Bombay High Court
Sabera Begum And Ors. vs G.M. Ansari on 15 December, 1978
Bench: D Mehta
1. The two petitioners in this Criminal Revision Application, who are mother and son respectively, have impugned the judgment and order of the learned Chief Judicial Magistrate, Nanded, dated 27-9-1977 dismissed the petitioner's application for maintenance under section 125 of the Code of Criminal Procedure and further passing an order of costs of Rs. 20/- in favour of the first opponent and against the petitioners.
2. The first petitioner claimed to be the legally wedded wife of the 1st opponent. The second petitioner claimed to be the son born of the wedlock of the first petitioner and the 1st opponent. The first petitioner stated that she was born a Hindu and had been originally name as Rukmini and her father's name was Malhari and her mother's name was Manabai. After the death of her mother, her father married a lady named Shevantabai. After her father's death Shevantabai remarried one Pundlik and they went to live at Nanded, on the land belonging to the 1st opponent. The 1st petitioner stated that she was married to one Shankar who hailed from village Bachoti. A son named Suraj was born out of this first marriage.
3. The 1st petitioner then stated that about 20 years ago from the date, on which she deposed, she and her first husband Shankar went to visit her step-mother Shevantabai and her husband Pundlik at Nanded on the occasion of the Nagpanchami festival. It was the 1st petitioner's case that at this time she formed an acquaintance with the 1st opponent who used to accost her at the well which was closed to her house and there molest her. About a fortnight after their stay with Shewantabai, the 1st opponent assaulted Shankar and drove him away. Thereafter, according to the 1st petitioner, she was kidnapped by the 1st opponent and taken to Hyderabad. There she was confined in a room at Chelapura. The 1st opponent insisted upon the 1st petitioner to renounce her religion and to embrace Islam. Initially, however, she declined to do so. After staying in Hyderabad for about a year, the 1st opponent brought the 1st petitioner to Nanded and they started living together in the house of Mirza Qayum Beg. She stated that at this time she got herself converted to the Muslim religion and her name was changed to Sabera Begum. She stated that one Mohammed Yusuf and Qayum Beg were present at the time when her conversion ceremony took place. The 1st petitioner stated that she embraced the Muslim religion on the 1st opponent promising to marry her.
4. The 1st petitioner then stated that she and the 1st opponent started living on the farm-house belonging to the 1st opponent. There she got married to the 1st opponent. At the Nikah ceremony Mohamed Yousuf posed as her brother and one Abdul Kadar posed as the brother of the 1st opponent. The 'Meher' was fixed at Rs. 751/-.
5. The 1st petitioner stated that about three months prior to her marriage with the 1st opponent, she got a divorce from her first husband Shankar. After her marriage to the 1st opponent she lived in a Labour Colony along with the 1st opponent. They lived there for a period of about two years. During this time she gave birth to a male child named Mohamed Ayub, who is petitioner No. 2. The 1st petitioner stated that from the Labour Colony she shifted to a house of Ganipura and at this place she lived for about seven years. The 1st opponent did not live with her in the house at Ganipura. He, however, visited her frequently. The 1st opponent went to live in his own house at Lalbad. The 1st petitioner stated that the 1st opponent used to pay her Rs. 150/- per month. After the birth of the 2nd petitioner, the maintenance amount was raised to Rs. 250/-. The 2nd petitioner was admitted in a Primary School. The 1st petitioner produced a true copy of the Admission Form which has been marked as Exhibit 13. The 2nd petitioner had been admitted in the School by Ikramuddin (P.W. 4). She stated that from the house in Ganipura, she shifted to a house in Nizam Colony which had been newly constructed by the 1st opponent. She lived there for about six months. The 1st petitioner stated that the 1st opponent received about Rs. 12 Lakhs from the Government as compensation for certain lands which the Government had acquired. The 1st petitioner stated that thereafter she claimed from the 1st opponent maintenance at the rates of Rs. 500/- per month. The 1st opponent refused to pay her any maintenance and drove her out of the house of Ganipura. She thereafter went to Hyderabad in order to seek intervention of common friends. She returned from Hyderabad to Nanded at the persuasion of one Fakruddin. However, after her return to Nanded the 1st opponent refused to maintain her or his son, the 2nd petitioner. Thereupon she filed the application in the Court of the learned Chief Judicial Magistrate, Nanded.
6. The 1st opponent denied having contracted any marriage with the 1st petitioner at any time. He also denied that the 2nd petitioner was his legitimate son. He denied that he had compelled the 1st petitioner to convert herself from Hinduism and to embrace the Muslim religion. The 1st opponent denied having ever lived with the 1st petitioner either at Mudhed or at Nanded. The 1st opponent stated that the present application had been made by the 1st petitioner at the instigation of his political enemies. The 1st opponent stated that he was a social figure at Nanded and he was also engaged in politics and that the 1st petitioner had filed this application for maintenance only with a view to oblige his opponents, who wanted to lower him in the estimation of his friends.
7. Mr. Solkar, the learned Advocate for the petitioners, submitted that the learned Chief Judicial Magistrate had erred in dismissing the application of the petitioners. Mr. Solkar submitted that the learned Magistrate had come to an erroneous conclusion that the 1st petitioner was not the lawfully wedded wife of the 1st opponent or that the 2nd petitioner was not the legitimate issue of that marriage. Mr. Solkar submitted that the learned Magistrate had also erred in coming to the conclusion that the 1st petitioner had not proved that she had obtained a divorce from her first husband Shankar. Mr. Solkar urged that the learned Magistrate had failed to take into consideration the documentary evidence such as the Electoral Rolls Exhibit 23 as also the photograph Exhibit 36. Mr. Solkar, therefore, submitted that the 1st petitioner had proved that she been divorced from her first husband Shankar and that she had undergone a marriage ceremony with the 1st opponent. The 1st petitioner had also proved that the 2nd petitioner was the lawful issue of that marriage.
8. It will be necessary to consider each of the issues raised by Mr. Solkar on behalf of the petitioners. The 1st petitioner has deposed that prior to her marriage with the 1st opponent, she was a Hindu by religion and she had been married to one Shankar, who hailed from village Bachoti. One of the important issues, therefore, in the present petition is whether the 1st petitioner has been divorced by her first husband Shankar. On that aspect the only evidence which has been adduced is that of the 1st petitioner and her aunt Manjulabai, wife of Mriba (P.W. 3). The 1st petitioner in her evidence stated that after about a fortnight's stay with her step mother Shevantabai, who lived on the farm-house belonging to the 1st opponent, the 1st opponent had assaulted her husband Shankar and had expelled him. The 1st petitioner in her examination-in-chief stated that about three months prior to her marriage with the 1st opponent, the 1st opponent had obtained a divorce form Shankar. It may, however, be assumed that what she meant by this was that Shankar had divorced her at the request of the 1st opponent. However, apart from this there is no other mention made by the 1st petitioner with regard to her first husband divorcing her.
9. Manjulabai P.W. 3 stated that she was the aunt of the 1st petitioner, 1st petitioner being the daughter of her sister Manabai. Manjulabai stated that the 1st opponent requested her to call Shankar. At that time the 1st petitioner and Shankar were living in Nanded. Shankar was then called in the Registration Office where Yusuf and Makdoom were present. Yusuf asked Shankar to obtain a divorce from his wife. A stamp paper with a Divorce Deed was brought and Shankar placed his thumb impression upon that stamp paper. It may be pointed out that no document evidencing the fact of Shankar having divorced the 1st petitioner was produced in the trial Court.
10. Now, from the evidence of the 1st petitioner as also from the evidence of Manjulabai, it will be seen that the evidence with regard to the divorce proceedings is extremely flimsy. If the attempt of the 1st petitioner was to show that she had obtained a divorce by custom, then it is not established that there was a custom in their community which permitted divorce by mutual consent or upon the consent of the husband.
11. Section 13(1) of the Hindu Marriage Act, 1955 provided :---
"13(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party......"
(The rest of the section is not relevant for the purpose of the issue in discussion).
Therefore, under the Hindu Marriage Act, a husband or a wife must present a petition under this Act before, a marriage could be dissolved by a decree of the Court. Section 29(2) of the said Act provided :---
"Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu Marriage, whether solemnized before or after the commencement of this Act"
Therefore, the Hindu Marriage Act recognised a divorce by custom. However, before a party could claim that he had obtained divorce by custom that custom had to be established and it was only then that the divorce could be recognised by the courts. In the instant case no such custom has been established by the 1st petitioner either in her evidence or in the evidence of Manjulabai. Manjulabai has deposed to some document bearing a stamp being impressed with the thumb impression of Shankar. That document, however, s has not been produced in Court. The learned Magistrate, therefore, was justified in concluding that the 1st petitioner had failed to prove that she had obtained a valid divorce from her first husband Shankar.
12. The effect of this finding would be that the 1st petitioner had contracted a second marriage with the 1st opponent at a time when the first marriage was subsisting. It is the 1st petitioner's case that sometime before she was married to the 1st opponent she had converted herself and had embraced the Muslim religion. Under the Muslim Law a Mohamedan woman was forbidden from having more than one husband at the same time and a marriage with a woman whose husband was alive and who had not been divorced, was void. Section 256 as stated in Mulla's Principles of Mohamedan Law, 18th Edition provided :---
"256. " It is not lawful for a Mohamedan woman to have more than one husband at the same time. A marriage with a woman, who has her husband alive and who has not been divorced by him, is void."
Therefore, the consequence of the finding that the 1st petitioner had not obtained a valid divorce from her first husband Shankar would be that her second marriage with the 1st opponent assuming that such a marriage took place would be void. If it was shown that the 1st petitioner was not the lawfully wedded wife of the 1st opponent, then she could not claim any maintenance from the 1st opponent, under section 125 of the Code of Criminal Procedure, 1973.
13. The next issue raised in this petition is with regard to the proselytism of the 1st petitioner. On this issue the 1st petitioner alone has given evidence. The 1st petitioner stated that after she and the 1st opponent had lived in Hyderabad for about a year, she was brought by the 1st opponent to Nanded and they started living in the house of Mirza Qayum Beg. She stated that at this place she was converted to the Muslim religion. Some Kalmas from Quran were recited and her name was changed to Sabera Begum. She stated that she allowed herself to be converted because the 1st opponent promised to marry her. The 1st petitioner stated that Mohamed Yusuf and Qayum Beg were present at the time of the conversion ceremony. It is, however, pertinent to note that neither Mohamed Yusuf nor Qayum Beg has been examined by the 1st petitioner. If a Kazi was present at this ceremony, then the Kazi has also not been examined. In this view of the evidence it would be extremely difficult to conclude that she had been converted to the Muslim religion. The learned Magistrate has, therefore, rightly concluded that the evidence of the 1st petitioner was not such as to warrant a conclusion that she had been converted to the Muslim religion.
14. The next issue which has been agitated in this petition is with regard to the marriage of the 1st petitioner with the 1st opponent. On this issue the 1st petitioner has given evidence as also one Shaikh Hyder (P.W. 5). The 1st petitioner stated that she was taken by the 1st opponent to his land at Mudkhed where the marriage ceremony was performed. She stated that at this time one mohamed Yusuf posed himself as her brother and one Abdul Kadar posed as the brother of the 1st opponent. Apart from these persons no one was present. The 'Meher" was fixed at Rs. 751/-
15. Shaikh Hyder (P.W. 5) stated that about 19 or 20 years before the day he gave his evidence, the marriage between the 1st petitioner and the 1st opponent was performed at Mudkhed. He stated that he had attended the marriage as he had been invited by the 1st opponent. The marriage ceremony took place in a hut. He stated that he was sitting in front of the hut and the ceremony was visible to him. Some officer from Mudkhed with a beard prepared some writing. Two persons walked in the hut where the 1st opponent was sitting and they came out after some time. They told the invites that the "Meher" was fixed at Rs. 751/-. Thereafter some Kalmas from Quran were recited by a kazi. In cross-examination Shaikh Hyder stated that the marriage ceremony took place in Nihali village and he had attended the marriage ceremony at Nihali village. It may be recalled that in his examination-in-chief he stated that the marriage ceremony took place in Mudkhed. Therefore, there is a contradiction in the evidence of Shaikh Hyder on the vital question as to where the marriage ceremony was performed. The 1st petitioner has stated that Mohamed Yusuf and Abdul Kadar were both present at the time of her marriage. However, neither of these two gentlemen has been examined by her. It is also pertinent to note that the Kazi who performed the marriage has also not been examined. The Nikahnama is also not before the Court. Nor is any register wherein any entry has been made by the Kazi with regard to the marriage ceremony was produced before the Court. Under the Mohamedan Law it was essential for a valid marriage that there should be a proposal made by or on behalf of one of the parties to the marriage and an acceptance of the proposal by or on behalf of the other in the presence or hearing of two males or one male and two female witnesses who must be same and adult Mohamedans. The proposal and acceptance had to be expressed at one meeting; a proposal made at one meeting and acceptance made at another meeting did not constitute a valid marriage. From the evidence of the 1st petitioner as also that of Shaikh Hyder there does not appear to have been any proposal made by the 1st opponent to the 1st petitioner in the presence of two Mohamedan male witnesses or in the presence of one male Mohamedan and two female witnesses. None of the witnesses to the marriage has been examined. The evidence of the 1st petitioner and of Shaikh Hyder (P.W. 5) cannot lead one to come to the conclusion that there was a valid marriage as between the 1st petitioner and the 1st opponent. The learned Magistrate has come to the conclusion that the 1st petitioner had failed to prove any marriage having been performed between her and the 1st opponent, and rightly so.
16. There is one aspect of the case which needs to be considered and that is the evidence of defence witness Mansoor Baig Munawar Baig (D.W. 4). The 1st opponent had examined Mansoor Baig and this witness stated that he knew Sabera Begum. Mansoor Baig stated that there was a tin-shed belonging to Sabera Begum which was constructed on the plot of land adjoining to his house. Mansoor Baig stated that Yusuf Saheb, brother of Sabera Begum had purchased, the plot for her. The tin-shed was constructed by Abdul Kadar Constable. Sabera Begum and Abdul Kadar were staying in that tin-shed. However, both left the tin-shed five or six years prior to the date on which Mansoor Baig gave evidence. They left that place because Mansoor Baig had quarrelled with Sabera Begum. He did not like Sabera Begum to moving about without observing Pardah. They, therefore, left the place of their own accord.
17. The evidence of Mansoor Baig would show that the 1st petitioner and Abdul Kadar Constable were living together in the tin-shed. This could mean that the 1st petitioner was living in adultery. However, what appears strange is that the evidence of Mansoor Baig has gone unchallenged and he has not been cross-examined by the 1st petitioner at all. If this evidence is believed, and there is no reason why it should not be, then the 1st opponent had succeed in showing that Sabera Begum was living in adultery with another man. Section 125(4) of the Code of Criminal Procedure, 1973 provided :---
"No wife shall be entitled to receive an allowance from her husband under this section, if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent."
In view of the evidence of Mansoor Baig, the 1st petitioner was no entitled to claim any maintenance and on this ground also the petition deserves to be dismissed.
18. I shall now consider the documentary evidence produced by Sabera Begum in support of her claim that she was the legally wedded wife of the 1st opponent. The 1st petitioner has produced extracts from the Electoral Rolls which have been marked as Exhibits 23 and 24. Now, it may be pointed out that the extract from the Electoral Rolls had been produced after Sabera Begum's evidence had been concluded. I am pointing out this for the reason that the 1st opponent had no opportunity to cross-examine Sabera Begum with regard to the extracts from the Electoral Rolls. At page 16 serial Nos. 1397 and 1398, the names of Gous Mohiuddin Ansari and Sabera Begum Mohiuddin appear. The house number is shown as 200/2. What is interesting to note in this extract is the fact that in the next serial number, i.e. 1399 the name of M.M.A. Kadar has been shown and the House Number also is 200/2. This name, therefore, is that of Abdul Kadar and it has been shown that she was living with Abdul Kadar as also with Gous Mohinuddin Ansari, the 1st opponent. However, an extract in the Electoral Roll cannot be proof of the fact that the 1st opponent was the lawfully wedded husband of the 1st petitioner.
19. The 1st petitioner has also relied upon a photograph Exhibit 36 which is the photograph of the 1st petitioner and the 1st opponent, taken some years ago. Now this photograph has been admitted in evidence through the 1st petitioner. However, before a photograph could be admitted in evidence it is necessary that the person who took the photograph should be examined and such a person should produce the negative and no positive print or enlargement could be admitted in evidence without the negative being produced in the first instance.
20. The Bombay High Court in the case of Laxman Ganpati Khot v. Anusuyabai, had occasion to consider the same issue and their Lordships were pleased to observe :---
"It is only when the person who takes a photograph and develops it into a negative, himself comes into the box and deposes to both these facts, that a negative becomes admissible in evidence. As far as the enlarged print is concerned, the position is still worse, for no print or enlargement can be admitted in evidence without its negative being produced and proved in the manner already indicated above."
Therefore, this photograph is inadmissible in evidence for the photographer or the person who took this photograph has not been examined nor has the negative thereof been produced in evidence.
21. I am, therefore, of the view that the 1st petitioner has failed to prove that she had been married to the 1st opponent at any time and I also hold that 1st opponent had proved that Sabera Begum was living in adultery with a man named Abdul Kadar, who was a Police Constable.
22. Lastly there is the question with regard to the case of the 2nd petitioner, who claimed to be the son of the 1st opponent. It can only be stated that the 2nd petitioner could have gained his knowledge about his father from his mother, the 1st petitioner. The 2nd petitioner Ayub Mohiuddin stated that the 1st opponent was his father. He was studying in the Zilla Parishad High School and he produced the certificate Exhibit 16. He stated that he had been admitted in the Primary School at Ganipura by one Ikram. Ayub Mohiuddin stated that the 1st opponent continued to stay with his mother when they shifted to Ganipura. He stated that he went with his mother to Hyderabad in order to approach persons who knew the 1st opponent, for the purpose of a settlement. He stated that one Fakruddin was present there and he persuaded his mother to proceed to Nanded and that he would see that the 1st opponent acceded to her wishes. Ayub Mohiuddin stated that no settlement, however, took place.
23. With regard to the School Certificate, the petitioners have examined one Ikramuddin Khairuddin (P.W. 4). Ikramuddin stated that the 1st petitioner and the 1st opponent resided in a lane opposite to his house. He stated that he arranged to admit the 2nd petitioner in the Ganipura School at the instance of the 1st opponent. He had obtained a chit from the 1st opponent about the date of birth of the 2nd petitioner and handed it over to the Head Master. The Head Master filed in the form and asked lkramuddin to sign it on behalf of the ward as the Head Master informed him that any person could sign as a guardian.
24. Now, it may be pointed out that the 1st opponent examined one Khairullakhan Makdoomkhan (D.W. 3) who stated that he was working in the Madresh Madarse Milya Primary School. He produced a certified copy of the Admission Register showed the name of one Khaliluddin as the father of Ayub Mohiuddin Ansari. In Exhibit 51 the name "Khaliluddin" had been cancelled and the name of Gous Mohiuddin Ansari had been inserted. Khairullakhan, however, stated that this corrections had not been made in his presence and further that these corrections had not been made till 4-4-1970. Khairullakhan also produced the Attendance Sheet of Ayub Mohiuddin for December 1969, January, February, March, April and May 1970 which have been marked as Exhibits 52 to 57 respectively. In view of the interpolations made in the School Record, it is difficult to place any reliance upon the same. In view of the fact that the 1st petitioner had failed to prove that she was the legally wedded wife of the 1st opponent, it would not be possible to state that the 2nd petitioner was the legitimate child born of such a marriage.
25. Mr. Agarwal has cited a judgment of the Orissa High Court in the case of A Gunna Rao v. Tara Beharan, 1971 Cri.L.J. 1044 wherein it was observed :---
"Law is well settled, as stated above, that it is for the mother to prove that the person, from whom the she claims maintenance for her child, born out of lawful wedlock, is actually the father of the child. Her evidence to that effect cannot but be highly interested, and it would be unreasonable and improper for any Court to act merely on her own words, even though on oath, without proper and independent corroboration.........."
"In the case of , it is held that where in a case
of this nature, the name of the father is entered in the Birth Register on the information furnished by the mother, such entry is not evidence of paternity, being a unilateral statement by an interested party."
26. There is, therefore, no reliable evidence to come to the conclusion that the 2nd petitioner is the issue of a valid marriage between the 1st petitioner and the 1st opponent.
27. It was lastly argued that even if the Court disbelieved the evidence of the 1st petitioner that she had been lawfully married to the 1st opponent, under Mohamedan Law, a marriage was presumed by prolonged and continued co-habitation between a husband and a wife. Reliance was placed on section 268 in Mulla's Principles of Mohamedan Law at page 291 wherein it is stated :---
268. "Marriage will be presumed, in the absence of direct proof, from---
(a) Prolonged and continual cohabitation as husband and wife or,
(b) the fact of the acknowledgement by the man of the paternity of the child born to the woman, provided all the conditions of a valid acknowledgement mentioned in section 344 below are fulfilled; or,
(c) the fact of the acknowledgement by the man of the woman as his wife."
27. It may be pointed out that there is no evidence of any prolonged or continual cohabitation between the 1st petitioner and the 1st opponent as husband and wife. Nor is any evidence led with regard to the acknowledgement by the 1st opponent of the 1st petitioner as his wife or the 2nd petitioner as his son. There is no evidence whatsoever the fact that the 2nd petitioner was either the legitimate or the illegitimate child of the 1st opponent. The evidence of Mansoor Baig made it clear that the 1st petitioner was living in adultery with Abdul Kadar. It, therefore could not be stated that the 1st petitioner was even in the exclusive keeping of the 1st opponent. The learned Magistrate rightly came to the conclusion that the 1st petitioner had failed to prove that she had been lawfully married to the 1st opponent, and also that the 2nd petitioner had been born out of a valid marriage between the 1st petitioner and the 1st opponent. There is no reason for interfering with the findings of the learned Magistrate.
28. In the result the petition is dismissed and the rule discharged.
No comments:
Post a Comment