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2016 DIGILAW 433 (CAL)

Manjura Khatun v. Nurul Hasan Khan @ Raju

2016-05-18

MALAY MARUT BANERJEE

body2016
JUDGMENT : M.M. Banerjee, J. 1. This criminal revision is directed against the judgment and order dated 09.01.2008 passed by the Ld. Addl. District & Sessions Judge, Fast Track, 1st Court, Haldia in Criminal Revision No.116 of 2005. It is found that the petitioner Smt. Manjura Khatun @ Manjura Bibi filed an application under Section 125 Cr.P.C. claiming maintenance from the opposite party no.1 Nurul Hasan Khan @ Raju. Simply stated, her case is that her marriage with the opposite party no.1 took place according to Muslim rites on 13th October, 2001. She went to the opposite party’s house but was subjected to ill treatment and torture. She made an application on 12.12.2001 to the employer of the opposite party no.1 i.e., Indian Oil Corporation for enlistment of her name as his wife and coming to know the same the torture upon her escalated and she was driven out by the opposite party from his quarters. She has no income of her own and the opposite party never cared for making any provision for her maintenance. It is alleged that she also filed a writ application before this Hon’ble Court on 25.11.2003. The Opposite party on 07.12.2003 took her to his native village Priyanagar (Nandigram Police Station) where she found that the opposite party again married one Benazir Rahaman. Her contention is that she was sent back from Priyanagar to the I.O.C. quarters on 24.12.2003 but her husband, his parents and his second wife drove her out from the quarters on 25.11.2003. 2. The opposite party contested the application for maintenance. His contention is that he never married the petitioner and she is not his wife. 3. The Ld. Sub-Divisional Judicial Magistrate, Haldia in terms of his order dated 11.05.2005 was pleased to allow the application for maintenance and granted maintenance of Rs.3000/- per month directing the opposite party/husband to go on paying the same. As the application for maintenance was allowed with effect from the date of filing of the same it was directed that the arrear maintenance be liquidated in six equal monthly instalments. 4. Aggrieved by and dissatisfied with the judgment and order passed by the Ld. Sub-Divisional Judicial Magistrate, Haldia the opposite party no.1 preferred a revisional application which came to be disposed of by the Ld. Addl. District & Sessions Judge, Fast Track, 1st Court, Haldia in terms of the impugned order. The Ld. 4. Aggrieved by and dissatisfied with the judgment and order passed by the Ld. Sub-Divisional Judicial Magistrate, Haldia the opposite party no.1 preferred a revisional application which came to be disposed of by the Ld. Addl. District & Sessions Judge, Fast Track, 1st Court, Haldia in terms of the impugned order. The Ld. Court of Revision was pleased to set aside the order of maintenance passed by the Ld. Sub-Divisional Judicial Magistrate holding that the petitioner failed to establish that she was married to the opposite party no.1 on 13.10.2011 or on any other day. 5. The point for consideration is whether the impugned judgment and order passed by the Ld. Addl. District & Sessions Judge, Fast Track, 1st Court, Haldia can be sustained or whether it calls for any interference by this Court. 6. It is found that there is a prelude to the alleged marriage between the parties which the wife/petitioner has claimed to have taken place on 13.10.2001. It is claimed that there was affairs between the parties, even physical relationship that culminated in the pregnancy of the petitioner/wife. There was going to be a marriage under the Special Marriage Act and the parties gave notice in that regard by going over to the office of the Marriage Registrar on 03.08.01 and the date for registry was fixed on 06.09.2001 but the opposite party no.1 did not turn up. He claimed that being a Mahomedan he was not ready to marry a pregnant woman. At his instance the pregnancy of the present opposite party no.1 was terminated against her Will in a nursing home at Haldia and thereafter a social marriage according to Mahomedan Rites took place between the revisionist petitioner/wife and the opposite party no.1/husband. 7. It is found that the opposite party no.1 denied that he ever married the petitioner. 8. The Ld. Sub-Divisional Judicial Magistrate having elaborately discussed the evidence led by the parties came to observe that from the evidence of O.P.W.2 it cannot safely be said that Ahasan Ali Khan, the father of the O.P was all along present in the school on 13.10.2001 and 06.12.2003 specially when he himself did not turn up to the witness box. The Ld. Sub-Divisional Judicial Magistrate having elaborately discussed the evidence led by the parties came to observe that from the evidence of O.P.W.2 it cannot safely be said that Ahasan Ali Khan, the father of the O.P was all along present in the school on 13.10.2001 and 06.12.2003 specially when he himself did not turn up to the witness box. The Ld. Sub-Divisional Judicial Magistrate also came to find that in cross-examination O.P.W.4 admitted that at their village there is only one Nurul Hasan Khan, the opposite party in the maintenance case and there is only one Manjura Bibi, wife of Nurul Hasan Khan at their village. The Ld. Magistrate came to observe that considering his evidence it appears that although he claimed that no marriage between the petitioner Manjura Khatun and opposite party Nurul Hasan Khan took place but he admitted that at their village there is one lady, Manjura Bibi wife of Nurul Hasan Khan. This particular observation of the Ld. Magistrate based on the evidence of one of the witnesses examined on behalf of the opposite party is most significant. The Ld. Magistrate also stated in his judgment that O.P.W.8 Abdul Motaleb Ali Khan in his cross-examination admitted that it was not possible for him to mention whether Nurul Hasan Khan married the petitioner Monjura Khatun. Similarly, there is also mention in the judgment of the Ld. Sub-Divisional Magistrate that O.P.W.9 Sk. Anwar Ali in his cross-examination admitted that on 13.10.01 he was in Calcutta and it was not within his knowledge whether Nurul Hasan Khan married Manjura Khatun at C.P.T quarters, Haldia on that day. Besides the above observations, the Ld. Sub-Divisional Judicial Magistrate also held in his judgment that curiously enough none of the witnesses on behalf of the opposite party denied the love affairs between the parties and none of them also denied the O.P.’s going over to the Marriage Registrar’s Office on 03.08.01. The Ld. Magistrate also discussed the evidence adduced from the side of the petitioner and it is found that the petitioner Manjura Khatun examined herself as P.W.1 and specifically stated that on 13.10.2001 her marriage took place with the opposite party according to Muslim Rites and Customs. The Ld. Magistrate also discussed the evidence adduced from the side of the petitioner and it is found that the petitioner Manjura Khatun examined herself as P.W.1 and specifically stated that on 13.10.2001 her marriage took place with the opposite party according to Muslim Rites and Customs. She stated that one Abdul Khalek, was the ‘Moulavi’ and Rafiqul Islam as ‘Ukil’ was present in their marriage and Asgar Ali and Mamtajul Almiraj were the witnesses of the marriage and that the customary rites were performed. It is found that Abdul Khalek gave evidence as P.W.2, Sk. Asgar Ali gave evidence as P.W.3 and Rafiqul Islam gave evidence as P.W.5. The Ld. Magistrate came to find that all those witnesses lent corroboration to the evidence of the petitioner Manjura Khatun and specifically stated that on 13.10.01 the marriage was solemnised between the petitioner and the opposite party at the quarters of the petitioner’s father. It is found that the petitioner’s father Sk. Abu Bakkar gave evidence as P.W.4. It is found that the O.P.W.8 was unable to state in his cross-examination whether the parties concerned lived together as husband-wife at the C.P.T. or at the I.O.C. quarters at Haldia. The Ld. Magistrate considering the evidence on record came to the findings that the petitioner being the wife of the opposite party, who neglected to maintain her, was entitled to get maintenance at the rate of Rs.3000/- per month from the opposite party from the date of filing of the application under Section 125 Cr.P.C. 9. The Ld. Addl. District & Sessions Judge, Fast Track, 1st Court, Haldia decided the Criminal Revision No. 116/05 preferred by the opposite party by allowing the Revisional Application and setting aside the order passed by the Ld. Sub-Divisional Judicial Magistrate. The Ld. Court below, however, came to observe : “I once again unhesitatingly hold that when Marriage is pleaded and proved, then it is immaterial if the consent was taken by a Vokil or by a Moulobi. What is needed is the consent of the parties given in presence of witnesses either two male persons or one male and two female witnesses. That aspect has been duly observed.” So the Ld. Court below found that required formalities were performed. The Ld. What is needed is the consent of the parties given in presence of witnesses either two male persons or one male and two female witnesses. That aspect has been duly observed.” So the Ld. Court below found that required formalities were performed. The Ld. Court below then went on to observe that another aspect cannot be ignored and in that regard discussed about the prelude to the marriage as already mentioned hereinabove and came to observe that the entire episode of marriage must be scrutinised in this backdrop. The Ld. Court below then found that the notice under the Special Marriage Act was neither produced nor proved and no documents relating to the medical termination of pregnancy of the petitioner was brought before the Court and that no neighbouring people came forward to say that the petitioner and the opposite party ever lived as husband-wife and came to observe it was obligatory on the part of the petitioner to bring at least one independent witness to prove the factum of marriage or at least the fact that she lived with the opposite party at any point of time as husband-wife. 10. The Ld. Court below, however, assigned no reason why the Moulavi or the Ukil or the witnesses who deposed in favour of the petitioner could not be regarded as independent witnesses particularly when there is nothing in their cross-examination that they had any axe to grind against the opposite party/husband. Moreover, the observation of the Ld. Court below that it was obligatory on the part of the petitioner to bring at least one witness to state that the parties ever lived together as husband-wife cannot be accepted as sound legal proposition. Here the case of the parties is definite and specific in-so-far as the date, time and place of the marriage is concerned and in that regard the petitioner adduced ample evidence by examining witnesses whose credibility could not be shaken in their cross-examination. It appears that the Ld. Court below was not alive to the legal position that in a proceeding under Section 125 Cr.P.C. the standard of proof to establish marriage between the parties is not as strict as in a case of bigamy. The Ld. It appears that the Ld. Court below was not alive to the legal position that in a proceeding under Section 125 Cr.P.C. the standard of proof to establish marriage between the parties is not as strict as in a case of bigamy. The Ld. Court below at page 7 of the impugned judgment observed:- “Parties lived together for a very brief period and there is no evidence that actually they lived as such husband and wife. At least neighbouring people did not come to corroborate such version.” 11. It is clear that the Ld. Court below found that the parties concerned lived together for a very brief period. It is not anybody’s case that the petitioner ever lived with the opposite party as his guest, as his friend or in any other capacity. It is found that the Ld. Court below leaving aside the main issue, that is the factum of marriage between the parties went on the side lines. There is nothing in the impugned judgment that the judgment and order of the Ld. Sub-Divisional Judicial Magistrate suffers from any sort of illegalities, incorrectness or impropriety and more so how the said judgment could be said to be either illegal, incorrect or improper. 12. The Ld. Advocate for the opposite party no.1 argued that there is no ‘Kabilnama’ relating to the alleged marriage and the requirement of proposal of marriage and acceptance thereof by and between the parties had not been duly proved but in Mulla’s Mahommedan Law it is found that no writing nor any religious ceremony is essential. In this context, it would be pertinent to mention that P.W.5, Sk. Rafiqul Islam in his evidence has stated that he knows both the parties, they are husband and wife and on 13.10.01 they got married according to Muslim rites and customs and that he was the Ukil in the marriage. It is in his cross-examination that he asked the petitioner Manjura Bibi whether she agreed to marry Nurul Hasan Khan, son of Ahasan Ali Khan on a ‘Denmohor’ of Rs.50001/- (zeorbad). He said:- “the petitioner on hearing my word gave her consent to marry the opposite party; I also made communication to the opposite party Nurul Hasan Khan that the petitioner Manjura Bibi, daughter of Sk Abu Bakkar was ready and willing to marry him whether he was agreed, when the opposite party also gave his consent”. He said:- “the petitioner on hearing my word gave her consent to marry the opposite party; I also made communication to the opposite party Nurul Hasan Khan that the petitioner Manjura Bibi, daughter of Sk Abu Bakkar was ready and willing to marry him whether he was agreed, when the opposite party also gave his consent”. It is also in his evidence that he also communicated this to the ‘Moulavi’ that both the parties agreed to marry each other. 13. From the above discussion it cannot but be held that the revisionist/petitioner Smt. Manjura Khatun @ Manjura Bibi has been able to prove her marriage with the opposite party no.1 Nurul Hasan Khan @ Raju and the impugned judgment and order passed by the Ld. Addl. Dist. & Sessions Judge, Fast Track, 1st Court, Haldia cannot be sustained and is liable to be set aside. 14. The impugned judgment and order is hereby accordingly set aside and the judgment and order passed by the Ld. Sub-Divisional Judicial Magistrate in Misc. Case no. 5/04 is restored. 15. The revisional application is accordingly allowed. Copy of this order be sent to the Ld. Court below immediately. Urgent photostat certified copy of this order, if applied for, be supplied to the parties as early as possible.