Can divorce decree under challenge be marked incriminal proceeding
Ranganath
(Querist) 19 July 2013
This query is : Resolved
Ld Counsels,
Family court granted divorce in favor of husband. Wife went on appeal and the appeal is pending in High Court. Can the judgement passed by trial court which has not attained finality be marked in criminal proceedings initiated against wife.
Thanks in advance
Raj Kumar Makkad
(Expert) 19 July 2013
Yes. Untill and unless the decree is reversed, it holds legal identity and thus can be used in evidence in any other proceeding may it be civil or criminal.
Ranganath
(Querist) 20 July 2013
Dear Raj Kumar Sir,
The judgment of SC and Patna HC below holds that only judgments that are final and biding alone are envisaged under sec 41 of Evidence act and sec 43 holds that unless the existence of judgment is in issue or relevant it cannot be considered.
http://www.indiankanoon.org/doc/1345220/
http://www.indiankanoon.org/doc/450028/
In the case on hand husband proved fraud against wife before family court, can the same be used in criminal case to prove cheating.
prabhakar singh
(Expert) 20 July 2013
Dear Ranganath!
You are right but what is the sense in querying something already known to you.??
HOWEVER FOR YOUR QUERY PURPOSES YOU MUST BEAR THAT EXECUTABILITY OF JUDGEMENT WOULD BE THE MAIN test despite cited judgement of supreme court.
So if operation of the judgement in question has not been stayed then despite appeal it can be looked into until it gets set aside in appeal filed.
Ranganath
(Querist) 20 July 2013
Dear Sir,
The main question is whether any finding will be binding on criminal proceeding. In general judgment in rem are binding and judgment in personam is not binding. Is that right?
Raj Kumar Makkad
(Expert) 21 July 2013
Your opinion given at last is right but the same was not given at initial stage.
