In the case of Chand Patel vs Bismillah Begum & Anr on 14 March 2008, the Supreme Court of India was presented with an intriguing question of law concerning the validity of a marriage performed by a person professing the Muslim faith with his wife’s sister, while his earlier marriage with the other sister was still subsisting.
Facts of the Case
The respondent, 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 Chand Patel. She claimed that she was the legally wedded wife of the appellant and that her marriage with the appellant had taken place about eight years prior to the filing of the petition. She further stated that the marriage was consummated and two years after the marriage a daughter was born from the wedlock. Bismillah Begum admitted that the appellant was married to her elder sister, Mashaq Bee, and that the appellant, with the consent of his first wife, married her and a Nikahnama was also executed but had been misplaced.
Issues Raised
The appellant, Chand Patel, categorically denied that he had married Bismillah Begum. The defense put up by the appellant was not accepted by the learned Trial Court, which prima facie came to a finding that Bismillah Begum was, in fact, the wife of the appellant and that Taheman Bano is his daughter. The Trial Court also came to the finding that the appellant had neglected the respondents and had failed to maintain them, which he was in law required to do, and accordingly, directed the appellant to pay Rs.1,000 per month to Bismillah Begum towards her life support maintenance and to Taheman Bano till she reached adulthood.
Court’s Observations
The Supreme Court held that the bar of unlawful conjunction (jama bain-al-mahramain) renders a marriage irregular and not void. 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 also observed that a marriage, which is temporarily prohibited may be rendered lawful once the prohibition is removed, such a marriage is irregular (fasid) and not void (batil). The court also noted that 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.
In conclusion, the Supreme Court upheld the decision of the lower courts granting maintenance to Bismillah Begum and her daughter, Taheman Bano, under Section 125 of the Code of Criminal Procedure. The court also held that the marriage between Chand Patel and Bismillah Begum was irregular and not void, and therefore, the rights flowing from a valid marriage continued to be available to Bismillah Begum and her minor daughter until such time a competent Court of law directed such marriage to be invalid and void.