Md. Belal v. Sogra Khatoon — 1989 DIGILAW 274 (PAT)

Judgment L.P.N.Shahdeo, J. 1. This revision application is directed against the final order dated 7-1-1988 passed by Sri Manoranjan Prasad Srivastava, Judicial Magistrate, 1st Class, Hazaribagh in Misc. Case No. 32/86 under Sec. 125 of the Code of Criminal Procedure (shortly the Code) by which he has directed the petitioner to pay maintenance to the opposite party at the rate of Rs. 300.00 per month from the date of filing of the application under Sec. 125 of the Code holding that the opposite party, Sogra Khatoon, is the legally married wife of the petitioner. 2. The case of the opposite party, Sogra Khatoon, was that she was married with the petitioner in the year, 1980 according to Muslim rites and she lived with the petitioner for some time but the differences arose on account of non-fulfilment of certain demands and she was being maltreated. The father of the opposite party, thereafter, brought her to his residence on 12-2-84 and, thereafter, a case for maintenance under Sec. 123 of the Code was filed. 3. The case of the petitioner (opposite party in the trial court) was that the opposite party, Sogra Khatoon is not the legally married wife of the petitioner and the petitioner was never married with the opposite party and, as such, no rukshatti was performed on the following day of the marriage. The definite case of the petitioner is that he was married with Saibunissa, the younger sister of Sogra Khatoon in the year, 1982. It appears that, thereafter, the opposite party had sent notice to the petitioner and the petitioner had replied to that notice. 4. It appears that in course of inquiry the opposite party (petitioner in the trial court) had examined five witnesses and the present petitioner (opposite party in the trial court) had examined six witnesses. Two court witnesses were also examined who were the father and mother of Sogra Khatoon. 5. The trial court, on consideration of the evidence, facts and circumstances held that there is evidence to show that the petitioner was married with the opposite party and as a result of that he granted maintenance at the rate of Rs. 300.00 per month payable by the petitioner to Sogra Khatoon which order of maintenance is being challenged in this application. 6. Mr. 300.00 per month payable by the petitioner to Sogra Khatoon which order of maintenance is being challenged in this application. 6. Mr. M.S. Anwar, learned counsel appearing on behalf of the petitioner submitted that throughout the case of the petitioner is that he was never married with Sogra Khatoon rather, he was married with Saibannissa and in spite of any proof of marriage of Sogra Khatoon with the petitioner, the trial court has wrongly granted maintenance to the opposite party, Sogra Khatoon. It was also submitted that there is no satisfactory legal evidence on the point of marriage. 7. On the other hand, Mr. P.P.N. Roy, appearing on behalf of the opposite party, has submitted that the trial court, on consideration of the materials on record, has passed a correct order which requires no interference by this court. 8. It is the undisputed position in this case that the petitioner was married with a daughter of Azimuddin Ansari who is said to be the father of both Sogra Khatoon and Saibunnissa. The question, therefore, falls for consideration is as to with whom the petitioner was actually married. 9. Before going into evidence we can take up the documentary evidence on this point. The first documentary evidence which is very important and relevant for the point under consideration is Ext. 1 which is Nikahnama dated 14-4-82. Therefore, the case of the opposite party that the petitioner was married with her in the year, 1980, goes away by this Nikahnama. This document which is the basis of the marriage, does not support the case of the opposite party that she was married with the petitioner. 10. Apart from that in this case, in the very document i.e. Nikahnama the signature of the petitioner does not appear but the name of Saibunnissa appears with whom the petitioner was married. This is the own document of the petitioner i.e. Sogra Khatoon proved by her witness who is PW 4. Therefore, there is no scope for the opposite party and she must be stopped here to say that she was married with the petitioner as the document shows that Saibunnissa, admittedly, the younger sister of Sogra Khatoon and the daughter of Azimuddin Ansari was married with the petitioner, Md. Belal. 11. Not only the aforesaid document but the evidence of two witnesses examined in this case who are PWs. Belal. 11. Not only the aforesaid document but the evidence of two witnesses examined in this case who are PWs. 1 and 2, they have also stated that the marriage had taken place in 1980 just contrary to the Nikahnama but these two witnesses named in the Nikahnama, have not been examined by the petitioner, Sogra Khatoon in the trial court. The Vakil has also not been examined. The Maulvi who had performed the Nikahnama, has been examined as PW 4 who has proved the Nikahnama. Therefore, both the oral evidence of PWs 1 and 2 and that of PW 4 as also the document do not support the case of the opposite party that she was married with the petitioner in 1980. 12. It appears that after the examination of the aforesaid witnesses subsequently and purposely a new story has been introduced in the evidence of PWs. 3, 4 and 5 that the petitioner, Sogra Khatoon (in the court below) had alias name as Saibunnissa but this developed story cannot be accepted as in the very petition filed by the petitioner, Sogra Khatoon in the trial court claiming maintenance, she has not stated that she is also known as Saibunnissa or that she has any alias name. 13. To clinch the controversy it is relevant to mention that it appears that the notice which was issued to the petitioner, Md. Belal, which is Ext. B, in that notice also she i.e. Sogra Khatoon has not been described as Sogra Khatoon alias Saibunnissa. The reply filed by the petitioner, Md. Belal which is Ext. C, shows that the petitioner has clearly stated that he was married with Saibunnissa and not with Sogra Khatoon. Therefore, the own document of the opposite party, Sogra Khatoon, does not support or indicate that she had any alias name. In this view of the matter I am constrained to hold that this alias name Saibunnissa has purposely been introduced later on in order to make out a case of marriage with the petitioner. 14. In the reply the petitioner, Md. Belal has clearly stated that he is prepared to keep his legally wedded wife, Saibunnissa and he requested her father to send her but he always denied that he was ever married with Sogra Khatoon. 15. 14. In the reply the petitioner, Md. Belal has clearly stated that he is prepared to keep his legally wedded wife, Saibunnissa and he requested her father to send her but he always denied that he was ever married with Sogra Khatoon. 15. From this clear statement in the reply upto that stage or even at the stage when the two witnesses were examined, no case was made out on behalf of Sogra Khatoon that she bad any alias name. Therefore, the case of the present petitioner in this court that he was married with Saibunnissa and not with Sogra Khatoon, stands substantiated and proved beyond doubt. 16. PW 5 is the petitioner, Sogra Khatoon (in the trial court) who has stated her case, but in her cross examination she has identified her signature in the Nikahnama in which there is no name as Sogra Khatoon alias Saibunnissa but the signature which she claims to be of her, indicates the name of Saibunnissa which is the case of the present petitioner, PW 1 is the father of Sogra Khatoon who has stated that he has three daughters, namely, Jaibun who is married, Sogra Khatoon and Saibun. This alias name of Sogra Khatoon as Saibunnissa has been purposely introduced for the purpose of maintenance. PW 2 is the mother of Sogra Khatoon. They all have also deposed on the point of alias name. 17. On the other hand, the petitioner (opposite party in the trial court) has examined six witnesses. They all have stated about the case of the petitioner, Md. Belal and have clearly stated that this petitioner was married with Saibunnissa and not with Sogra Khatoon. Therefore, from the oral evidence, without discussing in so many words in details, suffice it to say that the marriage of the petitioner with Sogra Khatoon, opposite party, has rot been proved. The documentary evidence supported by the evidence of the two PWs is sufficient to show that the marriage had taken place in the year, 1982 but another story has been introduced that it had taken place in the year, 1980. 18. Under these circumstances, without satisfactory proof of marriage, the grant of maintenance by the trial court is wholly unwarranted and not supported by the evidence. 19. 18. Under these circumstances, without satisfactory proof of marriage, the grant of maintenance by the trial court is wholly unwarranted and not supported by the evidence. 19. Further, it also appears that the trial court was also satisfied that there was no satisfactory proof of marriage but in such circumstance he has observed in paragraph 18 of his judgment to the effect "I have gone through the entire evidence and I am of the opinion that both sides have not discharged their onus fully to give clear picture". But in spite of that he found the evidence convincing to him only because the father and the mother of Sogra Khatoon were examined. He further held that no strict proof in cases of marriage is required under law. But here also, it appears that the trial court has committed a mistake in holding so on the point of proof of marriage. Strict proof in cases of maintenance is not required where the marriage is the admitted position or not seriously disputed. But, in cases where the marriage itself is a disputed question from the very beginning to the end, the marriage is required to be proved satisfactorily beyond doubt so that a person can be saddled with payment of maintenance which in this case, according to the trial court, also, has not been discharged by either of the parties. If it had not been discharged by the petitioner, Sogra Khatoon there was no question of granting maintenance to her as in the trial court the present petitioner, Md. Belal, has seriously disputed his marriage with Sogra Khatoon. 20. The law relating to the standard of proof in matrimonial cases or cases claiming maintenance, when the marriage in question is seriously disputed, is that it must be proved beyond reasonable doubt on the basis of preponderance of evidence and circumstances. The marriage in this case, therefore, required to be proved in same manner as a fact is required to be proved under Sec. 3 of the Evidence Act. This having been not done by the opposite party (Sogra) in the trial court, she was not entitled to maintenance. The trial court has not approached and appreciated evidence from this angle, the finding recorded by him is erroneous and requires interference by this court to correct a mistake of incorrect appreciation of evidence and law. 21. This having been not done by the opposite party (Sogra) in the trial court, she was not entitled to maintenance. The trial court has not approached and appreciated evidence from this angle, the finding recorded by him is erroneous and requires interference by this court to correct a mistake of incorrect appreciation of evidence and law. 21. In the result, this revision application is allowed and the impugned order dated 7-1-88 granting maintenance passed by the trial court is hereby set aside.