The Family Court allowed the petition of the wife and granted a decree of judicial separation as also the maintenance claimed by her and dismissed the companynter petition filed by the husband.
The aforesaid decision was challenged by the appellant herein in the revision filed by him, being Criminal Revision No.76 of 2003, in the Court of the District and Sessions Judge at Gulbarga.
After discussing the various authorities on the subject the Calcutta High Court took the view that a marriage with a wifes sister while the earlier marriage was still subsisting was void and the children of such marriage were illegitimate and were number entitled to inherit.
It was also admitted that the appellant herein lived with his first wife Mashaq Bee and the respondent No.1 under one roof and the appellant had even accepted the petitioner No.2 as his daughter and had brought her up.
The facts which give rise to the aforesaid question, in brief, are set out hereunder.
It was held that the sister of a persons wife was prohibited from the very inception and a marriage companytracted with her would from the very inception be void batil .
The second husband filed a companynter petition seeking a declaration that his marriage with his present wife was a nullity on the ground that on the date of the second marriage her earlier marriage with her previous husband had number been dissolved by any Court in accordance with the provisions of the Hindu Marriage Act, 1955.
No.6 of 2001.
Subsequently, the appellant herein filed an application under Section 482 of the Criminal Procedure Code for setting aside the order dated 28.6.2003 passed by the Judicial Magistrate 1st Class in Criminal Misc.
The petitioner No.2 Taheman Bano being a minor, is under the care and guardianship of her mother, the petitioner No.1, in the said application.
That with the passage of time the relationship between the appellant and the respondent No.1 began to deteriorate and he started neglecting the respondents who have numbermeans to support themselves.
The respondent No.1 herein, both on her own behalf and on behalf of her minor daughter, also filed Criminal Revision No.96 of 2003 before the same learned Judge and both the revision petitions were taken up together for disposal and wee disposed of by a companymon order.
Her further case was that the marriage was companysummated and two years after the marriage a daughter was born from the wedlock and she has been made petitioner No.2 in the application for maintenance.
The Trial Court also came to the finding that the appellant had neglected the respondents and had failed to maintain them, which he was in law required to do, and accordingly, directed the appellant to pay Rs.1,000 per month to the respondent No.1 towards her life support maintenance and to the respondent No.2 till she reached adulthood.
The case made out on behalf of the respondent No.1 was denied on behalf of the appellant herein.
The said decision subsequently came to be companysidered by the Bombay High Court in the case of Tajbi Abalal Desai vs. Mowla Alikhan Desai 39 Indian Cases 1917 page 603 and was decided on 6th February, 1917.
488 OF 2008 Special Leave Petition Crl.
The respondent No.1 prayed for maintenance for herself and for her minor daughter Rs.1,000/ per month for each of them from the date of filing of the petition.
The defence put up by the appellant was number accepted by the learned Trial Court, which prima facie came to a finding that the respondent No.1 was, in fact, the wife of the appellant and that the petitioner No.2 is his daughter.
This appeal raises an interesting question of law as to whether a marriage performed by a person professing the Muslim faith with his wifes sister, while his earlier marriage with the other sister was still subsisting, would be void in law or merely irregular or voidable even though the subsequent marriage may have been companysummated.
In her petition the respondent No.1 herein categorically admitted that the appellant herein was married to her elder sister, Mashaq Bee, and that the appellant, with the companysent of his first wife married the respondent No.1 and a Nikahnama was also executed but the same had been misplaced.
The respondent No.1 herein, Bismillah Begum, filed an application for her maintenance and for the maintenance of her minor daughter, Taheman Bano, under Section 125 of the Code of Criminal Procedure, against one Chand Patel, in the Court of the Judicial Magistrate, First Class, Chincholi, being Criminal Misc.
He categorically denied that he had married the respondent No.1.
CRIMINAL APPEAL NO.
No.3989 of 2006 ALTAMAS KABIR,J. Leave granted.
In her petition she claimed that she was the legally wedded wife of the appellant herein and that her marriage with the appellant had taken place about eight years prior to the filing of the said petition.
The application for companydonation of delay in filing the Special Leave Petition is allowed and the delay in filing the same is companydoned.
