The Special Marriage Act of 1954 is no insulation against the second marriage of a Muslim man with a Hindu woman from being declared void, the Gauhati High Court has said in a recent order.
The court made the observation while hearing a petition of Dipamani Kalita, the second wife of Sahabuddin Ahmed, seeking pension and associated benefits to her after her husband’s death in a road accident in 2017. She is the mother of a 12-year-old boy.
Ahmed was an employee in the office of the Deputy Commissioner, Kamrup district.
Citing section 4 of the Special Marriage Act, Justice Kalyan Rai Surana said in his order on September 6 that one of the conditions of solemnising special marriages was that neither party had a spouse living.
“It is not in dispute that on the date of marriage between the petitioner and Late Sahabuddin Ahmed was registered under the Special Marriage Act, 1954, he had a spouse living... There is no document showing that the prior marriage of the husband of the petitioner with respondent no. 6 (first wife) had been annulled,” the court said.
Supreme Court judgment
Referring to the Supreme Court judgment in the Md. Salim Ali versus Shamshudeen case, the court said: “It appears that under the principles of Mohammedan law, the marriage of a Muslim man with an idol worshipper is neither valid nor a void marriage, but is merely an irregular marriage.”
The court said according to section 22 of the principles of Mohammedan law by Mulla (20th edition), the capacity of marriage related to every Mohammedan of sound mind who had entered into the contract of marriage.
“The petitioner not being a Mohammedan, the marriage would not be a marriage without strict meaning of the Mohammedan law. In the present case in hand, it is seen that the petitioner was not married as per customary Mohammedan law but she was married under the Special Marriage Act, 1954, and that the provisions of Section 4(a) of the said Act renders the marriage as void…
“Moreover, the petitioner is still using her Hindu name and there is nothing on record to show that the petitioner had accepted the religion of Islam as her faith… From the above, it appears that section 4 of the Special Marriage Act does not save a second marriage contracted by a Mohammedan male.”
The court dismissed the writ petition but ruled that under the law, the petitioner’s minor son would still be entitled to his share of pension and other pensionary benefits.
