A Marriage Agreement Before a Notary is Not a Legally Recognized Form of Marriage: Orissa High Court Rejects Claim of Marital Status and Maintenance Deductions from Husband’s Salary

“The Writ Court Cannot Adjudicate Disputed Questions of Marital Status” – In a detailed and precedent-rich ruling, the Orissa High Court dismissed the writ petition filed by Rashmi Roshan @ Nigar seeking a direction for deduction of maintenance from her husband’s Air Force salary and to record her name as his wife in official service records. The Court held that it lacked jurisdiction under Article 226 of the Constitution to adjudicate disputed marital claims, especially when the relationship itself was founded on a “marriage agreement before a Notary”—a method not recognized under law.

Justice Murahari Sri Raman, while dismissing the petition, observed: “There are serious disputed questions of fact involved in the present writ petition which does not warrant this Court to exercise extraordinary power under Article 226 of the Constitution of India.”

Recognition as “Wife” and Direct Salary Deduction for Maintenance

The petitioner, Rashmi Roshan @ Nigar, alleged she had married Air Force serviceman Md. Sabir Ahemad first on 25.06.2006 and again on 12.12.2008 as per Islamic rites. She sought a writ of mandamus to enforce deductions under Section 91(i) of the Air Force Act for her maintenance and to record her name as the spouse in the official service register.

The case arose in the backdrop of a bitter marital dispute. The petitioner had earlier obtained a favorable maintenance order under the Protection of Women from Domestic Violence Act, which had been upheld by the Appellate Court and confirmed in Criminal Revision No. 835 of 2012 by the High Court itself. However, the Air Force authorities declined to deduct maintenance from salary or recognize her as wife, citing a talaqnama dated 01.09.2009 and subsequent second marriage of the officer with one Sahista Parwin.

Court: Marriage Agreement Before Notary Is “Not a Recognized Legal Form of Marriage”

The Court dissected the foundation of the petitioner’s claim—a 2008 marriage agreement before a Notary Public—and categorically ruled it legally unenforceable. Referring to recent authoritative decisions and government circulars, the Court held: “Execution of marriage or divorce affidavit is not the function of the Notary… The Notary is neither authorized to certify the marriage nor competent to execute a divorce deed under the Notaries Act, 1952.”

“Such actions… are against the extant law. Any omission or commission… in this regard on the part of any Notary will tantamount to misconduct,” the Court observed, citing Partha Sarathi Das v. State of Orissa and Bhagwan Singh v. State of U.P., Supreme Court (2024).

The Court further ruled: “Marriage stated to have been effected between the petitioner and opposite party No.4 in a police station on issue of nikahnama by qazi and consequent agreement before the Notary Public… cannot be held enforceable.”

Talaqnama Is Uncontested, and Subsequent Marriage Is Recognized by LawThe Court noted that the talaqnama dated 01.09.2009 was registered and found genuine by the Air Force authorities, following which Md. Sabir Ahemad was permitted to remarry. His marriage to Sahista Parwin was solemnized under the Special Marriage Act, and her status as “wife” was officially recognized via a Marriage Certificate and Air Force-issued Life Membership and Dependent ID cards.

Justice Raman held: “The veracity of such talaqnama being not questioned before any competent court… any order to record the petitioner’s name as wife would in effect nullify not only the talaq but also the legally recognized second marriage.”

He further warned: “Such power of declaration is not within the purview of writ Court invoking provisions of Articles 226 and 227 of the Constitution.”

On Maintenance Deduction from Salary: Not Covered by Section 91(i)

Rejecting the prayer for salary deduction under Section 91(i) of the Air Force Act, the Court clarified: “The provision applies to sums ordered by the Central Government—not maintenance amounts decreed by a court.”

Since the husband had not defaulted in making payments, and the petitioner had alternate remedy through criminal courts in case of non-payment, the Court refused to invoke its writ jurisdiction.

The Court ultimately ruled: “No writ in the nature of mandamus can be issued to direct the Air Force authorities to deduct amount from salary or record the petitioner’s name as wife.”

The petitioner was advised to seek appropriate relief before a competent civil court if she wished to challenge the talaqnama or second marriage.

Date of Decision: April 9, 2025