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2004 DIGILAW 36 (GAU)

Faizar Ali v. Samina Begum

2004-01-22

P.G.AGARWAL

body2004
JUDGMENT P.G. Agarwal, J. 1. None has appeared for the Petitioner. Heard the learned Counsel for the Respondent. 2. The Respondent/applicant Musstt. Samina Begum approached the Principal Judge, Family Court, Kamrup, Guwahati stating inter-alia that she has married the Petitioner Md. Faizar Ali on 3.6.2001 after prolonged courtship. After the marriage they lived as husband and wife but subsequently she was driven out of the house as she failed to meet the demand for dowry and at the relevant time she was pregnant. The applicant gave birth to a daughter on 17.11.2001. As the husband has failed to take care of her and refused to maintain her, she claimed maintenance for herself and her minor daughter under Section 125 Code of Criminal Procedure. 3. The Petitioner husband has filed written statement wherein the marriage is admitted. The husband has however denied the plea of earlier courtship and claimed that as the daughter was born within five months of the marriage he is not the father of the daughter. The husband also denied the allegation of cruelty and the demand for dowry etc. but at the same time stated that at present the applicant and her daughter are living at her parent's house. 4. During enquiry, the applicant examined three witnesses and the Petitioner husband also examined three witnesses. The learned Principal Judge by the impugned judgment directed the Petitioner husband to pay maintenance of Rs. 500/- to each of the Petitioner and the minor daughter from the date of filing of the application and hence the present revision. 5. In this case, the marriage between the parties is not disputed and it is also not in dispute that at present both the parties are living separately and the husband is not maintaining the wife. So far the parentage of the child is concerned, the daughter was born during the subsistence of the marriage and the applicant has stated that although the marriage was solemnized on 3.6.2001, she used to have physical relation and as such she had conceived and the marriage was subsequently solemnised. 6. In the present case we find that at the time of marriage the applicant wife was carrying pregnancy of 4 to 5 months. The applicant claims that the child was through the Petitioner husband whereas the husband denies the same. 6. In the present case we find that at the time of marriage the applicant wife was carrying pregnancy of 4 to 5 months. The applicant claims that the child was through the Petitioner husband whereas the husband denies the same. However the fact remains that after the marriage also the wife lived with her husband and the Petitioner has not alleged adultery or claimed annulment of marriage on that count. He has also not claimed that because of the above pregnancy, the wife is driven out. On the other hand the Petitioner has stated categorically that he is still willing to accept the wife and the child. 7. The learned Counsel for the Respondent on the other hand has drawn out attention to the decision of the Apex Court in the case of Amina v. Hassn Koya 2003 AIR SCW 2496. 8. The facts in Amina (supra) are somewhat identical and the Apex Court held: Under the Muslim Law a marriage is a contract unlike the Hindu Law, where it is a sacrament. The Respondent husband pleaded a case that he was not aware of the fact that the Appellant wife was pregnant at the time of marriage and as this fact was concealed by the Appellant wife from him, it rendered the contract of marriage as void. Held, it is very difficult to believe that a woman who is five months pregnant will be able to conceal the pregnancy from the husband. Such an advanced stage of pregnancy cannot be concealed as the pregnancy starts showing by that time. In any case the pregnancy cannot, be concealed from the husband. A husband will at least know for sure that the wife is pregnant specially when the pregnancy is five months old. Therefore, it cannot be accepted that the Respondent-husband did not know at the time of marriage that the Appellant-wife was already pregnant. If this fact was known to the Respondent husband the marriage cannot be said to be illegal or void. Conduct of the Respondent husband at the relevant time also is material. He goes through the marriage. He does not raise any objection even after the marriage. He is present at the time of delivery of the child. Presumably lie gives his own name as the name of the father of the child for the official record. Conduct of the Respondent husband at the relevant time also is material. He goes through the marriage. He does not raise any objection even after the marriage. He is present at the time of delivery of the child. Presumably lie gives his own name as the name of the father of the child for the official record. Even thereafter for nearly four years he goes alongwith the marriage and brings up the child while treating Appellant as his wife. The divorce is said to have been given after 4½ years. Any person who learns that his newly married wife is already pregnant for five months and who does not accept that marriage or pregnancy, will not behave in the manner in which Respondent-husband did. Anormal reasonable person would have immediately turn out the wife from his house on coming to know of the fact of pregnancy. Nobody will continue with such marriage for four and half years, specially when a child is born just after four months of the marriage in the facts of the case it has to be held that the Respondent-husband was fully aware of the pregnancy of the Appellant wife at the time of the marriage and, therefore, cannot avoid liability to pay maintenance to wife on ground that the marriage was invalid or void on that he had not fathered the child. 9. So far the dispute regarding the parentage of the child is concerned, it was held in the case of Dwarika Prasad Satpathy v. Bidyut Prava Dixit. (1999) 7 SCC 675 that provisions of Section 125 Code of Criminal Procedure Cannot be used to refuse the rights of destitute women and the children. The Petitioner will be at liberty to do so before the competent civil Court and till such declaration is given by the civil Court, he shall have to pay maintenance as ordered. 10. The Petitioner husband in his evidence has deposed that he is earning Rs. 2500/- per month only and there are about 14 dependants. The Petitioner further claims that he has got a fishery as well as 10 bighas of land, whereas the wife claims that the Petitioner is owner of 80 bighas of land. The evidence of the applicant was not challenged even. 11. In view of the above, we find no merit in this revision and the revision petition is accordingly dismissed. 12. The evidence of the applicant was not challenged even. 11. In view of the above, we find no merit in this revision and the revision petition is accordingly dismissed. 12. Send down the records. Petition dismissed.