Chand Patel vs. Bismillah Begum case discusses the concept of void and voidable/irregular marriages in association with Muslim law and its impact on the provision of maintenance.
Citation:
(2008) 4 SCC 774
Bench:
Altamas Khan and J.M Panchal
Relevant Provisions:
Section 125 of Code of Criminal Procedure, 1973/Mulla’s “Principle of Mohammedan Law”
Facts of Chand Patel Case:
- The appellant (Chand Patel) was first married to the elder sister of respondent No.1 and subsequently married her, and lived under the same roof.
- By the passing of time, the relationship between respondent No.1 and the appellant deteriorated and soon he started to neglect and refused to maintain respondent No. 1 and respondent No.2 (minor daughter of respondent No.1 born out of wedlock between respondent No. 1 and the appellant) which resulted in the filing of a petition under section 125 Cr.P.C for maintenance in the court of Judicial Magistrate First Class.
- The bench supported the contention of the respondent and granted her maintenance of Rs.1,000/- per month, this order was disputed by the appellant in District Court which also validated the decision of Judicial Magistrate of First Class.
- After which an application under section 482 Cr.P.C was filed in High Court and the bench took a similar notion which resulted in this instant case.
Legal Issue:
Whether a marriage performed by a Muslim man with his wife’s sister during the lifetime of his wife will constitute a valid marriage or irregular marriage and its implication on the provision of maintenance?
Contention:
The appellant asserted that, as Muslim law prohibits “Unlawful Conjunction” i.e. Man cannot marry his wife’s sister during the lifetime of his wife and such marriage is void at inception and would not give any rights to respondent No.1 and respondent No. 2.
The respondent contended they do not expect courts to examine the validity of marriage while passing an order for maintenance under section 125 Cr.P.C. Additionally, till the marriage has been confirmed as void by a competent court it continues to exist and confers the right to maintenance.
The appellant himself married his wife’s younger sister during the lifetime of his wife and is now using a technicality to deflect from his responsibility to maintain his wife and children.
Ratio Decidendi:
- The bench, in this case, deemed it essential to clarify the legal status of the marriage between the respondent and the appellant as it would be the key factor to the right of maintenance.
- The case dwells in the ambit of Muslim law. As per Mohammedan law, it is unlawful conjunction “where a man at the same time has two wives who are related to each other by consanguinity, affinity, and fosterage, that if either of them had been male, they could not have been lawfully intermarried, for instance, two sisters or aunt or niece and this bar of unlawful conjunction render a marriage irregular not void.”
- Additionally, the bench also relied on the case of Tajbi Abalal Desai vs. Mowla Alikhan Desai, where it was held that such marriages are irregular and not void because such marriages could become lawful in case of death or divorce of the first wife reducing it to a lawful marriage and after considering various judgments of High Courts and related provision the bench agreed with the rationale of Tajbi case.
Decision:
- The court concluded that unlawful conjunction leads to an irregular marriage and is not void. Hanafi Law in relation to Muslims in India is concerned, an irregular marriage continues to exist until a competent authority declares it void.
Till then, it entitled the wife and children to maintenance, and the court instructed the appellant to provide maintenance to both the respondents.
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