Sheikh Ajim v. Kuniya Devi — 1989 DIGILAW 69 (PAT)

Judgment S. Hods, J. The petitioner has filed this criminal revision application against the judgment and order dated 8th of March, 1988 passed by the Chief Judicial Magistrate, Godda in Cr. Misc Case no. 4 of 1986 (Tr. No. 344/87). By the aforesaid order the petitioner has been directed to pay a monthly allowance of Rs.300/- to the opposite party no. 1 under section 125 of Code Of Criminal Procedure for the maintenance of herself and her manor daughter. 2. The fact, in short, is that opposite party no. 1 filed an application under section 125 of the Cr. P.C. for grant of maintenance of Rs.500/- per month as maintenance for herself and her minor daughter. Case as stated in the petition is that about two yeas prior to 20th February, 1986 the opposite party no. 1 began to live with the petitioner in his house and she conceived It is alleged that the petitioner started pressing opposite partly no. 1 for abortion which she refused thereafter the petitioner started assaulting opposite party no. 1 and on 5.2.1986 he compelled the opposite party no. 1 to leave the house. On 7.2.1986 it is alleged that the opposite part no. 1 gave birth to a daughter. It is also alleged that as the opposite party no. 1 had married with the petitioner against the will of her father who is a poor labour he is not ready to keep the opposite party no. 1 with him. It is also alleged that the petitioner is not giving food, cloth and other expense to the opposite party no. 1 although he is in possession of 20 bighas land and is owner of rice mill having yearly income of Rs.50,000/-. It was also alleged that the petitioner has another wife having three daughters and a son. 3. The petitioner on 12.4.1986 filed a show cause in response to petition filed for maintenance by the opposite party no. 1. The petitioner's case was that opposite party no. 1 belongs to a Tatwa community of Hindu religion and that she was married at Kaithia police station patharganma in the district of Godda. As the apposite party no. 3. The petitioner on 12.4.1986 filed a show cause in response to petition filed for maintenance by the opposite party no. 1. The petitioner's case was that opposite party no. 1 belongs to a Tatwa community of Hindu religion and that she was married at Kaithia police station patharganma in the district of Godda. As the apposite party no. 1 was a lady of easy virtue her husband left her and she began to live with a man of Goradih police Station Sabour where she lived for some time and ultimately she was forced to marry one Jiwan Mandal of Kusmaha Police station Dhoraiya in the district of Bhagalpur and at present opposite party no. 1 is wife of the above named Jiwan Mandal. The petitioner denied the factum of marriage with opposite party no. 1 and also denied the fact that the child was born from him and as the such opposite party no. 1 was no. 1 was not entitled to maintenance from the petitioner. It was also stated that the petitioner is a Muslim and opposite party no. 1 is a Hindu and, therefore, marriage of Muslim with non Muslim is illegal and void under the Mahomeden Law. Further case of the petitioner is that Rameshwar Mandal father of opposite party no. 1 filed a case under sections 363 and 364 of the Indian penal Code against the petitioner and others which was registered as Patharganma Police Station Case no. 35/84 (G.R. 266/84) and in that case the statement of opposite party no. 1 was taken under section 164 of the Code of Criminal Procedure on 19.5.1984 where In the opposite party no. 1 did not state that she was married with the petitioner. It was also alleged that as the petitioner has already a muslim wife and from her he has three daughters and a son and as such the question of his marriage with the opposite party no.1 who is non muslim does not arise. The petitioner has also stated in his show cause that the opposite party no. 1 never lived in his house nor she ever conceived any child form him. The petitioner has also stated in his show cause that the opposite party no. 1 never lived in his house nor she ever conceived any child form him. The petitioner has further stated that there are several co sharers in his raiyati land and he has no mill nor any license of any mill and that he is a poor man and is hand to mouth and he is litigating with opposite party no. 1 since 18.4.1984. 4. On the basis of written statement by the petitioner is was stated that the opposite party no. 1 was not entitled to receive any maintenance from the petitioner as there is no relationship of husband and wife between them nor her child was conceived from the petitioner. 5. On the facts placed by the petitioner as well as opposite party no. 1 the learned Chief Judicial Magistrate formulated the following three points for determination of the case. (1) Is the applicant Kunnia Devi wife of the opposite party and is her daughter minor Child of opposite party? (2) Has the opposite party having sufficient means neglected and refused to maintain the applicant and her daughter? (3) Is the applicant living in adultry? 6. The learned court below after hearing the parties decided points no. 1 and 2 in favour of the opposite party no. 1 and point no. 3 against the opposite party no. 1 7. Mr. Thakur Prasad learned counsel appearing on behalf of the petitioner has submitted that the opposite party no. 1 can claim maintenance under the provisions of section 125 of the Cr. P.C. only if it is proved that she is the legally wedded wife of the petitioner. It has been submitted that in the present case there is no evidence either under the personal law or under the Special Marriage Act (hereinafter referred to as the 'Act') to prove that opposite party no. 1 is the wife of the petitioner. In support of his argument that there could have been no marriage or registration of marriage between the petitioner and the opposite party no. 1 under the provision of Special Marriage Act, learned council for the petitioner has referred to different provisions of the Act. 8. Section 4 of the Act lays down conditions relating to solemnization of Special Marriages and it reads as follows: 4. 1 under the provision of Special Marriage Act, learned council for the petitioner has referred to different provisions of the Act. 8. Section 4 of the Act lays down conditions relating to solemnization of Special Marriages and it reads as follows: 4. Not withstanding any thing contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be, solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely: (a) neither party has a spouse living; ** ** ** * Section 5 when a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice thereof in writing in the form specified in the second Schedule to the Marriage. Officer of the district in which at least one of the parties to the marriage has resided for period of not less then thirty days immediately proceeding the date on which such notice is given. 9. Officer of the district in which at least one of the parties to the marriage has resided for period of not less then thirty days immediately proceeding the date on which such notice is given. 9. Chapter III of the Act deals with the registration of the marriages celebrated in other forms and consists of sections 15 to 18 Section 15 reads as follows :- Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnized under the Special Marriage Act, 18 (III of 18 or under this Act, may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled namely:- (a) a ceremony of marriage has been performed between the parties and they have been living together as husband and wire ever since; (b) neither party has at the time of registration more than one spouse living; ** ** ** ** Section 16 deals with the procedure for registration and it lays down as follows:- Upon receipt of an .application signed by both the parties to the marriage for the registration of their marriage under this Chapter, the Marriage Officer shall give public notice thereof in such manner as my be prescribed and after allowing a period of thirty days for objection and after hearing any objection received within that period shall, if satisfied that all the condition mentioned in section 15 are fulfilled, enter a certificate of the marriage in the Marriage Certificate Book in the form specified in the Fifth Schedule and such certificate shall be signed by the parties to the marriage and by three witnesses. Section 18 deals with the effect of registration of marriage under Chapter III and it reads as follows :- Subject to the provisions contained in subsection (2) of section 24, where a certificate of marriage has been finally entered in the Marriage Certificate Book under this Chapter, the marriage shall as from the date of such entry, be deemed to be a marriage solemnized under this Act. And all children born after the date of ceremony of marriage (whose names shall also be entered in the Marriage Certificate Book) shall in all respects be deemed to be and always to have been the legitimate children of their parties: Provided that nothing contained in this section shall be construed as conferring upon any such children any rights in or to the property of any person other than their parents in any case where, but for the passing of this Act, such children would have been incapable of possessing or acquiring any such rights by reason of their not being the legitimate children to their parents. Chapter VI of the Act deals with the Nullity of Marriage and Divorce and section 24 whereof runs as follows: 24 (1) Any Marriage solemnized under this Act shall be null and void and may, on a petition presented by either party there to against the other party be so declared by a decree of nullity if, - (i) any of the conditions specified in clauses (a), (b), (c) and (d) of section 4 has not been fulfilled: or (ii) the respondent was impotent at the time of the marriage and at the time of the institution of the suit. (2) Nothing contained in this section shall apply to any marriage deemed to be solemnized under this Act within the meaning of section 18, but the registration of any such marriage under chapter III may be declared to be of no e feet it the registration was in contravention of any of the conditions specified in clauses (a) to (c) of section 15 : Provided that no such declaration shall be made in any case where an appear has been Preferred under section 17 and the decision of the district court has become final. 10. From the provision contained in section 4 it is manifest that there can be no marriage under the Special Marriage Act if either party has spouse living nor can there be registration of marriage celebrated in other forms if either party has more than one spouse living at the time of registration as provided in section 15 (b) of the Act. It has been submitted by the learned counsel for the petitioner that the admitted case of the parties is that the petitioner was already married with a muslim woman prior to the alleged marriage with the opposite party no. 1 and was having four children nom his muslim wife. In that view of the matter, there cannot be a valid marriage rather the same would be void as it was in contravention of section 15 (b) of Act. 11. Mr. Wasi Akhter, learned counsel appearing on behalf of opposite party no. 1 has submitted that nom perusal of exhibit A which is annexure-1 to the petition it will appear that the petitioner had filed an affidavit before the Marriage Officer stating therein that he had married with the opposite party no. 1 and thus the factum of marriage has been proved. He has further submitted that the petitioner filed bail application before the Sessions judge in which he was accused of an offence under section 364 I.P.C. and in that application which is exhibit E, it had been stated that the petitioner was marriage with the opposite party no. 1. Leaned counsel for opposite party no. 1 has then submitted that in view of exhibits A and E factum of marriage between the petitioner and oppositions party no. 1 has been proved. It has been further contended by the leaned counsel that once a marriage is registered under Section 15 of the Act and has been finally entered in the marriage certificate book under section 18 of the Act it will be deemed that the marriage has been solemnized. It can only be declared as void under section 24 of the Act by a decree of nullity and not otherwise. In the present case the petitioner has not obtained a decree of nullity and so long as it is not done the opposite party no. 1 will be deemed to be the wife of the petitioner and as such she is entitled to maintenance. Elaborating his argument learned counsel for the opposite party no. 1 has taken me to the judgment of the court below and has submitted that once a finding regarding the marriage has been arrived at by the Marriage Officer the same fact cannot be reagitated. 12. Learned counsel for opposite party no. 1 in support of his contention has relied on several decisions. 1 has taken me to the judgment of the court below and has submitted that once a finding regarding the marriage has been arrived at by the Marriage Officer the same fact cannot be reagitated. 12. Learned counsel for opposite party no. 1 in support of his contention has relied on several decisions. He has referred the decisions reported in AIR 1930 Privy Council 22, Kalipada De and others vs. Dwijapada Das and others. That case related to the rights of inheritance to one Nistarni. On the death of Nistarni application were made by both the parties to the District Court for the grant of letters of administration to her estate. The proceeding being contentious were tried as a suit by the Subordinate Judge. The principal question for decision was whether Dwijapada was the nearest help of Nistarni. The issue was formally raised and determined by the Subordinate Judge In favour of Dwijapada. On appeal the High Court affirmed. The decision of the Subordinate Judge was affirmed and, letters of administration' were granted to Dwijapada. There was no appeal to his Majesty council. The other appellants Gokal and Banwari acquiesced in the finality of this adjudication. After their death their heirs sold their allotted share in the property to Kalipada De and others who filed the suit out of which the matter went to the Privy council. The appellants before the Privy council prayed for establishment of the title through their purchaser. The trial court came to the conclusion that Dwijapada was not in the relationship of Nistarni which had been found in the former proceeding and as such he was not her heir but that Gokal and Banwari were entitled to property. Against this judgment Dwijapada appealed and the High Court reversed the decision of the trial Judge. The High Court held that the suit was barred by res judicata. Against this decision of the High Court Kalipada De and others went to the Privy Council. In such a situation it was held that where a question of relationship of party had been decided in a previous probate proceeding, the subsequent suit between the same parties involving the same question is barred. In the present case the relationship between the petitioner and opposite party no. 1 has not been decided by any court of competent jurisdiction and as such opposite party no. In the present case the relationship between the petitioner and opposite party no. 1 has not been decided by any court of competent jurisdiction and as such opposite party no. 1 cannot get any benefit from this decision. The next decision relied upon by the learned counsel is the case of Union of India vs. Makes Builders and Financiers Limited and others reported in 1977 S.C. 409. In that case their Lordships quoted decision reported in AIR 1966 SC 405 wherein it was held that an admission is substantive evidence of the fact admitted and that admissions duly proved are "admissible evidence irrespective of whether the party making them appealed in the witness box or not and whether was confronted with those statements in case it made a statement contrary to those admission". As has been noticed in this case there is no admission by the petitioner with regard to the relationship in any legally constituted proceeding. Hence in this circumstance, this case in my view does not support the contention of opposite party no. 1. Learned counsel has further relied on a decision reported in A.I.R. 1977 SC 1724. Thiru John vs. The Returning Officer and others. In the aforesaid case the issue in question was with regard to the disqualification of the appellant. Thiru John, on the ground of age. In that case large number of document were produced which contained admission made by the appellant with regard to his age. Their Lordships after consideration observed in paragraphs- 15 and 16 of the judgment as follows: - Para 15 - 'It is well settled that a party's admission as defined in Section 17 to 20 fulfilling the requirements of Section 21, Evidence Act, is substantive evidence proprio vigore. An admission, if clearly and unequivocally made, is the best evidence against the party making it and though not conclusive, shifts the onus on to the maker on the principle that "What a party himself admits to both true may reasonably be presumed to be so and until the presumpion was rebutted the fact admitted must be taken to be established.” Para -16 'The above principle will apply with greater force in the instant case. Here there are a number of clear admissions in prior declarations precisely and deliberately made in solemn documents by Shri John. These admission were made antelitem moram juring the decade proceeding the election in question. Here there are a number of clear admissions in prior declarations precisely and deliberately made in solemn documents by Shri John. These admission were made antelitem moram juring the decade proceeding the election in question. These admissions were entitled to great weight. They had shifted the burden on the appellant (Shri, John) to show that they were incorrect. The appellant had miserably failed to show that these admissions were incorrect'. In the present case there is no admission of the petitioner or any document on the record which could conclusively prove that the petitioner and opposite party no. 1 were married. In absence of such document the decision relied upon by the learned counsel is of no avail. Reliance has further been placed on a decision reported in 1975 Cr. Law Journal 23 Bllamal versus Veeraswamy alias Lalgudiar. In that case the petitioner was refused maintenance on the ground that in a prior suit she was not the wife. The High Court in revision allowed the claim of the petitioner on the ground that in a prior suit for maintenance filed by revision petition evidence was let in that respondent had filed a written statement that he married the petitioner 15 year ago and that she was the wife. In the case in hand the petitioner had not filed any petition before the Marriage Officer to show that petitioner had married with opposite party no. 1 rather exhibit. A order of the Marriage Officer shows that petitioner had denied the factum of the marriage with opposite party no. 1. Thus this case also does not support opposite party no. 1. Decisions referred to above by the learned counsel for opposite party no. 1, in my view, are not applicable in the facts and circumstances of the case. 13. Petitioner has filed copy of the order dated 13.6.1984 passed by the Marriage Officer, Godda as Annexure-l to the petition From perusal of the said order it appears that on 12.5.1984 a joint petition on behalf on the petitioner and opposite party no. 1 was alleged to have been filed under section 5 of the Act for intended marriage, One Tamizuddin filed an objection and the same was registered as Marriage Objection Case No. 1 of 1984. In the objection petition, it was stated that the petitioner was married to the daughter of Tamizuddin and they are having four children. 1 was alleged to have been filed under section 5 of the Act for intended marriage, One Tamizuddin filed an objection and the same was registered as Marriage Objection Case No. 1 of 1984. In the objection petition, it was stated that the petitioner was married to the daughter of Tamizuddin and they are having four children. In the said marriage objection 'case, petitioner had denied the factum of marriage with opposite party no. 1. The Marriage Officer on consideration of all the materials refused to register the marriage as the alleged marriage was in violation of the provisions contained in section 15(b) of the Act. It has, therefore, been submitted by the learned counsel for the petitioner that once the Marriage Officer rejected the claim of marriage between the petitioner and the opposite party no. 1, there could have been no subsequent registration on 19.3.1985 because the petitioner's wife was alive and as such the registration was in violation of section 15 (b) of the Act. Moreover, from Ext. 1 which is the registration certificate bearing no. 3/85, it appears that the Marriage Officer had not taken into consideration the earlier order of the Marriage Officer rejecting the claim of marriage between the petitioner and the opposite party no. 1 Learned counsel for the petitioner has submitted that in order so show" that the marriage was solemnized between the petitioner and the opposite party no. 1, it has be proved as to when and in what and in what form the marriage was solemnized. In this connection learned counsel has referred the petition filed by the opposite party no. 1 on 20.2.1986 under section 125 of the Code of Criminal Procedure. In the said petition it was mentioned that the opposite party no. 1 was married to the petitioner about two years back. It was also mentioned therein that the marriage was registered under Section 15 (b) of the Act. The petition did not disclose the form in which the marriage was performed. According to the averment of opposite party in her petition for maintenance the month and year of her marriage with the petitioner comes to February, 1984. In support of the case of the opposite party no. 1 seven witnesses including opposite party no. 1 wee examined. According to P.W. 1 marriage between opposite party no. 1 and the petitioner was performed in 1980. In support of the case of the opposite party no. 1 seven witnesses including opposite party no. 1 wee examined. According to P.W. 1 marriage between opposite party no. 1 and the petitioner was performed in 1980. According to P.W. 2 marriage between opposite party no. 1 and the petitioner was performed on 14.4.1980. He has further said that the Nikah was performed according to Muslim Law in presence of several persons including Md. Nayeem (Dw2) but DW 2 denies the factum of marriage. He has also said that before marriage opposite party no. 1 was administered Kalma but he has not said as to who performed the Nikah. Neither the opposite party no. 1 who is P.W. 4 no other witnesses have corroborated the statement of P.W. 2. P.W. 3 in his cross-examination has said that on 14.4.1980. He heard that opposite party no. 1 and the petitioner were married. P.W. 4 has said in her deposition which was recorded on 29.8.1986 that she was married with the petitioner five years earlier which comes to 1981. Thus from the evidence aforementioned it will appear that neither the date of marriage nor the form in which marriage was performed has been proved and even the opposite party no. 1 herself has given contradictory date of marriage, According to her statement made in the petition for maintenance she was married with petitioner in February, 1984 but according to her evidence she was married in 1981. 14. In the light of the argument advanced by the leaned counsel for the parties the marriage between the petitioner and the opposite party no. 1 cannot be said to have been solemnized under the Act as the same was in violation of section 24 (4) of the Act clearly proved that the registration, of any such marriage under Chapter III may be declared to be no effect if the registration was in contravention of any of the conditions specified in clauses (a) to (c) of section 15 of the Act. In such a case it is not the requirement of the law to obtain a decree of nullity as contended by the learned counsel for the opposite party no. 1. In such a case it is not the requirement of the law to obtain a decree of nullity as contended by the learned counsel for the opposite party no. 1. Once a court comes to the conclusion that the registration of marriage under chapter III was in contravention of any of the conditions specified in clauses (a) to (c) of section 15 of the Act it can declare the registration of such marriage to be of no effect. In the fact of this case it is clear from the evidence that the petitioner was having spouse at the time of the alleged marriage was clearly in contravention of section 15(b) of the Act and hence it is declared to be of no effect. Once it is declared that the registration of marriage under section 15(b) of the Act is of no effect opposite party no. 1 cannot be said to be legally wedded wife of the petitioner and she will not be entitled to the benefit provided under section 125 of the Code of Criminal Procedure. 15. On 3.5.1984 father of opposite party no. 1 had lodged an F.I.R. against the petitioner and other under section 364 I.P.C. for kidnapping of the opposite party no. 1 which is exhibit-B. In that case the statement of opposite party no. 1 under section 164 of the cr. P.C. was recorded by the Chief Judicial Magistrate, Godda on 19.5.1984 which is exhibit C (The attention, of the opposite party no. 1 was drawn to, this exhibit in her evidence). In her statement opposite party no. 1 has not stated that she was married with the petitioner rather her statement is that she was kidnapped by the petitioner and that the petitioner had raped her. 16. On the basis of exhibits Band C learned counsel for the petitioner has submitted that there was no marriage between the petitioner and the opposite party no. 1 Had there been marriage between the petitioner and the opposite party no. 1 there could have been no occasion for lodging the F.I.R against the petitioner under section 364 of the I.P.C. and that the opposite party no. 1 should have stated 'in unequivocal terms in her statement under section 164 Cr. P.C. that she was married with the petitioner. Thus it has been submitted that in the absence of such statement by the opposite party no. 1 should have stated 'in unequivocal terms in her statement under section 164 Cr. P.C. that she was married with the petitioner. Thus it has been submitted that in the absence of such statement by the opposite party no. 1 it cannot be said that she is the wife of the petitioner. 17. Even on the basis of oral evidence the marriage between the petitioner and the opposite party no. 1 has not been proved as none of the witness including the opposite party no. 1 has given the exact date or year of the marriage nor the form in which marriage was performed has been proved. The opposite party no. 1 in her statement under section 164 of the Code of Criminal procedure has no where stated that she was married with the petitioner rather from perusal of her statement, it appears that there was no marriage. Exhibit E upon which great reliance has been placed by the learned counsel for the opposite party no. 1 cannot be said to be the statement of the petitioner. Any statement made in a bail petition on behalf of the petitioner cannot be said to be said to be an admission of the person concerned. 18. Mr. Thakur Prasad, learned counsel has further submitted that the petitioner is a muslim and opposite party no. 1 is a Hindu and as such according to the Mahomedan Law the marriage between a muslim male and a Hindu woman is invalid. He has submitted that whether there was a marriage between the parties can only be decided with regard to the law applicable to the parties. In this connection, it will be relevant to note the provision of law in case of difference of religion under the Mahomedan Law. In Aamer Ali Vol. He has submitted that whether there was a marriage between the parties can only be decided with regard to the law applicable to the parties. In this connection, it will be relevant to note the provision of law in case of difference of religion under the Mahomedan Law. In Aamer Ali Vol. II page 282 the principle has been stated as follow:- "Both schools prohibit a Moslem male from marring an idolatrous female, or one who worships the stars of any kind of fetish whatsoever." In Mullah principle of Mahomedan Law section 259(1) is as follows; "Mahomedan male may contract a valid marriage not only with a mahomedan woman, but also with an idolatrous or fire worshippers, A marriage, however, with an idolatrous or a fire worshippers, is not void but merely irregular." Sura 2 Verse 221 of Quran (English Translation by Abduliah Yusuf Ali) is as follows : "Do not marry unbelieving women, (idolatrous), until they believe." From the aforesaid principle of law the conclusion is that the law prohibits a Muslim mala from marrying an idolatrous and as such there cannot be a valid marriage between a muslim male and an idolatrous or a fire worshipper. 19. In the present case neither the opposite party no. 1 nor any of the witness examined on her behalf have stated that the that the opposite party no. 1 had embraced Islam. In that the opposite party no. 1 cannot be said to be legally wedded wife of the petitioner and she cannot claim the benefit of section 125 of the Code of Criminal procedure. 20. The effect of personal law in deciding the factum of marriage has been considered by the Supreme Court in the in the case of Smt. Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhar and another reported in A.I.R 1988 S.C. 645. In the said case the case the point in issue was whether a Hindu woman who has married after coming into force of the Hindu Marriage Act, 1955 to a Hindu male having a lawfully wedded wife can maintain an application for maintenance under section 125 of the Cr. P.C. Their Lord Ships after taking note of different provisions of Hindu Marriage Act, 1955 and the provisions of section 125 of the Cr. P.C. Their Lord Ships after taking note of different provisions of Hindu Marriage Act, 1955 and the provisions of section 125 of the Cr. P.C. held as follows; "The attempt to exclude altogether the personal law applicable to the parties from consideration also has to be replied. The section has been enacted in the interest of a wife and one who intenus to take benefit it under sub section (1) (a) has to establish the necessary condition, namely, that she is the wife of the person concerned. This issue can be decided only by a reference to the law applicable to the parties. It is only where an applicant establishes her status on (or) relationship with reference to the personal law that an application for maintenance can be maintained. Once the right under the section is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the personal law. The issue whether the section is attracted or not cannot be swered except by the reference to the appropriate law governing the party in our view the judgment in Shak Bano Begum's case (A.I.R 1985 S.C. 945) does not help the appellant. It may be observed that for the purpose of extending the benefit of section to a divorced woman and illegitimate child the parliament considered it necessary to include in the section specific provision to that effect, but has not done with respect to the woman not law fully married." Thus in order to maintain an application for maintenance a woman has to prove that she is the wife of the person from when she is claiming maintenance unless this is proved the claim for maintenance cannot be granted. On the facts of the case and the law discussed above, the opposite party no. 1 has not been able to establish that she is the wife of the petitioner. 21. So far as the claim for maintenance of the daughter is concerned it may be mentioned that there is no evidence on the record to show that she was born to the opposite party from the petitioner. The opposite party no. 1 in her maintenance application has claimed that the daughter was born to her on 7.2.1986 but according to the doctor P.W. 7 opposite party no. gave birth to a female child on 29.6.1984. The opposite party no. 1 in her maintenance application has claimed that the daughter was born to her on 7.2.1986 but according to the doctor P.W. 7 opposite party no. gave birth to a female child on 29.6.1984. Exhibit c which is the statement of opposite party no. 1 under section 164 Cr. P.C. recorded on 1984 there is no whisper that she conceived from the petitioner. If the opposite party no. 1 had pregnancy this fact should have been stated by her in Ext. C. Moreover criminal case against the petitioner for kidnapping of opposite party no. 1 was instituted on 3.5.1984 and in this circumstance there cannot be any possibility of any sexual relationship between the petitioner and the opposite party no. 1. Thus even if it is accepted that a female child was born to opposite party no. 1 on 7.2.1986 it cannot be said that it was from the petitioner. In such a situation the opposite party no. 1 is also not entitled for maintenance of her daughter from the petitioner. 22. In the light of the discussion held above. I come to the condition that neither under Special Marriage Act nor under the personal law the marriage between the petitioner and the opposite party no. 1 has been proved to have been solemnized nor it has been proved that child was born to opposite party no. 1 out of matrimonial relationship between the petitioner and the opposite party no. 1. nor there is evidence to show that the opposite party no. 1 conceived from the petitioner. 23. In result, the petitioner is accordingly allowed and the order dated the 8th March 1988 passed in T.R. No. 344/87 by the learned Chief Judicial Magistrate, Godda is set aside. During the pendency of the revision application some money appears to have been paid to the opposite party no. 1 in view of the interim order passed by this court. The petitioner shall not claim for refund of the amount so paid. Application allowed.