APHC010636552008 IN THE HIGH COURT OF ANDHRA PRADESH TUESDAY,THE T TWO THOUSAND AND TWENTY FIVE THE HONOURABLE SRI JUSTICE NINALA JAYASURYA THE HONOURABLE SRI FAMILY COURT APPEAL (FCA) No: 244 of 2008 Between: 1. SHAIK BUQUARI SAHEB, S/o.OSMAN ALI PASHA, AGED 29 YEARS, UNEMPLOYEE, R/O.PENSION LINES, ELURU, WEST GODAVARI DISTRICT. 1. SMT.GOUSIA BEGUM, R/O.D.NO.17-12-21/A, H/O.PULLAIAH, NEAR GANGANAMMA TEMPLE, LAXMIVARAPUPETA, ELURU, WEST GODAVARI DISTRICT. 2. CHY. ATHIEF, S/O.GOUSIA BEGUM, AGED 9 MONTHS, MINOR, REP.BY HIS MOTHER AND NATURAL GUARDIAN i.e.,1 RESPONDENT, R/o.D.No.17 NEAR GANGANAMMA TEMPLE, LAXMIVARAPUPETA, ELURU, WEST GODAVARI DISTRICT. Counsel for the Appellant: 1. Mr.G RONALD RAJU Counsel for the Respondent(S): 1. Mr.ARAVIND KUMAR P.S 1 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) TWENTY THIRD DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE NINALA JAYASURYA AND THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO FAMILY COURT APPEAL (FCA) No: 244 of 2008 SHAIK BUQUARI SAHEB, S/o.OSMAN ALI PASHA, AGED 29 YEARS, UNEMPLOYEE, R/O.PENSION LINES, ELURU, WEST GODAVARI ...APPELLANT AND SMT.GOUSIA BEGUM, D/O.LATE AHMAD SHARIFF, HOUSEWIFE 21/A, H/O.PULLAIAH, NEAR GANGANAMMA TEMPLE, LAXMIVARAPUPETA, ELURU, WEST GODAVARI CHY. ATHIEF, S/O.GOUSIA BEGUM, AGED 9 MONTHS, MINOR, REP.BY HIS MOTHER AND NATURAL GUARDIAN i.e.,1 ENT, R/o.D.No.17-12-21/A, H/o.PULLAIAH, NEAR GANGANAMMA TEMPLE, LAXMIVARAPUPETA, ELURU, WEST GODAVARI DISTRICT. ...RESPONDENT(S): Counsel for the Appellant: Counsel for the Respondent(S): Mr.ARAVIND KUMAR P.S NJS, J & TRR, J FCA_244_2008 IN THE HIGH COURT OF ANDHRA PRADESH [3526] DAY OF SEPTEMBER THE HONOURABLE SRI JUSTICE NINALA JAYASURYA JUSTICE TARLADA RAJASEKHAR RAO SHAIK BUQUARI SAHEB, S/o.OSMAN ALI PASHA, AGED 29 YEARS, UNEMPLOYEE, R/O.PENSION LINES, ELURU, WEST GODAVARI ...APPELLANT D/O.LATE AHMAD SHARIFF, HOUSEWIFE 21/A, H/O.PULLAIAH, NEAR GANGANAMMA TEMPLE, LAXMIVARAPUPETA, ELURU, WEST GODAVARI CHY. ATHIEF, S/O.GOUSIA BEGUM, AGED 9 MONTHS, MINOR, REP.BY HIS MOTHER AND NATURAL GUARDIAN i.e.,1st 21/A, H/o.PULLAIAH, NEAR GANGANAMMA TEMPLE, LAXMIVARAPUPETA, ELURU, ...RESPONDENT(S): 2 NJS, J & TRR, J FCA_244_2008 The Court made the following judgment : (Per Hon’ble NJS, J) The present appeal has been preferred aggrieved by the order and decree dated 18.11.2008 in O.P.No.122 of 2003 on the file of the Court of the Judge, Family Court, West Godavari at Eluru. 2. The appellant herein filed the said O.P., seeking to declare that the respondents herein are not his wife and son and that they have no right to claim anything or any right or property or maintenance from the appellant / petitioner in any manner and for permanent injunction restraining them from ever proclaiming or claiming themselves as wife and son of the appellant / petitioner respectively before any authority or in any proceedings. 3. The appellant / petitioner filed the said O.P., inter alia stating that he married one Setty Himabindhu @ Yasmin on 09.08.2000 and as the said marriage was performed without the approval and knowledge of their parents, his marriage was performed as per Muslim Marriage Rites on 20.08.2000 and they were blessed with two daughters. He further stated that the 1st respondent herein who married one Mr.Muzammil Alisha, obtained divorce by mutual consent on 30.09.2006 in the presence of Qazi, came into contact with the appellant and lured him to marry her without disclosing her first marriage and forced him to marry on 23.11.2006. Making serious allegations against the 1st respondent of having extra marital affair and his removal from Hotel Soudagar, wherein he is working as clerk at the instance of the 1st respondent and threats and demand by her for Rs.1,00,000/-, he also stated that his 1st 3 NJS, J & TRR, J FCA_244_2008 wife viz., Yasmin gave a complaint against first respondent and others. He further contended that his marriage with the 1st respondent on 23.11.2006 during the period of ‘Iddat’, is strictly prohibited under Muslim Law and that his marriage with Himabindhu @ Yasmin was consummated and as such subsequent second marriage with the 1st respondent is illegal, void-ab-initio. That apart, as the 1st respondent is proclaiming that she is the legally wedded wife of the appellant / petitioner, he gave divorce to her by pronouncing ‘Talaq’ thrice in the presence of elders and in writing on 17.05.2008 after sending a copy of the same to the 1st respondent by way of registered post. However, the 1st respondent is claiming falsely that she is the wife of the appellant / petitioner and the 2nd respondent is the son of the petitioner, he filed the O.P., seeking the reliefs sought for therein. 4. The 1st respondent filed counter inter alia, denying the allegations made in the petition with reference to the extra marital affair etc., and the marriage between the said Himabindhu @ Yasmin and the appellant / petitioner. She also denied the demand for Rs.1,00,000/-, threats etc; and that her marriage with the appellant / petitioner was solemnized under threat of coercion that too during the subsistence of Iddat period. While raising the plea of jurisdiction, the 1st respondent specifically denied the averments regarding the divorce and that the appellant / petitioner provided treatment to her while she was pregnant and subsequently gave birth to the 2nd respondent on 11.09.2007. Contending that the marriage that took place even in the Iddat period is irregular till the consummation took place, once the marriage is consummated, 4 NJS, J & TRR, J FCA_244_2008 it becomes regular and that the 2nd respondent is the legitimate child of the petitioner, she pleaded for dismissal of the petition. 5. The learned Family Judge on the basis of the pleadings, formulated the following points for consideration: 1) Whether the marriage in between the petitioner and 1st respondent is null and void as it was done during the prohibited period of Iddat? 2) Whether the marriage between the petitioner and respondent dissolved on 17.05.2008 by way of pronouncing Talaq three times in the presence of elders? 3) Whether this Court is having jurisdiction to entertain this petition? 4) Whether the petitioner is entitled for the relief of declaration that the respondents 1 and 2 are not his wife and son and the respondents have no right to claim anything or any right or property or maintenance from the petitioner and consequential injunction restraining the respondents 1 and 2 to claim as wife and son of the petitioner? 5) To what relief? 6. In support of his case, the appellant / petitioner examined P.Ws.1 to 4 and got marked Exs.A1 to A15. On behalf of the respondents, R.Ws.1 to 3 were examined and Exs.B1 to B6 were marked. A translated copy of Fatwa from Urdu to English dated 20.04.2008 was marked as Ex.X1. 7. The learned Family Judge, after referring to the various contentions and appreciating the matter by sieving through the oral and documentary evidence, answered the point Nos.1 and 2 against the appellant. While holding Point No.3 with regard to jurisdiction against the respondents. The 5 NJS, J & TRR, J FCA_244_2008 learned Family Judge ultimately held that the appellant / petitioner failed to prove that the 1st respondent is having extra marital affair, that she harassed and humiliated him etc. Insofar as the Talaq stated to have been pronounced by the appellant / petitioner, it was negatived as the appellant / petitioner had not examined the attestors of Ex.A4 i.e., Talaqnama dated 17.05.2008. The contention with regard to the marriage of the appellant / petitioner with the 1st respondent during the subsistence of the Iddat period was also decided against the appellant. The learned Family Court opined that the marriage during the period of Iddat is irregular but not void and that it would be valid on the termination of Iddat. 8. The learned counsel for the appellant assailed the said order on the limited grounds that the learned Family Judge having come to a conclusion that the marriage between the appellant / petitioner and 1st respondent was performed during the Iddat period, went wrong in not holding that the said marriage is void. He submits that the learned Family Judge failed to appreciate that the 1st respondent concealed her first marriage, played fraud on the appellant and in such circumstances, the appellant gave divorce to the 1st respondent by pronouncing Talaq as per the Muslim Law. He contends that the findings of the learned Family Judge with reference to Ex.A1-Talaqnama by discrediting the evidence of P.W.1 Government Qazi, is not sustainable. Making the said submissions, the learned counsel urges for allowing the appeal by setting aside the impugned order. 6 NJS, J & TRR, J FCA_244_2008 9. On the other hand, the learned counsel for the respondents made submissions to sustain the order under challenge. He submits that the learned Family Judge had considered the oral and documentary evidence meticulously, recorded categorical findings and assigned cogent reasons while dismissing the O.P. He submits that the appellant / petitioner, miserably failed to establish his case and in fact the learned Family Judge opined that the appellant / petitioner filed the petition with ulterior motives. He submits that the order passed by the learned Family Judge is in accordance with the Law, there is no illegality or perversity warranting interference by this Court. 10. Considered the submissions made and perused the material on record. 11. On an appreciation of the rival contentions, the points that arise for consideration by this Court are: 1. Whether the marriage between the appellant and the 1st respondent solemnized during the period of Iddat is void and the findings recorded by the learned Family Court are not tenable? 2.Whether the appellant proved his case of dissolving marriage performed with the 1st respondent by pronouncing Talaq? 3. Whether the appellant is entitled for the declaratory reliefs sought for and the findings recorded by the learned Family Judge warrants interference by this Court? 7 NJS, J & TRR, J FCA_244_2008 Point Nos.1 and 2: 12. As point Nos.1 and 2 are inter-linked, the same are dealt with hereunder: 13. As per the petition averments and the submissions made by the learned counsel, it is the case of the appellant that the 1st respondent suppressed the factum of her first marriage, played fraud and lured the appellant to marry her. Surprisingly, it was also pleaded that the 1st respondent coerced and forced the appellant to marry her. The contradictory pleas expose the shallowness in the appellant’s case. In addition to that, the appellant made serious allegations against the 1st respondent of having extra marital affair as also threats and demands for money. An allegation was also made to the effect that the 1st respondent got removed the appellant from a hotel where he is working as a clerk. Except pleading fraud etc; the appellant had not substantiated the various allegations made against the 1st respondent by adducing evidence. No efforts were made to take this Court through the relevant portions of the evidence to arrive at a different conclusion. Ex.A4 dated 17.05.2008 which is stated to be the Talaqnama issued by the appellant to the 1st respondent, cannot be treated as valid piece of evidence as the attestors of Ex.A4, were examined. Be that as it may. It is not in dispute that the marriage between the appellant and the 1st respondent was performed during the subsistence of Iddat period. It is also not in dispute that their marriage was consummated. Though a dispute was raised, the appellant could not establish that the 2nd respondent was not born out of the wedlock with the 1st respondent. The Birth 8 NJS, J & TRR, J FCA_244_2008 Certificate of the 2nd respondent dated 11.09.2007 was marked as Ex.B5. No contra evidence was adduced to discredit the said certificate. The learned Family Judge while dealing with the issue about performance of marriage during the subsistence of the Iddat period, referred to the relevant provisions of Mohammedan Law i.e., Sections 9, 12 etc., and opined that the marriage performed during the Iddat period is irregular but not void. 14. This Court see no reason to take a different view in the light of the governing Law and the consummation of marriage, resulting in the birth of the 2nd respondent. Therefore, the point Nos.1 and 2 are answered accordingly in favour of the respondents and against the appellant. Point No.3: 15. The appellant failed to adduce cogent evidence to establish that the 1st respondent is not her legally wedded wife or that the 2nd respondent was not born out of the wedlock with the 1st respondent. As noted earlier, several serious allegations were made against the 1st respondent in the petition including that she indulged in the business of prostitution. No evidence was adduced to prove any of those allegations. Though it was alleged that a report is stated to have been made to the Inspector of Police, Eluru Town Circle by P.W.4 i.e., Himabindhu @ Yasmin-1st wife of the appellant seeking protection from the alleged acts of the 1st respondent and others, a copy of the complaint / FIR was not exhibited. Further, the evidence elicited during the cross examination of P.W.4 goes to show that the appellant married one Nazia, 9 NJS, J & TRR, J FCA_244_2008 while the case filed by P.W.4 against the appellant and his family members was pending. The above said aspects support the plea of the 1st respondent about the conduct of the appellant that he is habituated in exploiting the women as alleged in the counter. Be that as it may. The petitioner / appellant who approached the Court seeking declaratory reliefs is required to establish the case set up by him with supporting evidence which he miserably failed to do so. The point No.3 is answered accordingly against the appellant. 16. Considering the matter in its entirety, this Court see no good ground to interfere with the order of the learned Family Judge under challenge. Accordingly, the appeal is dismissed. No costs. As a sequel, all the pending miscellaneous applications, if any shall stand closed. __________________________ JUSTICE NINALA JAYASURYA __________________________________ JUSTICE TARLADA RAJASEKHAR RAO Dt. 23.09.2025 BLV 10 NJS, J & TRR, J FCA_244_2008 THE HONOURABLE SRI JUSTICE NINALA JAYASURYA & THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO FCA No: 244 of 2008 (Per Ninala Jayasurya, J) Date: 23.09.2025 BLV