Holding

A Muslim marriage is not void merely because the wife is pregnant; it can be challenged only if the husband proves concealment, which is not possible when the pregnancy is evident, thus the marriage is valid and the husband is liable for maintenance.

Summary

Amina married Hassn Koya on 28 December 1972 while she was five months pregnant. The husband later claimed that the pregnancy had been concealed, rendering the Muslim marriage void and absolving him of maintenance liability under Section 125 of the Criminal Procedure Code. The trial magistrate held the marriage valid and ordered maintenance to the wife, but not to the child. The Additional Sessions Judge and the Kerala High Court reversed, declaring the marriage void and dismissing the maintenance claim. The Supreme Court examined whether a Muslim marriage can be invalidated on the ground of a concealed pregnancy and held that concealment must be proved, which is impossible when the pregnancy is evident; the husband’s conduct after marriage showed his knowledge of the pregnancy. Consequently, the marriage was deemed valid and the husband liable for maintenance, and the appeal was allowed.

Issues considered

Whether a Muslim marriage is void if the wife is pregnant at the time of marriage and the pregnancy is alleged to have been concealed.
Whether the husband can avoid liability under Section 125 CrPC by claiming the marriage was invalid on that ground.
Whether the husband's conduct after the marriage negates the claim of concealment.

Legislation cited

Code of Criminal Procedure, 1973s. 125

Subjects

Muslim marriageconcealment of pregnancyvoid marriagemaintenance under Section 125 CrPCvalidity of marriagedower

Judgment

AMINA A
v.
HASSN KOYA

APRIL 28, 2003

[M.B. SHAH AND ARUN KUMAR, JJ. ) B

Criminal Procedure Code, 1973-Section 125-Maintenance-Liability-
Husband pleading concealment of pregnancy of wife at the time of marriage
thus marriage invalid and husband not liable to pay maintenance-However, C
husband attended wife at the time of the delivery, gave his own name as father
of the child and for four years brought up the child-On appeal, held: five
months pregnant wife cannot conceal pregnancy from husband thus husband
cannot raise such plea-Also the husband's behaviour after the marriage not
supporting his plea-Hence marriage valid and husband liable to pay
maintenance. D
According to the respondent-husband, four months after his marriage
to appellant-wife a girl child was born to her. After four years respondent
divorced the appellant. Appellant then filed a petition under Section 125
of Cr.P.C. seeking maintenance for herself and her daughter. Respondent
admitted the factum of the marriage, however, contended that the appellant E
concealed pregnancy at the time of marriage, therefore, the marriage was
invalid and void; and that the child was not born to the appellant through
him and so he was not liable to pay maintenance. Magistrat~ held the
marriage valid and directed payment of maintenance by the respondent
to the appellant. However, the child was not granted maintenance as she F
was believed to be not fathered by respondent. Addi. Sessions Judge held
the marriage to be invalid, and that there was no obligation to pay any
maintenance. High Court confirmed the finding of Addi. Sessions Judge.
Hence the present appeal.

Allowing the appeal, the Court G

HELD: 1..1. It is settled law that under the Muslim Law a marriage
is a contract unlike the Hindu Law, where it is a sacrament. The respondent
pleaded a case that he was not aware of the fact that the appellant was
pregnant at the time of marriage and as this fact was concealed by the H
999
1000 SUPREME COURT REPORTS [2003 I 3 S.C.R.

A appellant from him, it rendered the contract of marriage as void. Both the
courts below, believed the respondent on this aspect which led them to hold
that the marriage was void and illegal. This is a basic fallacy in the
judgment.of the courts below. It is very difficult to believe that a woman
who is five months pregnant will be able to conceal the pregnancy from
B the husband. Such an advanced stage of pregnancy cannot be concealed
as the pregnancy starts showing by that time. 11002-G, H; 1003-A, Bl

1.2. Validity of a Muslim marriage on the ground that wife was
already pregnant can be challenged by the husband only if he can establish
that the factum of pregnancy was concealed from him at the time of
C marriage. In the present case, it is not possible to hold that factum of
pregnancy was concealed from the husband by the wife at the time of
marriage. Therefore, the marriage cannot be said to be invalid.
11004-D, El

1.3. Respondent went through the marriage and did not raise any
D objection even after the marriage. He was present at the time of delivery
of the child. He gave his own name as the name of the father of the child
for the official record and also for four years he brought up the child while
treating appellant as his wife. Thereafter, he divorced his wife. Any normal
reasonable person who learns that his newly married wife is already
E pregnant for five months and who does not acc.ept that marriage or
pregnancy, will not behave in the manner in which respondent did. Such
person would have immediately turned out the wife from his house on
coming to know of the fact of pregnancy. 11003-C, El

1.4. In the facts and circumstances of the instant case, the impugned
F judgment of the Addi. Sessions Judge, as well as of the High Court based ·
on a finding that pregnancy was concealed by the appellant from the
L
husband at the time of marriage, thus marriage is invalid and void and
also there was no liability on the part of the respondent-husband to pay
maintenance to the appellant-husband, is wholly unwarranted, incorrect
G and unacceptable. The respondent was fully aware of the pregnancy of the
appellant at the time of the marriage and, therefore, cannot take a plea
that the marriage was invalid or void for that reason and thus not liable
to pay maintenance. 11004-B, q

Abdullah v. Beepathu, ILR [19671 Vol. I Kerala 361, approved.
H
AMINA v. HASSN KOYA [ARUN KUMAR . .1.J 1001

Kulsumbi Kam Abdul Kadir v. Abdul Kadir walad Saikh Ahmad, (ILR) A
1921 Vol. XLV Born 151, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
635 of 2003.

From the Judgment and Order dated 31.5.1985 of the Kerala High B
Court in Crl. R.P. No. 278/81 and Crl. M.C. No. 518 of 1981.

M.K. Sasidharan and G. Prakash for the Appellant.

E.M.S. Anam for the Respondents.
c
The Judgment of the Court was delivered by

ARUN KUMAR, J. Leave granted.

We have heard the learned counsel for the parties at length. The appellant
was married to respondent on 28.12.1972. As per the respondent's case a girl D
child was born to the appellant on 28.4.1973/3.5.1973. Respondent divorced
llf the appellant on 2.5.1977. The appellant filed a petition on 14.12.1977 under
Section 125 of the Code of Criminal Procedure seeking maintenance for
herself at the rate of Rs. 150 per month and for the daughter at the rate of
Rs. 125 per month. In reply to the petition the respondent admitted the
factum of the marriage, however, he set up a case that the fact that the E
appellant was already pregnant at the time of marriage, was concealed from
him by the appellant, the marriage was therefore, invalid and void. As such
he was not liable to pay maintenance. It was further submitted that the child
was not born to the appellant through the respondent and, therefore, the
respondent had no obligation to pay any maintenance qua the child. The F
learned Magistrate, 1st Class, Quinlandy held that the marriage was valid
and, therefore, he directed payment of maintenance at the rate of Rs. 75 per
month by the respondent to the appellant. No maintenance was allowed for
the child because the child w~s believed to be not fathered by respondent.
This order was passed on 9th February, 1979. Both the parties challenge the
said decision of the Magistrate to the extent it was against them. The Addi. G
Sessions Judge, Kozhikode by his order dated 5 November, 1980 allowed the
revision petition filed by the respondent (husband) and dismissed the revision
petition filed by the appellant. The marriage was held to be invalid by the
Addi. Sessions Judge, Kozhikode Division and that was the main reason for
accepting the revision filed by the husband. Since the marriage was held to H
1002 SUPREME COURT REPORTS [2003 J 3 S.CR.

A be invalid it followed thauhere was no obligation to pay any maintenance.
The High Court of Kera la dismissed the revision petition filed by the appellant
against the order of the Addi. Sessions Judge, confirming the finding that the
marriage was void. Hence the present appeal.
•
The basic question for consideration before this Court is whether there
B was a valid marriage between the parties? In this connection it is to be noted
that the factum of marriage is admitted. This means that the marriage took
place between the parties on 28.12.1972. It is respondent's own case that a
girl child was born to the appellant on 28.4.1973/3.5.1973. The appellant
appeared as a witness as P.W. I. The respondent also appeared as a witness.
C He admitted the marriage, but submitted that the marriage was invalid and
void because the lady was pregnant, which fact was concealed from him at
the time of marriage. In support of his case that the appellant was five
months pregnant on the date of the marriage he produced on record Exhibits
DI and D3(a) showing that appellant gave birth to a girl child. According to
Exhibit 01 a girl child was born to Amina-appellant on 3.5.1973. The names

-
D of parents are given as that of the appellant and the respondent in Exhibit D 1
while the name of the girl child is given as Soudha which is admittedly the
name of the girl child in this case. The evidence of the doctor who performed
the delivery shows that the respondent had attended on his wife in the hospital
when the appellant delivered the girl child. Exhibit D3(a) is the entry in the
E official register regarding the birth of the girl, child. By producing this evidence
though the n:spondent succeeded in proving that a child was born to the
appellant on 3.5.1973, he revealed another fact. Exhibit 01 proves that the
name of the respondent is mentioned as father of the girl child arid the
evidence of the doctor as P. W. 6 shows that the respondent was attending on·
Amina, the appellant, at the time of her delivery. The name of the respondent
F as father of the child must have been given for purposes of official record by
the responded himself.

The legal question that arises for consideration is whether such a
marriage can be said to be void or illegal. It is settled law that under the
Muslim Law a marriage is a contract unlike the Hindu Law, where it is a
G sacrament. The respondent pleaded a case that he was not aware of the fact
that the appellant was pregnant at the time of marriage and as this fact was
concealed by the appellant from him, it rendered the contract of marriage as
void. Both the courts below i.e. the lower appellate Court and the High Court
believed the respondent on this aspect which led them to hold that the marriage
H was void and illegal. In our view, this is a basic fallacy in the judgment of
AMINA v. HASSN KOY A [ARUN KUMAR, J.] 1003
the courts below. They accepted that respondent was not aware of pregnancy A
at the time of marriage. This resulted in the finding that the marriage was
invalid. We are unable to accept this reasoning. It is very difficult to believe·
that a woman who is five months pregnant will be able to conceal the
pregnancy from the husband. Such an advanced stage of pregnancy cannot
be concealed as the pregnancy starts showing by that time. In any case the B
pregnancy cannot be concealed from the husband. A husband will at least
know for sure that the wife is pregnant specially when the pregnancy is five
months old. Therefore we cannot accept that the respondent did not know at
the time of marriage that the appellant was already pregnant. If this fact was
known to the respondent, the marriage cannot be said to be illegal or void.

Next we have to notice the conduct of the respondent at the relevant
c
time. He goes through the marriage. He does not raise any objection even
after the marriage. He is present at the time of delivery of the child. Presumably
he give his own name as the name of the father of the child for the official
record. Even thereafter for nearly four years he goes along with the marriage
and brings up the child while treating appellant as his wife. The divorce is D
said to have been given on 2nd May, 1977. Any person who learns that his
newly married wife is already pregnant for five months and who does not
accept that marriage or pregnancy, will not behave in the manner in which
respondent did. If we believe the respondent that he did not know about the
pregnancy of the appellant at the time of marriage, how can we accept his E
conduct after the marriage? If what respondent is saying is true, a normal
reasonable person would have immediately turned out the wife from his
house on coming to know of the fact of pregnancy. Nobody will continue
with such a marriage for four and half years, specially when a child is born
just after four months of the marriage. Respondent says that the child is not
his yet he gives his name to the child and continues to bring up the child for F
nearly four years after she was born. When it comes to the question of paying
maintenance he says the marriage was invalid and the child is not his.

Our attention has been invited to the case of Kulsumbi Korn Abdul
Kadir v. Abdul Kadir walad Saikh Ahmad, reported in !LR (1921) Vol. XLV
Born 151. This was also a case of marriage of a pregnant woman. G
Consummation of marriage was not in dispute. However, the husband turned
out the wife on her pregnancy coming to his knowledge. The wife sued for
dower. It was held that concealment of pregnancy by the wife at the time of
marriage did not render the marriage invalid, therefore, the husband was held
to be liable to pay dower. H
1004 SUPREME COURT REPORTS (2003] 3 S.C.R.

A Thus in the facts of the present case we are unable to accept the view
taken by the courts below that the fact of pregnancy was concealed by the
appellant from the respondent at the time of marriage and for that reason the
marriage of the parties was invalid and void, and, therefore, there was no
liability on the part of the respondent-husband to pay maintenance to the
B appellant. The impugned judgment of the Addi. Sessions Judge, Kozhikode
as well as of the High Court of Kerala are based on a finding that pregnancy
was concealed by the appellant from the husband which rendered the marriage
invalid and void. In our view, such a finding is wholly unwarranted, incorrect
and unacceptable. In the facts of the present case as discussed above, it has
to be held that the respondent was fully aware of the pregnancy of the
C appellant at the time of the marriage and, therefore, he cannot be heard to say
that the marriage was invalid or void for that reason. The Addi. Sessions
Judge had relied on a judgment of the Kerala High Court in the case of
Abdullah v. Beepalhu, reported in ILR (1967) Vol.I Kerala 361 wherein it
was held that pregnancy of the bride at the time of marriage ipso fac/o
invalidates marriage unless the bride proves that this fact was within the
D knowledge of the bridegroom at the time of marriage. In our view, this
decision in fact, supports the view taken by us in the present judgment. As
per our finding the facts on record show that the husband was aware of the
pregnancy of the wife at the time of the marriage. Therefore, as per this
judgment such a marriage cannot be said to be invalid.
E
The appeal is allowed. The judgment of the Addi. Sessions Judge,
Kozhikode and that of the High Court of Kera la, are set aside and that of the
Judicial Magistrate, Ist Class, Quilandy dated 9th February, 1979 is restored.
The appellant will be entitled to costs throughout. Libe1ty to the appellant to
seek enhancement of the rate of maintenance in accordance with law.
F
N.J. Appeal allowed.