R.K.Saksena - (1.) A suit numbered as 75 of 1982 was filed by the petitioner, Smt. Lilawati in the court of Munsif, Banda in May, 1982 for declaration that she was legally wedded wife off the opposite party no. 1, Desh Raj Singh. Yet another declaration was sought in the suit to the effect that marriage contracted by Desh Raj Singh with another woman was void. The defendant of the suit (opposite party no. 1) of this petition categorically denied the assertions of the petitioner in regard to his marriage with the petitioner. In December, 1982 (about 7 months after the institution off the suit in the civil court) the petitioner gave an application under section 125 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') claiming maintenance allowance on the ground that she was the wife of the opposite party no. 1 who had failed to maintain and had neglected her. This application was dismissed on the 20th of September, 1983. The Magistrate held that the [petitioner failed to prove that she was legally wedded wife of the opposite party no 1. By that time the said suit had been decreed on 18-2-1983 by the Munsif, Banda and an appeal had been preferred against that decision in the court of the District Judge, Banda, which was numbered as Civil Appeal No. 53 of 1983. When this decree was brought to the notice of the Magistrate, he remarked that it was sub-judice and is not binding. The appeal was allowed on 8-2-1984 by the District Judge, Banda, who held that the plaintiff had failed to prove that she was legally wedded wife of the contesting defendant, opposite party no. 1. As the application for maintenance of the petitioner had bees dismissed by the Magistrate, she preferred a revision which was also dismissed on 8-2-1984 by the Sessions Judge (the same Court which had disposed of the civil appeal on that very date as the District Judge, Banda). The petitioner (plaintiff of the suit) filed a second appeal against the decree passed by the appellate court in the civil appeal. This appeal has been admitted by this Court on 29-3-1984 and has been numbered as 1070 of 1984 (Lilawati v. Des Raj Singh).
(2.) THIS petition has been moved under section 482 of the Code for setting aside the order of the Magistrate dated 29-9-1983 and the order passed in criminal revision on 8-2-1984. It is prayed that such orders be passed as the ends of justice require. It may be recalled that the civil suit had been instituted about 7 months before the initiation of the proceeding!; under section 125 of the Code. In the said suit, the question as to whether the petitioner is legally wedded wife of the opposite party no. 1 was directly and substantially involved for determination and identical question was required to be determined in the criminal proceedings started after the institution of the civil suit. From the judgment of the Magistrate and also from the judgment of the revisional court in criminal litigation, it would appear that the real matter in issue had been held to be sub-judice The findings in civil court on the rights claimed by the petitioner shall, obviously, be binding on the criminal court, nature of the controversy being identical. If the petitioner succeeds in second appeal and is found to be legally wedded wife of the opposite party no, 1, she will undoubtedly be entitled to maintenance allowance. In case, her petition under section 125 of the Code is dismissed, litigation may stand in hen way at that stage. Therefore, it is a fit case where to avoid inconsistent finding from civil and criminal courts on real issue, namely, the marriage of the parties, the proceedings in criminal court instituted later, should have been staj\ed. There was hardly any necessity of taking evidence on an identical issue which could be effectively disposed of and has been adjudicated upon by the civil court, though not finally. As pointed out above, the dismissal of the application under section 125 of the Code shall materially affect the petitioner if she finally succeeds in the civil suit and this would result in the miscarriage of justice Therefore, it is just and proper to keep her rights alive which will be finally determined on the basis of the decision in the civil suit. Circumstances justify an order for setting aside the impugned orders and staying the proceedings initiated under section 125 of the Code. For these reasons, the petition is allowed. The order passed by the Magistrate and the revisional court on 2 -9 -1983 and 8-2-1984, respectively, are set aside and it is directed that the proceedings commenced on the application of the petitioner shall stand restored but shall remain stayed till the final disposal of the civil suit. The party who succeeds in the civil litigation should move the Magistrate to proceed and pass orders according to law. In case the petitioner finally succeeds in the civil suit, the Magistrate will obviously be required to consider as to what amount can be granted to the petitioner as monthly maintenance allowance and if the petitioner fails, the application under section 125 of the Code shall be dismissed. Petition allowed.;