Bench:
Justice Kabir Altamas, Justice J.M Panchal
Appellant:
Chand Patel
Respondent:
Bismillah Begum & Another.
Issue
I) Whether in Islam the marriage with wife's sister shall be held void?
II) If the marriage with the wife's sister may be irregular or void is she entitled to maintenance after divorce?
Facts
- The appellant Chand Patel married Mushtaq Bee the elder sister of the respondent. During the existence of his 1st wife,he decided to marry his wife's sister Bismillah Begum.
- With the consent of his 1st wife Mushtaq Bee he married his wife’s younger sister Bismillah Begum. It was stated by the respondent that they consummated the marriage and hence a child was born to them out of wedlock.
- The daughter named Taheman Bano was born after 2 years of their marriage who was still a minor at that time and was made respondent no. 2 in this case.
- Bismillah Bano said that she was legally wedded wifeof Chand Patel for the past 8 yearsand a ‘Nikahnama’ wasexecuted but was misplaced. She stated in her petition that she and her daughter lived under the same roof with Chand Patel's 1st wife and that the respondent accepted thedaughter and was brought up by him.
- But after few years in that marriage, her relationship with her husband started deteriorating with time to the extent that he started neglecting her and their minor daughter. But the irony was that Chand Patel denied any marriage taking place between the two.
Appellant’s Contentions
- The appellant in the petition filed before the trial court denied that he married the respondent.
- When he appeared before the apex court his counsel contended that Muslim personal law does not allow unlawful conjunction. Further, the advocate stated that from the initial stage of this case, he denied being married to Bismillah Begum moreover he even denied having any sexual relations with her that directly questioned the daughter's paternity.
- Also, the advocate representing the appellant took reference tothe judgement passed in the case of Savitaben Somabhai Bhatiya v. The State of Gujarat wherein the court said that the legislative intent of section 125 of Cr.PC does not intend to include a woman who is unlawfully married under the expression of the term ‘wife.’
- The advocate asserted that with regards to the interpretation of section 125 made in the above case, the lower courts have made an error by passing an order for maintenance when the marriage itself was void from its inception.
Respondent’s Contentions
- The respondent Bismillah Begum pleaded in her petition that she and her minor daughter Taheman Bano should receive a monthly maintenance amount of Rupees 1,000 for each of them.
- The advocate representing the respondents said that despite both the parties were aware of the existing factthat it is an unlawful marriage still the marriage was solemnized.
- Furthermore, the advocate argued that the appellant was already married to the respondent’s elder sister but still went on to marry the respondent and to avoid paying maintenance amount he is taking resource to the technicalities.
Judgment
• Trial Court Verdict
Although Chand Patel denied any marriage taking place between the two,this contention did not go well with the trial court and the court thus rejected his stance as the prima face evidence pointed out otherwise. The court observed that Bismillah Begum was his wife and the minor girl was his daughter and both the persons were not maintained by him.
Hence, thetrial courtordered Chand Patel to pay a monthly allowance of Rupees 1,000 to Bismillah Begum &their minor daughter until she reached adulthood.
• Sessions Court Verdict
The Sessions Court in Gulbarga upheld the decision passed by the trial court and held that until his marriage with Bismillah Begum is not declared by a competent court as void or is not nullified, the wife and daughter are liable to receive the maintenance amount fixed by the trial court.
• High Court Verdict
When the matter came before the High Court, the court dismissed the petition on the ground that it found no merits in the petition.
When the Trial court, Sessions court and even the High court agreed that Chand Patel was liable to pay maintenance he went for an appeal before the Supreme Court of India.
• Supreme Court Verdict
The Supreme Court held that a Muslim man who marries a wife's sister during the existence of his marriage with his 1st wife, such marriages shall be deemed to be irregular and not illegal or void.
The apex court upheld the decision passed by the lower court and held that the unlawful marriage would still subsist and the Muslim man shall be liable to pay maintenance to his wife until his marriage is declared void by a competent court.
The court ordered Chand Patel to pay maintenance within 6 months from the date of the judgement and was also ordered to pay the respondent’s cost of litigation.
Relevant Paragraphs
- The court observed that although the law that applies, in this case,is the Muslim personal law it has many similarities to the definition of void marriages providedunder section 11 and 12 of the Hindu Marriage Act, 1955. As the term void marriages under the said section do not declare a marriage void from its very inception unless by a decree of the competent court. Until such a decree is not received which declares such unlawful marriages void it shall continue tosubsist.
- Also, the judgement stresses that while granting an order for maintenance to the wife and the children of a man, the Magistrateshould not decide upon the validity of the marriage unless the marriage is declared to be void or is nullified by a court. Hence, the validity or legality of the marriage cannot be decided under section 391 or section 125 of the code.
- Even though a marriage is irregular or is prohibited under personal law it shall not deprive a wife of her right to maintenance. The personal laws shall never come in the way of a party who prays for maintenance under section 125 of Cr.PC. It is to be noted that it applies to persons of all religions and has nothing to do with personal laws of any religion. Also, section 125 can never be struck down in such cases when there is a conflict between the provisions of this section and the personal laws.With regards to Muslims in India, under the Hanafi law,an irregular continues to exist unless it is terminated and the wife and the child is entitled to get maintenance.
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