IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.191 of 2007 MOTIUR RAHMAN KHAN, son of late Ali Hassan Khan @ Dhanraj Khan, resident of vill.-Pokharsam, P.S.-Pandaul, Distt.-Madhubani-------Petitioner. Versus 1. STATE OF BIHAR 2. Bibi anjuman Ara, D/o Abdul Ghafoor, wife of Motiur Rahman Khan, resident of vill.-Kanungo, P.S.-Raj Nagar, Distt.-----------Opp. Parties. --------------- For the petitioner : Mr. Durgesh Nandan, Adv. For the State : Mr. Jitendra Kr. Singh-I, APP For the Opp. Party no.2 : Jahan Ara, Adv. ----------------- 5. 15.4.2010 Heard this case on merit as the same was requested by learned counsel for the parties. This revision application is directed against the order dated 16.1.2007 passed by Sri Binodanand Mishra, Principal Judge, Family Court, Madhubani in M.R. no.16 of 1998 whereby petitioner was directed to pay maintenance of a sum of Rs.500/- to opposite party no.2. Facts placed by the parties for its decision are partly denied though witnesses are there to state the fact. The admitted fact is that opposite party no.2 Bibi Anjuman Ara married this petitioner Motiur Rahman Khan 35 years ago and after birth of a daughter she was divorced. Daughter was married by this petitioner. After divorce opposite party no.2 married one Akhtar Khan while petitioner married one Juhi Khatoon from whom six children ( three male and three female) were born. For marriage with Juhi only dispute is raised that when opposite party no.2 second time married this petitioner, she was not aware of the fact that he had married Juhi. Marriage of opposite party no.2 with this petitioner for the second time is also denied with - 2 - her divorce with Akhtar Khan. After trial and hearing the parties, maintenance is allowed in favour of opposite paty no.2 legality, correctness and impropriety of which has been questioned by filing this revision application. Two legal points raised on behalf of the learned counsel for the petitioner are that (1 ) there is no proof or direct reliable evidence of divorce of opposite party no.2 with Akhtar Khan and marrying this petitioner for the second time. (2) Mahomedan Law does not allow parties to marry again without marrying and consummating the same with another person/Akhtar Khan. First, point if on admitted fact of the case is taken in mind for deciding marriage of opposite party no.2 with the petitioner then strict proof is needed but neither in the petition for maintenance nor in the statement of the victim girl there is any mentioning about the date, month or year of the divorce of opposite party no.2 with Akhtar Khan nor there is mentioning about her marriage with this petitioner. Para-8 of the application mentiones about divorce in specific words and para-9 mentions that after getting divorce from Motiur Rahman, petitioner, opposite party no.2 married Akhtar Khan but there is no mentioning of any date, month or year in her statement also. In para-2 though she states about her divorce with Akhtar Khan and marriage with this petitioner but without mentioning any date, month or year. That is the position in her statement on the point of divorce and remarriage of opposite party no.2 without the help of any one. - 3 - The second point raised on behalf of the petitioner has come in picture that after divorce from Motiur Rahman Khan, remarriage could be allowed only if opposite party no.2’s marriage with Akhtar Khan would have been consummated. Para-3 statement of A.W.3 (O.P. no.2) is clear that she was married with Akhtar but as she states she did not go with him to her sasural as he sent divorce through post and she never remained with Akhtar as wife. Sub-section (5) of section 336 of the Mahomedan Law runs as follows. “ (5) Remarriage of divorced couple-(i) Where the husband has repudiated his wife by three pronouncements [ s. 311(2) and sec. 311 (3) (i) ], it is not lawful for him to marry her again until she has married another man, and the latter has divorced her or died after actual consummation of the marriage. The presumption of marriage arising from an acknowledgment of legitimacy [s. 267] does not apply to a remarriage between dicroced persons unless it is established that the bar to remarriage created by the divorce was removed by proving an intermediate marriage and a subsequent dicorce after actual consummation (f) [ il. (a) ]. Even if a remarriage between the divorced persons is proved, the marriage is not valid unless it is established that the bar to remarriage was removed the mere fact that the parties he remarried does not raise any presumption as to the fulfillment of the above conditions (g) (ill. (b) ]. A marriage without fulfillment of the above conditions is irregular, not void [ Baillie, 151]. (ii) In all other cases, the divorced parties may remarry as if there had been no divorce either during the iddat or after its completion. ” It is clear in the case that marriage of opposite party no.2 with Akhtar Khan, according to her, was never consummated, so her - 4 - marriage with this petitioner for second time was legally barred. Divorce from Akhtar Khan and marriage with this petitioner for second time is also not established. So, the conclusion reached by the Principal Judge, Family Court, Madhubani, is not liable to be sustained. Accoirdingly, this revision application is allowed and the order dated 16.1.2007 passed by the Principal Judge, Family Court, Madhubani, in M. R. no.16 of 1998 is set aside, prayer for maintenance is rejected. Sudip/A.F.R. ( Mandhata Singh, J. )