A.N. Banerjee, J.
1. This Rule was obtained against an order dated 5-7-75 passed by the learned Sub-divisional Judicial Magistrate, Durgapur in an application under Section 125 of the Code of Criminal Procedure, 1973. By the said order the petitioner's prayer for stay of the proceeding of the said case till the disposal of a case under Section 494, I.P.C. was rejected. It appears that on 8-8-74 the opposite party filed an application under Section 125 of the Code of Criminal Procedure, 1973 against the petitioner second party claiming a maintenance of Rs. 300 per month for herself and two minor daughters. It was alleged in the said petition that the second party petitioner had married again and a case under Section 494/109, I.P.C. has been started against him and others in the Magistrate's court at Durgapur being case No. 582 of 1973 and it is pending. It was also alleged that the second party petitioner had neglected and refused to give maintenance to the opposite party and the two minor children.
2. After service of the notice on the second party petitioner he appeared before the learned Magistrate and prayed for stay of the present proceeding on the ground that he would be prejudiced if during the pendency of the case under Section 494, I.P.C. he was made to disclose his defence in the proceeding. The learned Magistrate rejected his prayer. Thereafter he moved this Court against such order of rejection passed by the learned Magistrate and obtained the present Rule,
3. Mr. Monoj Kumar Mukherjee, learned Advocate appearing for the petitioner submitted that having regard to the pendency of the case under Section 494, I.P.C. it was just fit and proper that the present proceeding under Section 125 of the Code of Criminal Procedure, 1973 should be stayed till the disposal of the earlier case. Mr. Mukherjee submitted that if this application is allowed to proceed and if he is to file a show cause petition, he would be prejudiced in his defence in the case under Section 494, I.P.C. and that there may be a question of issue of estoppel. In this connection Mr. Mukherjee submitted that the principle as enunciated by the Supreme Court in Biram Chand's case reported in : 1974CriLJ817 regarding denial of effective representation was not controverted in the subsequent Supreme Court decision in the case of Haradhan Saha reported in : 1974CriLJ1479 and that the same principle should also be adopted in this case. On the question of issue of estoppel Mr. Mukherjee also referred to a Supreme Court decision reported in 0065/1964 : 7SCR123 (Manipur Administration, Manipur v. Thokchom Bira Singh).
4. Mr. Sekhar Kumar Basu, learned Advocate appearing for the State joined issue with Mr. Mukherjee. Mr. Basu submitted that there can be no question of prejudice to the petitioner having regard to the scope of the application under Section 125 of the Code of Criminal Procedure, 1973 and the scope of a trial under Section 494, I.P.C. Mr. Basu further submitted that the onus would be entirely on the opposite party to prove that she was the legally married wife of the petitioner, that two children were born out of such wed-lock, that the husband petitioner had refused and/or neglected to maintain her and the two children and it was only on proof of the aforesaid facts the opposite party would be entitled to claim maintenance against the husband. It was also contended by Mr. Basu that if the hearing of the application under Section 125 of the Code is stayed till the disposal of the case under Section 494, I.P.C., it would mean that the opposite party with her two children would be thrown out in the street without proper maintenance and sustenance.
5. Having heard the learned Advocates of the respective parties and on a consideration of the materials before me I see no reason to order for stay of the proceeding under Section 125 of the Code of Criminal Procedure, 1973. In an application under Section 125 of the Code it would be incumbent on the opposite party to prove that the husband having sufficient means has neglected or refused to maintain her who is unable to maintain herself and the minor children and it is only upon proof of such neglect or refusal the learned Magistrate will make a monthly allowance for the maintenance of the wife and her children at such monthly rate not exceeding Rs. 500 as a whole, as the Magistrate thinks fit. It is only under Sub-section (4) of Section 125 of the Code the wife will not be entitled to receive an allowance from her husband under that section if without any sufficient reason she refused to live with her husband.
6. In that context alone the question whether the husband has married for the second time or not may arise. Even then the petitioner will not have to disclose his defence, if any, regarding the charge under Section 494, I.P.C. in an application under Section 125 of the Code. Bare denial of the allegation regarding second marriage would perhaps be good enough and it would be incumbent upon the opposite party to establish that in fact there had been a second marriage justifying her living separately with her children from the husband. Position is not the same in a case under Section 494, I.P.C. against the husband. In such circumstances, I see no reason as to why the application under Section 125 of the Code would remain stayed till the disposal of the case under Section 494, I.P.C.
7. In the result, the Rule is discharged.
8. Let the records go down as early as possible.
9. The learned Magistrate will give an opportunity to the petitioner to file show cause petition, if any, within a time to be fixed by him after receipt of the record.