IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.26228 of 2007 MD. ISLAM, SON OF MD. IQBAL HUSSAIN, RESIDENT OF VILLAGE- HARNA BUJURG, POLICE STATION- RAJOUN, DISTRICT- -BANKA --------------- PETITIONER Versus 1. THE STATE OF BIHAR 2. BIBI AKBARI KHATOON, DAUGHTER OF MD. ASAD, RESIDENT OF VILLAGE-HARNA BUJURG, POLICE STATION- RAJOUN, P.O.BUJURG HARNA, DISTRICT- BANKA -------------- OPP.PARTIES ----------- For the petitioner : M/S Abdul Manan Khan, Binay Kumar “Binit”, and Md. Anamul Haque, Advocates For the State : Mr.Jharkhandi Upadhaya, A.P.P. For Opp.Party no.2 : Mr. Brij Nandan Prasad, Advocate ---------- O R D E R Misc. Case No.8 of 1994 was preferred by Bibi Akbari Khatoon seeking maintenance under Section 125 Cr.P.C. and for return of various articles from her husband Md. Islam. By order dated 13.10.2004, the learned Sub Divisional Judicial Magistrate, Banka, was pleased to reject the maintenance petition on a finding that the petitioner was not the wife of Opp.Party no.1, Md.Islam. Aggrieved thereby Bibi Akbari Khatoon approached the Sessions Court in Cr.Revision No.407 of 2004 and by order dated 7.5.2007 Sri Bal Krishna Verma, the learned Presiding Judge, Fast Track Court no.5, Banka, set aside the order dated 13.10.2004 on a conclusion that the learned Sub Divisional Judicial Magistrate had apparently erred in his finding regarding Bibi Akhari Khatoon not being the wife of Md. Islam. Dissatisfied with the said order of the revisional court the husband of Opp.Party no.2 under Section 125 Cr.P.C. has filed this - 2 - application for quashing the order of the revisional court. The facts of the case may be noticed with relative brevity. The aforesaid proceeding under Section 125 Cr.P.C. was instituted on the petition filed by Bibi Akbari Khatoon alleging, in brief ,therein that she was married to petitioner Md. Islam according to Muslims rites and customs , as both parties were Muslims and the nikah was performed on 7.10.1988, wherein the Din Mahar was fixed as Rs.20,000/- . It was further alleged that after sometime her husband and in- laws started demanding Rs.40, 000/- more in dowry and ultimately she was ousted from matrimonial home on 10.4.1989. Her father and relatives tried to reason with her husband and in-laws but without any success and when the present petitioner married another girl she filed the instant petition for maintenance demanding a sum of Rs.500/- per mensum and also demanding furniture,utensils, jewellary and other articles which were given in dowry and had been confiscated by the husband. It appears that after notice the petitioner appeared in the proceeding under Section 125 Cr.P.C. and contested the maintenance case besides others on the ground that the applicant was not his legally wedded wife as she was never married to him. It was asserted that at the time of the alleged marriage the petitioner was a minor, as was Opp.Party no.2, and under the Muslim Law they were neither entitled to nor eligible to perform nikah without the intervention of their parents. It was sought to be pointed out that the first party of the proceedings, the wife had no where claimed or pointed out that the - 3 - marriage had been performed by their guardians and as such, no question of the husband and wife living together or taking the dowry or demanding dowry or subjecting the wife to torture and not maintaining her arises. It has been submitted on behalf of the petitioner that there are two opposing groups in the village one known by Communist Group to which Opp.Party no.2 belonged and other Kishan Party to which the petitioner belonged and the maintenance case has been filed purposely due to political rivalry and in order to harass and humiliate him. It was also submitted that in the year 1993 the petitioner had lodged a Sanha before the Sub Divisional Officer, Banka, and in the show cause the petitioner had asserted that he had 10 kathas of land, contrary to the false claim of the wife of his being possessed of 10 bighas of land. Five witnesses were examined on behalf of the applicant wife and six witnesses were examined to support the petitioner’s case and having considered the materials available on record, the learned Sub Divisional Judicial Magistrate, Banka , dismissed the petition for maintenance holding it to be not maintainable since Bibi Akbari Khatoon was not the legally wedded wife of Md.Islam. It was further sought to be submitted that the revisional court exercising revisional power had usurped the functions of the appellate court and, after scrutinizing and re-appraisal of the evidence of the witnesses available on record which he was not competent to do, had passed the impugned order. On the other hand, the learned counsel for Opp.Party no.2 - 4 - filed and brought to my notice the order dated 19.2.2003 passed by Sri Vijay Prasad Poddar , IInd Addl.Sessions Judge, Banka in Cr.Revision no.301 of 2000. The said revision preferred by the petitioner herein was directed against the order dated 21.7.2000 passed by the then learned Sub Divisional Judicial Magistrate in Misc.Case no.8 of 1994, by which order he had granted interim maintenance of Rs.200/- only to be paid by the husband per month to the applicant till the disposal of the case. The learned Additional .Judge while dismissing the revision came to a categoric finding that the wife had been able to prove prima facie that she was the legally wedded wife of the petitioner. This order of the revisional court dated 19.2.2003 never appears to have been challenged by the petitioner herein nor has he made any mention thereof in the present application under Section 482 Cr.P.C. Apparently, this amounts to a suppression of material facts and one can reasonable deduce that the petitioner herein has not come to the court with clean hands. From the above facts, it would be apparent that the fact of marriage between Md. Islam and Bibi Akbari Khatoon is not disputed. It is now a question of both parties being minor at the time of their marriage and that, too, without endorsement of their respective guardian. The findings of the revisional court in Cr. Revision No.301 of 2000 having remained unchallenged have attained finality and now the petitioner cannot challenge the subsequent order and take the plea - 5 - that there had been no proper marriage as both parties were minor and the marriage was not on the intervention of their respective parents. Even the learned Sub Divisional Judicial Magistrate after the earlier finding of the revisional court ought to have been loath at arriving at a different finding. In the facts and circumstances of the case, the impugned order of the revisional court does not suffer from any illegality so as to call for interference by this Court. Accordingly, the application is dismissed. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 16th December,2008 Nawal Kishore Singh/ A.F.R.