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Mohammad Hasan Vs. Hafiz Abdul Naeem and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1965CriLJ438
AppellantMohammad Hasan
RespondentHafiz Abdul Naeem and ors.
Excerpt:
- - 4) acknowledges the divorce very clearly. the complainant also produced abdul bad (p. according to the view expressed by syed ameer ali, which can be supported by the quranic injunctions, the validity of a polygamous marriage with the object of giving the new wife unequal or unjust treatment could be assailed as contrary not only to religion and good morals but also to the law. evidently, abdul rahman knew the complainant well and was his friend, apart from the unlikelihood of his being utilised for the purpose of acting as a vakil in such a marriage, this witness could not have been unaware of the fact that the complainant was accusing the respondent mohd. 8). the evidence of this witness was lightly held by the trying magistrate to be unconvincing......was the lawfully married husband of smt. najmunnisan, after she had been divorced by her first husband ali asghar.3. the complainant, who was an operator in a cinema at one time and is now said to be carrying on the profession of 'dua taweez', has tried to prove by oral evidence also that he was lawfully married to smt. najumunnisa. he stated that his nikah was performed with smt. najmunnisan, and he produced one mohammad muslim (p. w. 4) the moulvi who stated that he witnessed the marriage between the complainant and smt. najmunnisan. the complainant also produced abdul bad (p. w. 6) a compounder who is said to have treated smt. najmunnisan before she was taken away by the respondent abdul naim. although the complainant and his witness mohammad muslim (p. w. 4) do not technically.....
Judgment:

M.H. Beg, J.

1. The appellant filed a complaint as an aggrieved husband against his alleged father-in-law Abdul Nairn and his alleged wife Smt. Najumunnisan and her brother Abdul Aleem and her mother Smt. Sakina Bibi, and a man called Ali Asghar alias Lathi with whom Smt. Najmunnisan is said to be living at present at Ardarli Bazar, in the city of Varanasi, for offenses under Sections 494, 494/109, I. P. C. The Magistrate who tried the case acquitted the respondents. Hence, this appeal against the acquittal.

2. It is a matter of admission between the two sides that Smt. Najumunnisan was married to Ali Asghar alias Lathi on 12th of August, 1950. There is, however, some dispute whether there was a divorce given by Ali Asghar respondent to Smt. Najmunnisan respondent in 1959. The complainant has proved two deeds dated 31st January, 1959, one purporting to be executed by Smt. Najmunnisan and another purporting to be executed by Ali Asghar. In addition to these, there is a deed executed on 9th September. 1959, in which Ali Asghar respondent (Ext. Ka. 4) acknowledges the divorce very clearly. There are several post-cards and letters also purporting to be written by the respondent Abdul Naim to the complainant referring to the relations between the complainant and Smt. Najmunnisan. These apparently authentic, communications from the respondent Abdul Naim are only explicable on the assumption that the complainant was the lawfully married husband of Smt. Najmunnisan, after she had been divorced by her first husband Ali Asghar.

3. The complainant, who was an operator in a cinema at one time and is now said to be carrying on the profession of 'Dua Taweez', has tried to prove by oral evidence also that he was lawfully married to Smt. Najumunnisa. He stated that his Nikah was performed with Smt. Najmunnisan, and he produced one Mohammad Muslim (P. W. 4) the Moulvi who stated that he witnessed the marriage between the complainant and Smt. Najmunnisan. The complainant also produced Abdul Bad (P. W. 6) a compounder who is said to have treated Smt. Najmunnisan before she was taken away by the respondent Abdul Naim. Although the complainant and his witness Mohammad Muslim (P. W. 4) do not technically prove the essentials of a Mohammadan marriage, consisting of

a proposal made by or on behalf of a party to the marriage and an acceptance of the proposal by or on behalf of the other, in the presence and hearing of two males or one male and two female witnesses who must be sane and adult Mohammadans

in such a way that the proposal and acceptance are expressed at one meeting, yet, there is sufficient evidence which could have justified a finding that the complainant and Smt. Najmunnisan were certainly living together and treated by others as husband and wife. I do not, however, consider it necessary to record a finding that the complainant and Smt. Najumunnisan were lawfully married, inasmuch as there can be some doubt, in view of the opinion expressed by the great Muslim jurist Syed Ameer Ali in his work on Mohammadan Law, Volume II, p. 192, about the validity of polygamous Muslim marriages, in these words:

There is great difference of opinion among the followers of Islam regarding the extent to which polygamy or, more properly speaking, polygamy is tolerated or allowed in the Islamic system. An influential and growing section holds that the conditions under which it was permitted are so difficult of compliance that they amount to a virtual prohibition and that the circumstances which rendered it permissible in primitive times having either passed away or not existing in modern times, the practice of polygamy is in contravention of the law.

4. The most important passage in the Quran, on this matter occurs in Sura IV, 'Nissa' (i. e. The Women), paragraph 3, translated thus by the late Abdullah Yusuf Ali:

Marry women of your choice,

Two, or three, or four;

But if ye fear that ye shall not

Be able to deal justly (with them),

Then only one, or a ''captive'

That your right hands possess.

That will be more suitable,

To prevent you,

From doing injustice.

5. In other words, there is distinction between the status and position of a wife and a mere 'captive'. The 'captives' or 'slaves'' were permitted according to the notions of an age in which war and its concomitant 'slavery' were recognised as ordinary incidents of life of people of civilised nations such as the Romans. But, according to the law applicable to and recognised by all civilised people today, slavery or capture, as a basis of relations between a man and a woman, are not permissible.

6. In the present case, the complainant has come forward with the case that he had two previous wives living when he contracted marriage with Smt. Najmunnisan. He stated that both his previous wives were ailing and he had small children and that he contracted a marriage with Smt. Najmunnisan in order that she may serve the family. The ground taken by him for contracting the marriage was one which seemed to place the third wife in a somewhat inferior position of a serving maid in the family. According to the view expressed by Syed Ameer Ali, which can be supported by the Quranic injunctions, the validity of a polygamous marriage with the object of giving the new wife unequal or unjust treatment could be assailed as contrary not only to religion and good morals but also to the law. The Quran, which is the source of the basic personal law for Muslims, is full of exhortations to husbands to be kind and considerate and just to their wives. A marriage in which the husband fails to carry out his moral and legal obligations towards the wife can also be dissolved, under the Muslim law, where grounds for its dissolution have been made out before a court of appropriate jurisdiction.

7. I, however, refrain from pronouncing any opinion on the question of either the validity of the alleged marriage of the complainant with Smt. Najmunnisan or the existence of grounds for its dissolution as these are matters which can only be decided if and when they are properly raised in civil proceedings before an appropriate court. These questions can be decided only after framing of the necessary issues in appropriate proceedings and the adduction of evidence directed towards the decision of these issues. These matters are mentioned here in order to indicate that the claim of the complainant to be the lawfully wedded husband of Smt. Najmunnisan is not free from legal difficulties. The denial of that marriage by the accused persons placed the duty of establishing a legally valid marriage of the complainant with Smt. Najmunnisan upon the prosecution before it could succeed. There is enough in the evidence given by the parties to indicate that it is difficult to say that the claim of the appellant to be the lawfully wedded husband of Smt. Najmunnisan has been established beyond reasonable doubt. It cannot also be said that Smt. Najmunnisan was taken away by her father so that she may be married to or live with her previous husband Ali Asghar and mot in order to seek redress by other means for the grievances of Smt. Najmunnisan set out in the respondent's letters. These are matters appropriate for decision in civil proceedings and not by means of criminal proceedings.

8. A more serious difficulty of the complainant in this case is that, in order to succeed in a prosecution for an offence under Section 494, I, P. C., the prosecution must prove the bigamous marriage satisfactorily. An attempt has been made to prove the bigamous or unlawful subsequent marriage with Ali Asghar respondent who was, according to both sides, the first husband of Smt. Najmunnisan, by producing Abdul Rahman (P. W. 8). who stated that he had acted as Vakil of Smt. Najmunnisan, in her purported subsequent marriage with Ali Asghar after he had been told that she had been divorced by the complainant. No documentary evidence to prove this subsequent marriage is there. Evidently, Abdul Rahman knew the complainant well and was his friend, Apart from the unlikelihood of his being utilised for the purpose of acting as a Vakil in such a marriage, this witness could not have been unaware of the fact that the complainant was accusing the respondent Mohd. Nairn of taking away Smt. Najmunnisan illegally. It is in evidence that a previous complaint was also filed on 7-3-1962 for an offence under Section 498, I. P. C. by the appellant immediately after Smt. Najmunnisan is said to have left the complainant with her father on 6-3.1962. Abdul Naim respondent No. 1, the father, had been writing letters complaining bitterly about the treatment given by the complainant to Smt. Najmunnisan as the complainant's wife. If this was the position, the spoilt relations between Abdul Naim respondent No. 1 and the complainant and the fact that the complainant still claimed to be the husband were likely to be known to the complainant's friends such as Abdul Rahman (P. W. 8). The evidence of this witness was lightly held by the trying Magistrate to be unconvincing. Even if Smt. Najmunnisan was actually living in sin without a lawful marriage with respondent Ali Asghar, this would not be a sufficient ground for a criminal prosecution under Section 494, I. P. C. although it may afford grounds for other proceedings. On this matter also the evidence in this case is quite insufficient for any satisfactory finding on it. The aggrieved parties will have to agitate the matter in other proceedings which are still open to them.

9. It was also argued by the appellant's counsel that the documents produced by the complainant were not put to the accused persons so that no explanation was before the Magistrate. It is true that the learned Magistrate did not try the case with sufficient care and did not give a satisfactory judgment. The documents produced by the complainant ought to have been put to the accused persons specifically. Section 342, Criminal P. C. is, however, intended for the protection and benefit of the accused persons and not in order to enable the prosecution to find out materials to support the prosecution case. I have gone through all the relevant evidence, and, for the reasons stated above, I am of opinion that the respondents were rightly acquitted. This appeal is, therefore, dismissed.


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