IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.410 of 2006 SAIRA BANO WIFE OF SHRI HASMAT ANSARI, R/O- MOHALLA KARIM CHAK, P.S.- CHAPRA TOWN, DISTRICT- SARAN. Versus HASMAT ANSARI SON OF LATE AHMAD ANSARI, R/O- MOHALLA KARIM CHAK, P.S.- CHAPRA TOWN, DISTRICT- SARAN For the petitioner : Mr. Janardan Prasad Singh, Advocate For the State : Mr. Ram Chandra Singh, ,APP ----------- 8 11.01.2011 Heard learned counsel for the petitioner and the State. No body has appeared on behalf of the opposite party. Petitioner claims to be the legally wedded wife of the sole opposite party and is aggrieved by order dated 3.12.2005 passed by learned Principal Judge, Family Court, Saran at Chapra in Maintenance Case No. 736 of 2001 (Saira Bano versus Hasmat Ansari) whereby the application preferred by her under Section 125 of the Code of Criminal Procedure seeking maintenance has been considered and rejected. While rejecting the application, learned Principal Judge has found and observed as under in paragraph 10: “10 It appears from the perusal of the evidences of the witnesses of petitioner that P.W. 1 who is an auto rickshaw driver has stated in his evidence that he came to know and became acquainted with the Saira Bano, the petitioner while she was travelling in his auto rickshaw. He has stated that nikah was performed in Salempur masjid. P.W. 4 is also a tea- stall owner and he has also got no relation with the petitioner. He has stated that nikah was performed in Salempur masjid, on the contrary the petitioner has stated that nikah was performed in the house of Rajendra. The petitioner has also disclosed that she was earlier married with Rasul Mian and from that wed-lock she got a son. She has stated that Rasul Mian died before her second marriage. She did not state this fact in her petition. It is also pertaining to mention here that Saira Bano did not examine any witnesses of her nikah nor produce nikah-nama in 2 court. Therefore, I find that the petitioner did not prove that she was married with Hashmat Ansari. Once the fact that the petitioner was married with Hasmat Ansari, is not proved, the petitioner cannot claim the maintenance from Hashmat Ansari.“ Petitioner filed the aforesaid proceeding with an assertion that on a representation made by opposite party that he is not previously wedded, she married him in the year 1994. When she went to the house of the opposite party, to her utter surprise, she found that there was a lady living in the house from before who was the wife of opposite party. However, she continued to put up with opposite party for some time. It was also her case that the said wedlock gave birth to one child who died after one year. It is further the petitioner’s case that for some time, she was maintained by opposite party but thereafter he refused to maintain her as a result whereof, she was compelled to file the aforesaid proceeding seeking maintenance. The husband (opposite party) appeared in the said proceeding and contested the claim. The husband took the stand that the lady (petitioner) was never married to him. It is the specific case of the husband (Hasmat Ansari) that he is married from before with a lady and is residing with her in the house. The said wedlock has produced siblings who are alive. It is thus seen that the claim of the petitioner that she is legally wedded wife of sole opposite party was candidly denied. Both the parties were allowed to adduce evidence. Petitioner produced two witnesses whereas the husband produced 3 as many as seven witnesses. The oral evidence produced by the petitioner was a rickshaw puller and the person who was running a tea stall. On the other hand, the husband produced witnesses who were related to the family. On a consideration of the materials on record, learned Trial Court has taken a view that no cogent evidence was brought on record to demonstrate prima facie that the applicant (petitioner) was legally wedded wife of the sole opposite party inasmuch as Nikahnama or the Maulvi who is said to have performed the marriage, was/were not produced. Having found so, the claim of the petitioner was rejected under the impugned order. Learned counsel for the petitioner, while assailing the impugned order submits that in a proceeding under Section 125 of Cr.P.C., the claim of the husband based on flimsy ground shall not denude the Court of its jurisdiction. The grounds on which the claim is resisted must be bona fide ground based on materials on record. He relies on a judgment of a Single Judge of this Court in the case of Zulekha Khatoon versus State of Bihar since reported in 2000 (3) P.L.J.R. 693. A perusal of the facts of Zulekha Khatoon (supra), it appears that the claim of the wife based on the materials on record was initially accepted by the Trial Court whereafter she was allowed maintenance. Aggrieved thereby, the husband had preferred revision application wherein a view was taken by the revisional Court that the applicant (wife) based on the materials on record had failed to prove that she was legally wedded wife to the husband. In that context, this Court observed as under in paragraph 5: “5. It has been held in 1984 Cr. L.J. 1145 4 that in a summary proceeding under section 125 Cr.P.C. the wife is entitled to claim maintenance unless the illegality for invalidity of her marriage is apparent and without any scope for doubt or dispute. As held in 1982 Cr. L.J. 539 and other cases section 125 is not intended to provide for a full and final determination of the status and personal rights of the parties. In a proceeding under section 125 Cr.P.C., the factum of marriage and not legality thereof is immaterial. When the status of wife is disputed by the husband on flimsy grounds, the Magistrate will not lose his jurisdiction and he has to find out whether the ground raised by the husband is a serious and a bona fide one. He has to satisfy himself whether prima facie the parties are married and to afford them the immediate and speedy relief provided under section 125 Cr.P.C. without prejudice to the contentions of the parties to establish their real matrimonial links before the Civil Court. “ It is further seen that in the case referred to by the Learned counsel for the petitioner, the Nikahnama was produced by the petitioner (wife). In view of the facts of the case in Zulekha Khatoon (supra) noted hereinabove, in my view, the case of the petitioner stands on entirely different footing. Since a finding has been recorded based on the appreciation of materials/evidence placed on behalf of the parties which has not been shown to be perverse, this Court refuses to exercise its revisional jurisdiction in favour of the petitioner. The application has no merit. It is accordingly dismissed. pkj ( Kishore K. Mandal, J. )