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2000 DIGILAW 595 (PAT)

Zulekha Khatoon v. State Of Bihar

2000-04-18

R.N.SAHAY

body2000
Judgment 1. The petitioner claiming to be the wife of opposite party No. 2 Rahinuddin Ahmad filed a petition on 19-10-1987 before the learned Chief Judicial Magistrate, Siwan, for grant of maintenance under Sec. 125, Cr. P.C. The learned Judicial Magistrate being satisfied from the evidence granted maintenance of Rs. 300.00 per month to the petitioner and her minor daughter. Opposite party No. 2 disputed the marriage. The case of the petitioner was that the marriage was solemnized on 12-8-1986 at Naya Kila, Siwan where her relatives lived. At the time of marriage a Nikahnama was prepared which was duly signed by two witnesses. The petitioner also filed a Birth Certificate (Ex. 2) in which it was stated that the minor daughter was born on 12-10-1986 (sic) and opposite party No. 2 was the father of the girl. 2. The petitioner examined four witnesses in support of her case. Opposite party No. 2 also examined four witnesses in support of his plea that the petitioner was not his legally wedded wife. Imam Hasan has stated that he was present at the time of Nikah. He has signed the document of Nikah. He also identified the signature of other witnesses. Moulana Atiqur Rahman and Mian Jaan, father of the petitioner also supported the case of the petitioner. Sohrab Mian also supported the prosecution case. 3. Opposite party No. 2 challenged the order of the Judicial Magistrate granting maintenance to the petitioner before the Additional Sessions Judge. The learned Addl. Sessions Judge who heard the revision set aside the order of the Judicial Magistrate on the ground that the petitioner has not been able to prove that she was legally wedded wife of opposite party No. 2. Before deciding the case the learned Addl. Sessions Judge did not apply his mind to scope of Sec. 125, Cr. P.C. A number of witnesses have supported the case of the petitioner. The learned Magistrate has given cogent reason in accepting the evidence of the witnesses. 4. The learned Addl. Sessions Judge has not given due weight on the birth certificate (Ext. 2). The learned Addl. Sessions Judge has rejected the Nikahnama (Ext. 2), because it did not bear the thumb impression of the petitioner. In her evidence she has stated that she is an illiterate person and had put her thumb impression on Nikahnama. The finding of the learned Addl. Sessions Judge is otherwise. 2). The learned Addl. Sessions Judge has rejected the Nikahnama (Ext. 2), because it did not bear the thumb impression of the petitioner. In her evidence she has stated that she is an illiterate person and had put her thumb impression on Nikahnama. The finding of the learned Addl. Sessions Judge is otherwise. He says that there was no thumb impression. Opposite Party No. 2 denied the signature on the Nikahnama. He, however, did not make any prayer for examination of signature by expert. The entire onus lay on him to prove that the petitioner was not his legally married wife. Opposite Party No. 2 also alleged that the petitioner was having illicit relation with somebody but he did not disclose the name. The learned Addl. Sessions Judge has drawn adverse inference because out of two witnesses Alim Mian was not examined. 5. It has been held in 1984 Cri LJ 1145 (Sikkim) that in a summary proceeding under Sec. 125, Cr. P.C. the wife is entitled to claim maintenance unless the illegality or invalidity of her marriage is apparent and without any scope for doubt or dispute. As held in 1982 Cri LJ 539 (Orissa) and other cases Sec. 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 Sec. 125, Cr. P.C., the factum of marriage and not legality thereof is material. 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 one 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 Sec. 125, Cr. P.C. without prejudice to the contentions of the parties to establish their real matrimonial links before the Civil Court. 6. The document of Nikah in the instant case supported by the evidence of witnesses. Thus, in my view, under Sec. 125, Cr. P.C. the proof of marriage need not be so strong or conclusive, as in prosecution for the offence relating to marriage or in a civil proceeding for divorce. The husband has not denied that the petitioner ever lived with him. 7. The learned Addl. Thus, in my view, under Sec. 125, Cr. P.C. the proof of marriage need not be so strong or conclusive, as in prosecution for the offence relating to marriage or in a civil proceeding for divorce. The husband has not denied that the petitioner ever lived with him. 7. The learned Addl. Sessions Judge, in my view, has wrongly approached thequestion of grant of maintenance on technical ground which was obviously on erroneous approach. 8. In the result, this application is allowed and the order of Addl. Sessions Judge is set aside and the order of Judicial Magistrate is restored.Application allowed.