1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT Gyan Chand V/s. Smt. Rekha S.B. CRIMINAL REVISION PETITION No.1329/09 S.B. Criminal Revision Petition Under Section 397 read with Section 401of Criminal Procedure Code Date of Judgment :: 10.11.2009. HON'BLE MR.JUSTICE R.S. CHAUHAN Mr. Reashm Bhargava for the petitioner. Mr. Naveen Sharma for the respondent. The petitioner has challenged the order dated 03.07.2009 passed by the Judge, Family Court, Ajmer whereby the learned Judge has directed that the maintenance of Rs.1,000/- per month to be paid to the respondent. In brief, the facts of the case are that on 15.12.2005 the petitioner and respondent were married in accordance with the Hindu rites and customs in Ajmer. According to the petitioner, on 30.03.2006 the respondent had left the matrimonial home between 10 to 12 AM. He had tried to settle the problems. While he failed to settle the problems and to bring back the respondent wife, he had moved a petition on 04.12.2006 under Section 9 of 2 the Hindu Marriage Act before the Family Court Ajmer. Thereafter the respondent had registered a criminal case against the petitioner through FIR No.8/2007 for offence under Section 498A and 406 IPC. The respondent wife also filed an application under Section 12 of the Protection of Women (from Domestic Violence) Act, 2005 before the Judicial Magistrate No.6, Ajmer. The said application has been rejected vide order dated 19.08.2008. Thereafter, the respondent wife moved an application under Section 125 Cr.P.C. seeking maintenance from the husband. The learned trial Court after hearing the parties vide order dated 03.07.2009 granted Rs.1,000/- per month to the respondent as maintenance. Being, aggrived from the said order, the petitioner has preferred this petition. Mr. Reashm Bhargava, the learned counsel for the petitioner, has contended that prior to filing of an application under Section 125 Cr. P.C. of the Act, the respondent had filed an application under Section 12 read with Sections 17, 18, 19, 20, 22 and 23 of the Protection of Women From Domestic Violence Act, 2004. However, the learned Judicial Magistrate No.6, Ajmer, vide order dated 19.08.2008, had rejected her application ostensibly on the ground that she had not been able to prove either the cruelty committed upon her, or to prove that she had sufficient reasons for staying away from the husband. Although, the respondent had challenged the said order before the Special Court (SC/ST) Prevention of Atrocities Cases, Ajmer, but vide 3 order dated 08.10.2009, the said appeal was dismissed and the order dated 19.08.2008 was confirmed. Secondly, thus, a clear cut finding was given by the learned Court that the respondent did not have any sufficient reasons for staying away from the petitioner. Thirdly, this judicial finding acts as an issue estoppel in a petition under Section 125 Cr.P.C. However, the learned Judge has observed that the dismissal of the petition under Section 12 of the Domestic Violence Act would not affect the finding of the Court in a petition under Section 125 Cr.P.C. According to the learned counsel, while making such an observation, the learned Judged has erred in not granting the benefit of Section 125(4) of Cr.P.C to the petitioner. On the other hand, Mr. Naveen Kumar Sharma, the learned counsel for the respondent, has strenuously argued that the proceedings under Section 12 of the Domestic Violence Act and under Section 125 Cr.P.C. are two distinct and unrelated proceedings. Therefore, the finding given in a petition filed under Section 12 of the Act would have no bearing on a proceeding initiated under Section 125 Cr.P.C. Moreover, the respondent had also filed a case under Sections 498A and 406 IPC which is still pending. Thirdly, the respondent had clearly stated in her testimony before the learned Judge that she had been subjected to cruelty by the petitioner. Thus, she had shown sufficient reasons for staying away from the petitioner. Hence, the learned Judge was justified in not granting the benefit of Section 125(4) 4 Cr.P.C. to the petitioner. Thus, the learned counsel has supported the impugned order. Heard the learned counsel for the parties and perused the impugned order as well as the orders dated 19.08.2008 and 08.10.2009. The proceedings under Section 12 of the Domestic Violence Act and under Section 125 Cr.P.C. are similar in nature. Both the proceedings are basically civil suit filed for seeking maintenance from the spouse. The burden of proof in both the cases is equally similar and the case has to be established by preponderance of probabilities. In both the proceedings, unlike a criminal trial, the case need not be proved beyond a reasonable doubt. Lastly the issues which arise before the Court are identical namely whether the petitioner was subjected to cruelty and whether the wife has sufficient cause to stay away from the matrimonial home or not. Under the doctrine of issue estoppel, if a judicial finding has been given by a Court, then the same issue cannot be agitated before another forum. Therefore, once the finding has been given under Section 12 of the Domestic Violence Act, the same issue cannot be agitated between the same parties before another forum. Keeping in mind the doctrine of issue estoppel, the learned Judge was certainly unjustified in observing that the finding given by the learned Judicial Magistrate, vide order dated 19th August, 2008, would not affect the proceedings 5 under Section 125 Cr.P.C. Clearly, the learned Judge has ignored the existence of the doctrine of issue estoppel. While considering the petition under Section 125 Cr.P.C., the Court is required to also consider if the benefit of Sub-Cluase (4) can be given to the husband or not. Therefore, the court perforce would be concerned with the issue whether the wife had sufficient cause to stay away from the husband or not. Since, there was already a finding given by the learned Judicial Magistrate, vide order dated 19.08.2008, the said finding would be binding in a proceeding under Section 125 Cr.P.C. Hence, the learned Judicial Magistrate should have given the benefit of Section 125(4) to the present petitioner. In this view of the matter, the present petition is, hereby, allowed and the order dated 03.07.2009 is quashed and set aside. [R.S.CHAUHAN]J A.Asopa/