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satya (Manager)     12 April 2015

Section 300 of crpc and 20(2) of constitution

As per section 300 CRPC and 20(2) of constitution a person may not be tried or punished. I filed a case no. 365/12 for divorce under section 13 of HMA on the basis of cruelty and desertion. Whole case tried and cruelty and desertion established by family court and on the basis of that I was granted divorce. The cases of 498a and DV is also the cases of cruelty and domestic violence/Cruelty. Whenever the cruelty already examined in case no. 365/2012 how the cruelty once again trialed in 498a and DV case. Is it not violation of section 300 CRPc and article 20(2) of constitution. No dobout the section 13 is civil trial case and 498a and DV case is criminal trial case but the civil trial having bindings on criminal trial. 

Please give opinion on the issue



 15 Replies

Shantilal Pandya ( Advocate)     13 April 2015

 In my view the court trying the DV case is bound by the earlier judgement on the question  of cruelty  but not necessarily the criminal court trying 498 A  as an offence however the question is interestingly of very much importance, worthy experts are expected to place their views on the point .

satya (Manager)     13 April 2015

Thanks sh shantilal ji pandya sahab for your valuable post.

satya (Manager)     13 April 2015

Contested divorce me generally desertion and cruelty main issue hote hai. Domestic violence va 498a me bhi cuelty main issue hote hai. Jab kisi bhi ek case me puri trial hokar decision ho jata hai to same facts and issue par dubara trial nahi honi chahiye aur wo bhi kisi below rank ke court dwara. 

Aapka kya view hai please likhe

Shantilal Pandya ( Advocate)     15 April 2015

the point to be considered in the light of the legal mandate that a civil courts judgement does not necessarily bar a trial of an offence on the same facts since the area of jurisdiction in civil  and criminal courts are different and may not be applied to bar the jurisdiction of other 

satya (Manager)     15 April 2015

Is The decision of civil court is not overriding on criminal court. Is it not policy that "Kisi bhi ek nirparadh ko saja na mile". Benefit of dobout  is every time in favour of acuse. We have to prove charges beyond dobout to punish anyone. 

We need to think once again. Once the divorce granted on the basis of cruelty and desertion the cases in 498a and DV act may not trialed.

T. Kalaiselvan, Advocate (Advocate)     16 April 2015

What is your problem?, if the divorce case is filed and disposed, it is based n the pleadings made in it.  The 498a or the DV case has been filed based on the complaints/averment/allegation made in them separately. These are different provisions of law seeking different relief in different cases. What did you understand law in all these cases?  Dont get confused by reading too much of law books but not understanding them by not interpreting them properly.

satya (Manager)     17 April 2015

Mr T. Kalaiselvan, Advocate  sir My point is not as per present law of land. The question here is to decide the judiciary. When the divocrce case is on the basis of cruelty and desrtion both the parties are free to prove cruelty each other.

1. Whenever the party whoever could not prove cruelty in divorce case how she may prove cruelty in domestic violence or 498a case.

2. The family court having status of district court have trialed the divorce and decision communicated on the findings. How a lower court may trialed the issue of cruelty once again.

The above point is tobe decided by Judiciary.

Shantilal Pandya ( Advocate)     19 April 2015

The question is not that the one is superior  or inferior court, in the matter of dv case both courts have concurrent jurisdiction , The family court is never the appellate court , the court trying to resolve civil dispute is not the court trying a criminal  offense  ,generally the decision of  civil dispute is to prevail how ever it is not  necessarily so.

Biswanath Roy (Advocate)     19 April 2015

The entire case papers relating to divorce along with its final judgement and order plus copies of the petitions u/s.498-A IPC & DV  petition is needed for correct legal opinion.

satya (Manager)     19 April 2015

Adv Biswanath Roy sir, I got divorce on the basis of desertion and cruelty of wife. She was having liberty to prove my cruelty and that case to prove her desertion justified. Whenever she could not prove my cruelty and court reached on that conclusion that she deserted me without any reason and granted divorce on the basis of desertion and cruelty. The 498a and DV case requires to prove cruelty once again. 

In this position the cases in 498a and DV may not continue. Please comment

Biswanath Roy (Advocate)     19 April 2015

In criminal cases, a court cannot try any accused person for an offence if he has been previously tried by a competent court for the same offence, nor can any person be tried for any other offence, for which he could have been tried in a previous trial.  ( vide section,403 Criminal Procedure Code ; section 26 of the General Clauses Act and Article 20, clause (2) of the Constitution of India)

satya (Manager)     19 April 2015

Adv Biswanath Roy sir, "a court cannot try any accused person for an offence if he has been previously tried by a competent court for the same offence, nor can any person be tried for any other offence, for which he could have been tried in a previous trial.  ( vide section,403 Criminal Procedure Code ; section 26 of the General Clauses Act and Article 20, clause (2) of the Constitution of India)"

My question is this offences which is being trialed in 498a and DV act has been trialed in Divorce case as I am allowed divorce on the ground of desertion and cruelty of my wife. If my wife proves cruelty of me I may not be allowed divorce.

The court must consider it trialed the offence in divorce case. Please give opinion.

Biswanath Roy (Advocate)     20 April 2015

If you need further explanation or clarification of my opinion you shall have to sit with me in a conference / meeting by fixing up a date by  prior appointment with all of your papers and documents related to including judgement and order of your Divorce case following usual professional terms as your query relates to some Judgement as well as clarification of sec. 26 of the General Clauses Act and Article 20 , clause(2) of The Constitution of India with reference to the context of Federal and English Constitution. My conference fee is 1000 Gms. = INR 17,000/- 

satya (Manager)     20 April 2015

sir,I need an advocate who may convince the rajasthan High court Jaipur that the opportunity was allowed to complainant in divorce case to prove cruelty of husband. She could not prove any cruelty of husband and divorce granted on the ground of desrtion and cruelty. What she will prove in 498a and DV case?

These are baseless complaints. When she have filed appeal in high court against the order of family court she may submit her supporting logic in appeal and the complaints may please be rejected.

If u agree please tell me your fees for this work.


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