Chand Patel vs Bismillah Begum & Anr

4. The facts which give rise to the aforesaid question, in brief, are set out hereunder.

5. The respondent No.1 herein, Bismillah Begum, filed an application for her maintenance and for the maintenance of her minor daughter, Taheman Bano, under Section 125 of the Code of Criminal Procedure, against one Chand Patel, in the Court of the Judicial Magistrate, First Class, Chincholi, being Criminal Misc. No.6 of 2001. In her petition she claimed that she was the legally wedded wife of the appellant herein and that her marriage with the appellant had taken place about eight years prior to the filing of the said petition. Her further case was that the marriage was consummated and two years after the marriage a daughter was born from the wedlock and she has been made petitioner No.2 in the application for maintenance. The petitioner No.2 Taheman Bano being a minor, is under the care and guardianship of her mother, the petitioner No.1, in the said application.

6. In her petition the respondent No.1 herein categorically admitted that the appellant herein was married to her elder sister, Mashaq Bee, and that the appellant, with the consent of his first wife married the respondent No.1 and a Nikahnama was also executed but the same had been misplaced. It was also admitted that the appellant herein lived with his first wife Mashaq Bee and the respondent No.1 under one roof and the appellant had even accepted the petitioner No.2 as his daughter and had brought her up.

13. In support of his aforesaid contention Mr.Raja Venkatappa Naik, learned counsel for the appellant, firstly referred to the decision of this Court in Rameshchandra Rampratapji Daga Vs. Rameshwari Rameshchandra Daga,(2005) 2 SCC 33, in which this Court had occasion to consider, inter alia, the provisions of Sections 11 and 12 as also Section 5(i) of the Hindu Marriage Act, 1955. The facts of the said case are to some extent similar to the facts of this case, although, the same involved the provisions of the Hindu Marriage Act, 1955. In the said case the wife was first married to someone but according to her the customary rituals of the marriage had not been completed, inasmuch as, during the marriage ceremony the family members quarrelled over dowry. She, thereafter, filed a petition for divorce but did not prosecute the same and no decree of divorce was passed in the said proceedings. However, in accordance with the prevalent customs in the Maheshwari community, a chhor chithhi or a document of dissolution of marriage was executed between the wife and the said person and it was also registered. The said documents were shown and also given to the person with whom the second marriage was performed and a daughter was also born from the second marriage. According to the wife, her second husband began to ill treat her, and, ultimately, she had to file proceedings in the Family Court for grant of a decree of judicial separation and maintenance of Rupees Three thousand per month both for herself and for her minor daughter. The second husband filed a counter petition seeking a declaration that his marriage with his present wife was a nullity on the ground that on the date of the second marriage her earlier marriage with her previous husband had not been dissolved by any Court in accordance with the provisions of the Hindu Marriage Act, 1955. The Family Court allowed the petition of the wife and granted a decree of judicial separation as also the maintenance claimed by her and dismissed the counter petition filed by the husband. The High Court, however, reversed the finding of the Family Court and held that since the first marriage of the present wife with the previous husband had not been dissolved by the Court, the second marriage was in contravention of Section 5(i) of the aforesaid Act and was, therefore, a nullity under Section 11 of the Act. The High Court granted a decree of separation holding that the marriage was a nullity, though it maintained the decree granted in respect of maintenance to the respondent No.1 and her daughter.

14. Dismissing the two appeals preferred both by husband and the wife, the Supreme Court held that in the facts of the case the Courts below were fully justified in granting maintenance both to the wife and the daughter since the evidence of the wife had been rightly believed by the Courts below. The High Court accepted the validity of the document of dissolution of marriage executed between the parties and also took into consideration the fact that they had lived as husband and wife for about 9 years. On such consideration, both the appeals came to be dismissed.

28. The answer to the question raised at the very outset, therefore, is that the bar of unlawful conjunction (jama bain-al-mahramain) renders a marriage irregular and not void. Consequently, under the Hanafi law as far as Muslims in India are concerned, an irregular marriage continues to subsist till terminated in accordance with law and the wife and the children of such marriage would be entitled to maintenance under the provisions of Section 125 of the Code of Criminal Procedure.

29. The decisions cited during the hearing of this case do not really come to the aid of the parties, except to the extent that a marriage which is merely irregular or voidable continues to subsist till it is set aside or declared to be void in accordance with law.

30. In view of what has been stated hereinabove, we hold that the unlawful conjunction and/or marriage between the appellant and respondent No.1 continues to subsist not having been declared void by any competent forum and that accordingly, the respondent No.1 and the respondent No.2 will both be entitled to maintenance under Section 125 of the Code of Criminal Procedure. There is, therefore, no reason to interfere with the order passed on 20.6.2005 by the Karnataka High Court in Criminal Petition No. 3002 of 2004 or that of the Judicial Magistrate, First Class, Chincholi, on 28.6.2003 in Criminal Misc. No. 6 of 2001. The appeal is accordingly dismissed and the interim stay granted on 14.8.2006 is vacated.

31. The appellant shall pay to the respondents all the arrears of maintenance, within a period of six months from the date of this Judgment and will also go on paying the current maintenance with effect from the month of March, 2008. In addition, the appellant will also pay to the respondent No.1 a sum of Rs.10,000/- towards the cost of litigation.