AMINA Vs. HASSN KOYA

JUDGEMENT

(1.) Leave granted.

(2.) We have heard the learned counsel for the parties at length. The appellant was married to respondent on 28-12-1972. As per the respondent's case, a girl child was born to the appellant on 28-4-1973/3-5-1973. Respondent divorced the appellant on 2-5-1977. The appellant filed a petition on 14-12-1977 under Section 125 of the Code of Criminal Procedure seeking maintenance for herself at the rate of Rs. 150/- per month and for the daughter at the rate of Rs. 125/- per month. In reply to the petition the respondent admitted the factum of the marriage, however, he set up a case that the fact that the appellant was already pregnant at the time of marriage, was concealed from him by the appellant, the marriage was, therefore, invalid and void. As such he was not liable to pay maintenance. It was further submitted that the child was not born to the appellant through the respondent and, therefore, the respondent had no obligation to pay any maintenance qua the child. The learned Magistrate, 1st Class, Quilandy held that the marriage was valid and, therefore, he directed payment of maintenance at the rate of Rs. 75/- per month by the respondent to the appellant. No maintenance was allowed for the child because the child was believed to be not fathered by respondent. This order was passed on 9th February, 1979. Both the parties challenged the said decision of the Magistrate to the extent it was against them. The Addl. Sessions Judge, Kozhikode by his order dated 5th November, 1980 allowed the revision petition filed by the respondent (husband) and dismissed the revision petition filed by the appellant. The marriage was held to be invalid by the Addl. Sessions Judge, Kozhikode Division and that was the main reason for accepting the revision filed by the husband. Since the marriage was held to be invalid it followed that there was no obligation to pay any maintenance. The High Court of Kerala dismissed the revision petition filed by the appellant against the order of the Addl. Sessions Judge, confirming the finding that the marriage was void. Hence the present appeal.

(3.) The basic question for consideration before this Court is whether there was a valid marriage between the parties In this connection it is to be noted that the factum of marriage is admitted. This means that the marriage took place between the parties on 28-12-1972. It is respondent's own case that a girl child was born to the appellant on 28-4-1973/3-5-1973. The appellant appeared as a witness as P.W. 1. The respondent also appeared as a witness. He admitted the marriage, but submitted that the marriage was invalid and void because the lady was pregnant, which fact was concealed from him at the time of marriage. In support of his case that the appellant was five months pregnant on the date of the marriage he produced on record Exhibits D-1 and D-3(a) showing that appellant gave birth to a girl child. According to Exhibit D-1 a girl child was born to Amina-appellant on 3-5-1973. The names of parents are given as that of the appellant and the respondent in Exhibit D-1 while the name of the girl child is given as Soudha which is admittedly the name of the girl child in this case. The evidence of the doctor who performed the delivery shows that the respondent had attended on his wife in the hospital when the appellant delivered the girl child. Exhibit D-3(a) is the entry in the official register regarding the birth of the girl child. By producing this evidence though the respondent succeeded in proving that a child was born to the appellant on 3-5-1973, he revealed another fact. Exhibit D-1 proves that the name of the respondent is mentioned as father of the girl child and the evidence of the doctor as P.W. 6 shows that the respondent was attending on Amina, the appellant, at the time of her delivery. The name of the respondent as father of the child must have been given for purposes of official record by the respondent himself.