Hindu Woman Married Under Muslim Rites Entitled To Interim Maintenance Till Marriage Declared Void: Calcutta High Court

The Calcutta High Court has held that a Muslim man cannot evade payment of maintenance to a Hindu woman who married him after allegedly converting to Islam merely by disputing the validity of the marriage, so long as the marriage has not been declared void by a competent court.Justice Chaitali Chatterjee Das restored an interim maintenance order in favour of a woman and her minor son, observing that depriving them of maintenance at a preliminary stage despite prima facie proof of marriage and paternity would amount to “gross illegality.”The Court observed: “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.”BackgroundThe petitioner, Bonoshree Hazra alias Bonoshree Hazra Mollah, claimed that she had married the respondent, a Sub-Inspector of Police, according to Muslim rites and customs after converting to Islam. The marriage was allegedly registered before a Muslim Marriage Registrar and Kazi at Asansol in August 2016.A male child was born from the wedlock in January 2017.According to the petitioner, she was subjected to cruelty and threats by the respondent, who later deserted her and their child in February 2018. She subsequently filed proceedings under Section 125 CrPC seeking maintenance.The Judicial Magistrate, Asansol, granted interim maintenance of Rs. 5,000 per month to the woman and Rs. 4,000 per month to the minor child in March 2023.However, the Additional Sessions Judge, Asansol, later set aside the interim maintenance order on the ground that the respondent had disputed both the marriage and the paternity of the child. The revisional court also noted that the petitioner continued to describe herself as “Bonoshree Hazra” instead of using a Muslim name, and doubted the validity of the alleged conversion and marriage.Aggrieved, the petitioner moved the High Court.Court's FindingsThe High Court found that the revisional court had erred in treating the issue as conclusively determined at the interim stage.The Court noted that the petitioner had produced a marriage certificate bearing signatures and photographs of both parties, along with the child's birth certificate naming the respondent as the father. It also took note of the fact that a chargesheet had been filed against the respondent in proceedings initiated under Section 498A IPC, where no dispute regarding the marriage had surfaced.Relying on the Supreme Court's decisions in Chand Patel v. Bismilla Begum and Mohammed Salim v. Shamsudeen, the Court reiterated that under Hanafi Muslim law, a marriage between a Muslim man and a Hindu woman is considered “irregular” (fasid) and not void (batil).Justice Das observed that such an irregular marriage continues to subsist unless declared void by a competent court, and during that period, the wife and children are entitled to maintenance under Section 125 CrPC.The Court further held that merely because the petitioner continued to use her earlier Hindu name in the cause title could not be a ground to deny interim maintenance.The judgment stated: “The learned revisional court failed to apply his judicial mind and did not consider the law laid down regarding maintenance and only on mere technicalities passed such order which practically frustrate the object of enacting the provision for social justice specially to women and children.”The Court also referred to the Supreme Court ruling in Dwarika Prasad Satpathy v. Bidyut Prava Dixit, reiterating that proceedings under Section 125 CrPC are summary in nature and the standard of proof for establishing marriage is not as strict as in criminal prosecution for bigamy.Allowing the criminal revision petition, the High Court set aside the revisional court's order and restored the Magistrate's direction granting interim maintenance to the petitioner and her minor son.The respondent was directed to continue payment of interim maintenance in terms of the Magistrate's order, while the trial court was asked to expedite the proceedings.Case Title: Bonoshree Hazra @ Mollah v. State of West Bengal & Anr.Case No.: CRR 1163 of 2024Click here to read order

Hindu Woman Married Under Muslim Rites Entitled To Interim Maintenance Till Marriage Declared Void: Calcutta High Court

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Hindu Woman Married Under Muslim Rites Entitled To Interim Maintenance Till Marriage Declared Void: Calcutta High Court

Srinjoy Das

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