MUSAM MIA Vs. KISHIM ALI MIA

JUDGEMENT

(1.) THIS is an application under Section 561 -A and 439, Cr.P.C. read with Article 227 of the Constitution of India to stay the proceedings in Criminal Case No. 17 of 1961 in the Court of the S.D.M., Imphal West, till the disposal of the Title Suit No. 39 of 1961 filed by the petitioners 1 and 2 in the Munsiff's Court at Impnal. The respondent Kashim Ali Mia filed a complaint before the Magistrate on 24 -1 -61 against the 3 petitioners stating that petitioner No. 2 Ibema Bibi is the wife of the complainant, that they lived for sometime as husband and wife that in the month of Poinu 1960, Ibema Bibi was taken by her father Alimuddin Mia, petitioner No. 3, for a feast at his house, that she was thereafter kept in wrongful confinement for some days by petitioner No. 3, that on 22 -1 -61, Ibema Bibi, was re -married to petitioner No. X at the instigation of her father and that thus all the petitioners have committed offence punishable under law. The 'Magistrate took cognizance of the case and Issued bailable warrants on 24 -1 -61 and the petitioners 1 and 3 appeared before the Court and the case underwent 4 adjournments and was posted to 30 -3 -61 for the appearance of petition' or No. 2 for which petitioners 1 and 3 were taking time and requesting that she may, instead of personally appearing in Court, be allowed to appear through counsel.

(2.) ON 20 -3 -61, petitioners 1 and 2 filed Title suit No. 39 of 1961 against the respondent in the Munsiff's Court, Manipur, for a declaration that petitioner No. 2 is the married wife of petitioner No. 1 and for a permanent injunction restraining the respondent from committing any act to the injury of the legal character as husband ana wife of the petitioners Nos, 1 and 2. in the plaint, it was stated that on 241 -60, petitioner No. 2 was kidnapped by the respondent, but that she was recovered the same day by her people, that thereafter petitioner No. 2 was married to petitioner No. 1 on 22 -1 -61 and the parties have been residing together as husband and wife, that the respondent has filed a criminal complaint against the petitioners and thereby thrown a cloud on the legal status of petitioners 1 and 2 and that therefore it had become necessary to file the suit for the declaration of the legal character as husband and wife of petitioners 1 and 2. The Munsiff granted an interim Injunction restraining respondent from taking further proceedings in the criminal Court till the final disposal of the petition. The petitioners thereupon applied to the Magistrate on 22 -3 -61 for stay of proceedings in the Criminal Case until the legal character of the parties was decided by the Civil Court. Respondent also applied for. adjournment till the disposal of the injunction petition. But as the interim injunction was not made absolute and was lifted, the Magistrate did not pass any orders on the application of either party.

(3.) THE question is whether the Criminal case should be stayed. From the statement of facts, it will be clear that the matter to be decided in the Criminal Court and the Civil Court is identical, In the Criminal Court, petitioner No. 2 - Ibema Bibi alone can be charged under Section 494 I.P.C. while petitioners Nos. 1 and 3 can be charged only under Section 494 read with Section' 109 I.P.C. To prove the charge, the respondent has to prove his marriage to petitioner No. 2, He has not stated in the complaint when the marriage took place or how long they were living as husband and wife. Marriage between petitioners 1 and 2, need not be proved in the Criminal Court as both of them admit the fact. In the Civil Suit, the validity of the marriage between petitioners 1 and 2 has to be gone into before any declaration could be given to them of their married status. In order to decide that question, the contention of the respondent that he was married to petitioner No. 2 will have to be gone into. Thus the subject - matter is identical in the criminal case and In the civil case.