SAYED ABAS RAZAVI Vs. KANEEZE SAKINA

JUDGEMENT

(1.) THE petitioner-husband was the respondent in a criminal case filed by opponent No. 1 in the Court of the Presidency Magistrate, 25th Court, Mazgon, Bombay, under Section 488 of the Code of Criminal Procedure for obtaining en enhancement of maintenance of Rs. 100 per month already granted in Criminal Revision Application No. 297 of 1967 in which the petitioner had raised an objection that such a petition was not main- tainable, and the learned Presidency Magistrate, 25th Court, Mazsaon. Bombay, was pleased to negative that contention. Aggrieved by that order, the present petition has been filed. The facts in brief are as under:

(2.) SMT. Kaneeze Sakina had filed a Maintenance Application under Section 488 of the Code of Criminal Procedure on 2nd of March, 1966 against the present petitioner who was her husband in that case, alleging that she was married with the present petitioner on 15th of September, 1962, and during the valid marriage wedlock she conceived and delivered a son from the present petitioner on 22nd April. 1965, who was named as Alamdar Hussain Razvi. It was alleged in that application that the present petitioner who was opponent in that case neglected her and was not providing for her maintenance, as well as the maintenance of the minor child Alamdar, Various contentions were raised in that petition on behalf of the present petitioner who was opponent husband. On appraisal of the evidence, the Presidency. Magistrate came to the conclusion that Smt. Kaneeze was married to the present petitioner on 15th of September, 1962. However, at the time of her marriage Smt. Kaneeze had already a husband living who had not divorced her. In short, her first marriage was subsisting at the time when she married the present petitioner. The learned Magistrate in view of these findings, on principles of Mohammadan Law came to the conclusion that the marriage between Smt. Kaneeze and the present petitioner who was the respondent, was void, He further held that the son Alamdar is presumed to be the legitimate son of Sayed Ashar Hussain the first husband. It appears that the Magistrate has given two contradictory findings as they apparently appear. In paragraph 19 of his judgment he has observed that Smt. Kaneeze after her marriage according to Islamic rites on 15th of September, 1962 with the present petitioner lived with him as husband and wife at Khandala as well as at Goregaon and the child Alamdar was conceived during that period, but after the learned Magistrate came to the conclusion that the first marriage was subsisting and therefore the marriage of Kaneeze with the present petitioner was void according to the provisions of the Mohammadan Law, he invoked on the application of the present petitioner the respondent before him, the provisions enumerated under Section 112 of the Indian Evidence Act as regards the legitimacy of the child Alamdar which would go to show that child Alamdar was the legitimate son of Sayed Asgar Hussein, the first husband of Kaneeze. The learned Magistrate relying upon the pro- visions of Section 112 in paragraph 27 of his judgment held, "in an application on under Section 488, Cr. P. C. by a woman against her paramour for the maintenence of their alleged child where the husband of the woman is living and their marriage is not dissolved, the woman must prove the non-access of the husband with her during the relevant period'1. The learned Magistrate further observed in the ,same paragraph, "she has not led any evidence, much less to the satisfaction of the Court, that she had no such access to her first husband Sayed Asgar Hussain. Although, therefore, she was living as husband and wife with the opponent and although her son Alamdar was born during that period of her with the opponent, it was for her to prove that she had no access to Saved Asgar Hussain during that period so a-s to rebut the presumption of legitimacy arising under Section 112 of the Evidence Act. " Thus the learned Magistrate held that Alamdar was also not proved to be the legitimate or illegitimate son of the present petitioner the original respondent.

(3.) AGGRIEVED by this order, Smt. Kaneeze has filed a Revisional Petition challenging these findings of the learned Magistrate, and it appears that during the pendency of that petition the parties arrived at a compromise, and the following order appears to have been passed in the Revision Application No. 297 of 1967 pending before the High Court: