# Amit Singh v. State of U.P. & Anr. 1248 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 7 ILRA 1247
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-06-30
- **Case number:** Matters U/A 227 No. 17365 of 2021
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amit-singh-v-state-of-u-p-anr-1248-indian-law-reports-allahabad-series-48858
- **Pages:** 7

## Headnote

Civil Law - Indian Penal Code, 1860 -
Sections 323, 504 & 506 - Stay of suit -
Divorce suit as well as Complaint Case
u/s-323, 504, 506 I.P.C. filed by wife -
Petitioner/husband prayed for stay of
divorce suit proceeding, u/s-13 of H.M.
Act,
awaiting
the
result
of
the
Complaint Case filed by the Opposite
Party /wife - husband prayed that he
may not be forced to file his Written
Statement
in
the
divorce
suit
otherwise
his
defence
would
be
disclosed and his right to silence
guaranteed in Article 20 (3) will stand
violated causing his gross miscarriage
of justice - Family court rejected the
husband prayer - Held - civil court will
not find any embarrassment, if both
the criminal proceeding and the civil
suit are tried simultaneously as the
scope of enquiry and the standard of
proof in both the proceedings are not
identical (Para 22)

Dismissed. (E-5)

List of Cases cited:

## Text

7 All. Amit Singh Vs. State of U.P. & Anr.
1247
phrase "substantial question of law" means
as under:-

"The phrase is not defined in the
Code. The word "substantial", as qualifying
question of law, means-of having substance,
essential, real, of sound worth, important or
considerable. It is to be understood as
something
in
contradistinction
withtechnical, of no substances or consequence,
or academic merely."

31. A Full Bench of Madras High Court
in Rimmalapudi Subba Rao Vs. Noony
Veeraju, AIR 1951 Madras 969 considered
this term and observed:

"when a question of law is fairly
arguable, where there is room for difference
of opinion or where the Court thought it
necessary to deal with that question at some
length and discuss an alternative view, then
the question would be a substantial question
of law. On the other hand, if the question was
practically covered by decision of highest
Court or if general principles to be applied in
determining the question are well settled and
the only question was of applying those
principles to the particular fact of case, it
could not be a substantial question of law."

32. The above observations were
affirmed and concurred by a Constitution
Bench of Hon'ble Supreme Court in Sir
Chunilal Mehta and Sons Ltd. Vs. The
Century Spinning and Manufacturing
Company Ltd. AIR 1962 SC 1314.
Referring to above authorities, the Court in
Santosh Hazari (supra) said:

"A point of law which admits of no
two opinions may be a proposition of law
but cannot be a substantial question of law.
To be substantial, a question of law must be
debatable, not previously settled by law of
the land or a binding precedent, and must
have a material bearing on the decision of
the case, if answered either way, in so far as
the rights of the parties before it are
concerned. To be a question of law involving
in the case there must be first a foundation
for it laid in the pleadings and the question
should emerge from the sustainable findings
of fact arrived at by court of facts and it
must be necessary to decide that question of
law for a just and proper decision of the
case. An entirely new point raised for the
first time before the High Court is not a
question involved in the case unless it goes
to the root of the matter. It will, therefore,
depend on the facts and circumstance of
each case whether a question of law is a
substantial one and involved in the case, or
not; the paramount overall consideration
being the need for striking a judicious
balance
between
the
indispensable
obligation to do justice at all stages and
impelling necessity of avoiding prolongation
in the life of any lis."

33. In view of the above cited legal
position and in absence of any arguable
substantial question of law, this appeal cannot
be admitted.

34. Accordingly, the appeal is dismissed
at the admission stage itself.
----------
(2022)07ILR A1247
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.06.2022

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Matters U/A 227 No. 17365 of 2021

Amit Singh ...Petitioner
Versus
State of U.P. & Anr. ...Respondents
1248 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri Sushil Kumar Singh

Counsel for the Respondents:
G.A., Sri Anurag Singh, Sri Kunwar Ravi
Prakash

Civil Law - Indian Penal Code, 1860 -
Sections 323, 504 & 506 - Stay of suit -
Divorce suit as well as Complaint Case
u/s-323, 504, 506 I.P.C. filed by wife -
Petitioner/husband prayed for stay of
divorce suit proceeding, u/s-13 of H.M.
Act,
awaiting
the
result
of
the
Complaint Case filed by the Opposite
Party /wife - husband prayed that he
may not be forced to file his Written
Statement
in
the
divorce
suit
otherwise
his
defence
would
be
disclosed and his right to silence
guaranteed in Article 20 (3) will stand
violated causing his gross miscarriage
of justice - Family court rejected the
husband prayer - Held - civil court will
not find any embarrassment, if both
the criminal proceeding and the civil
suit are tried simultaneously as the
scope of enquiry and the standard of
proof in both the proceedings are not
identical (Para 22)

Dismissed. (E-5)

List of Cases cited:

1. Anant Vs Sheetal Misc. Petition No. 345/2020,
MP HC, Jabalpur Bench at Indore

2. f M.S. Sheriff Vs St. of Madras (1954) A.I.R.
397 dated 18.3.1954

3. Ashok Kumar Pal Vs Smt. Sawan Pal (2008)
SCC Online Calcutta 462

4. K. Sitaram Patro ors. Vs K. Saraladevi Patro
(2016) SCC Online Orissa 209

5. M.S. Sheriff Vs St. of Madras AIR 1954 SC
397

6. P. Swaroopa Rani Vs M. Hari Narayana (AIR
2008 SC 1884
7. Syed Askari Hadi Ali Augustine Imam a ors.
Vs State (Delhi Admn.) & ors. AIR 2009 SC
3232

8. N. Gurucharnam Vs The St. of Andhra
Pradesh (2013 CriLJ 1061)

(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1. By means of the present petition,
the petitioner is praying for quashing and
stay of divorce suit proceeding, U/s-13 of
H.M. Act, Regular Suit No. 337 of 2017,
pending before Principal Judge-4, Family
Court, Lucknow (Smt. Yogita Singh versus
Amit Singh).

2. Brief fact of the case is that
marriage of petitioner was solemnized with
Opposite Party No. 2 on 24-05-2014 as per
Hindu rites and rituals. The petitioner was
in London, England in respect of the
service with regards to the job and also
took her (Opposite Party No. 2) with him to
London
Cityland.
On
5.7.2015,
the
Opposite Party No. 2 instituted frivolous
complaint of domestic violence against the
petitioner in London in order to create false
grounds of divorce. When the petitioner
was in police custody, opposite party no.2
immediately ran away with valuable items,
cash and jewellery of the petitioner from
London to her parental home at Kanpur. On
coming back to India, Opposite Party No. 2
lodged the F.I.R. on 22-07-2015 as Crime
No. 28 of 2015, U/s- 498-A, 323, 406, 504,
506 I.P.C. and 3/4 D.P. Act against the
petitioner and other family members. All
the accused persons in the said Crime No.
28 of 2015 were granted bail and the
petitioner was granted interim bail on 0711-2015, then, the Opposite Party No. 2
filed a false Criminal Complaint No. 4216
of 2015, U/s- 323, 504, 506 I.P.C. creating
a false ground of assault to her at the Court
7 All. Amit Singh Vs. State of U.P. & Anr.
1249
premises at Kanpur, which was challenged
by the petitioner and other family members
before this Court at Allahabad and this
Court
at
Allahabad
quashed
the
proceedings against all family members of
the petitioner. But the proceeding against
the petitioner is continuing before the court
of magistrate at the stage of Section 244
CrPC. Thereafter the Opposite Party No. 2
filed a case/complaint U/s-12 of Domestic
Violence Act on 01-03-16 at Kanpur, copy
of which is yet to be provided to the
petitioner. Thereafter the Opposite Party
No. 2 also filed a Criminal Complaint U/s138 of N.I. Act on 26-04-2016 for
dishonour of cheque which was obtained
by the father of the Opposite Party No.2
from the father of the petitioner in his
absence by exercising undue influence and
coercion. The proceeding has been stayed
by this Court vide order dated 04-09-2018.

3. The present case/suit filed by
Opposite Party no.2 before the Family
Court at Lucknow U/s 13 of H.M. Act on
17-03-2017, the petitioner filed preliminary
objection under Order 7 Rule 11 of C.P.C.
challenging Lucknow as the jurisdiction of
the present divorce suit filed by the
Opposite Party No. 2 herself in which she
claimed to be a resident of Kanpur and all
those cases are running in Kanpur, which
was rejected by this Court vide order dated
13-12-2018. In the present case of divorce
proceeding,
the
petitioner
filed
an
application for stay the proceeding and
awaiting the result of Complaint Case No.
4216 of 2015 filed by the Opposite Party
No. 2 and the said case is at the stage of
recording evidence U/s- 244 Cr. P. C., but
she did not appear there, and is avoiding
the process of Court. Thereafter, the
petitioner moved an application before the
Family Court Lucknow stating therein that
till all the prosecution evidences of
Opposite Party No. 2 in her Complaint
Case No. 4216 of 2015, U/s-323, 504, 506
I.P.C. is not completed, the petitioner may
not be forced to file his Written Statement
in the present divorce suit matter, otherwise
his defence would be disclosed and the
petitioner's right to silence guaranteed by
the Constitution of India in Article 20 (3)
and a fair trial guaranteed under Article-21
will both stand violated causing his gross
miscarriage of justice. But the family court,
Lucknow rejected the prayer of the
petitioner vide order dated 01-02-2021.

4. The petitioner relies upon the
judgment dated 11-09-2014, passed in Writ
Petition No. 13211 of 2013 and the
judgment dated 08-02-2021 in the matter of
Anant versus Sheetal in Misc. Petition No.
345/2020, passed by High Court of Madhya
Pradesh, Jabalpur Bench at Indore and also
relies on the judgment of the Supreme
Court in the case of M.S. Sheriff vs. State
of Madras (1954) A.I.R. page no. 397 dated
18.3.1954. Thus, the petitioner submits that
the impugned order dated 01-02-2021 is
bad in law and deserves to be stayed and
further divorce proceedings u/s 13 of the
Hindu Marriage Act pending before the
Family Court, Lucknow may also be
stayed.

5. The counsel for opposite party
no.2, on the basis of counter affidavit filed
by him, submits that this Court by means of
orders dated 04.08.2017 and 14.11.2019,
passed in writ petition numbers 17655
(M/S) of 2017 and 31176 (M/S) of 2019
respectively has been pleased to direct for
expeditious disposal of the applications
filed by the applicant for expeditious
disposal of the divorce suit No. 337 of
2017. It is further submitted that the
petitioner has tried to obtain order for
staying the proceedings for Regular Suit till
termination of the criminal proceedings,
1250 INDIAN LAW REPORTS ALLAHABAD SERIES
though, there are two orders of this Court,
wherein after considering the request of the
answering respondent, directions have been
issued for deciding the application filed by
the answering respondent for expeditious
disposal of the divorce suit.

6. The counsel for the opposite party
no.2 further submits that the present writ
petition has been filed on 13.08.2021
challenging the order dated 01.02.2021
passed by the Additional Principal Judge-4,
Family Court, Lucknow, whereby the
application
of
the
petitioner
seeking
opportunity to file written statement after
completion of criminal proceedings was
rejected.
On
24.02.2020,
the
last
opportunity for filing written statement was
granted to the petitioner but he has not
chosen to file written statement till date. By
means of the order dated 12.04.2021, the
Family
Court,
Lucknow
closed
the
opportunity for filing of written statement
by the petitioner and the direction was
issued for proceeding under Order VIII
Rule 10 Code of Civil Procedure.

7. The counsel for opposite party no.2
submits that after passing of the order dated
12.04.2021, the present writ petition has
been filed after a considerable delay, when
the proceeding has reached at the stage of
arguments only with the ulterior motive of
delaying the proceedings and further
harassing the opposite party no. 2. It is
further submitted that the aforesaid case
laws relied upon by the petitioner are not
applicable in the present case. Only
lingering on practice has been adopted by
the petitioner. Thus, the petition is liable to
be rejected.

8. The counsel for the respondents has
relied on the judgements in the case of
Ashok Kumar Pal vs. Smt. Sawan Pal
(2008) SCC Online Calcutta 462, K.
Sitaram Patro and others vs. K. Saraladevi
Patro (2016) SCC Online Orissa 209 and
M.S. Sheriff vs. State of Madras AIR 1954
SC 397.

9. Heard Mr. Sushil Kumar Singh,
learned counsel for petitioner, learned
AGA for the State as well as Mr. Anurag
Singh, counsel for opposite party no.2 and
perused the material available on record.

10. On perusal of the record, it
transpires that the criminal proceedings as
well as civil proceeding for divorce on
ground of cruelty and polygamy was raised
by the respondents against the petitioner. It
is also admitted fact that the civil suit for
divorce petition is still pending at the stage
of Order VIII Rule 10 of CPC. The main
ground of this petition raised by the
petitioner is that the civil proceeding
against the petitioner may be stayed,
otherwise the petitioner's right to silence
guaranteed under Article 20(3) and fair trial
and lawful arrest of a person guaranteed
under Article 20 of the Constitution of
India would stand violated causing his
gross injustice. Submission of the counsel
for the petitioner is to stay the civil
proceeding at this stage without disclosing
his defence.

11.

Both
civil
and
criminal
proceedings can be initiated by the
victim/respondents
simultaneously
with
distinct
impetus
and
objective.
The
Supreme Court in P. Swaroopa Rani vs. M.
Hari Narayana (AIR 2008 SC 1884) held
that: "...It is, however, well-settled that in a
given case, civil proceedings and criminal
proceedings can proceed simultaneously.
Whether civil proceedings or criminal
proceedings shall be stayed depends upon
the fact and circumstances of each case."
7 All. Amit Singh Vs. State of U.P. & Anr.
1251

12. Earlier in M. S. Sheriff vs. The
State of Madras and Others (AIR 1954 SC
379), a constitution bench of the Supreme
Court while discussing the precedence of
both criminal and civil matter as to which
proceeding should be stayed observed as
under:

"...As between the civil and the
criminal proceedings we are of the opinion
that the criminal matters should be given
precedence. There is some difference of
opinion in the High Courts of India on this
point. No hard and fast rule can be laid
down but we do not consider that the
possibility of conflicting decisions in the
civil and criminal courts is a relevant
consideration. The law envisages such an
eventuality when it expressly refrains from
making the decision of one court binding
on the other, or even relevant, except for
certain limited purposes, such as sentence
or
damages.
The
only
relevant
consideration here is the likelihood of
embarrassment."

"...Another factor which weighs
with us is that a civil suit often drags on for
years and it is undesirable that a criminal
prosecution should wait till everybody
concerned has forgotten all about the
crime. The public interests demand that
criminal justice should be swift and sure;
that the guilty should be punished while the
events are still fresh in the public mind and
that the innocent should be absolved as
early as is consistent with a fair and
impartial trial. Another reason is that it is
undesirable to let things slide till memories
have grown too dim to trust. This, however,
is not a hard and fast rule. Special
considerations obtaining in any particular
case might made some other course more
expedient and just. For example, the civil
case or the other criminal proceeding may
be so near its end as to make it inexpedient
to stay it in order to give precedence to a
prosecution ordered under section 476. But
in this case, we are of the view that the civil
suits should be stayed till the criminal
proceedings have finished."

13. The Supreme Court in Syed
Askari Hadi Ali Augustine Imam and Ors.
vs. State (Delhi Admn.) and Ors. (AIR
2009 SC 3232) discussed the same issue
and reiterated as under:

"...Indisputably, in a given case, a
civil proceeding as also a criminal
proceeding may proceed simultaneously.
Cognizance in a criminal proceeding can be
taken by the criminal court upon arriving at
the satisfaction that there exists a prima
facie case.

The question as to whether in the
facts and circumstances of the case one or
the other proceedings would be stayed
would
depend
upon
several
factors
including the nature and the stage of the
case."

10. It is, however, now well
settled that ordinarily a criminal proceeding
will
have
primacy
over
the
civil
proceeding. Precedence to a criminal
proceeding is given having regard to the
fact that disposal of a civil proceeding
ordinarily takes a long time and in the
interest of justice the former should be
disposed of as expeditiously as possible."

14. The High Court of Andhra
Pradesh discussed the same point in N.
Gurucharnam vs. The State of Andhra
Pradesh (2013 CriLJ 1061) held as under:

"...When there are both civil and
criminal liabilities in respect of an issue
1252 INDIAN LAW REPORTS ALLAHABAD SERIES
against a person, he is liable to be
prosecuted both on the criminal side and
on the civil side."

15. Section 498A of the Penal Code,
1860 deals with cruelty by husband or
relatives of husband. The said provision
provides that whoever, being the husband
or the relatives of the husband of a woman
subjects such woman to cruelty, shall be
punished with imprisonment for a term
which may extend to three years and shall
also be liable to fine. What amounts to
cruelty for the purpose of the said provision
has also been clarified in the explanation
added to the said section which provides
that:

a) Any unlawful conduct which is
of such a nature as is likely to drive the
woman to commit suicide or to cause grave
injury or danger to life, limb or health
"whether mental or physical" of the woman
or;

b) Harassment of the woman
where such harassment is with a view of
coercing her or any person related to her
meet any unlawful demand for any
property or valuable security or is on
account of failure by her or any person
related to her to meet such demand.

16. Thus, cruelty has a limited
meaning as defined in the said provision.

17. But under the Hindu Marriage Act
cruelty has not been defined. As such, any
act or conduct which though may not
amount to cruelty within the meaning of the
definition of cruelty as given in section
498A of the Penal Code, 1860, may
constitute cruelty as envisaged under
section 13(1)(ia) of the Hindu Marriage
Act.

18. Since the cruelty has not been
defined in the Hindu Marriage Act, it is
difficult to define precisely as to what
exactly
cruelty
means
under
section
13(1)(ia) of the Hindu Marriage Act.
Cruelty under section 13(1)(ia) of the
Hindu Marriage Act may extend to
behaviour which may cause pain and injury
to the mind as well as to render the
continuance in matrimonial home an ordeal
where it becomes impossible for them to
live together with mental agony, torture or
distress. The question as to whether an act
complained of was cruel or not is to be
determined from whole of the facts and
matrimonial relations between the spouses
regard being given to their culture,
temperament, status in life and state of
health of the parties interaction between
them in their daily life. Cruelty for the
purpose of matrimonial relationship means
where one spouse has so treated the other
and manifested such feelings towards her
or him as to have inflicted bodily injury or
to have caused reasonable apprehension of
bodily sufferings or of being injured.
Cruelty may be physical, mental or legal. In
matrimonial laws it may be of infinite
variety. It may be by words, gestures or by
mere silence, violence or non-violence. To
constitute cruelty, the conduct complained
of, should be so grave and weighty as to
come to the conclusion that the petitioner
spouse cannot be reasonably expected to
live with the other spouse. It must be more
serious than ordinary wear and tear of the
married life. The cumulative conduct,
taking into consideration the circumstances
and background of the parties has to be
examined to reach the conclusion whether
the conduct complained of amounts to
cruelty in matrimonial laws or not. Thus,
cruelty postulates a treatment of the
petitioner,
with
such
cruelty
as
to
reasonable apprehension in the petitioner's
7 All. Smt. Fatima Vs. Smt. Shahana & Ors.
1253
mind that it will be harmful or injurious for
the petitioner to live with the other spouse.
Cruelty may be physical or mental. Mental
cruelty may consist of verbal abuse and
insult by using filthy and abusive language
leading to constant disturbance of mental
peace of the other party.

19. Thus, it appears that the ''cruelty'
under the Hindu Marriage Act has a different
meaning altogether, than that of the concept
of ''cruelty' as envisaged in the Penal Code,
1860. It necessarily follows that even the act
complained of, in the criminal proceeding
may not constitute cruelty within the meaning
of section 498A of the Penal Code, 1860, but,
still such act may constitute a ground of
divorce on the ground of cruelty where such
acts are so grave and weighty as to come to
the conclusion that the petitioner spouse
cannot be reasonably expected to live with
the other.

20. Since the concept of cruelty under
the Penal Code, 1860 is not exactly identical
with the concept of cruelty as envisaged
under section 13(1)(ia) of the Hindu Marriage
Act, this Court cannot hold that there will be
any embarrassment on the part of the Civil
Court in continuing with the trial of the suit
during the pendency of the criminal
proceeding.

21. In divorce petition, several
opportunities were given to the petitioner to
file written statement, but he failed to do so
and as such the opportunity for filing his
defence through written statement has been
closed. Thus, the divorce petition is still
pending at the stage of maturity and this
Court had already directed the learned civil
court to decide the suit expeditiously.

22.

In
my
view,
in
these
circumstances, the civil court will not find
any embarrassment, if both the criminal
proceeding and the civil suit are tried
simultaneously as the scope of enquiry and
the standard of proof in both the
proceedings are not identical. Stay of any
one of such suit/proceeding will surely
have a wrong impact not only on the
society but also on the parties in their
matrimonial
life.
Under
such
circumstances, this Court does not find any
justification to interfere with the order of
learned civil court and thus, the petition
being devoid of merit is, accordingly,
dismissed.

23. Interim order, if any, stands
vacated.
----------
(2022)07ILR A1253
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.06.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Matters U/A 227 No. 24435 of 2018
(Old Misc. Single No. 24435 of 2018)

Smt. Fatima ...Petitioner
Versus
Smt. Shahana & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bahar Ali, Sri R.D. Shahi

Counsel for the Respondents:
C.S.C.,
Sri
A.Z.
Siddiqui,
Sri
Mohak
Srivastava, Sri Rajiv Raman Srivastava, Sri
Shakeel Ahmad Jamal, Sri Uma Shankar
Sahai

Civil Law - Uttar Pradesh Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 - Section 28 - Enforcement of
landlord's obligation regarding repairs, etc
- Section 28 - tenant requested the