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High Court Of Calcutta
Raghunath Ray, J.
K. Khalid - Appellants
Vs
Sajeeda Khalid - Respondents
CR. R. No. 018 of 2011
Decided on: July 18, 2011
MAINTENANCE - VOID MARRIAGE - MUSLIM LAW - CONVERSION OF ONE SPOUSE TO ANOTHER RELIGION - PROOF OF VALID MARRIAGE - SECTION 125 CR PC - HINDU MARRIAGE ACT, 1955 - SECTION 5(I) - SECTION 11 - APPLICABILITY TO MUSLIM COUPLE - INTERPRETATION.
Fact of the Case:
The petitioner husband challenged the order of the lower courts granting maintenance to his wife under Section 125 CrPC on the ground that their marriage was void as she had a living spouse at the time of their marriage. He also denied the paternity of their son.
Finding of the Court:
1. The conversion of one spouse to another religion must be bonafide and not colourable, and in the event of such genuine conversion, the first marriage of the spouse is liable to be dissolved. 2. The expression 'wife' used in section 125 Cr PC means a legally wedded wife. 3. A marriage solemnized in contravention to section 5(i) of the Hindu Marriage Act, 1955 between a Hindu male and female having a living spouse at the time of such solemnization of marriage is a void marriage as per section 11 of the said Act. 4. Conditions as specified in section 5 of the Hindu Marriage Act are applicable only to a marriage which would be solemnized between any two Hindus. 5. Contravention of a condition specified in section 5(i) of the Hindu Marriage Act that neither party has a spouse living at the time of the marriage would invariably lead to a void marriage provided both the spouses are the Hindu. It, therefore, necessarily follows that the marriage solemnized between two Muslims cannot definitely be brought within the ambit and scope of section 11 read with section 5(i) of the Hindu Marriage Act especially in view of the finding recorded in (a) above. 6. A woman either Hindu or Muslim is not entitled to obtain a Magistrate's order until she succeeds in proving that she was validly married to her husband. 7. A Hindu husband marrying a Hindu woman for the second time having a living spouse, is not liable to pay any maintenance to his second wife. 8. Similar is the position if a Hindu wife marries a Hindu male for the second time when her first Hindu husband is alive and she is not entitled to any maintenance from her second husband. 9. When such validity of marriage is questioned it is undoubtedly for the applicant to prove that she was legally wedded wife according to the personal law by which the parties are governed. 10. However, the standard of proof in order to prove a marriage in a proceeding under section 125 Cr PC is not so high as required in criminal prosecution for bigamy. It is summary in nature meant to prevent vagrancy. 11. The marriage between the husband OP petitioner namely Khalid and the wife petitioner respondent No. 1 OP namely Sajeeda is to be proved as valid marriage under the Muslim personal law.
Issues: 1. Whether the marriage between the petitioner and the respondent was void due to the respondent's previous marriage? 2. Whether the petitioner was liable to pay maintenance to the respondent under Section 125 CrPC?
Ratio Decidendi: 1. The petitioner's contention of void marriage with an ulterior motive of denying maintenance to his wife stands demolished. 2. The petitioner husband has also failed to show that there was any abuse of the process of court necessitating invocation of inherent jurisdiction of the High Court to prevent such abuse of the process of Court to secure the ends to justice. 3. The marriage solemnized between two Muslims cannot definitely be brought within the ambit and scope of section 11 read with section 5(i) of the Hindu Marriage Act especially in view of the finding that her first marriage stood dissolved because of her genuine conversion to Islam based on solemn rituals coupled with her ardent religious belief which converted her to a devout Muslim married woman about 20 years ago. 4. Since the petitioner husband being a Muslim male married Sajeeda on her conversion to Islam, their marriage cannot legally be treated as a void marriage under the provisions of the Hindu Marriage Act, 1955 which have no application whatsoever in any manner to the Muslim couple married under the Muslim religious rites.
Final Decision: The revision application filed by the petitioner husband is dismissed on contest but without costs. The interim order, if any, stands vacated. The learned trial Magistrate is directed to proceed with the misc. execution case with utmost expedition in accordance with law, and to dispose of the same within two months from the date of communication of this order.
Raghunath Ray, J.
1. BY preferring this application under section 482 Cr PC, the petitioner husband has sought to challenge the judgment and order dated 28.3.2011, passed by the learned Sessions Judge, Andaman and Nicobar Islands, Port Blair in Criminal Revision No. 003 of 2011, whereby the learned revisional court affirmed the judgment and order dated 2.12.2010, passed by the learned Judicial Magistrate, First Class-II, Port Blair in Misc. Case No. 131 of 2009. In the present application, the petitioner husband has, however, prayed for setting aside the judgment impugned and remanding the case back to the learned trial Court for adjudication of the matter after taking evidence of vital witnesses including the petitioner husband afresh.
2. THE relevant facts giving rise to this criminal revision may be capsulised as under: Smti. Sajeeda Khalid (OP No. 1 herein) and her minor son Kumar K. Naushad (OP No.2 herein) instituted a Misc. Case No. 131 of 2009 under section 125 Cr PC, claiming maintenance at the rate of Rs. 10,000/- per month in total for them from the petitioner. It is contended inter alia therein, that the marriage between the petitioner and the OP No. 1 was solemnized in accordance with the Muslim religious rites and customs on 18.01.1990 and out of the said wedlock, the OP petitioner No.2 was born on 14th June, 1991. Since the petitioner No. 1 OP is a housewife and not employed anywhere, she is "facing extreme financial hardship to maintain herself and her minor son" who is studying in Govt. Polytechnic, Dollygunj in Diploma (Mechanical Engineering), First Year. Further, the OP wife is a heart patient and underwent open heart surgery on 02.01.1999. She has no source of income to maintain herself and her minor son. On the contrary, the petitioner OP is a govt, servant working as driver in the State Transport Department under the Directorate of Transport, Port Blair. He is also drawing salary of Rs. 23,105/- in total per month. In such circumstances, she prayed for maintenance at the rate of Rs. 10,000/- per month in total, for herself and her minor son.
3. THE petitioner husband has, however, sought to resist the claim of his son's maintenance on the ground that the petitioner No.2, who was born on 14.2.1991 is above 18 years and is not entitled to any maintenance from him in view of attainment of majority prior to the institution of the Misc. case in question. It is, further contended inter alia in his written objection that the OP wife is getting monthly rent of Rs. 12,500/- from the tenants. It is also stated that she is residing in her house constructed by him on investment of- lakhs of rupees. But when the respondent was transferred from Port Blair to Mayabunder, she failed to accompany him and she is residing separately with their minor son as per her own choice. He is, however, ready to take the petitioner with him to Mayabunder. According to him, she has sufficient source of income since she is getting monthly rent form the tenants. She is, therefore, not entitled to any maintenance from him. Further, the petitioner OP wife had married him by changing her religion as also by changing her name from 'Sudharma' to 'Sajeeda'. She has again changed her religion and her name without his consent. So, her claim of maintenance is not maintainable and the petition under section 125 Cr PC is liable to be dismissed accordingly.
4. UPON consideration of evidence adduced by two PWs i.e. the petitioner OP wife herself as PW-1 and one Ramlall, an employee of the State Transport Service as PW-2 as also the studentship certificate of the Petitioner respondent No.2 (Exb -1) and the pay certificate of the OP petitioner husband dated 10.8.2010 (Exb -2), the learned trial Court formulated as many as six points in the backdrop of evidence on record for adjudication. On analysis of evidence on record the learned Magistrate came to a finding that the petitioner had no sufficient means to maintain herself while the petitioner O
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