Case Summary
| Citation | Chand Patel v. Bismillah Begum, 2008 |
| Keywords | |
| Facts | The respondent No.1 herein, Bismillah Begum, filed an application for her maintenance and for the maintenance of her minor daughter, Taheman Bano, under Section 125 of the Code of Criminal Procedure, against one Chand Patel, in the Court. In her petition the respondent No.1 herein categorically admitted that the appellant herein was married to her elder sister, Mashaq Bee, and that the appellant, with the consent of his first wife married the respondent No.1 and a Nikahnama was also executed but the same had been misplaced. It was also admitted that the appellant herein lived with his first wife Mashaq Bee and the respondent No.1 under one roof and the appellant had even accepted the petitioner No.2 as his daughter and had brought her up. The respondent No.1 prayed for maintenance for herself and for her minor daughter @ Rs.1,000/- per month for each of them from the date of filing of the petition. He categorically denied that he had married the respondent No.1. The defence put up by the appellant was not accepted by the learned Trial Court, which prima facie came to a finding that the respondent No.1 was, in fact, the wife of the appellant. The Trial Court directed the appellant to pay Rs.1,000 per month to the respondent No.1 towards her life support maintenance and to the respondent No. 2 till she reached adulthood. It was also submitted by petitioner that since such unlawful conjunction is prohibited, even if the marriage had been performed the same was void in law and did not confer any rights either on the respondent No.1 or on respondent No.2 since from the very inception the marriage was void and invalid. |
| Issues | Whether a person professing Muslim faith who contracts second marriage with wife’s sister during the subsistence of the earlier marriage is obliged to pay maintenance to such woman under the provisions of section 125 of the CrPC. In the case of Re Hussain Saheb wherein it was held that the provisions of maintenance of a divorced wife under Section 125 of the Code of Criminal Procedure could not be struck down on the ground of inconsistency between the said provisions and the personal laws of the parties. Under the Muslim law also a distinction has been drawn between void marriages and irregular marriages. Void marriage – Complete prohibition of marriage between a man and the persons included therein and any marriage in violation of such provision would be void from its very inception (batil). |
| Contentions | |
| Law Points | Unlawful conjunction – A man may not have at the same time two wives who are so related to each other by consanguinity, affinity and fosterage, that if either of them had been a male, they could not have lawfully intermarried, as for instance, two sisters, or aunt and niece. The bar of unlawful conjunction renders a marriage irregular, not void.” An irregular marriage is one which is not unlawful in itself, but unlawful “for something else,” as where the prohibition is temporary or relative, or when the irregularity arises from an accidental circumstance, such as the absence of witnesses. Thus the following marriages are irregular, namely: (a) a marriage contracted without witness; (b) a marriage with a fifth wife by a person having four wives; (c) a marriage with a woman undergoing iddat; (d) a marriage prohibited by reason of difference of religion; (e) a marriage with a woman so related to the wife that if one of them had been a male, they could not have lawfully intermarried. Consequently, under the Hanafi law as far as Muslims in India are concerned, an irregular marriage continues to subsist till terminated in accordance with law and the wife and the children of such marriage would be entitled to maintenance under the provisions of Section 125 of the Code of Criminal Procedure. The court held that such a marriage was not void but only irregular; if it is a temporarily prohibited marriage and could always become lawful by death of first wife or by husband divorcing the first wife. “Since a marriage which is temporarily prohibited may be rendered lawful once the prohibition is removed, such a marriage is in our view irregular (fasid) and not void (batil)”, the court observed. It was held that such marriage is not void (batil); it is only temporarily prohibited or irregular (fasid) and may be rendered lawful once the prohibition is removed, therefore the husband is liable to maintain her under the provisions of section 125 of the CrPC. |
| Judgment | |
| Ratio Decidendi & Case Authority |
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