Cr.PC applicable to all religions, says Supreme Court
New Delhi: The Supreme Court has held that a Muslim’s marriage to his wife’s sister, while the earlier marriage still subsists, will be irregular but the second wife and children are entitled to maintenance.
The Muslim personal law prohibits “unlawful conjunction” — a man cannot marry his wife’s sister in her lifetime or till the dissolution of the first marriage.
The personal law would not come in the way of the second wife claiming maintenance under Section 125 of the Criminal Procedure Code since an obligation has been cast on the person to maintain her and her children until the first marriage is declared null and void by a competent court, said a Bench consisting of Justices Altamas Kabir and J.M. Panchal.
The Bench rejected the contention that Section 125 Cr.PC could not override the Muslim personal law, holding it was applicable to all persons belonging to all religions and had nothing to do with the personal law of the parties.
“The fact that the marriage was not solemnised as per custom and was irregular cannot be a ground for depriving the woman or the children from that marriage of the maintenance claims.”
Writing the judgment, Justice Kabir said: “The bar of unlawful conjunction [jama bain-al-mahramain] renders a marriage irregular and not void.”
Consequently, “under the Hanifi law as far as Muslims in India are concerned, an irregular marriage continues to subsist till [it is] terminated in accordance with law and the wife and children of such marriage would be entitled to maintenance.”
The Bench said: “There are two types of marriages — which can be declared either “void” or “irregular” if they are held in violation of the provisions of the [Muslim] law. While a “void” [batil] marriage is illegal from the time of its very occurrence, an “irregular” [fasid] marriage can be regularised or made valid, provided the irregularity is rectified.”
Under the Muslim law, a man’s marriage to the sister of his wife could become lawful with the death of the first wife or when he divorced her.
An irregular marriage had no legal effect before consummation. But if the consummation took place, the wife would be entitled to dower.
In the instant case, Chand Patel challenged an order of the judicial magistrate, Chincholi, Karnataka, directing him to pay a monthly maintenance allowance of Rs. 1,000 to his wife’s sister Bismillah Begum, whom he married. A sessions court and the Karnataka High Court confirmed this order.
Dismissing the appeal against this order, the apex court directed Mr. Patel to pay Bismillah Begum the maintenance arrears within the next six months and to continue to pay the current maintenance with effect from March 2008.