Case Analysis: Mohammed Salim (Dead) Through Legal Representatives and Others v. Shamsudeen(Dead) through Legal Representatives and Others (2019) 4 SCC 130.

Author: Sushmita Singh.

CITATION

(2019) 4 SCC 130.

NAMES OF THE PARTIES

Petitioner: Legal Representatives of Md. Salim

Respondent: Legal Representatives of Md. Shamsudeen.

JUDGES

Justice N. V Ramana;

Justice Mohan M. Shantanagoudar.

INTRODUCTION

Prophet Mohammad recognized only one form of marriage in which a dower was paid and the man asked the parents of the woman for her hand. The Prophet declared that Mahr (Dower) due to a woman is a symbol of a husband’s respect for his wife and marriage gives dignified status to a married woman. Definition of Nikah as per Bailies Digest: A Nikah in Arabic means, “Union of the series” and carries a civil contract for the purpose of legalizing sexual intercourse and legitimate procreation of children.

The Muslim law allows certain inter-religious marriages to be governed by its own provision. Under this law, a man can marry a woman of the communities believed by it to be Ahl-e-Kitab (People of Book or Kitabia) – an expression which includes Christian and Jews.((Law Commission Report: 212^th Report On Laws of Civil Marriages in India – A proposal to resolve certain conflicts.)) Marriage of a Muslim man with a Christian or Jews woman is Sahih (Valid) as per Muslim law but with woman of any other religion who is ghayr-kitabi ( For eg. Hindu or Parsi) it is considered as Fasid marriage.

Earlier, Fasid marriages were interpreted as invalid, but they are now interpreted as irregular marriages. Hence the marriage of a Muslim man with a Hindu woman is irregular (Fasid) and can become Valid (Sahih) when the woman converts to Mussulman, Christian or Jews Religion.

Islamic law recognises three form of marriage: Valid (Sahih) marriage, Void (Batil) marriage, Irregular(Fasid) marriage. The current case law deals with whether marriage between a Muslim male and a Hindu female is void or irregular, the legitimacy of the children born from such marriage, and the rights of such children in inheritance.

FACTS

• There was a Muslim woman Zainam Beevi. She had two sons Mohammad Ilias and Mohammad Idris. Md. Ilias was married to Saidat(his first wife), from whom he had no child. He later on marries Valliamma(his second wife) from whom he had a son named Shamsudeen (Plaintiff/Respondent).
• Zainam Beevi owned Schedule A and Schedule B properties. She gifted Schedule A property to Mohammad Ilias by executing a gift deed.
• The plaintiff filled a suit for partition and possession of 14/16^th share in schedule A property being the only son of Md Ilias and half the rights over Schedule B properties through inheritance after demise of Zainam Beevi.
• Contention of the Defendants (Md. Idris is defendant 1 ): Valliamma was not Ilias’ legally wedded wife because she was Hindu at the time of their marriage. She had not converted her religion to Islam at the time of her marriage, so plaintiff, as Valliama’s son, is not entitled to any share of Ilias’ property. Furthermore, Ilias died two years before the plaintiff’s birth.
• The case went to appeal from the judgement of High court of Kerala in Shamsudeen M. Ilias vs. Md. Salim M. Idris & Others.

ISSUES

1. Whether a child born out of irregular (fasid) marriage can claim a share in his father’s property i.e. Whether he can inherit the estate of the father?
2. Validity of marriage of a Muslim man with a Hindu woman. Whether such marriage is void or irregular?

JUDGMENT

“According to Islamic law, marriage (nikah) is a contract that has the formation and legalisation of children as its primary goals.”((Definition of “marriage” as per 21^st ed. of Mulla, at p.338, section 250.))
The Court explained that under Muslim law there are three types of marriage -valid (sahih), irregular (fasid) and void (batil).

• Valid marriage is one which confirms with all legal formality of Nikah.
• Irregular marriage is an incomplete marriage which has some temporary prohibitions. Such marriage can be converted to valid marriage by removing such prohibitions.
• Void marriages are those which are void from the very beginning and prohibitions on such marriages are absolute.

Then court explained inter-religious marriage as per Islamic Laws: A Muslim male can marry a Muslim woman and a kitabia woman who is a Christian or Jewess but not with an idolatress or fire worshipper. If he does marry an idolatress or fire worshipper the marriage is not void (batil) but merely irregular(fasid).((Mulla’s Principle of Mahomedan law, 6th ed. p.162))
From the 10^th Edn onwards fasid marriage has been described as an irregular marriage instead of invalid.

Marriages that are irregular (fasid) are as follows:

• A marriage contracted without the presence of a witness.
• A marriage between a man who has four wives and a fifth wife.
• A marriage with the wife of another man.
• A marriage to a woman who is undergoing iddat.
• A marriage prohibited due to religious differences
• A marriage with a woman so closely related to the wife that they could not have lawfully intermarried if one of them had been a man.

Effect of a fasid marriage: If consummation takes place wife is entitled to dower but she cannot inherit anything from the property of her husband, Children born from such marriage are legitimate and entitled to inherit property of father.((Mulla’s Principle of Mahomedan Law, 6TH ed. P. 162))
Such marriages are called irregular because their prohibition can be removed and such prohibitions are not absolute.

The court referred to the case of Chand Patel v. Bismillah Begum,((Chand Patel v. Bismillah Begum 2008 (4) SCC 774.)) where the distinction between void and irregular marriage was discussed. The Apex court then emphasized on the case of Aisha Bi v. Saraswathi Fathima((Aisha Bi v. Saraswathi Fathima 2012 SCC OnLine Mad 1275.)) and Ihsan Hassan Khan v. Panna Lal((Ihsan Hassan Khan v. Panna Lal AIR 1928 Pat 19.)). In these cases, it was held that a marriage of a Muslim male with a Hindu female is only irregular(fasid) and the child born from such marriage are legitimate children.
Since Md. Ilias is dead, the schedule A property given to him via gift deed would devolve upon his legal heirs as an absolute property.

Moreover, the plaintiff is the son of Ilias and Valliamma, according to a birth register extract kept by statutory authorities. It is proved by public documents that plaintiff was born two months prior to the death of Md. Ilias.
Thus the court held that trial court and High court were justified in concluding that plaintiff is the legitimate son of Mohammed Ilias and Valliamma and is entitled to his share in the property as per law.

ANALYSIS

The Supreme Court held in this instance that marriage of a Hindu woman who is not kitabia to a Muslim man when the woman is Hindu at the time of marriage is just a fasid (irregular) marriage, not Batil (void) marriage. The existing Muslim law also affirms this.
A Sunni male can lawfully contract marriage with a Kitabia female (Christian, Jewess), but he is prohibited to marry a non-Muslim or non-kitabia woman (Hindu, Parsis).

The Supreme Court elucidated the difference between Batil (void) and fasid (irregular) marriage. A void marriage in Muslim law is to be treated as void from the outset and the prohibitions in such marriage cannot be removed, Such marriages are unlawful in themselves. They do not create any civil rights or obligations between the parties and thus the offspring are also illegitimate. Examples of Void Muslim marriage: a marriage prohibited by reason of consanguinity (relation by blood), Affinity (relation by marriage) and fosterage (relation by milk).

In the case of an irregular marriage, the prohibition is temporary or the irregularity is the result of an unavoidable circumstance like absence of witnesses, marriage with fifth wife, marriage with two sisters at the same time (Chand Patel v. Bismillah Begum. Supra)
A marriage prohibited by reason of difference of religion is irregular and such a prohibition can be removed by wife converting to Mussalman, Christian or Jewish religion or husband adopting Mussalman faith. Thus, the apex court clearly explained the difference between Batil(void) and fasid(irregular) marriage. If there is any illegality in a marriage which may be removed, the marriage is irregular.

The High court of Madras has dealt with the same legal issue i.e., of legitimacy of children born from an irregular marriage between a Hindu woman and a Muslim man in case of Aisha Bi vs. Saraswathi Fathima (Supra), in this case also the court affirmed that children born from such marriage are legitimate. The High court of Patna has also affirmed the same position in case of Ihsan Hassan Khan vs. Panna Lal(Supra).

The Court ruled that because the plaintiff is the legitimate son of Md. Ilias and Valliamma, he is entitled to his father’s share of property under the law. After considering various textbooks on Muslim law court deduced that if consummation takes place in an irregular marriage then woman is entitled to dower and any child born during subsistence of such marriage is legitimate and will have right to inherit properties from father.

CONCLUSION

The primary goal of the marriage union is to legalize the children born from such marriage and prevent the bastardization of the innocent child for the betterment and peaceful working of society. So, the honorable Supreme court has set the right precedent by allowing legitimacy of children born from an irregular marriage under Islamic law.

Under the Hindu Law, children born out of valid, void, and voidable marriages are considered as legitimate children which is a salutary provision of Hindu Law to prevent the bastardization of children. Such a provision can be provided for children born out of void marriage in Islamic law. The innocent child should not face the consequences of the fact that marriage of his parents was void or incomplete in any respect.

As far as conditions of women in an irregular marriage are concerned, there are some rights which are allowed to them like the right of lawful cohabitation, legitimacy of children and right of dower but there are some drawbacks like husband and wife have no mutual rights of inheritance in irregular marriage For eg. if the marriage is irregular and the husband passes away or gives divorce to the wife she is not entitled to inherit his properties. Such a lacunae in Muslim law can be addressed by the court for betterment of Muslim women.