1. By this petition preferred under Article 227 of the Constitution of India the petitioner/non-applicant has challenged the order dated 03.12.2021 passed in H.M.A. No. 1855/2019 by the Principal Judge, Family Court, Indore whereby his application under Article 20(3) of the Constitution of India read with Section 151 of the CPC has been rejected.

2. The facts of the case are that the respondent/applicant has filed a petition under Section 13(1), 25 and 27 of the Hindu Marriage Act before the Principal Judge, Family Court at Indore for dissolution of marriage between the parties by grant of a decree of divorce. Upon service of summons upon him the petitioner filed the application under consideration submitting that the respondent has also instituted proceedings before the Court at Pune under Section 498-A, 506, 323 of the IPC vide Crime No. 25/2018 prior to institution of the present proceedings hence the instant proceedings deserve to be stayed since if the petitioner shall file his written statement in the present case, he would disclose his defence which would be prejudicial to his interest in the criminal proceedings. The present proceedings and the criminal proceedings are based upon the same set of facts hence the present proceedings deserve to be stayed till decision of the criminal proceedings.

3. The respondent contested the application by filing her reply. The application has been rejected by the Family Court by the impugned order upon holding that from a perusal of the pleadings made in the present proceedings and the allegations levelled by the respondent in the criminal proceedings it appears that the allegations levelled in both them are different and are not the same hence the contention of the petitioner that filing of his reply in the present proceedings would disclose his defence in the criminal case cannot be accepted.

4. The petitioner submits that the impugned order is apparently illegal and/or contrary to law. A perusal of the pleadings made by the respondent in the present proceedings vis-a-vis. the allegations levelled by her in the criminal proceedings leads to an irresistible inference that the allegations contained in both of them are precisely the same and if the petitioner files his reply in the present proceedings, his defence would be disclosed in the criminal proceedings which shall be greatly prejudicial to his interest. It is submitted by him that since civil and criminal proceedings are based upon same facts, he cannot be forced to disclose his defence in the present case, in view of which the present proceedings deserve to be stayed till decision of criminal proceedings. Reliance has been placed by him on the decision of the Hon'ble Apex Court in M.S. Sharif Vs. State of Maharashtra AIR 1954 SC 397 [LQ/SC/1954/48] , M.S. Trimurthi Fragrances Private Limited Vs. Government of NCT of Delhi, Civil Appeal No. 8486/2011 decided on 19.09.2022, S. Kasi Vs. State through the Inspector of Police Samaynallur Police Station Madurai District, Criminal Appeal No. 452/2020 decided on 19.06.2020 and decisions of this Court in M.P. No. 344/2020 decided on 08.02.2021 (Anant Vs. Sheetal), Mahendra Singh Yadav Vs. Susti Babloo and Six Others 1 (1996) ACC 157 [LQ/MPHC/1995/646] and Rajendra Kumar Vs. Sandhya II (1996) DMC 142. [LQ/MPHC/1996/258]

5. Per contra learned counsel for the respondent has submitted that the allegations levelled by the respondent in the present proceedings and the allegations levelled by her in the criminal proceedings are not identical and are based upon different facts though a few of them may be common. It cannot be said that both the proceedings are based upon identical facts in view of which the present proceedings cannot be stayed. In any case on substantial averments as made in the present proceedings, the respondent has also instituted proceedings against the petitioner before Principal Judge, Family Court, Indore under Section 125 of the Cr.P.C. in which reply has already been filed by the petitioner. Thus his defence to the allegations levelled in the present proceedings which also form part of the maintenance proceedings and the criminal proceedings has already been disclosed hence his contention that disclosing his defence in the present proceedings would have prejudicial effect upon him is misconceived. Merely on the basis of pendency of criminal proceedings the civil proceedings cannot be stayed and the same depends on facts of each case. Reliance has been placed by him on the decision of the Hon'ble Apex Court in P. Swaroopa Rani Vs. M. Hari Narayana (2008) 5 SCC 765, [LQ/SC/2008/580] Devendra and Others Vs. State of U.P. (2009) 7 SCC 495, [LQ/SC/2009/1151] of Calcutta High Court in Ashok Kumar Pal Vs. Smt. Sawan Pal and of this Court in Radheshyam Vs. Shardabai and Smt. Vidhya Devi Vs. State of M.P. W.P. No. 21834/2019 decided on 07.01.2020.

6. I have heard the learned counsel for the parties and have perused the record.

7. It has been well settled by a series of decisions by the Hon'ble Apex Court including those relied upon by both the parties that simultaneous prosecution of civil and criminal proceedings regarding the same matter is likely to embarrass the accused in criminal proceedings hence ordinarily, and in absence of special circumstances, the criminal proceedings should be given precedence and the civil proceedings should be stayed pending termination of the criminal proceedings. However this is not a straight jacket formula and depends on the facts and circumstances of each case. It is not an absolute rule that when civil and criminal proceedings are pending between the same parties, the civil proceedings have to be stayed. For that purpose the allegations levelled in both the proceedings and the contentions of either of the parties ought to be taken into consideration.

8. A perusal of the averments as made by the respondent in the present proceedings reveals that though she has levelled allegations against the petitioner as regards cruelty but the same are not based only upon facts which form subject matter of the criminal proceedings initiated by her. A juxtaposition of averments of both the proceedings does not lead to an inference that the allegations levelled by the respondent in both of them are identical. There appears to be substantial variation in them and it cannot be said that both the proceedings have been instituted on the same facts. In the criminal proceedings allegations are much more detailed as regards cruelty whereas in present matter they are broad based and limited.

9. Moreover it is seen that the respondent has also filed an application under Section 125 of the Cr.P.C. before the Family Court at Indore claiming maintenance from the petitioner. The averments as made in that application are substantially very much the same as have been made by her in the present proceedings and there does not appear to be much variation in them. In the maintenance proceedings the petitioner has already filed his detailed reply on 28.07.2017 itself denying the allegations levelled therein. Thus the petitioner has already disclosed his reply/defence to the allegation as have been levelled by the respondent in the present proceedings, which as per him are the allegations in the criminal proceedings. Thus the defence of the petitioner already stands disclosed in a judicially instituted proceedings by the respondent. His contention that filing of written statement by him in the present proceedings would result in disclosing his defence which shall have adverse effect upon his interest in the criminal proceedings hence cannot be accepted. The judgments relied upon by the petitioner thus do not help him in any manner.

10. Thus, since it has been found that the present as well as the criminal proceedings are not based upon the same identical facts and the defence of the petitioner already stands disclosed by him in proceedings for maintenance instituted by the respondent, I do not deem it necessary to interfere with the impugned order. The petition hence being devoid of merits is hereby dismissed.