TANJELA BIBI Vs. BAJRUL SHEIKH AND ANR.

JUDGEMENT

(1.) This application is directed against judgment and order dated 11.12.85 passed by the learned Addl. Sessions Judge. 4th Court, Murshidabad in Criminal Motion No. 100 of 1985. By the impugned order the learned Sessions Judge allowed the Criminal Revisional application and set aside the judgment and order passed by the learned Judicial Magistrate, Additional Court, Lalbagh in case No. M.R. 371 of 1982 under section 125, Crimial P.C. The petitioner filed an application for maintenance against opposite party no. 1 alleging that she was married with him on 6th Jaistha, 1389 B.S. They were in love prior to their marriage and out of their free mixing the petitioner became pregnant. Ultimately at the intervention of the villager he married her according to the Muslim rites. The petitioner was carrying 3 months when the marriage took place. Thereafter he lived with the opposite party. Sometime after the opposite party used to inflict torture upon her. Finally the opposite party assaulted the petitioner and drove her out from the house. She is residing at her father's place. Meanwhile she gave birth to a son on 8th Aghrayan, 1389 B.S. The opposite party husband did not give any maintenance to the petitioner or her son. He ultimately refused to pay. The O.P.'s case before the learned Magistrate was that there was no valid marriage solemnised between them. His further case was that the father of the petitioner asked for loan as the O.P. refused he has brought this false case against him. The learned Magistrate after considering the evidence on record found that the marriage between the parties has been proved before him. He has also found that the opposite party failed and neglected to maintain his wife and the child, There being no other embargo the learned Magistrate ordered a maintenance @ Rs. 150.00 per month for the wife and @ Rs. 50.00 for her minor son from the date of the order. Against this order the opposite party moved the revisional court. The learned Addl. Sessions Judge disposed of this revisional application and found that the learned Magistrate has made an error in law as according to him the marriage with a pregnant woman is illegal in accordance with the Mohammedan Law. Therefore, the wife is not entitled to get maintenance but the learned Sessions Judge did not consider the case of the child even if the child is illegitimate will be entitled to maintenance but that aspect was not considered at all. The moot question therefore that arise for my determination is if the marriage with a pregnant woman is a valid marriage under the Muslim Law. Mr. A. Sattar appearing for the petitioner has submitted that the learned Judge has erred in finding that a marriage with a pregnant woman is not a valid marriage under the Muslim Law. He referred to section 257 of the Mulla's Principles of Mohammedan Law which provides that a marriage with a woman before completion of her iddat is irregular not void. On this he submitted that even if a marriage is solemnised when the bride is undergoing iddat that marriage will not be s void marriage and will be held is a regular marriage after the period of iddat is over. In the instant case, there is no question of any iddat. it is nobody's case that the wife was a divorced woman or that she had any marriage earlier. The provisions of section 257 does not help us in deciding the question raised. Muslim marriages may be divided into 3 types. 1) Sahih, 2) Fasid and 3) Batil. Sahih means a marriage which is valid in all respect. Fasid is irregular marriage and Batil is a void marriage which is void from the begining. The Mahomedan Law the distinction between a Batil and the Fasid marriage is that a Batil marriage is one which is unlawful in itself. The prohibition against the marriage is perpetual and absolute. Thus the marriage with a woman prohibited on the ground of consanguinity, affinity or forsterage is void. The prohibition against such marriage is perpetual and absolute. There is no scope of lifting the prohibition in any manner and a Fasid marriage is one which is not unlawful in itself but unlawful for something else. Such as in the cases where prohibition against marriage is temporary or relative or accidental circumstances. This provision of temporary or relative nature can be removed rendering a Fasid marriage to be a Sahih marriage. In the instant case, as it appears the learned Sessions Judge held that marriage with a pregnant woman is void. The prohibition of pregnancy can be said to be absolute or perpetual in nature. If the child in the womb is born the prohibition disappears. Accordingly a marriage with the pregnant woman under the Muslim Law is an irregular or Fasid marriage. Unless it is avoided it remains.

(2.) Mr. Mondal appearing for the opposite party submitted that section 47 of Muslim Law by Faiz B. Tyabji lays down that the marriage of woman pregnant of a child whose descent or paternity is established is unlawful. From this Sri Mondal wanted to conclude that the instant marriage unlawful because the petitioner was pregnant at the time of the marriage. This may principal noted by Tyabji was derived from Hedya by baillie. Paternity can only be established if the parties are married. Therefore, a woman who is legitimately pregnant cannot lawfully marry till delivery. The prohibition of section 47(1) is only in respect of a married woman. This will not apply in our case. Mr. Mondal has also referred the provisions of section 47(3) of the said author. It provides that under Sheete Law a pregnant woman cannot lawfully marry. Marriage is lawful so long as there is no certainty of pregnancy, but if she should subsequently prove to have been pregnant the second marriage would be void by reason of iddat being still subsisting as the time of the marriage. The ground even under the Sheete Law for which a pregnant woman cannot be lawfully married is that the iddat period was subsisting at the time of the marriage. In substance there is little difference between the provision of sub-section (1) and sub-section (3) of the said section 47. It is nobody's case that the petitioner was married earlier and was undergoing iddat. Therefore these provisions will not help she husband to establish that the marriage was void. As I have already found that the instant marriage was not void but was only an irregular marriage it will continue unless avoided. Accordingly, the findings made by the learned Sessions Judge on the point is nor the correct of the Muslim Law.

(3.) Mr. Mondal has also urged that the marriage could not be proved. He has also referred to the judgment of the learned Sessions Judge where he has held that the marriage has not been proved. In arriving at such a conclusion, the learned Sessions Judge did not refer to the evidence at all. It appears that in this case the petitioner has examined 2 witnesses to the marriage and a Maulabi who solemnised the marriage. Accordingly, be held that the marriage has been proved. The learned Sessions Judge is wrong in coming to the contrary conclusion without noting why the finding by the learned Magistrate cannot be sustained in law. The finding made by the learned Magistrate being based on evidence. There was no reason for the learned Sessions Judge to intervene. Accordingly, this application succeeds. The impugned order passed by the learned Sessions Judge is hereby set aside and the order passed by the learned Magistrate is confirmed.