BONOSREE HAZRA @ MOLLAH vs STATE OF WEST BENGAL AND ANR

IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:-
HON’BLE JUSTICE CHAITALI CHATTERJEE DAS.
CRR 1163 OF 2024
BONOSHREE HAZRA @ MOLLAH
VS.
THE STATE OF WEST BENGAL & ANR.

For the Petitioner : Mr. Amitabha Ghosh, Adv.
Ms. Arpita Paul Biswas, Adv.

For the Opposite Party : Mr. Saibal Kr. Mandal, Adv.
Ms. Sonali Ghosh, Adv.
Mr. Arpayan Mukherjee, Adv.

Last heard on : 07.05.2026
Judgement on : 18.05.2026
Uploaded on : 18.05.2026


CHAITALI CHATTERJEE DAS, J. :-

1. The petitioner has assailed by filing this application under Section 397/401
read with Section 482 Cr.P.C, an order dated 12.2.2024 passed by the Learned
rd
Additional Sessions Judge, 3 Court, Asansol, Paschim Bardhhaman, in
criminal revisional application reversing an order of ad interim maintenance,
granted by the Learned Magistrate.
Page 1 of 12

Fact of the case
2. The petitioner was a Hindu Lady, and got married with the Opposite party with
whom she had a love affair according to the Muslim Rites and Customs being
converted to Islam. The said Marriage was registered before Muslim Marriage
Registrar and Kazi at Asansol on 12.8.2016 at the City Residency at N.H 2,
G.T Road ,Ningha ,Post office Ningha ,Police Station Jamuria ,District Paschim
Bardhaman and a delmohar was also fixed . A male child was born out of the
said wedlock on 20.1.2017 namely Akhsay Mollah at Central Nursing Home,
Apcar Garden, Asansol. After solemnization of the marriage they used to reside
at the quarter of Opposite Party at MMC Colony.
3. It is the further case of the petitioner that she was subjected to torture by the
opposite party and also threatened her to be implicated in a false case if any
complaint is lodged by her against him. On 13.2.2018 all of a sudden the
opposite party left the home and never returned back and on asking from his
superior officer she came to learn that he was on leave for three days. After
that he refused to leave with her and deserted them.

4. The petitioner was informed by the concerned authority on 8.9.2023 that the
current income of the opposite party is more than Rs. 75,000/- per month and
he is working as Sub-Inspector but the petitioner or her child was not paid any
maintenance. Having no other alternative she filed an application claiming
maintenance under Section 125 Cr.P.C before the Additional Chief Judicial
Magistrate ,Asansol which was transferred to the Learned Judicial Magistrate,
nd
2 Court ,Asansol .The Opposite Party no. 2 appeared on 23.7.2019
Page 2 of 12

challenging the marriage itself and also the paternity of the child however he
never filed his Affidavit of Asset and liability .The petitioner filed a writ petition
being WPA 16128 of 2022 where direction was given to the Superintendent of
police, Hooghly to constitute a team for investigation.
5. The petitioner had to file another writ petition after receiving threat, being
WPA 22479 of 2022 and on 2.5.2023 liberty was given to her to file appropriate
nd
complaint with the Arambag Police Station. The learned Judicial Magistrate 2
Court Asansol, Paschim Bardhhaman on 14.3.203 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 the
revisional application and by the order impugned the order of maintenance
was set aside directing the matter to be heard afresh.
Submission
6. The Learned Advocate representing the petitioner submits that the petitioner
filed the marriage certificate and the birth certificate which bears the name of
the Opposite Party. That apart she lodged the complaint against him under
Section 498A /323/406/506 IPC and after investigation the charge sheet was
submitted against him which prima facie proves that she is the married wife of
the Opposite Party no. 2 and the learned Judicial Magistrate rightly passed the
order granting interim maintenance which has been set aside by the Learned
Revisional Court merely on the basis of the submission made by the Opposite
Party no. 2 that there was no marriage. It is further submitted that initially no
suit for declaration was filed by the Opposite party for declaring the marriage
as null and void but after the point was raised by the petitioner he filed the
Page 3 of 12

suit .Therefore the petitioner established her prima facie case on the basis of
which the Learned Magistrate passed the interim order which was set aside by
the revisional court without adhering to the law laid down in this regard and
accordingly prayed for dismissal of the order passed by the learned Revisional
Court. It is further argued that the Learned Magistrate rightly passed the
interim maintenance pending the report of DNA test which has been reversed.
The Learned Advocate relied upon the decision of the Hon’ble Supreme Court
1
in Sukhdev Singh vs Sukhbir Kaur .
7. Per contra the learned Advocate of the opposite party strenuously argued that
there was no marriage with the petitioner and the conversion as stated by her
is out and out a false statement. It is further submitted that since the Opposite
Party denied the paternity of the child he prayed for DNA test and on consent
of the parties such prayer was allowed and the test was done but no report is
received as yet. The opposite party filed an application for vacating the interim
order before this court which is to be treated as the affidavit in opposition to
the petition filed by the petitioner. The learned Advocate relied upon the
decision of Smt. Sarla Mudgal, President,Kalyani and Ors vs Union of
2
India & ors. where the Hon’ble Supreme Court discussed void marriage.
Accordingly prayed for dismissal of the revisional application.
Analysis
8. Heard the Submission. The dispute emanated from the order passed by the
learned Revisional Court where by the interim maintenance order as passed by

1
2025 INSC 197
2
AIR 1995 Supreme Court 1531
Page 4 of 12

the learned Magistrate is set aside. The proceeding was initiated by the
petitioner claiming to be the wife of the opposite party who is claimed to be the
father of the minor child. The Learned Revisional court considered that the
petitioner preferred to represent herself as Banashree Hazra in the cause title
and the petitioner did not pray for an amendment and held she is not a
Muslim Lady. Considering this gross discrepancy the Learned Court doubted
the case made out by the petitioner since the marital relation and the paternity
of the child is denied and accordingly set aside such order of maintenance. 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
3
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 .It was held that-
“10. While referring to various decisions of
different High Court, the revisional court relied to
a large extent on a decision of this court Nanak

3
(2008) 4 SCC 774
Page 5 of 12

Chand v. Chandra Kishore Aggarwal in which it
was, inter Alia, held that section 488 of the old
Code which corresponds to section 125 of the
new Code is applicable to all persons belonging
to all religions and has no relationship to the
personal laws of the parties.
xxxxxxxxx
23.
The answer to the question, which we are
called upon to answer in this case, will depend
on the legal status of the union effected by the
appellant with respondent 1. Though the factum
of marriage between them was denied by the
appellant, the courts below negated the
appellant’s case and proceeded on the basis that
a marriage had been performed between them. If
the marriage which was said to have been
performed between the appellant and
respondent 1 is held to be void then, in such
event, respondent 1 will not be entitled to
maintenance from the appellant under section
125 CrPC. If, on the other hand, the marriage is
held to be irregular, then the marriage, will
subsist for all purpose, unless declared to be
void by a competent court. Till such a declaration
is made, along with the respondent 2,
respondent 1 also will also be entitled to
maintenance under section 125 Cr.PC.
Xxxxxxx
32. The answer to the question raised at the very
outset, therefore, is that the bar of unlawful
Page 6 of 12

conjunction renders a marriage irregular and not
void. Consequently, under the Hanafi law as far
as Muslims in India are concerned, and irregular
marriage continues to subsist till terminated in
accordance with law and the wife and the
children of such marriage would be entitled to
maintenance under the provisions of section 125
of the Code of Criminal Procedure.”
9. In the case of Mohammed Salim (d) through lrs. & ors. vs Shamsudeen (d)
4
through Lrs. & Ors. it was held that under Muslim Law, there are three
types of marriage valid, irregular and void. A marriage between Muslim man
and a Hindu lady is only irregular (fasid) and not void (batil) .Children born
from such marriage are legitimate and entitled to share in the father’s
property. It was held in the said case that ‘the Birth Register extract of the
Plaintiff maintained by the statutory authorities indicates that the plaintiff is
the son and the entry made in such Register, which is a public document,
itself is relevant to resolve the dispute in hand.’ It was further held that-
“ 27. In Syed Ameer Ali’s Mohamedan Law
also, the same principle has been enunciated.
The learned author, while dealing with the issue
of the legitimacy of the children, observed at
page 203 of Vol. II, 5th Edn.:
The subject of invalid marriages, unions that are
merely invalid (fasid) but not void (batil) ab initio
under the Sunni Law, will be dealt with later in
detail, but it may be stated here that the issue of

4
(2019) 4 SCC 130
Page 7 of 12

invalid marriage is without question legitimate
according to all the sects.
For example, if a man were to marry a non-
scriptural woman, the marriage would only be
invalid, for she might at any time adopt Islam or
any other revealed faith, and thus remove the
cause of invalidity. The children of such
marriage, therefore, would be legitimate .
xxxx
29. A.A.A Fyzee at p. 76 of his book Outlines of
th
Muhammadan Law (5 Edn.) reiterates by citing
Mulla that the Nikah of a Muslim Man with an
idolater or fire worshipper is only irregular and
not void .He also refers to Ameer Ali’s proposition
that such marriage would not reflect the
legitimacy of the offspring, and the polytheistic
woman at any time adapt Islam, which would at
once remove the bar and validate the marriage.”
10. In the given case the petitioner filed the marriage certificate where both the
parties signed ,a photograph of both the parties were affixed and the date of
marriage shown as 12.8.2016.The opposite party in his show cause application
stated that one day when he came to Asansol (SOUTH) P.P and by dint of her
ability tried her level best to acquainted herself with the opposite party .At
that time she was informed that the Opposite Party no. 2 is a married man
having a daughter .Therefore primary acquaintance with the lady is admitted
which can only be further enquired at the time of evidence. In the decision of
Page 8 of 12

5
Savitaben Somabhai Bhatiya vs State of Gujarat and Ors. it was held
that even where the parents’ marriage is void the child born out of such union
is entitled to maintenance from the father .The right of child to maintenance
from his father is not affected by the legitimacy arising from a void marriage.
Welfare of the child is of paramount consideration.
11. The decision relied upon by the Learned Advocate deals with Bigamy as
Hindu married male after his conversion to Islam married a Muslim Lady
which was held to be in violation of Rules of a natural Justice and hence is
distinguishable factually with this case.
12. The Opposite Party since appeared before the Learned Magistrate despite
knowing the fact that petitioner is claiming to be the wife did not challenge the
marriage by filing suit immediately but filed it long after. He did not challenge
the signature appearing in the certificate. In terms of Section 125 Cr.P.C a
legally married wife even after divorce and till she is remarried is entitled to
claim maintenance. It is an admitted fact that the petitioner in the cause title
did not put her name after conversion to Islam but before this court she
affirmed the Affidavit as Bonashree Hazre alias Bonoshree Hazra Molla .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

5
(2005) 3 SCC 636
Page 9 of 12

order of maintenance when prima facie proof of marriage and the fact of the
opposite part being the father was shown by the petitioner, is gross illegality.
13. In the case of Dwarika Prasad Satpathy vs Bidyut Parava Dixit and
6
Anr the Hon’ble Court observed-
“In our view validity of the marriage for the
purpose of summary proceeding under section
125 Cr.P.C is to be determined on the basis of
the evidence brought on record by the parties
.The standard of proof of marriage in such
proceeding is not as strict as required in a trial of
offence under section 494 of the I.P.C .If the
claimant in proceedings under section 125 Cr.P.C
succeeds in showing that she and the
respondent have lived together as husband and
wife, the court can presume that they are legally
wedded spouses, and in such situation, the
party who denies the marital status can rebut
the presumption.”
14. Therefore when prima facie the wife could show a marriage registration
certificate and the birth certificate of the child and as of now the opposite party
could not rebut the same by producing any cogent evidence excepting mere
denial, there is no room left to discard the same at the preliminary stage and
therefore the Learned Magistrate rightly passed the order of maintenance. It is
pertinent mention that on the basis of a complaint lodged by the petitioner
against the Opposite Party under Section 498A IPC the I.O. submitted the

6
(1999) 7 SCC 675
Page 10 of 12

charge sheet after completion of investigation, where no dispute can be found
regarding the marriage.
Conclusion
15. Hence in summation of supra this Court is of considered view that 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 and therefore is
liable to be set aside.
16. Accordingly this CRR no. 1163 of 2024 is hereby allowed.
rd
17. The order passed by the Learned Additional Session Judge 3 court,
Asansol, Paschim Bardhhaman passed on 12.2.2024 is hereby set aside .All
connected application stands disposed of.
18. The order of interim maintenance as passed by the Learned Magistrate is
hereby affirmed .The Opposite Party no 2 is directed to pay the amount of
interim maintenance in accordance with the direction passed by the Learned
Magistrate and is further directed to expediate the hearing.
19. The criminal Department is directed to forward the copy of this order to the
concerned court for information and necessary action.
20. No order as to costs.

Page 11 of 12

21. Urgent Photostat certified copies of this order, if applied for, be supplied to
the parties upon compliance of all necessary formalities.

[CHAITALI CHATTERJEE (DAS), J.]
Page 12 of 12