P.N.SINHA, J. - (1.) THIS revisional application is directed against the order dated 17.12.1996 passed by the learned Judicial Magistrate at Dantan in Case No. MR 16 of 1995 whereby the learned Magistrate rejected the prayer of the present petitioner to stay proceeding of the said case till disposal of civil suit bearing No. OS 193 of 1994 pending in the Court of the learned Munsif, Dantan (presently Civil Judge, Junior Division Dantan).
(2.) LEARNED advocate for the petitioner contended that the petitioner Paresh Chandra Girl married Annapurna Rana in 1967 and out of the said wedding 5 daughters were born to him and in the ration card and in the voters' list Annapurna has been shown as his wife. He has done vasectomy operation on 26.2.81 in Belda Block Primary Health Centre of Midnapore District. One Banabala Sasmal, daughter of the late Iswar Sasmal who is a lady of easy virtue filed the said MR Case No. 16 of 1995 claiming herself to be the wife of petitioner in which she alleged that due to her wedlock with this petitioner she gave birth to a female child on 26.2.82. In the voters' list of Narayangarh Assembly Election published in the year 1983, 1988 and 1993 she has been shown as unmarried daughter of late Sasmal. The petitioner has filed a suit for declaration that the opposite party Banabala Sasmal and her daughter Ashalata Sasmal are not his wife and daughter respectively and he has filed the suit in the Court of learned Munsif, Dantan on 26.7.1994 which has been registered as O.S. No. 193 of 1994. After receiving summons of the said suit, the O.P. Banabala Sasmal appeared in the suit but did not file written statement yet. On the contrary, she has filed a false case under Section 125 of Code of Criminal Procedure (hereinafter called Cr. P.C. on 12.6.95 before the learned Judicial Magistrate as MR Case No. 16 of 1995 making false allegation that she was married with the petitioner on 10.3.1977 and gave birth to a female child on 26.2.82. The petitioner filed an application before the learned Magistrate praying for stay of further proceeding of the MR Case No. 16 of 1995 till disposal of the civil suit but the learned Magistrate rejected the said prayer without applying proper judicial mind. He contended that if the learned Magistrate perused the ration card and voters' list it would have been revealed before him that Annapurna Giri is his wife and Banabala Sasmal is unmarried daughter of late Iswar Sasmal. Perusal of the documents namely, the voters' list and ration card would make it clear that the opposite party Banabala Sasmal cannot be his wife and her female child Ashalata Sasmal cannot be his daughter as he had undergone vasectomy operation on 26.2.81 and thereafter the child of Banabala Sasmal who was born on 26.2.82 could not have been begotten by him. Accordingly, the impugned order of learned Magistrate being irregular and not in accordance with law should be set aside.
(3.) I have perused the revisional application and the copy of the papers made annexures to the said application and have duly considered the submissions made by the learned Advocate for the petitioner. It is true that petitioner has filed the civil suit against the opposite party being OS No. 193 of 1994 praying for declaration that Ashalata Sasmal is not a daughter begotton by him and that the opposite party who is defendant no. 2 in the said suit cannot make any claim that defendant No. 1 Ashalata is his daughter along with other prayers. Present petitioner did not make any specific prayer that defendant No. 2 Banabala Sasmal is not his wife. It is also true that in 1995 the opposite party has filed the Section 125 Cr. P.C. application against the present petitioner claiming herself to be married wife of the petitioner and further alleging that due to wedlock with petitioner she gave birth to a female child on 26.2.82. Section 125 Cr. P.C. was enacted by the Parliament to provide speedy remedy to the wives who have been neglected and deserted by their husbands and who are unable to maintain themselves and their minor children. From the ration card and voters' list no doubt it transpires that Annapurna Giri has been shown as the wife of petitioner but the Court has also to consider whether the opposite party has sufficient oral and documentary evidence to establish her claim that she was married with the petitioner on 10.3.1977 and gave birth to female child on 26.2.82 who was born out of the said wedlock. Learned Magistrate has to consider evidence of both the parties and thereafter to come to a decision whether the opposite party is the married wife of petitioner or not and whether the daughter of opposite party was born out of the said wedlock. In a criminal proceeding under Section 125 Cr. P.C., strict proof of marriage is not required like the proceeding under Section 494 of I.P.C. or in a civil suit. According to Cr. P.C. a father is bound to maintain his legitimate and illegitimate child who is unable to maintain himself or herself. In a criminal proceeding there is no provision for stay of cases like civil suits as provided in Section 10 of Code of Civil Procedure.;