J.N.Hore, J. - (1.) Opposite party No.1 filed an application under section 125 of the Criminal Procedure Code against the petitioner before the learned Chief Judicial Magistrate of Howrah for maintenance. Opposite party No.1 also filed a similar application for maintenance or alimony pendente lite under section 24 of the Hindu Marriage Act, 1955, in the pending matrimonial suit No.11 of 1987 before the learned Additional District Judge, 13th Court at Alipore, 24-Parganas (South) filed by the present petitioner against opposite party No.1 for divorce and the said application of the opposite party was allowed by the learned Judge on August 31, 1987 directing the present petitioner to pay alimony pendente lite at the rate of Rs. 300/- per month to the opposite party No. 1 together with some arrear maintenance and also to pay a sum of Rs. 400/- towards litigation expenses. The petitioner filed an application under section 151 of the Code of Civil Procedure for recalling the said order dated August 31, 1987 in view of changing circumstances of the petitioner. It is still pending for disposal.
(2.) As the present petitioner was absent, O.P. No.1 's application for maintenance under section 125, Criminal Procedure Code was heard ex parte by the learned Sub-Divisional Judicial Magistrate, Howrah and disposed of by order No.16 dated 4.1.89 directing the present petitioner to pay monthly allowance at the rate of Rs. 500/- payable within 10th of the month for which the allowance is due. The petitioner was also directed to pay the arrear maintenance from 14.10.1987 (the date of the application for maintenance by the opposite party No. 1) by monthly instalment at the rate of Rs. 500/- commencing from January 1989 payable within 10th of every month till the liquidation of arrear. The said order of the learned Sub- Divisional Judicial Magistrate is under challenge in this revision.
(3.) Mr. Dutta, learned Advocate for the petitioner has contended that the O.P. No.1's application for maintenance under section 125 of Criminal Procedure Code is not maintainable in view of an application under section 24 of Hindu Marriage Act, 1,955, filed by the O.P. No.1 pending for disposal in matrimonial suit No.11 of 1987 before the learned Additional District Judge, 13th Bench at Alipore. It has been contended that the civil proceeding under section 24 of the Hindu Marriage Act must prevail upon the proceeding instituted under section 125 of the Code of Criminal Procedure and in view of the order of alimony pendente lite passed under section 24 of the Hindu Marriage Act in the matrimonial proceeding the impugned proceeding under section 125 Criminal Procedure Code ought to have been dropped or at least stayed till the disposal of the matrimonial suit.;