Amina vs Hassn Koya - 2003 Supreme(SC) 515

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2003 Supreme(SC) 515

2003(3) Supreme 571
SUPREME COURT OF INDIA
(From Kerala High Court)
M.B. Shah & Arun Kumar, JJ.
Amina -Appellant
versus
Hassn Koya -Respondent
Criminal Appeal No. 635 of 2003
(Arising out of SLP (Crl.) 3837/1985)
Decided on 28-4-2003
Counsel for the Parties :
For the Appellant : M.K. Sasidharan and G. Prakash, Advocates.
For the Respondents : E.M.S. Anam, Advocate.

Headnote:Criminal Procedure Code, 1973-Section 125-Grant of maintenance in favour of appellant wife by Magistrate-Order set aside by Sessions Court in revision holding that marriage was invalid as appellant wife was five months pregnant at the time of marriage and accepted respondent case that fact was concealed by wife-High Court dismissed revision-Appeal-Question for consideration was whether there was valid marriage between parties-It was difficult to believe that woman who was five months pregnant could conceal pregnancy from husband-Respondent could not be said not in know of fact of pregnancy-Divorce was pronounced after about four years-Impugned judgment of appellate Court and High Court was liable to be set aside and that of the trial Court to be restored.
       Held : It is settled law that under the Muslim Law a marriage is a contract unlike the Hindu Law, where it is a sacrament. The respondent pleaded a case that he was not aware of the fact that the appellant was pregnant at the time of marriage and as this fact was concealed by the appellant from him, it rendered the contract of marriage as void. Both the courts below i.e. the lower appellate Court and the High Court believed the respondent on this aspect which led them to hold that the marriage was void and illegal. In our view, this is a basic fallacy in the judgment of the courts below. They accepted that respondent was not aware of pregnancy at the time of marriage. This resulted in the finding that the marriage was invalid. We are unable to accept this reasoning. It is very difficult to believe that a woman who is five months pregnant will be able to conceal the pregnancy from the husband. Such an advanced stage of pregnancy cannot be concealed as the pregnancy starts showing by that time. In any case the pregnancy cannot be concealed from the husband. A husband will at least know for sure that the wife is pregnant specially when the pregnancy is five months old. Therefore, we cannot accept that the respondent did not know at the time of marriage that the appellant was already pregnant. If this fact was known to the respondent, the marriage cannot be said to be illegal or void. (Para 4)
       Further held : Thus in the facts of the present case we are unable to accept the view taken by the courts below that the fact of pregnancy was concealed by the appellant from the respondent at the time of marriage and for that reason the marriage of the parties was invalid and void and, therefore, there was no liability on the part of the respondent-husband to pay maintenance to the appellant. The impugned judgment of the Addl. Sessions Judge, Kozhikode as well as of the High Court of Kerala are based on a finding that pregnancy was concealed by the appellant from the husband which rendered the marriage invalid and void. In our view, such a finding is wholly unwarranted, incorrect and unacceptable. In the facts of the present case as discussed above, it has to be held that the respondent was fully aware of the pregnancy of the appellant at the time of the marriage and, therefore, he cannot be heard to say that the marriage was invalid or void for that reason. (Para 7)

JUDGMENT

Arun Kumar, J.-Leave granted.

2. We have heard the learned counsel for the parties at length. The appellant was married to respondent on 28-12-1972. As per the respondent s case, a girl child was born to the appellant on 28-4-1973/3-5-1973. Respondent divorced the appellant on 2-5-1977. The appellant filed a petition on 14-12-1977 under Section 125 of the Code of Criminal Procedure seeking maintenance for herself at the rate of Rs.150/- per month and for the daughter at the rate of Rs.125/- per month. In reply to the petition the respondent admitted the factum of the marriage, however, he set up a case that the fact that the appellant was already pregnant at the time of marriage, was concealed from him by the appellant, the marriage was therefore, invalid and void. As such he was not liable to pay maintenance. It was further submitted that the child was not born to the appellant through the respondent and, therefore, the respondent had no obligation to pay any maintenance qua the child. The learned Magistrate, 1st Class, Quilandy held that the marriage was valid and, therefore, he directed payment of maintenance at the rate of Rs.75/- per month by the respondent to the appellant. No maintenance was allowed for the child because the child was believed to be not fathered by respondent. This order was passed on 9 February, 1979. Both the parties challenged the said decision of the Magistrate to the extent it was against them. The Addl. Sessions Judge, Kozhikode by his order dated 5th November, 1980 allowed the revision petition filed by the respondent (husband) and dismissed the revision petition filed by the appellant. The marriage was held to be invalid by the Addl. Sessions Judge, Kozhikode Division and that was the main reason for accepting the revision filed by the husband. Since the marriage was held to be invalid it followed that there was no obligation to pay any maintenance. The High Court of Kerala dismissed the revision petition filed by the appellant against the order of the Addl. Sessions Judge, confirming tile finding that the marriage was void. Hence the present appeal.

3. The basic question for consideration before this Court is whether there was a valid marriage between the parties? In this connection it is to be noted that the factum of marriage is admitted. This means that the marriage took place between the parties on 28.12.1972. It is respondent s own case that a girl child was born to the appellant on 28.4.1973/3.5.1973. The appellant appeared as a witness as P.W.1. The respondent also appeared as a witness. He admitted the marriage, but submitted that the marriage was invalid and void because the lady was pregnant, which fact was concealed from him at the time of marriage. In support of his case that the appellant was five months pregnant on the date of the marriage he produced on record Exhibits D1 and D3(a) showing that appellant gave birth to a girl child. According to Exhibit D1 a girl child was born to Amina-appellant on 3.5.1973. The names of parents are given as that of the appellant and the respondent in Exhibit D1 while the name of the girl child is given as Soudha which is admittedly the name of the girl child in this case. The evidence of the doctor who performed the delivery shows that the respondent had attended on his wife in the hospital when the appellant delivered the girl child. Exhibit D3(a) is the entry in the official register regarding the birth of the girl child. By producing this evidence though the respondent succeeded in proving that a child was born to the appellant on 3.5.1973, he revealed another fact. Exhibit D1 proves that the name of the respondent is mentioned as father of the girl child and the evidence of the doctor as P.W.6 shows that the respondent was attending on Amina, the appellant, at the time of her delivery. The name of the respondent as father of the child must have been given for purposes of official record by the respondent himself.

4. The legal question

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