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MIAN JALAL-UD-DIN
Gh. Rasool Shah – Appellant
Versus
Jawahara Begum – Respondent
Key Points: - The maintenance under section 488 Cr. P. C. can be granted despite irregularity in Nikah if marriage is consummated and the parties lived as husband and wife (!) - The purpose of section 488 Cr. P. C. is to provide remedy against vagrancy and starvation; court is not required to decide the validity of the marriage in-depth (!) - The magistrate may rely on proof of cohabitation and childbirth as evidence of marriage for maintenance purposes (!) (!) - There is a distinction between void and irregular marriages; irregular marriages can be curable when consummated (!) - The court affirmed maintenance to the wife and child and held the amount not excessive given hard times (!) - The petition was dismissed, upholding the maintenance award (!) - Concurrent findings of fact by lower courts regarding the existence of marriage and its consummation were not disturbed on revision (!)
2. The short question that has been debated before me is that the respondent has not proved that there was a valid Nikah between her and the petitioner. In the absence of any proof of a valid Nikah, the magistrate could not award maintenance under Section 488 Cr. P. C.
3. I have gone through the judgments of the courts below as also the material on the record.
4. Both the courts have found that Nikah ceremony was performed between the petitioner and the respondent, wife, although the Nikah was irregular in the sense that it suffered from the vice of absence of two witnesses as required by the Muslim Law, but as the marriage has been consummated, therefore this defect has been cured and the Nikah would be considered valid. There is a distinction between a void marriage and irregular marriage. A void marriage is unenforceable and is void from its very inception, whereas in irregular marriage is curable when the defect is removed or when the marri
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