IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 6TH MARCH 2009 / 15TH PHALGUNA 1930 RPFC.No. 121 of 2004() ---------------------- MC.401/2003 of THE FAMILY COURT, MANJERI .................... REVISION PETITIONER/RESPONDENT --------------------------------------- M.H.THAHIR, S/O.SUHARABEEVI, C.T.46/122, PALLI STREET, POONTHURA, THIRUVANANTHAPURAM-26. BY ADVS. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S)/ PETITIONER ------------------------- CHOLOTH SUBAIDA, D/O.RAYIN, P.O. BHOODAN COLONY, CHUNGATHARA, NILAMBUR TALUK. ADV. SRI.K.M.SATHYANATHA MENON FOR R1 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 06/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- R.P(F.C)No. 121 OF 2004 --------------------------------- Dated this the 6th day of March, 2009 O R D E R This revision is preferred against the order of the Family Court, Manjeri in M.C. 401/2003. A lady namely Subaida had moved an application for maintenance against one Thahir alleging that he had married her on 19.9.2001 and they lived together up to 12.1.2003. Thereafter he had left the matrimonial house, never to return and therefore she claimed maintenance from him. 2. Mr. Thahir on the other side would contend that he is totally unaware of the lady and there is no marital relationship between the two and that he had acquainted with her when he came to the house of a relative and sought her consent to propose marriage for her with a friend of his. The parties are Muslims and the revision petitioner is from Trivandrum, a driver by profession and the respondent is said to be employed sometimes in a Bank as a part time sweeper. Under the provisions of the Crl.P.C, a husband is bound to maintain a wife. So when the marriage is disputed, the court has to see whether there is any marriage. It is also a settled principle that if one is R.P(F.C)No. 121/2004 -2- able to establish that a man and woman had lived together for long number of years it may give rises to a presumption of marriage. Unfortunately for this lady there is no even a scrap of paper to prove the factum of marriage or to prove the factum of cohabitation under the same roof. The only evidence available is the oral testimonies of PWs. 1 to 3. PW1 would depose before the court that it was the Khasi of the Mosque who acted as the father and the members of the Mosque Mr. Shoukathali and Kunhimuhammed were present in the marriage. It is also submitted that both of them live together in a rented house. When cross examined she deposed that her father died 12 years back and none of her relatives had come to the Mosque and she does not know whether an application had been filed for the purpose of marriage. She also asserted that there are no documents to prove the marriage. She would also submit that she alone went for inviting people as her brother was laid up. According to her she lived in the house of one Edapatta Bappu after the marriage. But when confronted with the question whether he can be examined she would reply he has to be asked. 3. PW2 is the Shoukathali who according to them is a R.P(F.C)No. 121/2004 -3- member of the Mahal in which the marriage took place and the lady resided. According to him when a person from another mahal is to get married one has to obtain a consent letter from the mahal of that person regarding the conduct of the marriage. But such a letter was not produced. According to him it was Musthaffa as a Khasi of the Mosque has performed the marriage. He also categorically admits that there is no records to prove the marriage. It is also his evidence that there are registers kept in the Mosque with respect to the conduct of the marriages. 4. PW3 is one Kunhimuhammed. According to him the lady used to come to the South Malabar Gramin Bank. He is residing 5 kms away from the house of the plaintiff. According to him he was invited by the lady and her brother and the marriage took place after 4 p.m. It is also contended that the brother of the man also participated in the marriage. The fact that he was invited by the lady and her brother cannot be accepted for the reason that she had deposed before the court that the brother was unwell. She alone went to invite people. Now when a marriage is performed that too under the customary system of Mohammedan Law that to in a place where such customs are R.P(F.C)No. 121/2004 -4- followed among muslims, unless there is some acceptable evidence one cannot hold that a marriage had taken place. There is no participation of any of the members from the lady's house. There is absolutely nothing to show that whether somebody had taken initiative for the purpose of conducting the marriage. The person who has acted as the guardian namely Khasi though available, not examined. There is no iota of evidence to show that they have lived together. The owner of the house where they have alleged to have resided is not cited or examined. So there is a total blank so far as material evidence is concerned. It is true that why should the lady utter falsehood. Whether they had lived together for some time is a matter which we need not discuss here for the reason that one has to establish the factum of marriage. The revision petitioner is also not totally straight forward for the reason, why should the lady perjure and drag a man from Trivandrum, according to him has no acquaintance. 5. Therefore evidence available if interpreted and analysed would only show some sort of relationship which is not sufficient to hold that they live as husband and wife. The necessary basic essential ingredients to constitute a marriage is totally absent. R.P(F.C)No. 121/2004 -5- Therefore just because the court finds that why should a lady perjure is not an answer to show that there was a marriage. The things are not clear as the lady as well because according to her it is an arranged marriage. If it is an arranged marriage there should be some more participation. 6. Therefore I disagree with the learned Family Court in arriving at a decision regarding the factum of marriage between the revision petitioner and the respondent. When such a finding is arrived then the further question of granting maintenance does not arise. Therefore I set aside the decision of the Family Court and dismiss the maintenance given but under the circumstances without any order as to costs. If any amount is in deposit let it be reimbursed to the revision petitioner on appropriate application. Therefore the R.P(F.C) is allowed. M.N. KRISHNAN, JUDGE vkm