Are Hindu Wife and her child entitled to get Muslim Husband's property?

Introduction: Under Muslim Law  if the marriage is Sahih (Valid marriage), then the wife and her child are entitled to get husband’s property if the marriage is Void marriage, then the wife has no right over husband’s property and child from such wedlock is considered as illegitimate and neither the child  have any right over the property. The question arise on the Irregular marriage, there are reasons under Muslim Law under which a marriage becomes irregular. One of such reason is when a Hindu woman is married to a Muslim man, in such case the Hindu wife and her child are entitled to get the property of the Muslim Husband or not was recently answered by the Hon’ble Supreme Court in the case of Mohammed Salim & Ors Vs. Shamsudeen & Ors in this case the Apex court upheld the decision of Kerala High Court, description of the case is as following.

Factual matrix of the case:

Zainam Beevi was the owner of two properties referred as Schedule A property and Schedule B property. She had two sons named Mohammad Idris and Mohammad Ilias. Schedule A property was gifted to Mohammad Ilias by a Gift Deed executed by Zainam Beevi.

Further Mohammad Ilias first married to Saidat no child was born out of such wedlock. There after Mohammad Illias married Valliamma (later name of Valliamma was changed to Souda Beebi), who was a Hindu at time of marriage, one child Shamsudeen was born out of this wedlock. After the death of Mohammad Ilias Valliamma (Souda Beebi) married Aliyarkunju. Thereafter after the death of Mohammad Ilias Shamsudeen being the only son of Mohammad Illias claimed 14/16 Share of his father’s property(Schedule A property) and also claimed half share of schedule B property as inheritance as he was the son of the  pre deceased son of Zainam Beevi.

Issues before the court:

1. Whether the Shamshudeen is legitimate son of Mohammad Ilias and Vallimma?
2. Whether Vallimma and Shamshudeen are entitled to get their share of property (Schedule A & B property) as per law?

Contentions before the court:

It was contended in the court that at the time of marriage Vallimma was a Hindu and did not convert to Muslim before marriage so she is not a legally married wife of Mohammad Ilias and she is not entitled to get the property of Mohammad Ilias.  Shamshudeen was born from this wedlock hence he will also not have any right over the property of Mohammad Ilias. It was also contended that the Mohammad Ilias expired 2 years prior to the birth of Shamshudeen hence he could not be considered as the son of Mohammad Ilias.

The opposite counsel contended that from the birth certificate and public documents of Shamshudeen it is evident that Shamshudeen was born 2 months prior to death of Shamshudeen and quoted Mulla’s Principle of Mahommendan Law (Mulla) and Syed Ameer Ali’s Principle of Mahommedan Law followed by some precedents which says that child born from Irregular marriage (marriage of Hindu woman and Muslim man in this case) is legitimate and is entitled to get property.

Mulla’s 21st edition paragraph 259(1) at page 345 of reads that:

“A Mahomedan male may contract a valid marriage not only with a Mahomedan woman, but also with a Kitabia, that is a Jewess or a Christen, but not with an Idolatress or a fire worshipper. A marriage however, with an idolatress or a fore worshipper, is not void, but merely irregular.”

The Arabic word “Fasid” of which translation was “invalid” has changed and now it is interpreted as irregular as the 6th edition of Mulla, paragraph 200 at page 162 reads as:

"A Mahomedan male may contract a valid marriage not only with a Mahomedan Woman but a Kitabia, that is, a Jewess or a Christian, but not with an Idolatress or a Fire-worshipper. If he does marry an idolatress or a Fire-worshipper the marriage is not void (Batil), but merely invalid (Fasid)."

What did court say?

Court relied on the Mulla and Syed Ameer Ali’s Principle of Mahommedan Law, and concluded that Muslim Law does not treat Marriage of Muslim man and Hindu woman as Voild but as irregular.  

Hence the court held that after the consummation of irregular marriage wife is entitled to get dower but is not entitled to get the property of the husband as the marriage was irregular, but the child born out of such marriage is legitimate and is entitled to inherit the father’s property. The Court concluded that Shamshudeen is legitimate son of Mohammed Ilias and Valliamma, and is entitled to his share in the property as per law.

Take Away:

The interpretation of Fasid (irregular marriage) by Court has been not done in a strict form in the present case. The court did not consider literal meaning of the word fasid which is invalid but held Fasid as irregular marriage.  Hindus are Fire and Idol worshipper, hence the marriage cannot be a valid marriage but the defect is also not so fundamental that the marriage turns into the void one.