Sanchayita Lahkar

The Gauhati High Court, Single Bench of Justice Pranjal Das set aside the Family Court’s order directing monthly maintenance, after finding that the respondent’s earlier marriage had not been shown to have been lawfully dissolved. The dispute arose from a maintenance claim in which the respondent asserted a marital relationship with the petitioner, while the petitioner contested her status as a legally wedded wife on the basis of her prior marriage. The Court held that a marriage cannot be dissolved through a notarised affidavit and, in the absence of material indicating recourse to the Dissolution of Muslim Marriages Act, 1939, a divorce claim resting only on such an affidavit could not be accepted.

The petitioner alleged that the marriage was solemnised under Islamic law and that she had cohabited with the petitioner at his residence, from where she was later driven out after alleged ill-treatment and monetary demands. She claimed inability to maintain herself and sought monthly maintenance.

Also Read: Waqf Tribunal Jurisdiction Confined To Properties In List Of Auqaf Or Registered Under Waqf Act; Supreme Court

The respondent contested the claim, denying the marital relationship and asserting that the respondent was previously married to another person. He disputed her financial incapacity and denied the allegations of cruelty. During trial, the respondent examined herself and one other witness, while the petitioner examined himself. The Family Court accepted the respondent’s version and directed the petitioner to pay monthly maintenance.

Aggrieved, the petitioner invoked the revisional jurisdiction of the High Court, contending that the respondent had admitted a subsisting prior marriage and had failed to prove its lawful dissolution. The revision questioned the legality of treating the respondent as a “wife” for the purpose of maintenance under Section 125 Cr.P.C.

The Court recorded that “the primary contention of the petitioner side is questioning the existence of the marriage between the parties and denying the status of the respondent as the wife of the petitioner.” It noted that while strict proof of marriage is not required in proceedings under Section 125 Cr.P.C., the claimant must still establish marital status by the applicable standard.

Referring to settled law, the Court observed that “it is well settled that strict proof of marriage is not necessary for granting maintenance under Section 125 Cr.P.C.” and that even a divorced woman may seek maintenance if she satisfies the statutory conditions.

On the documentary aspect, the Court observed that “Needless to say that a marriage cannot be dissolved by way of an affidavit made before the Notary. There is also no material to indicate that the respondent invoked the provisions of - Dissolution of Muslim Marriages Act, 1939 - for dissolving her marital tie with the said Manik Ali. Rather, she has mentioned about dissolving her marital tie with Manik Ali from her side and in support of the same, merely stated about submitting a copy of the affidavit, while retaining the original.”

The Court further stated that “Thus, the earlier marriage of the respondent with Manik Ali is an admitted position. However, during the proceeding before the learned Court below, the respondent could not adduce sufficient evidence in support, to show that the said marriage with Manik Ali has been lawfully dissolved and that she is no longer his legally wedded wife.”

The Court clarified: “Reference to the affidavit in her cross-examination and about submitting a copy of the affidavit in the maintenance proceeding - would not constitute sufficient proof of dissolution of her earlier marriage - so as to confer any status of wife of the present petitioner, even if it is accepted that she had married the present petitioner. In any case, as already stated, any such affidavit sworn by the respondent before Notary Public would not constitute legally acceptable dissolution of the marriage.”

The Court concluded: “Perhaps the learned Family Court erred in overlooking this aspect of the matter and in accepting the marital status of the respondent, as wife of the petitioner.”

Also Read: Writ Jurisdiction Under Article 226 Confined To Reviewing Decision-Making Process, Not Merits: Gauhati High Court Refuses To Interfere With PDS Licence Cancellation

The Court recorded that “the respondent could not have claimed maintenance from the petitioner as his legally wedded wife and therefore, she cannot be granted maintenance from the side of the petitioner. The impugned judgment and order dated 17.03.2025, passed by the learned Principal Judge, Family Court, Barpeta, is hereby set aside and quashed. The instant criminal revision petition stands allowed and disposed of on the aforesaid terms.”

Advocates Representing the Parties

For the Petitioner: Mr. S. C. Biswas, Advocate; Mr. N. Uddin Mollah, Advocate; Mr. B. Kalita, Advocate; Ms. S. Chanda, Advocate; Mr. F. A. Hassan, Advocate

For the Respondent: Mr. A. Roshid, Advocate; Ms. T. Begum, Advocate

Case Title: Xx Vs Yy
Neutral Citation: 2026: GAU-AS:617
Case Number: Crl.Rev.P./212/2025
Bench: Justice Pranjal Das