JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. A R Sheikh, learned Counsel appearing for the petitioner. The opposite party is represented by Ms. N S Thakuria, learned Counsel. 2.1 The judgment and order dated 7.9.2004 passed by the learned Sessions Judge, Dhubri in C. R. Case No. 42(1)/2004 is under challenge in the instant proceeding. By the impugned order, the learned Court accepted the Revision Petition of the respondent (husband) and interfered with the order dated 28.1.2004 in Misc. Case No. 287/2000 granting maintenance to the petitioner (wife) on her application under Section 125 of Code of Criminal Procedure 2.2 In her petition for maintenance, the petitioner claimed that she got married with the respondent on 13.12.1991 fixing Mohorana at Rs. 15001/-, out of which Rs. 40/- was prompt dower and the remaining Mohorana was deferred dower. The marriage was registered on 15.12.1991. A male child was born out of their conjugal life. But after the child died, the respondent (husband) drove away the petitioner from his house and the wife had to take shelter with her widowed mother in her parental home. Since the respondent did not provide for his wife, a proceeding under Section125 of Code of Criminal Procedure was initiated claiming maintenance at the rate of Rs. 500/- from the husband. 2.3 The husband appeared and filed his written statement where he denied the marriage with the petitioner. It was also claimed that a declaratory suit i.e. Title Suit No. 157/02 has been filed by him seeking a declaration that the marriage is a nullity. 2.4 On the basis of pleadings, the following issues were framed : 1. Whether the petitioner is the legally married wife of the Opp. Party? If so, 2. Whether the petitioner has just reasons for her separate living and she is entitled to get maintenance from the O.P. for her separate living? And 3. What should be the quantum of monthly maintenance? 2.5 The learned Magistrate after taking into account, the Kabinnama (Ext.1) and the evidence of the neighbour and Nasiruddin Ahmed (PW.2) and the Kazi of Golakganj Mosaraf Hussain (PW.3) concluded that the marriage was proved. The Kazi of Golakganj under whose jurisdiction, the marriage was solemnized on 13.12.1991 in presence of the representative sent from the Kazi's office as per the usual practice confirmed that the marriage was also registered in his office, on 15.12.1991. The Kazi of Golakganj under whose jurisdiction, the marriage was solemnized on 13.12.1991 in presence of the representative sent from the Kazi's office as per the usual practice confirmed that the marriage was also registered in his office, on 15.12.1991. Accordingly the learned Court held that the petitioner had successfully established that she was married to the respondent. 2.6 The learned Court also found that the petitioner was forcibly driven out of the marital home by the respondent and she was forced to reside in her parental home. Having regard to the income of the respondent (husband), who was employed as a muster roll worker in the PWD (Roads), Paglaghat and his landed property, the learned Magistrate ordered maintenance to the petitioner at Rs. 500/- per month. 3. When the Magistrate's order was challenged in Revision by the respondent husband in the Sessions# Court, Dhubri, the learned Court concluded that a Kabinnama (Ext.1) merely corroborates a marriage and only on the strength of Kabinnama, marriage cannot be proved. The essentials of a Muslim marriage as per Section 252 of the Mohammedan Law were noted by the learned Court and having regard to the declaratory suit filed by the husband, it was held that the proceeding under Section 125 of Code of Criminal Procedure was not maintainable as existence and continuation of conjugal relationship was found to be absent in the case. Accordingly the order of maintenance granted by the learned Magistrate set aside and quashed. 4.1 Appearing for the petitioner (wife), it is argued by Mr. A R Sheikh that the evidence on record clearly establishes that the petitioner and the respondent were married to each other on 13.12.1991 in the residence of the respondent in presence of witnesses and the said marriage was also registered in the office of the Kazi, Golokganj on 15.12.1991. 4.2 The learned Counsel produces the certified copy of the judgment dated 9.5.2006 in Title Suit No. 157/02 rendered by the learned Civil Judge (Jr. Division) No. 1, whereby the husband's suit was dismissed wherein he sought declaration to declare his marriage to be a nullity. The learned Court held that the plaintiff (husband) being legally married to the petitioner herein, has unnecessary dragged his wife to a legal battle and accordingly the suit was dismissed on contest by awarding cost to the defendant. Division) No. 1, whereby the husband's suit was dismissed wherein he sought declaration to declare his marriage to be a nullity. The learned Court held that the plaintiff (husband) being legally married to the petitioner herein, has unnecessary dragged his wife to a legal battle and accordingly the suit was dismissed on contest by awarding cost to the defendant. The Appellate Court's order in Appeal No. 36/06 is produced by Mr. Sheikh to show that the husband's appeal was dismissed and the trial Court's dismissed order was upheld. By relying on the Court's orders, the learned Counsel submits that the marriage between the parties have now been legally confirmed by dismissal of the husband's suit and accordingly he submits that there cannot be any basis for the impugned order denying maintenance to the wife. 5.1 Arguing for the respondent/husband, Ms. N S Thakuria, learned Counsel contends that the petitioner is the niece of the respondent and under the Shriyat Law, marriage between uncle and niece is prohibited. 5.2 She refers to the evidence of PW.2, the witness to the marriage who did not know the name of the person who conducted the marriage and on this basis, the evidence of the said witness is assailed by the learned Counsel. 6. As regards the contention advanced on behalf of the respondent that the petitioner being the niece of the respondent, cannot be married to each other, I do not see that such contention has been advanced by the respondent either in the written statement or in the suit filed by him. It is further seen that the husband (DW.1) himself had testified to the fact that he has 5 sisters and he is the only son of his parents. Therefore the petitioner being a niece of the respondent is not found substantiated. In such circumstances, it is difficult to accept the respondent's contention that the parties could not have been married to each other under Shariat Law. 7. Even otherwise, for the purpose of maintenance, what is necessary is proof of marriage and abandonment of the wife and both these ingredient are found to have been established through the evidence in the case. 8. 7. Even otherwise, for the purpose of maintenance, what is necessary is proof of marriage and abandonment of the wife and both these ingredient are found to have been established through the evidence in the case. 8. The evidence of PW.2 who is a neighbour of the respondent husband and who was present in the marriage ceremony as the Vakil; the Kabinnama (Ext.1) executed between the parties and the evidence of PW.3 Mosaraf Hussain, who is the Kazi of Golokganj and within whose jurisdiction, the marriage was solemnized clearly establishes that the finding rendered by the learned Revisional Court was not based on evidence and being perverse finding, require interference of the Court. That apart, the suit filed by the respondent husband seeking to have the marriage declared as a nullity has been dismissed and the dismissal order has been affirmed by the Appellate Court. 9. In view of the forgoing discussions, I find sufficient merit in this application and the same is hereby allowed. The impugned order dated 7.9.2004 of the learned Sessions Judge, Dhubri is set aside and the order passed on 28.1.2004 in Misc. Case No. 287/2000 rendered by the learned Judicial Magistrate, 1st Class, Dhubri is affirmed. 10. Accordingly the respondent is directed to pay the arrear maintenance to the petitioner on or before 1.1.2011 and continue to pay the regular maintenance thereafter to the petitioner wife. The petitioner is granted liberty to move Court for enhancement of maintenance, if so advised. 11. The Registry to send back the LCR immediately.