HARA SANKAR CHATTERJEE Vs. BELA RANI CHATTERJEE
HIGH COURT OF CALCUTTA
Hara Sankar Chatterjee
Bela Rani Chatterjee
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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,
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).
(3.)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.
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