AMINA versus HASSN KOYA

Citation: [2003] 3 S.C.R. 999 · Decided: 28-04-2003 · Supreme Court of India · Bench: M.B. SHAH · Disposal: Appeal(s) allowed

Judgment (excerpt)

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. 
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 
D 
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 
HELD: 1..1. It is settled law that under the Muslim Law a marriage 
G 
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 
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 
H 
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. 
L 
llf 
AMINA v. HASSN KOYA [ARUN KUMA

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