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Abdul Rahimankutty Vs. Aysha Beevi and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Revn. Petn. No. 202 of 1958
Judge
Reported inAIR1960Ker101; 1960CriLJ351
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 439 and 488; Evidence Act, 1872 - Sections 112; Muhammadan Law
AppellantAbdul Rahimankutty
RespondentAysha Beevi and anr.
Appellant Advocate T.K. Narayanan Pillai, Adv.
Respondent Advocate P. Kochukrishna Pillai, Adv.
DispositionRevision dismissed
Cases Referred and Thakur Prasad v. Mt. Godavari Devi
Excerpt:
criminal - concealment - sections 439 and 488 of criminal procedure code, 1898 and section 112 of evidence act, 1872 - petitioner cohabited with respondent (domestic servant) - respondent became pregnant - subsequently respondent got married without telling her status of pregnancy - respondent driven out from husbands house - marriage of respondent void on account of concealment. - - concealment of pregnancy at the time of marriage clearly amounts to fraud......to p. w. 6 would be void and consummation cannot make it valid. concealment of pregnancy at the time of marriage clearly amounts to fraud. ameer ali in his treatise on mohamedanlaw. third edition, observes: 'where consent to a contract of marriage has been obtained by force or fraud, such a marriage is invalid unless ratified after the coercion has ceased or the duress has been removed, or when the consenting party, being undeceived, has continued the assent.'the above passage has been cited with approval in ilr 31 all 343. tyabji further stated at p. 105: 'a contract of marriage brought about fraudulently is void. no mahr will be due unless the marriage has subsequently been a filled by consummation or otherwise.'mulla also adopts the same view. at page 237 of his commentary on the.....
Judgment:
ORDER

T.K. Joseph, J.

1. This criminal revision petition arises from proceedings under Section 488 of the Code of Criminal Procedure. The first respondent applied on he-half of her minor child, the second respondent, for an order of maintenance against the revision petitioner. Holding that the second respondent was the child of the revision petitioner, the learned Magistrate awarded maintenance at the rate or Rs. 10/- per month.

2. The respondents' case may he briefly stated. The first respondent, an unmarried young woman was residing in the house of the petitioner for two years from Mithunam 1129 to Makaram 1131, working as a domestic servant. During this time, she cohabited with the petitioner and became pregnant. When she told the petitioner about this and requested him to marry her, he asked her not to divulge it to anybody and he even threatened to kill her if she gave rise to any talk. Subsequently he got her married to P. W. 6 on 25-6-1131. Within a few days, P. W. 6 discovered that she was pregnant and he drove her out of his house on 7-7-1131. The second respondent was born on 12-10-1131/25-5-1956. As the petitioner refused to maintain the child, the petition under Section 488 was filed on 13-7-1956. The petitioner filed a written statement denying all the allegations in the petition. He denied the paternity of the child and also that the 1st defendant was a servant in his house. The first respondent examined six witnesses besides herself. Believing the respondent's case, 1he order for maintenance was passed.

3. Two points were raised on behalf of the revision petitioner namely, (1) that in view of the fact that the child was horn within 280 days, after the alleged dissolution of the marriage of the first respondent to P. W. 6, the court below should have drawn the presumption under Section 112 of the Evidence Act and held that P. W. 6 was the father of the child and (2) that the uncorroborated evidence of the first respondent should net have been acted upon.

4. As regards the first point, it is admitted that the second respondent was born within four months of the marriage of the first respondent to P. W. 6. The presumption under Section 112 can be drawn only if the child is born during the continuance of a valid marriage or within 280 days after its dissolution. The case of the respondents is that the marriage was void, vitiated as it was by fraudulent suppression of the fact that the first respondent was pregnant at that time. It is also contended that the pregnancy of the first respondent at the time of the marriage rendered the marriage void. That the second respondent was born within four months of the marriage of the first respondent to P. W. 6 is not disputed. The respondent's witnesses also have given evidence on the point. It is therefore clear that the first respondent was pregnant at the time of the marriage.

It is her case that this fact was suppressed from P. W. 6 at the time of the marriage and that he discovered the same only after a few days when he turned her out of the house. Though the first respondent would say that her hussband divorced her, he does not admit the same, hut it has been proved in this case, that he drove the first respondent out of his house within a fortnight of the marriage. The question whether there was a divorce is immaterial in the circumstance of the case. P. W. 6 stated that it was only after the marriage that he discovered that his wife was pregnant at the time of the marriage and that this fact was deliberately concealed from him at the time of the marriage.

5. The respondents relied on the decision in Abdul Latif Khan v. Niyaz Ahmed Khan, ILR 31 All 343. One Mussammat Akbari was married to the defendant on 5-2-1896, but she died on 28th December 1896, before consummation of the marriage. After her death her father and brother brought a suit for their share of dower. Holding that there was active concealment of the fact that Musammat Akbari was suffering from a serious illness at the time of her marriage which rendered the marriage invalid, and also that the marriage was not consummated, the suit was dismissed. This decision was distinguished in a later decision of the High Court of Bombay in Kulsumbi v Abdur Kadir, ILR 45 Bom 151: (AIR 1921 Bom 205). That was a suit by a wife against her husband to recover her dower. Within five months of the marriage of the plaintiff in that case, a child was born to her and the husband therefore turned her out of his house. He denied his liability for dower on the ground that the marriage was invalid owing to the concealment of pregnancy at the time of the marriage. This defence was not accepted. The decision in Abdul Latif Khan's case was distinguished on the ground that there was no consummation of the marriage in that case. The petitioner relies on the observation of Heaton, I. that the marriage was not invalid. Commenting on the later decisions. Tyabji in his commentary on Mohammedan Law, Third Edition, observes:

'The plaintiff at the time of her marriage with the defendant concealed her illicit pregnancy; the parties lived together for some time and presumably the marriage was consummated. A fully developed child was horn within 5 months. The child was begotten by an unknown father. Then the husband turned the wife out of his house but did not divorce her. At her suit, the husband was held liable for prompt mahr. Submitted that on the points argued the decision was not erroneous, but that the real points were not taken or decided; Sections 36, 38 and 40 were entirely overlooked by the husband's defendant's) advisers; it was not argued that the wife being 'pregnant by whoredom' marriage was prohibited during pregnancy; that there was no valid marriage at all ; that the marriage was from the start illegal and of no effect; that no cancellation was necessary, or in fact possible as there was no marriage to cancel. The only argument put forward was that the marriage could be cancelled by the husband on some ground similar to those in Sections 201-209 an argument that was quite untenable and had to be rejected by the Court, in spite of its great anxiety (of which no secret had been made) to decide if possible against the wife.' (pp. 134-135).

Again at pages 197-138, it is observed as follows: 'The marriage of a woman pregnant of a child whose descent or paternity is not established is unlawful.

Under Hanati law (a) when a man marries a woman with whom he has had illicit intercourse and it appears that she is pregnant by such intercourse, the marriage is lawful and he may have connection with her and she is entitled to maintenance, (b) a woman pregnant by whoredom may (i) according to Abu Hanifa and Immam Muhammad, many, but must refrain from matrimonial intercourse till delivery; (ii) Abu Yusuf holds such marriage to be illegal.

Under Shia law, a pregnant woman cannot lawfully marry. Marriage is lawful so long as there is no certainty of pregnancy, but if she should subsequently prove to have been pregnant, the second marriage would be void by reason of iddat being still subsisting at the time of the marriage.

Section 40 contemplates three positions; first, Sub-section (1) deals with the case of pregnancy by lawful intercourse; secondly, Sub-section (2) with illicit pregnancy under two heads (a) marriage between father and mother of the child, (b) pregnancy by whoredom, where presumably it is not known who the father is; in any case the marriage is not between the father and mother of the child.'

According to this view, the marriage of the first respondent to P. W. 6 would be void and consummation cannot make it valid. Concealment of pregnancy at the time of marriage clearly amounts to fraud. Ameer Ali in his treatise on MohamedanLaw. Third Edition, observes:

'Where consent to a contract of marriage has been obtained by force or fraud, such a marriage is invalid unless ratified after the coercion has ceased or the duress has been removed, or when the consenting party, being undeceived, has continued the assent.'

The above passage has been cited with approval in ILR 31 All 343. Tyabji further stated at p. 105:

'A contract of marriage brought about fraudulently is void. No mahr will be due unless the marriage has subsequently been a filled by consummation or otherwise.'

Mulla also adopts the same view. At page 237 of his Commentary on the principles of Mohamedan Law, 14th Edition, it is observed:

'A void marriage is no marriage at all. It does not create any civil, rights or obligations between the parties. The off springs of a void marriage are illegitimate.'

The evidence in the case is that, as soon as P. W. 6 became aware that his wife was pregnant at the time of the marriage, he turned her out of the house. Thus, when the fraud became known, he ceased to be a consenting party to the same.

6. So far as this ease is concerned, the question is whether the marriage can be treated as a valid one for the application of Section 112 of the Evidence Act. In view of the opinion of the learned commentators extracted above. I am inclined totake the view that there is no valid marriage in this case so as to attract the presumption under Section 112 of the Evidence Act.

7. The second question is whether the court was justified in granting maintenance to the second respondent on the uncorroborated evidence of the first respondent. Learned counsel for the revision petitioner relied on the decisions in Vedantachari v. Marie, AIR 1926 Mad 1130 and Thakur Prasad v. Mt. Godavari Devi, AIR 1951 Pat 514. It is held is these cases, that it is prima facie improper to accept without corroboration the mere statements on oath of the mother who asserted the paternity of the child as her evidence could not but be highly interested, and that there was need for some corroboration. In the latter case, Ramaswamy J., further points out that

'It would be in a high degree dangerous to attempt to formulate the kind of evidence which would he recorded as corroboration except to say that corroborative evidence was evidence which shows or tends to show that the woman's story was true.'

The learned Magistrate relied on several circumstances as corroborating the first respondent's case, such as that the first respondent was residing, as a domestic servant in the house of the petitioner for two years preceding her marriage to P. W. 6 and that the petitioner took an interest in getting her married. He also refers to the fact that the petitioner did not care to duty on oath the averments in the application. It may be observed in this connection that the petitioner denied in his written statement the allegation that the first respondent was a servant in his house, but this fact stands proved by the evidence of a number of witnesses. It cannot be said that there is no evidence corroborating the first respondent's evidence. The question is whether in those circumstances the revisional court should interfere. It may be that, if the matter had come before me in the first instance, I may have come to another conclusion on the evidence, but that is no reason to interfere with the order of the learned Magistrate, in revision. The proceedings under Section 488 arc of a summary nature and it is open for the petitioner to seek declaration from the civil court that he is not the father of the child. I therefore decline to interfere in revision.

The criminal revision petition is dismissed.


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