Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 1381 (JHR)

Patun Bibi v. State of Jharkhand

2019-08-02

DEEPAK ROSHAN

body2019
JUDGMENT : DEEPAK ROSHAN, J.:— The instant application has been preferred by the petitioners challenging the order dated 05.08.2006 passed by the learned Principle Judge, Family Court, Dumka, whereby the learned trial court has dismissed the petition filed under Section 125 Cr.P.C. of the petitioners herein. 2. The case of the petitioners in brief is that the petitioner no. 1 is the legally wedded wife of the opposite party no. 2 as per Muslim Law and a female child was born out of their wedlock, who is presently a minor. The further case of the petitioner no. 1 is that she is a divorced lady and second wife of the opposite party no. 2 and their marriage took place at the instigation of the first wife namely, Zaitun Bibi who was suffering from Psytica pain. It has been alleged by the petitioner no. 1 before the learned court below that after one year of conjugal life and birth of the petitioner no. 2, the opposite party no. 2 started torturing her at the instigation of the first wife-Zaitun Bibi. It has also been alleged that both the petitioners were subjected to cruelty. 3. On service of notice, the opposite party no. 2 appeared before the court below and submitted his show cause in which he has challenged the very maintainability of the proceeding mainly on the ground that the opposite party no. 2 is already a married person and he is living with his wife-Zaitun Bibi. It was specific assertion of the opposite party no. 2 that he has never married with the petitioner no. 1. The opposite party no. 2 has further stated that he is having a very healthy conjugal life with his own wife-Zaitun Bibi and she is not suffering from ‘psytica’ as alleged. In sum and substance, the main defense of the opposite party no. 2 is that he never married with the petitioner no. 1. 4. To decide the issue in question, the learned trial court has duly considered the issue in detail and based upon the evidences led before him by both the parties, came to a specific conclusion. Para-19 of the judgment reads as under:— “19. 2 is that he never married with the petitioner no. 1. 4. To decide the issue in question, the learned trial court has duly considered the issue in detail and based upon the evidences led before him by both the parties, came to a specific conclusion. Para-19 of the judgment reads as under:— “19. Consequent upon the above discussions of the evidences, materials and the case of the parties, this Court is inclined to conclude that the petitioner has failed to establish that she is the legally wedded wife of the opposite party Hanif Mian and the petitioner no. 2 is the legitimate child of their lawful marriage rather the admitted factum of marriage of the petitioner no. 1 firstly with Yusuf Mian and secondly with Harmuz Mian is not only the admitted fact of the case rather any divorce from the former husbands could not be established.” 5. After going through the impugned order, so far as the allegation of marriage between the petitioner no. 1 and opposite party no. 2 is concerned, it appears that there is material inconsistency in the deposition of petitioner no. 1 herself. 6. As a matter of fact, there is no admission of the opposite party no. 2 that he was ever married with the petitioner no. 1. On the other hand, petitioner no. 1 has admitted that she has married with Yusuf about 11 years ago and divorce took place about 1½ years ago. She again married with Harmuz about 14-15 years ago. In para-12 of the impugned order, the examination/cross-examination of the petitioner no. 1 has been reproduced in detail which clearly transpires that the petitioner no. 1 was admittedly wife of Yusuf and after she took divorce from Yusuf, she married Harmuz. It is also interesting to note that the alleged ‘Nikah’, which is said to be performed by Umar Maulvi, ‘Nikahnama’ was not prepared and the same is something unusual and creates a heavy doubt and suspicion in the statement of petitioner no. 1, because under Muslim Law, every ‘Nikah’ is reproduced in “Nikahnama”. Thus it appears that the marriage itself has not been proved. 7. The learned counsel for the petitioner vehemently argued that now even in the case of live-in relationship, maintenance under Section 125 Cr.P.C has been allowed by catena of judgments. 1, because under Muslim Law, every ‘Nikah’ is reproduced in “Nikahnama”. Thus it appears that the marriage itself has not been proved. 7. The learned counsel for the petitioner vehemently argued that now even in the case of live-in relationship, maintenance under Section 125 Cr.P.C has been allowed by catena of judgments. In support of his argument, he has relied on the order passed by the Hon'ble Apex Court in the case of Badshah v. Urmila Badshah Godse reported in (2014) 1 SCC 188 . He has further relied upon the decision passed in the case of Lalita Toppo v. State of Jharkhand reported in 2018 SCC OnLine SC 2301. 8. So far as the first judgment cited by the petitioner is concerned, I am of the considered opinion that even a long conjugal life/live in relation has not been proved by either of the prosecution witness, rather there are contradictions in the prosecution witnesses and the only admitted fact which comes out from the evidence of prosecution that the petitioner no. 1 was first married to Harmuz and thereafter she married to Yusuf. As a matter of fact, the learned trial court in para-13 of the impugned order has categorically held that there is no consistency in the prosecution witnesses. Further, the aforesaid case cited by the petitioner is with respect to a case where second marriage was performed with Hindu rites during substance of first marriage, so the facts in the said case is entirely different with the instant case. 9. So far as second case i.e. case of Lalita Toppo (Supra) is concerned the Hon'ble Apex Court has held at para-4 as under: 4. The questions referred to us by the Referral Order were formulated on the basis of the decisions of this court rendered in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Savitaben Somabhai Bhatiya v. State of Gujarat which were rendered prior to the coming into force of the DVC Act, 2005. In view of what has been stated herein before, it is, therefore, our considered view that the questions referred would not require any answer. We, therefore, decline to answer the said questions. The appellant is left with the remedy of approaching the appropriate Forum under the provisions of the DVC Act, 2005, if so advised. In view of what has been stated herein before, it is, therefore, our considered view that the questions referred would not require any answer. We, therefore, decline to answer the said questions. The appellant is left with the remedy of approaching the appropriate Forum under the provisions of the DVC Act, 2005, if so advised. If in the event the appellant moves the appropriate Forum under the provisions of the DVC Act, 2005, we would request the said Forum to decide the matter as expeditiously as possible. 10. In view of the aforesaid discussions, I am of the considered opinion that the petitioner has failed to point out any error in the order passed by the learned trial court so as to warrant interference by this Court. However, as per the ratio led in the case of Lalita Toppo (Supra), the petitioner is at liberty to take remedy of approaching appropriate forum for Domestic Violence Act, 2005. It is also observed that if the petitioner takes any step under the provision of Domestic Violence Act, 2005, the concerned forum is directed to decide the matter in accordance with law and without being prejudiced by the observation made by this Court. 11. With the aforesaid observation, the instant application is disposed of.