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2004 DIGILAW 513 (ORI)

RASIDA KHATUN v. S. K. ISLAM

2004-11-30

A.K.SAMANTARAY, P.K.TRIPATHY

body2004
( 1 ) BOTH the above appeals are against the judgment delivered on 4-2-2000 in Civil Proceeding No. 42 of 1993 of the Court of Judge, Family Court, Cuttack. Petitioners in the said Civil Procedure are the appellants in Civil Appeal No. 11 of 2000 whereas respondents in that Civil Proceeding are the appellants in Civil Appeal No. 19 of 2000. For the sake of convenience, appellants in Civil Appeal No. 11 of 2000 are hereinafter referred to as the petitioners and appellants in Civil Appeal No. 19 of 2000 are referred to as respondents. ( 2 ) PARTIES to the proceeding are mahomedans belonging to the Islamic faith and they are governed by their personal law. Petitioner No. 1 claims to be the legally married wife of respondent no. 1 and the petitioner No. 2 to be the male child born out of the wedlock. Respondent No. 2 is the father of respondent No. 1. Petitioner No. 1 filed an application for invoking the jurisdiction of the family court under Section 7 (l) (b) read with (e) of the Family Courts Act, 1984 (in short, 'the Act') for declaration of their status as the wife and son of respondent No. 1. According to her case, taking advantage of their family relationship, by which respondent No. 1 is a cousin, intimacy developed between the two and on the assurance of marriage given by the respondent No. 1, she cohabited with him and begot petitioner no. 2. When respondent No. 1 declined to treat her as his wife and the child as their son and also declined to provide maintenance, that she filed the aforesaid Civil Proceeding. ( 3 ) RESPONDENT No. 1 filed a written statement disputing to the allegations of his relationship with the family of the petitioners and also relating to assurance to marry, cohabitation and begetting the child. He also pleaded that in the Panchayat of the Community on the issue of pregnancy of petitioner no. 1 it was resolved that one Sk. Hardia is the author of the child and accordingly a fine of Rs. 5. 000/- (rupees five thousand)was imposed on him by the 'bhadraloks'. ( 4 ) BOTH the parties led evidence in support of their claim. Petitioner no. 1 examined eight witnesses including herself as p. W. No. 1 and her parents as PWs-2 and 3. She also relied on Ext. 5. 000/- (rupees five thousand)was imposed on him by the 'bhadraloks'. ( 4 ) BOTH the parties led evidence in support of their claim. Petitioner no. 1 examined eight witnesses including herself as p. W. No. 1 and her parents as PWs-2 and 3. She also relied on Ext. 1, the decision of the panchayat and the notices, Exts. 2 and 3 referring to the further Panchayat of the muslim community of the locality besides a letter in Postcard Ext. 4. Respondents examined five witnesses and that includes respondent No. 1 as O. P. W. No. 5 and respondent No. 2, as O. P. W. No. 1. ( 5 ) RESPONDENTS challenged maintainability of the proceeding before the Judge, Family Court, Cuttack and as per the direction of this Court in O. J. C. No. 13319 of 1996 that was directed to be decided as a preliminary issue. Both the parties led evidence before decision on the preliminary issue. Therefore, the Family Court disposed of all the issues but gave preference to record a finding on the issue of maintainability. The family Court referred to Section 7 (l) (b) of the Act and held that the proceeding is maintainable to grant the declaration of status. Both the parties before us do not challenge that finding. Therefore, the decision of the family Court on that issue is confirmed. ( 6 ) REFERRING to the evidence on record, the Family Court recorded the finding that on the face of the pleading of the petitioner no. 1 and her own evidence that she cohabited with respondent no. 1 on the assurance of marriage, a finding was recorded that she has not acquired the status of a legally married wife. Petitioners being the appellants in Civil Appeal No. 11 of 2000, challenge that finding on the ground that in a muslim marriage though no rituals and functions are necessary and the Muslim marriage being a civil contract, consent of respondent No. 1 to marry the petitioner No. 1 and thereafter cohabitation with her is sufficient to prove her status as the wife of respondent No. 1. In that respect learned counsel for the petitioners invites our attention to Annotation No. 252 in Chapter xiv of Mulla's Principles of Mahomedan Law. That reads as hereunder :"252. In that respect learned counsel for the petitioners invites our attention to Annotation No. 252 in Chapter xiv of Mulla's Principles of Mahomedan Law. That reads as hereunder :"252. Essentials of a marriage.- It is essential to the validity of a marriage that there should be a proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal by or on behalf of the other, in the presence and hearing of two male or one male and two female witnesses, who must be sane and adult mahomedans. The proposal and acceptance must both be expressed at one meeting; a proposal made at one meeting and an acceptance made at another meeting does not constitute a valid marriage. Neither writing nor any religious ceremony is essential. "we are not persuaded by the argument of the petitioners because of the above quoted position of Mahomedan Law relating to a valid marriage, in as much as there must be a proposal and acceptance followed with the action to remain as a husband and wife. In this case not only the pleading of the petitioners but also the evidence on record indicates that there was no acceptance of the offer to marry, but there was only an assurance to marry in future and therefore mere cohabitation with such an assurance does not constitute the factum of marriage to give petitioner No. 1 the status of a validly married woman. Therefore, we do not find any illegality or mistake in the finding recorded by learned Judge, Family Court, when he decided that petitioner No. 1 has failed to prove her status as the wife of respondent no. 1. In view of the above conclusion, which we reach, we do not find any merit in the appeal filed by petitioner No. 1 and accordingly Civil Appeal No. 11 of 2000 is dismissed. ( 7 ) RESPONDENT No. 1 challenges the finding recorded by the Family Court accepting petitioner No. 2 as the child born out of the cohabitation between him and petitioner No. 1. Learned counsel for the respondents refers to the evidence of P. W. No. 5 and O. P. W. No. 3 and states that it is the consistent case of the respondents that Sk. Learned counsel for the respondents refers to the evidence of P. W. No. 5 and O. P. W. No. 3 and states that it is the consistent case of the respondents that Sk. Hardia is the author of the child and therefore the Family court without discussing that evidence should not have saddled the paternity (fatherhood) on respondent No. 1. On a perusal of the evidence of P. W. No. 5 and O. P. W. No. 3, we do not find any credibility on the suggestion given to P. W. No. 5 or the evidence adduced from the side of the respondents relating to an oral decision taken in Caste panchayat on the face of Exts. 1 to 3, which indicates that the decision taken by the panchayat is through a regular process of issuing notice and taking a decision. Under such circumstance, the above-referred evidence by the respondents does not disprove the contention of the petitioners that petitioner No. 2 born out of the physical relationship between petitioner No. 1 and respondent No. 1. The view taken by the Family Court in that respect does not appear to be wrong. ( 8 ) LEARNED counsel for the respondents referred to and relied on the case of renubala Moharana v. Mina Mohanty, AIR 2004 SC 3500 , in support of his argument that a proceeding under Section 7 (1) of the family Courts Act is not maintainable to declare illegitimacy of a child. Facts in that case are quite distinguishable from the facts and circumstances involved in the present case, in as much as in the reported case admittedly the lady begot a child registering the birth in the name of her husband as the father of the child though she claims that by the relevant time she was in the family of the appellants and begot the child because of cohabitation with Sri Samuel Maharana. Therefore, in that backdrop of the fact, on the application under Section 7 of the Act, their Lordship of the Apex Court have concurred with the view of this Court to not to grant a negative declaration on the illegitimacy of the child. Therefore, in that backdrop of the fact, on the application under Section 7 of the Act, their Lordship of the Apex Court have concurred with the view of this Court to not to grant a negative declaration on the illegitimacy of the child. Such is not the case so far as the present dispute is concerned, because in the present case petitioners applied to the Court to declare their status as the wife and child respectively of respondent No. 1; but on discussion of the evidence, the family Court found the marriage to be not proved though the physical relationship between the petitioner No. 1 and respondent no. 1 resulted in birth of the child (petitioner no. 2 ). Therefore, such a finding is not required to be disturbed and that cannot also be said to be a finding exceeding the jurisdiction under Section 7 of the Act. ( 9 ) NO other point is canvassed by the respondents challenging to the impugned judgment. ( 10 ) FOR the reasons recorded above, we do not find any infirmity or illegality in the said finding recorded by the Family Court on the paternity of petitioner No. 2. Hence, civil Appeal No. 19 of 2000 is also dismissed being devoid of merit. Accordingly, both the Civil Appeals are dismissed. Parties are directed to bear their respective costs of litigation in this forum. Hearing fee is assessed at contested scale. Appeals dismissed. .