Muslim Man Liable To Pay Maintenance To Wife Until Marriage Declared Void: Calcutta High Court Grants Relief to Hindu Woman

The petitioner had filed the petition before the High Court assailing an order passed by the Additional Sessions Judge in a criminal revisional application reversing an order of ad interim maintenance, granted by the Magistrate.

The Single Bench of Justice Chaitali Chatterjee Das held, “So for a moment it is considered that the lady did not convert herself but entered into a marriage tie with a Muslim person which is not a valid marriage in the eye of law. In such situation whether the lady would get the maintenance under section 125 CrPC or not? Therefore it is necessary to see the law laid down in this regard .In the case of Chand Patel vs Bismilla Begum the petitioner sought for maintenance for herself and her minor daughter under Section 125 Cr.P.C and the marriage was disputed by the husband asserting that no such union occurred and the marriage with the appellant’s first wife’s sister which results in a case of unlawful conjunction. The Hon’ble Supreme Court upheld the decision passed by the learned court below with the observation that unlawful marriage would still subsist and the Muslim man is liable to pay maintenance to his wife until his marriage is declared void by a competent court.”

Advocate Amitabha Ghosh represented the Appellant while Advocate Saibal Kr. Mandal represented the Respondent.

Factual Background

The petitioner, a hindu lady got married with the opposite party according to the muslim rites and customs and she converted to Islam. The said marriage was registered before Muslim Marriage Registrar and Kazi. A male child was born out of the said wedlock. The petitioner alleged that she was subjected to torture by the opposite party and was also threatened to be implicated in a false case if any complaint was lodged by her against him. In 2018, it was claimed that the opposite party left the home and he refused to leave with her and deserted them.

The petitioner was informed by the concerned authority that the income of the opposite party was more than Rs. 75,000 per month, and he was working as Sub-Inspector. The petitioner filed an application claiming maintenance under Section 125 Cr.P.C before the Additional Chief Judicial Magistrate The petitioner filed a writ petition where a direction was given to the Superintendent of police, to constitute a team for investigation. The petitioner had to file another writ petition after receiving a threat. The Judicial Magistrate allowed the interim maintenance to the tune of Rs 5000 per month for herself and Rs 4000 for the minor son. The Opposite Party, being aggrieved thereby, filed a revisional application and by the order impugned, the order of maintenance was set aside, directing the matter to be heard afresh.

Reasoning

The Bench referred to the judgment in Chand Patel vs Bismilla Begum (2008) wherein the Apex Court observed that the Muslim man is liable to pay maintenance to his wife until his marriage is declared void by a competent court.

The Bench explained that in terms of Section 125 CrPC a legally married wife, even after divorce and till she is remarried, is entitled to claim maintenance. The Bench noted the admitted fact that the petitioner in the cause title did not put her name after conversion to Islam, but before the court, she affirmed her name in the affidavit. “The order of the learned Magistrate was an interim order which was set aside by the revisional court only on the pretext that she did not put her name after conversion .The dispute raised by the opposite party can only be decided at the time of evidence and also by the outcome of the civil suit filed by the opposite party but prior to that depriving a woman or the minor child from the order of maintenance when prima facie proof of marriage and the fact of the opposite party being the father was shown by the petitioner, is gross illegality”, it added.

The Bench was of the view that when the wife could show a marriage registration certificate and the birth certificate of the child, the opposite party could not rebut the same by producing any cogent evidence, and except for mere denial, there was no room left to discard the same at the preliminary stage.

Thus, upholding the order of the Magistrate granting maintenance, the Bench allowed the Revision.

Cause Title: A v. The State Of West Bengal & Anr. (Neutral Citation:2026:CHC-AS:751)

Appearance

Petitioner: Advocates Amitabha Ghosh, Arpita Paul Biswas

Opposite Party: Advocates Saibal Kr. Mandal, Sonali Ghosh, Arpayan Mukherjee

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