Monday, March 17, 2008

Personal law no bar to maintenance demand: SC

Muslim’s marriage to two sisters is not illegal

Posted By StatGuy On 16 March 2008

The Supreme Court of India has ruled that a Muslim man’s bigamous marriage to his wife’s sister "was [1] merely irregular though not illegal".

This judgment would put a stop to the practice by certain persons who marry sisters of their wives and then refuse maintenance, citing the Muslim custom that termed the second marriage to the wife's sister as void.

That is exactly what happened in the case before the court. A Muslim man married his wife’s sister with the consent of his first wife. Later he began neglecting his second wife, who then sued for support. Lower courts upheld the second wife's claim.

The appeal to the Supreme Court was initiated, not by the man, but by his first wife, who argued that her sister was not entitled to financial support because the second marriage was void. The court, however, said it was legal and ordered the first wife to pay up.

And here I thought sisterhood was powerful.

Courtesy_
http://magicstatistics.com

Read the related article in TIMES OF INDIA as follows:

'Muslim man's marriage to 2 sisters not illegal'

16 Mar 2008, 0304 hrs IST, Dhananjay Mahapatra, TNN

NEW DELHI: Settling a longstanding debate in Muslim Personal Law concerning the status of two sisters marrying a man, the Supreme Court has ruled that the latter's marriage to his wife's sister, during the subsistence of the earlier marriage, was merely irregular though not illegal.

This judgment would put a stop to the practice by certain persons who marry sisters of their wives and then refuse maintenance, citing the Muslim custom that termed the second marriage to the wife's sister as void.

A Bench comprising Justices Altamas Kabir and J M Panchal, after tracing the development of law as well as conflicting rulings of HCs right from 1895, came to the conclusion that such marriages are merely irregular and not void, so the right to get maintenance was not extinguished by law. Justice Kabir started with the question: "Whether a marriage performed by a person professing Muslim faith with his wife's sister, while his earlier marriage with the other sister was still subsisting, would be void in law or merely irregular or voidable even though the subsequent marriage may have been consummated?"

On the basis of a petition by one Bismillah Begum, Justice Kabir said: "The answer is 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 children would be entitled to maintenance under Section 125 of CrPC," he said.

One Chand Patel was married to Mustaq Bee. With the consent of his wife, he married her sister, Bismillah Begum, and had a daughter from her. Later, he started neglecting Bismillah Begum, who had no means to support herself and child.

She moved the trial court seeking maintenance for each of them. The trial court granted the request and this order was upheld both by the district court and the high court.

Challenging HC order, Patel argued that the marriage was prohibited under the law, which disentitles her from any maintenance. Rejecting the argument, the Bench said marriage to the wife's sister, during the subsistence of the earlier marriage, was only irregular (fasid) and not void (batil). The court ordered Chand Patel to pay all arrears.

Courtesy_
TIMES OF INDIA

Also read the relates stories in THE HINDU as follows:

Personal law no bar to maintenance demand


Legal Correspondent

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 six months and to continue to pay the current maintenance with effect from March 2008. It also directed him to pay her Rs. 10,000 as costs.

© Copyright 2000 - 2008 The Hindu

Courtesy_
THE HINDU

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