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2013 DIGILAW 1266 (PAT)

Md. Irfanullah v. Shahla Jawaid

2013-10-30

ADITYA KUMAR TRIVEDI

body2013
JUDGMENT : Aditya Kumar Trivedi, J. Petitioner/husband has challenged order dated 3.6.2009 passed by Principal Judge, Samastipur in Maintenance Case No. 9/2007 whereby and whereunder the learned lower Court had directed the petitioner to pay Rs. 5000/- per month in lieu of maintenance which was to be effective from the date of application as well as Rs. 5000/-, lump sum as litigation cost. 2. Wife/OP disclosing the fact that her marriage was solemnized on 24.12.2005 with the petitioner/OP in terms of Mahomedan Law as both the parties belong to the aforesaid sect, further disclosed her woe which she faced at her sasural and after being rescued by her Naiharwala, she has taken shelter at her naiher. Because of the fact that her husband failed to take care of and maintain her, hence being compelled to, flied a petition for maintenance whereunder apart from details of incidents also disclosed the source of means as well as monthly income being enjoyed by her husband. Petitioner/husband appeared and filed his show-cause wherein he had accepted the marriage with Shahla Jawaid on 24.12.2005 but explained that the marriage was solemnized under process of deception. To elaborate such plea, it has been submitted that Shahla Jawaid was already married to Tajuddin in terms of Section 13 of the Special Marriage Act and then thereafter she had gone to the place of Tajuddin where she enjoyed her status that of wife of Tajuddin. During her stay, Nikaah was also performed in between them in accordance of Mahomedan Law and on account thereof, their marriage subsequently is recognized in accordance with Mahomedan Law. After spending some time at her sasural, she came back at her maika and since thereafter, her family members did not allow her to join with her husband Tajuddin. Consequent thereupon, in terms of Section 22 of the Special Marriage Act, Matrimonial Suit No. 56/2000 was filed by Tajuddin whereunder Shahla Jawaid appeared. It has also been disclosed that another criminal case also happens to be amongst them. 3. Consequent thereupon, in terms of Section 22 of the Special Marriage Act, Matrimonial Suit No. 56/2000 was filed by Tajuddin whereunder Shahla Jawaid appeared. It has also been disclosed that another criminal case also happens to be amongst them. 3. On account of aforesaid deceptive conduct of wife and her family members, ultimately, pursued the petitioner to file a suit for declaration of marriage as null and void, for permanent restraining Shahla Jawaid from claiming to be his wife as well as enjoying such status, intrusion in his personal life, bearing Suit No. 372/06 before Civil Judge, Judicial Division, Sialdah and the same was decreed ex-parte. It has further been submitted that subsequently thereof, so many criminal cases has cropped up amongst the parties and in some of them there is adverse opinion of the Investigating Authority while concluding the investigation by way of submission of final report. 4. From the pleadings of the respective parties, it is further evident that the aforesaid ex-parte decree passed in Suit No. 372/06 has already been recalled, however, the suit, on account thereof, is still surviving. From the L.C. record, it is also evident that the documents on behalf of respective parties have been filed along with oral evidence and after scrutinizing the same, the learned lower Court had passed the order impugned, the subject matter of instant petition. 5. It has been contended on behalf of petitioner that under Mahomedan Law polygamy at the end of wife is forbidden though, so far husband is concerned, it is properly recognized. Both the parties being Muslim are to be governed by Mahomedan Law and existence of earlier marriage with Tajuddin, makes the subsequent marriage with petitioner null and void in the eye of Mahomedan Law. By means of adopting deceptive practice, during course of marriage, did not authorize Shahla Jawaid to identify herself as a wife of petitioner, Md. Irfanullah. It has further been submitted that the suit for restitution of conjugal rights filed on behalf of Md. Tajuddin was compromised and dismissed on account thereof, does not affect adversely on the factum of persisting marriage because of the fact that neither the suit was for dissolution of marriage nor was the Court competent to declare like so. Irfanullah. It has further been submitted that the suit for restitution of conjugal rights filed on behalf of Md. Tajuddin was compromised and dismissed on account thereof, does not affect adversely on the factum of persisting marriage because of the fact that neither the suit was for dissolution of marriage nor was the Court competent to declare like so. It has also been submitted that unless and until there is dissolution of marriage by means of a decree passed by a competent Court, the judgment and decree passed in Case No. 56/2000 cannot be construed as a valid legal document to nullify the marriage in between the parties, that means to say, Md. Tajuddin with Shahla Jawaid. Whatever evidence, the witnesses had stated in terms of compromise, did not over-ride on the statutory provision. Therefore, ceasing of relationship between the parties as deposed by them during course of evidence will have no legal sanctity and consequent thereof, the finding of the learned lower Court is found perverse as well as against the law. 6. On the other hand, learned counsel for O.P. submitted that document in terms of Section 13 of the Special Marriage Act was a forged document. It has further been submitted that the parties during course of their evidence in connection with Suit No. 372/2006 had specifically disclosed that they have got no connection with each other since the day of deposition as well as even before that. It has also been submitted that assertion of the husband has got no leg to stand in the background of the fact that he had failed to examine Tajuddin and so the continuance of marriage, as claimed and pleaded by the husband, is not at all supported with. In likewise manner, it has also been submitted that the affidavit sworn by Md. Tajuddin is inadmissible in the eye of law for want of non-examination of Tajuddin. 7. It has further been submitted that there is admission on the part of the husband regarding marriage on 24.12.2005 and so status of Sahla Javed as wife of Md. Irfanullah is now an admitted fact. In the aforesaid background, the earlier events whatsoever may be, has got no legal sanctity nor the Court should rely thereupon on account of the fact that, that chapter has already been closed by a judgment and decree passed by the competent Court. Irfanullah is now an admitted fact. In the aforesaid background, the earlier events whatsoever may be, has got no legal sanctity nor the Court should rely thereupon on account of the fact that, that chapter has already been closed by a judgment and decree passed by the competent Court. Because of the fact that the wife has claimed as well as challenged the genuineness of so-called certificate purported to be in terms of Section 13 of Special Marriage Act as claimed by Tajuddin and further having the admission on the part of Tajuddin during course of his evidence in Suit No. 56/2000 filed for restitution of conjugal rights supports the contention of the wife that the aforesaid document was nothing but out and out a forged and fabricated and consequent thereupon, the husband cannot be allowed to take undue benefit thereupon. 8. So far factual aspect is concerned, the theme of torture and cruelty has properly been brought on record as well as having been deserted at the end of husband, the wife is entitled for maintenance. The source of means of husband has also been properly divulged, hence, the quantum of maintenance fixed by the learned lower Court is found to be just, legal and proper. 9. Much has been discussed with regard to nature and scope of Section 125, Cr PC and by catena of decisions it has conclusively been held that it has been enacted for social justice and specially to protect women and children as also old and infirm parents in terms of Article 15(3) as well as 39 of the Constitution. For that purpose, only a prima facie evidence has to be seen whether the parties enjoy their relevant status. Section 125, Cr PC neither determines the right of the parties in its finality nor does it declare status of the parties in its conclusiveness. It, as appears, is an intermediary arrangement in terms of life saving device. However, the parties so aggrieved may get their status finally determined by a competent Court. 10. In the case of Nagendrappa Natikar v. Neelamma, as reported in AIR 2013 SC 1541 the instant issue has been taken into consideration and explained under paragraph-10 which is as follows :- "10. However, the parties so aggrieved may get their status finally determined by a competent Court. 10. In the case of Nagendrappa Natikar v. Neelamma, as reported in AIR 2013 SC 1541 the instant issue has been taken into consideration and explained under paragraph-10 which is as follows :- "10. Section 125, Cr PC is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself and her children. Section 125 is not intended to provide for a full and final determination of the status and personal rights of parties, which is in the nature of a civil proceeding, though are governed by the provisions of the Cr PC and the order made under Section 125, Cr PC is tentative and is subject to final determination of the rights in a civil Court." 11. In a decision, in the case of Pyla Mutyalamma @ Satyavathi v. Pyla Suri Demudu, as reported in 2012 (2) East Cr C 46 (SC) : 2011 (12) SCC 189 , the Hon'ble Apex Court had identified the scope of revisional power to be exercised with regard to the cases relating to Section 125, Cr PC and has held underparas-14, 15, 16 which are as follows :- "14. In fact, we also find sufficient substance in the plea that the High Court in its revisional jurisdiction ought not to have entered into a scrutiny of the finding recorded by the Magistrate that the appellant was a married wife of the respondent, before allowing an application determining maintenance as it is well-settled that the revisional Court can interfere only if there is any illegality in the order or there is any material irregularity in the procedure or there is an error of jurisdiction. 15. The High Court under its revisional jurisdiction is not required to enter into re-appreciation of evidence recorded in the order granting maintenance; at the most it could correct a patent error of jurisdiction. It has been laid down in a series of decisions including Suresh Mandal v. State of Jharkhand, (2006) 1 AIR Jhr R 153 that in a case where the learned Magistrate has granted maintenance holding that the wife had been neglected and the wife was entitled to maintenance, the scope of interference by the revisional Court is very limited. It has been laid down in a series of decisions including Suresh Mandal v. State of Jharkhand, (2006) 1 AIR Jhr R 153 that in a case where the learned Magistrate has granted maintenance holding that the wife had been neglected and the wife was entitled to maintenance, the scope of interference by the revisional Court is very limited. The revisional Court would not substitute its own finding and upset the maintenance order recorded by the Magistrate. 16. In revision against the maintenance order passed in proceedings under Section 125, Cr PC, the revisional Court has no power to re-assess evidence and substitute its own findings. Under revisional jurisdiction, the questions whether the applicant is a married wife, the children are legitimate/illegitimate, being preeminently questions of fact, cannot be reopened and the revisional Court cannot substitute its own views. The High Court, therefore, is not required in revision to interfere with the positive finding in favour of the marriage and patronage of a child. But where finding is a negative one, the High Court would entertain the revision, re-evaluate the evidence and come to a conclusion whether the findings or conclusions reached by the Magistrate are legally sustainable or not as negative finding has evil consequences on the life of both child and the woman. This was the view expressed by the Supreme Court in the matter of Santosh v. Naresh Pal, (1998) 8 SCC 447 , as also in the case of Parvati Rani Sahoo v. Bishnu Sahoo, (2002) 10 SCC 510. Thus, the ratio decidendi which emerges out of a catena of authorities on the efficacy and value of the order passed by the Magistrate while determining maintenance under Section 125, Cr PC is that it should not be disturbed while exercising revisional jurisdiction." 12. For the present, apart from having the clutches so imposed by the Hon'ble Apex Court as referred above during course of exercising of revisional jurisdiction, once the trial Court had concluded and identified the status of the parties as spouse, it is apparent from the documents available on the L.C. record that Case No. 372/2006 filed on behalf of petitioner/husband for declaring the marriage null and void on the pretext of being Shahla Jawaid already married since before with Md. Tajuddin revived and so the aforesaid fact is now has become the fact in issue with regard to the aforesaid suit and its consequences which is bound to have an impact more particularly in terms of Section 127 of the Cr PC. Therefore, for the present. I do not see any cogent reason to interfere with the finding recorded by learned lower Court in the background of the fact that there is admission on the part of petitioner that he was married on 24.12.2005 with Shahla Jawaid. For the purpose of adjudication of other kind of events so alleged at the end of petitioner/husband a proceeding under Section 125, Cr PC is found deficient one on account of lack of jurisdiction and for that, the Suit No. 372/2006 will take care of. 13. However, it is made clear that the findings under Suit No. 372/2006 will have bearing in terms of Section 127 of the Cr PC and the present order is bound to meet with ultimate consequence in terms thereof. 14. At the present moment, the instant petition is found devoid of merit and is, accordingly, rejected. Petition rejected.