Allowed

Jahura Khatun v. Mahar Ali

Gauhati HC2 Sept 2020Crl.Rev.P./289/2013

Case brief

AI extract

What is this about?

This revision petition challenged the dismissal of a maintenance application under Section 125 Cr.P.C. The High Court held that the standard of proof for marriage under Section 125 is lower than criminal trials. Relying on Muslim law provisions that do not mandate Kazis Act registration, the Court found the trial error in rejecting witness evidence and allowed the petition, ordering monthly mainte

What did the court decide?

Monthly maintenance of Rs. 10,000 granted from September 1, 2020; lump sum arrear of Rs. 2 lakhs ordered to be paid within October 2020.

Jahura Khatun Vs Mahar Ali — Maintenance and Alimony | Gauhati HC (2020)

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GAHC010008882013

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THE GAUHATI HIGH COURT

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(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.Rev.P. 289/2013

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1:JAHURA KHATUN

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W/O NAHAR ALI D/O ABDUL REZZAQUE R/O VILL- KAPAHARTARY MOUZA- PAKA, P.O, P.S. and DIST. BARPETA, ASSAM.

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VERSUS

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1:MAHAR ALI

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S/O FAIJ UDDIN SARKAR VILL- THANA ROAD, OPPOSITE BASUGAON HIGHER SECONDARY SCHOOL, P.O. and P.S. BASUGAON, DIST. CHIRANG, BTAD, ASSAM.

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Advocate for the Petitioner : MR.H R CHOUDHURY

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Advocate for the Respondent : MR. B B GOGOI

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BEFORE

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HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

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JUDGMENT

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Date : 02-09-2020

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Heard the learned Counsel Mr M. U. Mahmud, appearing for the petitioner. Also heard Mr B.B Gogoi, the learned additional Public Prosecutor for the state of Assam. None appeared for the private respondent.

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By filing this revision petition, the petitioner has challenged the order dated 21.05.2013 passed by Chief judicial Magistrate, Barpeta in M.R. Case No. 431 of 2007.

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This case is a clear example of travesty of justice. Since the year 2007 a hapless women has been fighting a legal battle in our judicial system, seeking maintenance from her

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husband under section 125 of the Code of Criminal Procedure. She is yet to be successful because the trial court has been consistently and erroneously holding that she has failed to prove her marriage with the respondent.

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The question is, whether in a proceeding under section 125 of the Code of Criminal Procedure , the marriage between the parties has to be proved beyond doubt ?

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It is a settled proposition of law that the object of the provision of section 125 of the Criminal Procedure Code is to prevent vagrancy and destitution. The term “wife” appearing in section 125 includes even a women who lived with a man for a long time as his wife, even if her legal status as a wife has not been proved.

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In Kamala vs M.R.Mohan Kumar, reported in 2019(11) SCC 491, the Supreme Court has held ----

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“It is fairly well settled that the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for a number of years. After referring to various judgments, in Chanmuniya v. Virendra Kumar Singh Kushwaha (2011) 1 SCC 141, this Court held as under:-

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“11. Again, in Sastry Velaider Aronegary v. Sembecutty Vaigalie (1881) 6 AC 364, it was held that where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.

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In India, the same principles have been followed in Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy AIR 1927 PC 185, in which the Privy Council laid down the general proposition that where a man and woman are proved to have lived together as man and wife, the law will presume, unless, the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.

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In Mohabbat Ali Khan v. Mohd. Ibrahim Khan AIR 1929 PC 135 the Privy Council has laid down that the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years.”

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Long back in Dwarika Prasad Satpathy v. Bidyut Prava Dixit , reported in (1999) 7 SCC

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675, the Supreme Court has alredy laid down that the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 IPC. The court explained the reason for the aforesaid finding by holding that an order passed in an application under Section 125 does not really determine the rights and obligations of the parties as the section is enacted with a view to provide a summary remedy to neglected wives to obtain maintenance. It is further held that maintenance cannot be denied where there was some evidence on which conclusions of living together could be reached. When the parties live together as husband and wife, there is a presumption that they are legally married couple for claim of maintenance of wife under Section 125 Cr.P.C.

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Shorn of unnecessary details, the case of the present petitioner is that she was married to the private respondent, about 22/23 years prior to filing of this revision petition. Within four years of marriage the couple was blessed with a girl child, who is now about 20 years old. After four years of marriage, the petitioner was driven out of her matrimonial house. Hence, in the year 2007 she filed a petition under Section 125 Cr.P.C. seeking maintenance from her husband.

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The private respondent contested the case of the petitioner by stating that he never married the petitioner and thus she is not his wife, nor he had fathered her daughter.

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The case of the petitioner was dismissed by the trial Court on 31.12.2008 on the ground that the petitioner had failed to prove her marriage with the responent. Against that order, a criminal revision petition was filed before the Sessions Judge but that revision petition was also dismissed on 30.03.2010, as the Court agreed with the opinion of the trial Court. Thereafter, another revision petition was filed before this Court challenging the aforesaid order. On 11.8.11 this Court remanded the matter to the Trial Court with certain directions. Thereafter, the Trial Court again dismissed the case of the petitioner on 21.05.2013, holding that the petitioner failed to prove her marriage with the respondent. Now the present revision petition has been filed challenging the aforesaid order.

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The Trial Court has held that the marriage of the petitioner with the respondent has not been proved because the Kazi , appointed under the Kazi’s Act of 1880, had stated before the court that during his tenure the marriage of the petitioner and the private respondent

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was not registered under his jurisdiction.

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It may be stated that any person who performs a muslim marriage is called Kazi. He may not be the Kazi, appointed under the Kazis Act of 1880.The petitioner has pleaded that her marriage was performed by a Kazi called Md. Alek Munsi (since deceased). The aforesaid marriage was witnessed by Lokman Ali and Abed Ali. In a Muslim marriage there is always a “Ukil” and Md. Alek Ali was the “Ukil” in the marriage between the petitioner and the respondent.

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The “Ukil” Akkesh Ali as well as the witnesses Lokman Ali and Abed Ali have deposed in favour of the petitioner stating that the said marriage was solemnised in their presence.

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The petitioner submitted before the Court below that her marriage was not registered before a Kazi, appointed under the provisions of Kazis Act, 1880. The evidence adduced by the petitioner and her witnesses clearly proved the case of the petitioner that she was married to respondent who fathered her daughter.

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The only fault on the part of the petitioner is that she could not examine the person who performed her marriage. The marriage of the petitioner was performed by late Md. Alek Munsi ,who died before institution of the case under Section 125 Cr.P.C. Therefore, she could not produce him in the Court. But in spite of that the trial court called one Kazi, appointed under the Act of 1880, who had nothing to do with the marriage between the petitioner and the private respondent, and examined him.

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Mr. M.U. Mahmud, appearing for the petitioner, has submitted that in the villages in our State, most of the Muslim marriages are not registered before a Kazi, appointed under the provisions of Kazis Act of 1880. The learned counsel has submitted that the person who performs a Muslim marriage is called a Kazi and this role is often played by the local Moulavi. Mr. Muhmud has pointed out that the marriage between the petitioner and the respondent was performed according to Islamic religious rituals. In order to buttress his point, Mr Mahmud pointed out that the requirements of a valid muslim marriage is laid down by Section 252 of Muhamedan law.Mr. Mahmud submitted that law does not mandatorily require registration of a muslim marriage by a Kazi, appointed under the provisions of the Kazis Act of 1880. This provision lays down the essential requirements of a valid Muslim

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marriage. The ld. Counsel has submitted that the petitioner had a valid Islamic marriage with the private respondent.

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The Section 252 may be visited now. It reads as under:

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“ 252. Essentials of a marriage.- It is essential to the validity of a marriage that there should be a proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal by or on behalf of the other, in the presence and hearing of two male or one male and two female witnesses, who must be sane and adult Mahomedans. The proposal and acceptance must both be expressed at one meeting; a proposal made at one meeting and an acceptance made at another meeting do not constitute a valid marriage. Neither writing nor any religious ceremony is essential.

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I have given my anxious consideration to the submissions made by Mr Mahmud.

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The Section 4(b) of the Kazis Act of 1880 clearly lays down that the presence of a Kazi, appointed under the said Act is not mandatory in a Muslim marriage.

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The petitioner had averred in her petition that her marriage is not registered under a Kazi, appointed under the Act of 1880. In spite of that the trial court relied upon such a Kazi, to hold that the marriage of the petitioner has not been proved. The evidence of the Kazi in the present case is irrelevant because it is an admitted fact that the said marriage was not registered. Therefore, the view taken by the trial Court is absolutely perverse and unacceptable. The trial court failed to assess the evidence adduced by the petitioner,s side in its true perspective. I would have no hesitation to hold that the trial court even failed understant the true purport of the law under section 125 Cr.P.C.

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The three witnesses Lokman Ali, Abed Ali and Md. Alek Ali have adduced reliable evidence. They have been extensively cross-examined by the respondent. There is nothing in their evidence to hold that these witnesses have deposed false evidence.

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Under the aforesaid premised reasons, the impugned judgment and order dated 21.05.2013 passed by the Chief Judicial Magistrate, Barpeta in M.R. Case No. 431 of 2007 is

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set aside. The revision petition is allowed.

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The private respondent never challenged the fact that the present petitioner is unable to maintain herself. Therefore it is proved that the petitioner is unable to maintain herself and she is entitled to receive maintenance from the private respondent.

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The respondent Mahar Ali is, admittedly, a Junior Engineer working at Public Health Engineering of the Government of Assam. Therefore, he is directed to pay maintenance allowance of Rs. 10,000/- every month to the petitioner Jahura Khatun w.e.f. 1^st day of September,2020.

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Since the year 2007 the present petitioner has been fighting for her right. Therefore a lump sum of Rs. 2 lakhs ( two lakhs) shall be paid to the petitioner by the private respondent as arrear maintenance allowance within the month of October 2020.

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The revision petition stands disposed of accordingly. Return the L.C.R.

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JUDGE

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Comparing Assistant

Jahura Khatun v. Mahar Ali

Case brief

What is this about?

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Jahura Khatun v. Mahar Ali

Case brief

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