Jhar HC | Maintenance suit dismissed on petitioner’s failure to produce ‘Nikahnama’; directed to file an application under Domestic Violence Act

Jharkhand High Court: Deepak Roshan, J. disposed of an application made by the petitioner for maintenance under Section 125 CrPC.

The petitioners filed an application to challenge the order passed by a Family Court, where her petition under Section 125 was dismissed. The petitioner, Patun Bibi, was legally married to respondent 2, Hanif Mian, as per Muslim Law and a female child was born out of their wedlock. She divorced him and claimed that her marriage with respondent 2 took place at the instigation of his first wife, Zaitun Bibi who was suffering from Psytica pain. It was claimed that after one year of conjugal life and birth of her daughter, respondent 2 started torturing her at the instigation of the Zaitun Bibi and that both the mother and daughter were subjected to cruelty. Respondent 2 challenged the very maintainability of the proceeding mainly on the ground that the petitioner is already a married person and he is living with his wife-Zaitun Bibi. He asserted that he has never married the petitioner. He further stated that he had a very healthy conjugal life with his own wife-Zaitun Bibi and she is not suffering from ‘psytica pain’ as alleged.

The trial court considered the issues presented before them and based upon the evidences produced concluded that the petitioner failed to establish her status as the legally wedded wife of Hanif Mian and if the daughter is actually their legitimate child. Respondent 2 denied being ever married to the petitioner. On the other hand, the petitioner admitted that she married Yusuf (her ex-husband) about 11 years ago and divorced him about 1 ½ years ago. She was admittedly married to Yusuf and after she divorced him, she married another man, Harmuz. The Court stated that the petitioner also failed to reproduce the ‘Nikahnama’ on the grounds that it was not prepared. This was considered suspicious by the Court because, under Muslim Law, every ‘Nikah’ is reproduced in “Nikahnama” and therefore, the marriage itself cannot be proved.

The petitioner vehemently argued that even in the case of live-in relationship, maintenance can be awarded under Section 125 as decided by the Supreme Court in Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188. This present Court held that a long conjugal life/live in relation has never been proved by either of the prosecutions. On the other hand, there is evidence to prove that she was first married to Harmuz and then later to Yusuf.

The Court finally held that the petitioner has failed to point out any error in the order passed by the trial court and thus they cannot interfere. It was held that the petitioner is at liberty to take remedy of approaching the appropriate forum for Domestic Violence Act, 2005. In case the petitioner takes any step under the provision of Domestic Violence Act, 2005, the concerned forum must decide the matter in accordance with the law and without being prejudiced by the observation made by this Court.[Patun Bibi v. State of Jharkhand, 2019 SCC OnLine Jhar 997, decided on 02-08-2019]

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