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2019 DIGILAW 28 (MAN)

Md. Abdul Manab v. Sahida Bibi @ Seida Bibi

2019-05-30

M.V.MURALIDARAN

body2019
JUDGMENT : 1. Heard Mr. Y. Johnson Singh, learned counsel appearing for the petitioner. Heard also Mr. Liaquat Ali, learned counsel for the respondent. 2. This Criminal Revision Petition has been filed by the petitioner against the order dated 28.08.2018 passed in Criminal (Maintenance) Case No. 19 of 2015 on the file of the Family Court, Thoubal, Manipur. 3. The petitioner is the respondent/opposite party and the respondent herein is the petitioner in Criminal (Maintenance) Case No. 19 of 2015. 4. The respondent had filed Criminal (Maintenance) Case No. 19 of 2015 under Section 125 of Cr.P.C. seeking maintenance from the petitioner herein alleging that she was married to the petitioner by performing Nikah on 26.05.2013 and after Nikah, both lived together in their matrimonial home at the house of the petitioner. However, some time in the month of August, 2015, the respondent was compelled to leave the matrimonial home by the petitioner and since then, the respondent has been living at her parental home. It is alleged that thereafter, the petitioner married another woman as his second wife. Despite repeated requests made by the respondent to pay maintenance, the petitioner refused to maintain her. It is alleged that the petitioner was serving as Head Constable in Manipur Police Department and was getting salary of Rs. 32,000/- per month apart from other source of income from his landed and movable properties. Stating so, the respondent filed the petition claiming maintenance to Rs. 8,000/- per month. 5. Resisting the petition, the petitioner herein filed objection stating inter alia that the respondent was never married to the petitioner at any point of time and they never lived together as husband and wife at the house of the petitioner. It is stated that the petitioner never married any other woman as his second wife, including the respondent, after his wife namely, Maherjan Bibi, expired on 20.02.2010 leaving behind seven children. All the seven children are living with the petitioner and are dependent on the petitioner. It is also stated that he is getting a sum of Rs. 28,000/- per month as his salary and has no other source of income. According to the petitioner, the respondent was not a wife of the petitioner at any point of time and therefore, he is not liable to pay maintenance to the respondent. 6. It is also stated that he is getting a sum of Rs. 28,000/- per month as his salary and has no other source of income. According to the petitioner, the respondent was not a wife of the petitioner at any point of time and therefore, he is not liable to pay maintenance to the respondent. 6. Before the Family Court, the respondent examined herself as P.W.1 and one Rahimuddin and Mina were examined as P.W.2 and P.W.3. The Exs.A1 to A4 were marked on the side of the Respondent/wife. On the side of the petitioner, the petitioner examined himself as D.W.1 and daughter and son-in-law of the petitioner were examined as D.W.2 and D.W.3 and marked four documents. 7. Upon consideration of the oral and documentary evidence, the Family Court directed the petitioner to pay a sum of Rs. 4,000/- per month as maintenance to the respondent from the month of January 2016 on 10th of every succeeding English calendar month. The Family Court also directed the arrears to be paid by the petitioner in instalments at the rate of Rs. 1,000/- per month. Aggrieved by the same, the petitioner has preferred the present revision petition. 8. Assailing the order of The Family Court impugned in this revision, the learned counsel for the petitioner argued that the petitioner never got married with the present respondent and the impugned order is rather unjustified and that the reasons stated in the impugned order cannot be acted upon. He would submit that the Family Court failed to consider that the respondent should first prove her case and then only the petitioner has the burden to disprove the case of the respondent. 9. The learned counsel next submitted that the arguments of the respondent that she is the wife of the petitioner; that their marriage was solemnized; and that the respondent was living with the petitioner at the residence of the petitioner; were all shaken during the cross-examination of P.W.1. The said aspect was not considered by the Family Court in proper perspective. 10. The learned counsel then argued that even though the execution of Nikah Nama is not a must in Muslim marriage, the proof of Nikah Nama should be considered if produced by the party. The said aspect was not considered by the Family Court in proper perspective. 10. The learned counsel then argued that even though the execution of Nikah Nama is not a must in Muslim marriage, the proof of Nikah Nama should be considered if produced by the party. In the case on hand, the Nikah Nama produced by the respondent is a fabricated document in order to forcibly prove that the respondent was married to the petitioner. In fact, the respondent never exhibited and identified the said Nikah Nama. Finally, the learned counsel argued that the oral evidence of D.Ws. were never shaken by the respondent and that the Family Court erred in passing the impugned order and, therefore, prayed for setting aside the same. 11. Per contra, reiterating the findings recorded in the impugned order the learned counsel for the respondent submitted that the Family Court, after analysing the oral and documentary evidence, rightly held that that the respondent is wife of the petitioner and directed him to pay maintenance to her. He would submit that there is no infirmity in the order of the Family Court and thus prayed or dismissal of the revision petition. 12. I have considered the submissions made by the learned counsel appearing on either side and also perused the materials available on record. 13. The impugned order is mainly challenged by the petitioner on the ground that the respondent never married the petitioner at any point of time and they never lived together as husband and wife at the house of the petitioner. Therefore, he is not liable to pay any maintenance to the Respondent/wife. 14. On the contrary, it is the case of the respondent that she is legally wedded wife of the petitioner and Nikah between them was performed on 26.05.2013 and after Nikah, they lived as husband and wife in the house of the respondent. Since the petitioner ill-treated the respondent with cruelty, she left the house of the petitioner and is staying with her parents. Except the oral testimony of P.W.1 and the alleged Nikah Nama, there is no document produced by the respondent to prove that the respondent is the wife of the petitioner and there exists valid marriage between them to claim maintenance under Section 125 Cr.P.C. 15. Section 125 Cr.P.C. provides right to claim maintenance. Except the oral testimony of P.W.1 and the alleged Nikah Nama, there is no document produced by the respondent to prove that the respondent is the wife of the petitioner and there exists valid marriage between them to claim maintenance under Section 125 Cr.P.C. 15. Section 125 Cr.P.C. provides right to claim maintenance. A Muslim woman can also claim maintenance from her husband if she is unable to maintain herself out of her sources. For Muslims, a legally valid marriage requires that: (a) both parties are Muslims of sound mind. (b) both parties have attained puberty (presumed at the age of 15). (c) both the parties consent to the marriage. (d) the parties are not temporarily or permanently prohibited from marrying each other. (e) the woman is not married to another man or observing iddat for another man. (f) a proposal (ijab) is made. (g) an acceptance of the proposal (qubul) is made. (h) both proposal and acceptance are made at the same occasion and signify the establishment of marriage with the immediate effect. (i) the proposal and acceptance are not repugnant to the Shariat. (j) the proposal and acceptance are witnessed by two men or a man and two women who are Muslim adults of sound mind, know the bride and groom with certainty and understand the proposal and acceptance. 16. Thus, the position is clear that any legally married woman has the right to claim maintenance under Section 125 Cr.P.C. According to the respondent, she is legally wedded wife of the petitioner as Nikah was performed on 26.05.2013 with Mahrnama of 3 Tolas of Gold with payment of 3 Sans of Gold at the time of Nikah and after Nikah, they were living as husband and wife at the house of the petitioner. The case of the respondent is that some time in the month of August 2015, she was compelled to leave the matrimonial home by the petitioner and since then, she was living at her parental home. In her evidence as P.W.1, the respondent also deposed so. 17. The case of the respondent is that some time in the month of August 2015, she was compelled to leave the matrimonial home by the petitioner and since then, she was living at her parental home. In her evidence as P.W.1, the respondent also deposed so. 17. In support of her case and also to prove performance of Nikah, the respondent examined one Rahimuddin as P.W.2, who had deposed that Nikah between the respondent and the petitioner herein was performed on 26.05.2013 as per Hannagi (Sunni) law with 3 Tolas of Gold as Mahrnama and he performed the Nikah between the respondent and the petitioner as the Kazi in the presence of witnesses. Through him, the alleged Nikah Nama prepared by P.W.2 was exhibited as Ex.A3. 18. According to the learned counsel for the petitioner, the Family Court unreasonably presumed that P.W.2 knows how to read and write Bengali script only on the basis that he put his signature in Bengali script in the Nikah Nama. Putting signature in Bengali script does not mean that the signatory knows how to read and write Bengali script. According to the learned counsel, when the stand of P.W.2 is that he does not know how to read and write Bengali script, how could the Family Court presume that P.W.2 knows how to read and write Bengali script. 19. When Ex.A3/Nikah Nama was prepared and written in Manipuri language in Bengali script, how could P.W.2 prepare and write the said Nikah Nama in Bengali script, if he does not know how to read and write Manipuri language in Bengali script. This clearly shows that Ex.A3/Nikah Nama produced on the side of the respondent is a doubtful one. It is seen that Ex.A3 was never shown to P.W.1, nor was the same identified by P.W.1 during her evidence. The respondent also failed to examine the other witnesses, who had allegedly put their signatures in Ex.A3/Nikah Nama. Thus, it is clear that P.W.2 is an interested witness and his evidence cannot be considered. 20. The specific case of the petitioner is that neither Nikah was solemnized between the respondent and the petitioner, nor did the respondent stay with the petitioner as his wife at his residence at any particular point of time. Thus, it is clear that P.W.2 is an interested witness and his evidence cannot be considered. 20. The specific case of the petitioner is that neither Nikah was solemnized between the respondent and the petitioner, nor did the respondent stay with the petitioner as his wife at his residence at any particular point of time. According to the petitioner, he had already got marriage with one Maherjan Bibi and from their marital relationship, seven children were born and his wife Maherjan Bibi died on 20.02.2010. Out of seven children, four were married. It is also the case of the petitioner that he never married any woman as second wife as alleged by the respondent. 21. In his written objection to the petition filed by the respondent, the petitioner stated that in the month of June 2015, there was a proposal from the elders of the respondent for solemnization of marriage between the respondent and the petitioner, which he turned down as most of his children had already attained majority and he was not in need of another wife. If the respondent has to prove the alleged marriage with the petitioner, it is for her to let in concrete evidence in proof of the same. In the case on hand, admittedly, the evidence adduced by the respondent does not conclusively bring home the point regarding her marriage with the petitioner. When it is the specific case of the petitioner that he has seven grown up children, of whom four are married, it is hard to believe the case of the respondent, in the absence of conclusive proof, to the effect that the petitioner married the respondent. 22. To establish that the petitioner never married the respondent and they never lived with the status of husband and wife, the petitioner examined one of his daughters and her husband as D.W.2 and D.W.3. The daughter of the petitioner was examined as D.W.2, who deposed that after the death of her mother, her father has not brought any women to her parental home and her father never lived with any other women as his wife. In his evidence, D.W.3, husband of D.W.2 and son-in-law of the petitioner, deposed that after the death of his mother-in-law, his father-in-law has not brought any women to his residence and he never lived with any other woman as his wife at his residence. In his evidence, D.W.3, husband of D.W.2 and son-in-law of the petitioner, deposed that after the death of his mother-in-law, his father-in-law has not brought any women to his residence and he never lived with any other woman as his wife at his residence. Though D.W.2 and D.W.3 are interested witnesses, their evidence cannot be brushed aside for the reason that their concrete evidence was to the effect that the petitioner never lived with any woman after the death of his wife. The oral evidence of D.W.2 and D.W.3 was not rebutted by the respondent. 23. Though P.W.2 deposed that he had performed Nikah between the respondent and the petitioner on 26.05.2013 and produced the alleged Nikah Nama, as stated supra, the same has not been proved by the respondent in accordance with law. In fact, the respondent has failed to examine the witnesses who put their alleged signatures in it to show that there was a valid Nikah between the respondent and the petitioner. P.W.3 never stated in her evidence that she had attended solemnization of Nikah between the respondent and the petitioner and also she never stated that she had seen the alleged solemnization of Nikah. Though in her evidence, P.W.3 stated that it is also known to her that Nikah between the parties was performed according to Sunni Muslim customs at the residence of the respondent, she never stated how and from whom she came to know the alleged performance of the said Nikah. Therefore, the evidence of P.W.3 is very doubtful. 24. Whenever a claim for maintenance is made, the petitioner should prove his/her case and the burden cannot be shifted on the respondent on the failure of the petitioner to discharge his/her duty to prove the burden. Thus, the onus is upon the petitioner. The petitioner cannot try to succeed in the loop-holes of the respondent. Admittedly, in the present case, the respondent, who has filed the claim petition, has failed to prove the solemnization of marriage with the petitioner by preponderance of evidence. However, without appreciating the evidence adduced by the parties, the Family Court held that the respondent is legally married wife of the petitioner. The said finding of the Family Court is without any valid proof and also contrary to the evidence adduced by the respondent. As stated supra, the Nikah between the respondent and the petitioner was not proved. 25. However, without appreciating the evidence adduced by the parties, the Family Court held that the respondent is legally married wife of the petitioner. The said finding of the Family Court is without any valid proof and also contrary to the evidence adduced by the respondent. As stated supra, the Nikah between the respondent and the petitioner was not proved. 25. It is also evident that taking advantage of the proposal of the elders of the respondent for solemnization of marriage between the respondent and the petitioner, the respondent had filed the present petition claiming maintenance as if she is the wife of the petitioner and there exists a valid marriage between them. Admittedly, the respondent has not examined her parents, elders, family members to prove solemnization of the marriage. If really there was a Nikah/marriage between the respondent and the petitioner as alleged, nothing prevented the respondent to examine any of the persons whose alleged signatures were obtained on Ex.A3. In fact, the witnesses examined by the respondent as P.W.2 and P.W.3 are interested witnesses and they have not spoken the truth before the Court. Therefore, this Court is of the view that the Family Court has failed to consider the oral testimony of P.W.1 to P.W.3 in proper perspective and erred in holding that the respondent is legally wedded wife. 26. It is well settled that in proving a marriage in a proceeding under Section 125 Cr.P.C., the standard of proof need not be so high as required in a Criminal prosecution for bigamy. Nevertheless, the burden remains on the petitioner wife to establish her status. As stated supra, in the instant case, there is total absence of proof that the respondent is legally weeded wife. 27. It is also settled that for the wife to claim maintenance there should be valid and subsisting marriage between the parties. If the evidence let in, falls short of a valid marriage, the Court is justified in refusing to award maintenance. As the law stands, only a wife is entitled to claim maintenance and a woman without attaining that status is precluded from seeking maintenance. In the present case, the evidence and the documents produced by the respondent would not establish that there is a valid marriage between the respondent and the petitioner. As the law stands, only a wife is entitled to claim maintenance and a woman without attaining that status is precluded from seeking maintenance. In the present case, the evidence and the documents produced by the respondent would not establish that there is a valid marriage between the respondent and the petitioner. In the absence of materials with regard to marriage between the respondent and the petitioner, it is difficult to accept the case of the respondent that she had married the petitioner herein. Moreover, the Family Court erred in holding that the evidence tendered by either party on the scale of preponderance tilts in favour of the respondent. Such a finding of the Family Court is unacceptable for the reason that the evidence adduced by the respondent is in total contradiction and that the Family Court committed an error in believing the case of the respondent. When the status of the respondent as wife has not been proved, the question of granting maintenance does not arise and therefore, the monthly maintenance of Rs. 4,000/- ordered by the Family Court is liable to be set aside. 28. Since the respondent failed to prove that there was valid marriage between the respondent and the petitioner and also she is a legally wedded wife of the petitioner, this Court does not delve into the aspects of avocation of the petitioner; his monthly earnings and also his financial status. 29. In the result, the Criminal Revision Petition is allowed and the order of the Family Court, Thoubal, Manipur dated 28.08.2018 passed in Criminal (Maintenance) Case No. 19 of 2015 is set aside. Resultantly, the petition being Criminal (Maintenance) Case No. 19 of 2015 filed by the respondent under Section 125 Cr.P.C. is dismissed.