MD SAFIZUDDIN SK Vs. MOUSUMI BIBI

JUDGEMENT

(1.) This revisional application is directed against the judgment and order dated 19th September, 2000 passed by the learned Judicial Magistrate, First Court Malda. By this order the learned Magistrate allowed the maintenance petition filed by the wife (the present O. P. ) granting her maintenance at the rate of Rs. 700/- per month payable by the O. P. husband (the present revisional petitioner).

(2.) Being aggrieved by that order the husband has preferred this present revisional application challenging the said order as illegal, erroneous and unsustainable. It is contended by Mr. Islam, learned Advocate for the husband-petitioner, that the question of granting of maintenance to the O. P. would arise only when she was found to be the married wife of the petitioner but since in the said petition for maintenance the alleged wife failed to establish her alleged marriage with the present petitioner, she could not be entitled to get any maintenance under Section 125 Cr. P. C. According to Mr. Islam, in order to prove Mahamaddan marriage, one has to show the various formalities required to be performed in case of a Mohamaddan marriage, but miserably the petitioner failed to prove the fulfillment of such requirements which are the essential conditions of a marriage. Thus, it has not been proved that a Ukil was engaged to propose along with the two witnesses before the bride about the dower debt (Den Mohar) or to narrate the same before the Kazi who in turn would state the fact to both the parties and take their consent. Mr. Islam argues that in the absence of these minute details of the marriage having been testified to it cannot be said that the alleged marriage between the parties was substantiated and therefore the marriage having not been proved the question of maintenance cannot arise and the learned Magistrate fell into error by allowing maintenance in such a case.

(3.) On a careful perusal of the materials on record including the depositions of the witnesses of the petitioner's wife as well as the documentary evidence particularly the Ext. 3 (which is attached to the present revisional application as annexure A) I am of the opinion that the alleged marriage has been established for the purpose of a petition for maintenance under Section 125 Cr. P. C. It is an well established principle that while considering the petition under Section 125 Cr. P. C. for maintenance a Court will not require such strict proof of the alleged marriage as it is required in the case of an application for divorce or a complaint u/s 494 I. P. C. , etc. under the Marriage Acts be it either Hindu Marriage Act or Marriage under the Mohammadan Law. In the present case, apart from the fact that the witnesses for the petitioner including the petitioner herself have stated in their evidence that there was marriage between the two as per Mohammadan rites, the documentary evidence, namely, the deed of agreement (Apasnama), marked as Ext. 3, speaks a volume in support of such a story. The witness may lie but this document constitutes a circumstance which leads us to the adoption of a firm view in this respect. In this deed of agreement which has been admittedly executed by both the parties it has been stated that either party to this agreement will not make any claim against the other in future and they will not have any relationship or contact between them in future and lastly in the light of this agreement one will not be in a position to file any litigation against the other before any Court of law or any administrative authority in future. These averments of this deed of agreement which is an admitted piece of evidence clearly show that these two persons had some relationship prior to this deed of agreement was executed and the allegation of the O. P. husband is not correct that there was absolutely no relationship between them. In 2000 Cr. L. J. (1) the Supreme Court has ruled that where the petitioner wife in an application under Section 125 Cr. P. C. has succeeded in showing that they had lived together, the Court can presume that they were married couple unless and until the O. P. husband can rebut such a presumption of their marital status. In the present case, as I have shown above, in addition to the oral evidence adduced by the petitioner wife this documentary, or, for that the matter, circumstantial evidence goes a long way in giving support to and strengthening her version that she had been married by the O. P. In a petition under Section 125 Cr. P. C. this much of proof will be sufficient and it is open for the husband to rebut this presumptive value of the evidence adduced by the wife discussed above.