KASHINATH GHOSH Vs. KALPANA PAL

JUDGEMENT

(1.) Heard learned Advocate for the petitioner.

(2.) In the instant case, the petitioner has assailed the order dated 29.7.2004 passed by the learned Civil Judge, Junior Division, Kalna in Title Suit No. 162 of 1999 whereby and whereunder the application praying amendment of the plaint with a prayer for declaration that the order passed by the learned Magistrate in M. C. Case No. 17 of 2001 is not binding upon the plaintiff/petitioner along with injunction, was rejected. The factual matrix of the case is to the following effect: The plaintiff/petitioner brought a civil action praying declaration that the defendant is not his wife and other consequential reliefs. The defendant of the suit, at the pre-institution stage of that civil action, moved the criminal Court having competent jurisdiction under Section 125 of the Code of Criminal Procedure for deciding the issue of maintenance against the plaintiff Kashinath Ghosh on the claim that the plaintiff Kashinath Ghosh is the husband and he is negligent to maintain the wife. This application was registered as M.C. Case No. 17 of 2001 of the Court of the learned 4th Judicial Magistrate, Hooghly Sadar, District - Hooghly and was allowed. The plaintiff/petitioner filed an application under Section 127 of the Code of Criminal Procedure praying modification of that order, which being rejected, the matter was drawn to the High Court at Calcutta in the criminal revisional jurisdiction by the husband, which was registered as C.R.R. No. 1143 of 2001 and the High Court did not interfere with the impugned order. The plaintiff of the suit intended to bring all those facts in the pleading by way of amendment with a prayer that the order of the learned Magistrate directing payment of monthly maintenance allowance is not binding on him. The learned Court below considered the issue and rejected the prayer to amend the plaint in that fashion. This Court is not finding any material irregularity or illegality in the matter or lack of jurisdiction of the Court to interfere with the order. No doubt it is a settled law that a finding of a criminal Court is not binding upon a civil Court in view of distinguishing feature of considering the evidentiary value in both the two proceedings. In a criminal proceeding, the degree of consideration of evidence requires to the strict proof thereof, failing which there is a result of acquittal of the accused, whereas in a civil proceeding even a pre-ponderance of the probabilities would be considered factum to identify the evidence in support of the declaration, as prayed for. On that issue, the Supreme Court considered the matter and thereby held in the case of Anil Behari Ghosh v. Sm. Latika Pal, (which was a judgment of three Judges Bench), reported in AIR 1955 SC 566 to this effect: "Judgment of a criminal Court is only relevant that the trial Court held convicting under Section 304,I.P.C. but it is not evidence of fact that the plaintiff/respondent was murderer. Judgment of criminal Court is also not binding on the civil Court to find out on evidence whether the case will fall under Section 304 or under Section 294 and Section 300, I.P.C. Both the points to be determined by the civil Court on evidence adduced before it. "The question cropped upon on an issue which arose out of an application under Section 25 of the Hindu Succession Act qua criminal proceeding. In view of that settled legal position, there is no doubt that the maintenance order passed by the learned Magistrate exercising the jurisdiction over a quasi criminal proceeding under Section 125 of the Code of Criminal Procedure ex facie is not binding and the civil Court has the jurisdiction to decide that issue on taking evidence. In the instant case, it was a suit for declaration praying relief that the defendant is not the wife of the plaintiff. In such type of suit, the plaintiff has to prove by adducing oral and documentary evidence about the factum of marriage etc. Despite this legal position, the rejection of the amendment application by the learned Court below by not allowing incorporation of the decision reached by the learned Magistrate in a maintenance application filed by the wife/defendant under Section 125 of the Code of Criminal Procedure in view of the fact that with reference to these facts, the plaintiff/petitioner had set up a prayer for declaration that the order of maintenance passed by the competent Court of criminal jurisdiction, is not binding upon him was justified. Jurisdictional issue of different Courts is different. Maintenance of a wife could be granted even by a civil action under Hindu Adoption and Maintenance Act, by granting permanent, alimony to a wife and by another proceeding for quick relief of under Section 125 of the Code of Criminal Procedure by bringing a guasi criminal proceeding before a competent Court of criminal jurisdiction in view two separate jurisdiction determining separate issues involved therein having a separate hierarchical position by setting up different Courts the plaintiff sought relief in the revisional jurisdiction under Section 402 read with Section 482 of the Code of Criminal Procedure. In that revisional application, competent revisional Court, that is High Court at Calcutta passed an order dismissing the revision application, by whatever reason it may be in this case on default and that is final so far as monthly maintenance allowance as granted by the Court of the learned Magistrate while disposing of the maintenance case on an application under Section 125 of the Code of Criminal Procedure. The present petitioner, who was the plaintiff in the suit cannot assail that order of the learned Magistrate in a civil proceeding even by inserting a consequential prayer. Once that order reached its finality it cannot be touched by any Court of law save and except the superior Court exercising the power under Article 136 of the Constitution of India. Furthermore, it is also settled by the Apex Court that in a proceeding under Section 125 of the Code of Criminal Procedure, which is a quasi criminal proceeding adjudication of the issue as to whether lawfully married or not and other issues involved therein, having less relevancy, save and except identification of the issue by taking evidence that both were living as husband and wife under a common roof.

(3.) Having regard to such state of affairs, this Court is not finding any perversity in the order rejecting the application for amendment with a prayer for declaration that the order of the learned Magistrate is not binding. In that view, this application stands dismissed.