant, contended that there is no
legal relationship between the appellant and the respondent, so much so, the
question of restitution of conjugal rights does not arise. P.W.1 is no other
than the respondent herself. P.W.2 is her elder sister. Both of them certainly
are interested in the respondent in trying to prove her case.
7. The respondent relied upon Exs.A-1 and A-2 in support of her contention.
It
is true that maintenance under Section 125 Cr.P.C would not be granted unless
the respondent in the maintenance case is the husband of the petitioner in the
maintenance case. Indeed, the finding in M.C.No.135 of 1995 as confirmed by
this Court in Crl.R.C.No.1101 of 1996 is that the respondent herein is the
legally wedded wife of the appellant. However, as rightly submitted by the
learned counsel for the appellant, any observation in criminal proceedings is
not per se binding on the civil court. Added to it, proceedings under Section
125 Cr.P.C are summary in nature. We therefore agree with the contention of the
learned counsel for the appellant that mere allowing M.C.No.135 of 1995 cannot
be a ground to hold that the appellant is the legally wedded husband of the
respondent.
The respondent has to prove her case independent of the orders in
M.C.No.135 of 1995.
8. The respondent examined P.W.3. He was
a neighbour of P.W.2. He claimed that the appellant and the respondent resided
in the house of P.W.2 for about 5 months as man and his wife.
At the same time, he admitted that albeit he was
invited for the marriage, he could not attend the same as the marriage between
the appellant and the respondent was celebrated on Dasara day. Thus, the effect
of the evidence of P.W.3 is that he knew the appellant and the respondent
residing in the house of P.W.2 as man and his wife. Again, as rightly submitted
by the learned counsel for the appellant, merely because the appellant and the
respondent resided as man and wife, they cannot be treated as man and wife
unless it is substantially proved where one of the parties is disputing the
marriage.
9. The respondent examined P.Ws.4 and 5.
P.W.5 is the authorized Archaka of Simhachalam Devasthanam.
He deposed that he performed the marriage of the appellant and the respondent.
Ex.X-3 contains the signature of P.W.5 confirming the evidence of P.W.5 that he
performed the marriage of the appellant and the respondent.
10. P.W.4 is an employee of Simhachalam Devasthanam.
He produced the Down Hills
Choultries Leeding Register from 01-9-1992 to 10-10-1992.
Ex.X-3 is copy of the same.
It contains the signatures of the appellant and the respondent as the
bridegroom and the bride.
Ex.X-4 is the copy of the receipt passed by the
Devasthanam for the collection of fee for performing the marriage.
11. Indeed, P.W.4 was deposing on the strength of documentary evidence. He was
not present at the time of the marriage of the appellant and the respondent. Be
that as it is, the evidence of P.W.5 coupled with Exs.X-3 and X-4 clinchingly
establishes that the marriage of the appellant and the respondent was solemnized
on 06-10-1992 at Simhachalam Devasthanam, Visakhapatnam.
Such evidence is
supported by the evidence of P.W.3, who found the appellant and the respondent
residing in the house of P.W.2 proclaiming themselves to be the man and wife.
Such is the overwhelming evidence in favour of the respondent showing that she
is the legally wedded wife of the appellant.
12. The learned counsel for the appellant put forth
Ex.B-1 certified copy of
judgment in C.C.No.394 of 1997 in which the appellant was acquitted.
The
learned counsel for the appellant would appear to suggest that it is an instance
to show that the appellant is not the husband of the respondent.
As already
asserted by the learned counsel for the appellant himself, any finding by a
criminal court does not bind the civil court in respect of the same lis.
Added
to it, the criminal court did not hold that the appellant was not the husband of
the respondent.
Mere acquittal for the offences under Sections 420 and 498-A,
IPC cannot be read as evidence that the appellant was not the legally wedded
husband of the respondent.
Viewed in any angle, the judgment in Ex.B-1 cannot
help the appellant in establishing that there is no jural relationship of man
and wife between the appellant and the respondent.
13. As already pointed out, there is overwhelming evidence to support the claim
of the respondent that she is the wife of the appellant.
There is no contrary
evidence barring for the ipsi dixit of the appellant as R.W.1.
We therefore consider that the respondent has clinchingly established her case
that she is the legally wedded wife of the appellant.
14. There is no evidence from the appellant explaining his desertion. On the
other hand, the respondent has established that the appellant deserted her with
effect from 30-01-1993. In that view of the position, the trial court is
perfectly justified in granting a decree of restitution of conjugal rights.
There are no merits in this appeal.
The appeal accordingly is dismissed. No costs.
___________________
V.ESWARAIAH, J.
___________________
K.G.SHANKAR, J.
12th December, 2012.
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