Chand Patel v. Bismillah Begum

Facts

Bismillah Begum sought maintenance under Section 125 CrPC for herself and her daughter, asserting she was married to the appellant with the consent of her elder sister, his first wife, with whom they all lived. The appellant denied the marriage; the courts below found the marriage proved and granted maintenance. The legal question was whether a Hanafi marriage with one's wife's sister, the first marriage subsisting, is void or merely irregular.

Issues

• Whether a Muslim man's marriage to his wife's sister during the subsistence of the first marriage is void (batil) or irregular (fasid)
• Whether such a wife and her child are entitled to maintenance under Section 125 CrPC

Arguments

Appellant: 'unlawful conjunction' (marrying a wife's sister in her lifetime) makes the marriage void from inception, conferring no rights, so no Section 125 maintenance is payable. Respondent: validity is not adjudicated in summary Section 125 proceedings; the marriage subsists until declared void by a competent court, so maintenance is due.

Held

Reviewing Mulla's Mahomedan Law (paras 260–267) and the conflicting High Court authorities, the Court preferred Tajbi (Bombay) over Aizunnissa (Calcutta) and held that the bar of unlawful conjunction is a temporary/relative prohibition that can be removed (e.g. by divorcing the first wife), so such a marriage is irregular (fasid), not void (batil). An irregular marriage, once consummated, subsists for all purposes until terminated, the issue is legitimate, and the wife is entitled to dower and to maintenance. Both the wife and daughter were therefore held entitled to maintenance under Section 125 CrPC.

Ratio decidendi

Under Hanafi law the bar of unlawful conjunction renders a marriage irregular (fasid), not void (batil); such a marriage subsists till lawfully terminated, entitling the wife and children to maintenance under Section 125 CrPC.

Significance

Authoritative Supreme Court resolution of a century-old High Court conflict on void vs irregular Muslim marriages, with direct consequences for Section 125 maintenance eligibility; the leading case on maintenance arising from an irregular (fasid) marriage.

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