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CASE NO.: Appeal (crl.)  488 of 2008

PETITIONER: Chand Patel

RESPONDENT: Bismillah Begum & Anr

DATE OF JUDGMENT: 14/03/2008

BENCH: Altamas Kabir & J.M.Panchal

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 488 OF 2008 (@ Special Leave Petition(Crl.) No.3989 of 2006)

ALTAMAS KABIR,J.

1.      Leave granted. 2.      The application for condonation of delay  in filing the Special Leave Petition is allowed  and the delay in filing the same is condoned. 3.      This appeal raises an interesting question  of law as to whether 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, would be  void in law or merely irregular or voidable  even though the subsequent marriage may have  been consummated. 4.      The facts which give rise to the aforesaid  question, in brief, are set out hereunder. 5.      The respondent No.1 herein, 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 one Chand Patel, in  the Court of the Judicial Magistrate, First  Class, Chincholi, being Criminal Misc. No.6 of  2001. In her petition she claimed that she was  the legally wedded wife of the appellant herein  and that her marriage with the appellant had  taken place about eight years prior to the  filing of the said petition. Her further case  was that the marriage was consummated and two  years after the marriage a daughter was born  from the wedlock and she has been made  petitioner No.2 in the application for  maintenance. The petitioner No.2 Taheman Bano  being a minor, is under the care and  guardianship of her mother, the petitioner  No.1, in the said application. 6.      In her petition the respondent No.1  herein categorically admitted that the  appellant herein was married to her elder  sister, Mashaq Bee, and that the appellant,  with the consent of his first wife married the  respondent No.1 and a Nikahnama was  also

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executed but the same had been misplaced. It  was also admitted that the appellant herein  lived with his first wife Mashaq Bee and the  respondent No.1 under one roof and the  appellant had even accepted the petitioner No.2  as his daughter and had brought her up. 7.      That with the passage of time the  relationship between the appellant and the  respondent No.1 began to deteriorate and he  started neglecting the respondents who have no  means to support themselves. The respondent  No.1 prayed for maintenance for herself and for  her minor daughter @ Rs.1,000/- per month for  each of them from the date of filing of the  petition. 8.      The case made out on behalf of the  respondent No.1 was denied on behalf of the  appellant herein.  He categorically denied that  he had married the respondent No.1. The defence  put up by the appellant was not accepted by the  learned Trial Court, which prima facie came to  a finding that the respondent No.1 was, in  fact, the wife of the appellant and that the  petitioner No.2 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 the  respondent No.1 towards her life support  maintenance and to the respondent No.2 till she  reached adulthood. 9.      The aforesaid decision was challenged by  the appellant herein in the revision filed by  him, being Criminal Revision No.76 of 2003, in  the Court of the District and Sessions Judge at  Gulbarga. The respondent No.1 herein, both on  her own behalf and on behalf of her minor  daughter, also filed Criminal Revision No.96 of  2003 before the same learned Judge and both the  revision petitions were  taken up together for  disposal and wee disposed of by a common order.  After considering several decisions of  different High Courts and this Court the  learned Fourth Additional District Judge,  Gulbarga, dismissed both the revision petitions  and confirmed the order passed by the Judicial  Magistrate, First Class, Chincholi, in Criminal  Misc. No.6 of 2001.  While arriving at the  aforesaid decision, the learned revisional  Court held that the personal law of the parties  could not come in the way of a Muslim to pray  for and obtain maintenance under Section 125 of  the Code of Criminal Procedure since an  obligation is cast upon the appellant herein to  maintain his wife and children till the  marriage between them was declared null and  void by a competent court. While referring to  various decisions of different High Courts, the  revisional Court relied to a large extent on a  decision of this Court in the case of Nanak  Chand Vs. Chandra Kishore Aggarwal and others  (AIR 1970 SC 446) in which it was, inter alia,  held that Section 488 of the old Code which  corresponds to Section 125 of the new Code is

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applicable to all persons belonging to all  religions and has no relationship to the  personal law of the parties. The learned Judge  also referred to the decision of this Court in  the case of Re- Hussain Saheb (1985 Criminal  Law Journal 1505 (A.P.) (W.P. No.858 of 1985)  wherein  it was held that the provisions of  maintenance of a divorced  wife under Section  125 of the Code of Criminal Procedure could not  be struck down on the ground of inconsistency  between the said provisions  and the personal  laws of the parties. On the basis of the above,  the learned Additional Sessions Judge held as  follows: "Thus in the above said dictum the  personal law of the Muslim no way  coming in the way of Muslim to  maintenance of the respondent.  Moreover the Magistrate cannot go  into validity of the marriage  while dealing  u/Section 125 of  Cr.P.C. The petitioner must  maintain the wife and children   till the marriage between them  declares null and void by the  competent court. Therefore, by  relying upon the rulings  of the  Hon’ble Supreme Court the marriage  between the petitioner and  respondent No.1 is presumed to be  legal and validity of the marriage  cannot be decided under  proceedings u/sec. 125 of Cr.P.C.  or Section 391 of Cr.P.C.   Therefore, I do not find any  illegality or irregularity  committed by the Magistrate while  granting maintenance  to the  respondents. Hence I answer Point  no.1 and 2 in the negative."

10.     Subsequently, the appellant herein filed  an application under Section 482 of the  Criminal Procedure Code for setting aside the  order dated 28.6.2003 passed by the Judicial  Magistrate 1st Class in Criminal Misc. No.6 of  2001.  From the order disposing of the said  petition it is apparent that the High Court had  occasion to look into the orders passed both by  the Trial Court as well as the revisional Court  and after considering the same was of the view  that there was no merit in the petition and  dismissed the appellant’s application under  Section 482 of the said Code. 11.     Much the same arguments as had been  advanced before the Courts below have been  advanced on behalf of the respective parties in  these proceedings. 12.     On behalf of the appellant it has been  urged that the Muslim law specifically  prohibits ’unlawful conjunction’ which has been  interpreted to mean that a man could not marry  his wife’s sister in his wife’s life time.   It  was urged that in the instant  case the  appellant had from the very initial stage

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denied having married the respondent No.1  herein, who is his wife’s younger sister and  that he did not have any sexual relations with  her, thereby  disputing the paternity of the  respondent No.2 through him.  It was also  submitted that since such unlawful conjunction  is prohibited, even if the marriage had been  performed  the same was void in law and did not  confer any rights either on the respondent No.1  or on respondent No.2 since  from the very  inception the marriage was void and invalid. 13.     In support of his aforesaid contention  Mr.Raja Venkatappa Naik, learned counsel for  the appellant, firstly referred to the decision  of this Court in  Rameshchandra Rampratapji  Daga Vs. Rameshwari  Rameshchandra Daga,(2005)  2 SCC 33,  in which this Court had occasion to  consider, inter alia, the provisions of  Sections 11 and 12 as also Section 5(i) of the  Hindu Marriage Act, 1955. The facts of the said  case are to some extent similar to the facts of  this case, although, the same involved the  provisions of the Hindu Marriage Act, 1955.  In  the said case the wife was first married to  someone but according to her the customary  rituals of the marriage had not been completed,  inasmuch as, during the marriage ceremony the  family members quarrelled over dowry. She,  thereafter, filed a petition for divorce but  did not prosecute the same and no decree of  divorce was passed in the said proceedings.  However, in accordance with the prevalent  customs in the Maheshwari community, a chhor  chithhi or a document of dissolution of  marriage was executed between the wife and the  said person and it was also registered. The  said documents were shown and also given to the  person with whom the second marriage was  performed and a daughter was also born from the  second marriage. According to the wife, her  second husband began to ill treat her, and,  ultimately, she had to file proceedings in the  Family Court for grant of a decree of judicial  separation and maintenance of Rupees Three  thousand per month both for herself and for her  minor daughter.  The second husband filed a  counter petition seeking a declaration that his  marriage with his present wife was a nullity on  the ground that on the date of the second  marriage her earlier marriage with her previous  husband had not been dissolved by any Court in  accordance with the provisions of the Hindu  Marriage Act, 1955.  The Family Court allowed  the petition of the wife and granted a decree  of judicial separation  as also the maintenance  claimed by her and dismissed the counter  petition filed by the husband. The High Court,  however, reversed the finding of the Family  Court and held that since the first marriage of  the present wife with the previous husband had  not been dissolved by the Court, the second  marriage was in contravention of Section 5(i)  of the aforesaid Act and was, therefore, a  nullity under Section 11 of the Act. The High  Court granted a decree of separation holding

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that the marriage was a nullity, though it  maintained the decree granted in respect of  maintenance to the respondent No.1 and her  daughter.  14.     Dismissing the two appeals preferred  both by husband and the wife, the Supreme Court  held that in the facts of the case the Courts  below were fully justified in granting  maintenance both to the wife and the daughter  since the evidence of the wife had been rightly  believed by the Courts below.  The High Court  accepted the validity of the document of  dissolution of marriage executed between the  parties and also took into consideration the  fact that they had lived as husband  and wife  for about 9 years.  On such consideration, both  the appeals came to be dismissed. 15.     Mr. Naik also relied on another decision  of this Court in the case of Savitaben Somabhai  Bhatiya vs. State of Gujarat and others, (2005)  3 SCC 636, in which it was observed that the  legislature had considered it necessary to  include within the scope of Section 125 of the  Code an illegitimate child, but it had not done  so in respect  of a woman not lawfully married.  It was observed that however desirable it may  be, to take note of the plight of the  unfortunate woman, the legislative intent being  clearly reflected in Section 125 of the Code,  there was no scope for enlarging its scope by  introducing any artificial definition to  include a woman not lawfully married in the  expression "wife". 16.     On the basis of the aforesaid two  decisions, learned counsel for the appellant  submitted that having regard to the letter and  spirit of Section 125 of the Code, the Courts  below had erred in granting maintenance to the  respondent No.1 when her marriage itself   was  void from its very inception. 17.     Mrs. K. Sarada Devi, learned counsel for  the respondents, however, questioned the  decision of the High Court on the ground that  in a proceeding under Section 125 of the Code,  the Court was not required to adjudicate upon  the validity of a marriage and on a prima facie  view it could pass an order for maintenance of  both the wife and her daughter. She however,  also contended that the marriage between the  parties had been solemnised inspite of the  existing facts which were known to both the  parties. She urged that it was the appellant  who, despite having married her elder sister,  not only chose to marry the respondent No.1 as  well, but was now taking recourse to  technicality to avoid payment of maintenance  which he was required to pay under the  provisions of Section 125 of the Code. 18.     She urged that till such time as the  marriage between the appellant and the  respondent No.1 was not declared to be void by  a competent Court of law, it continued to  subsist and all rights flowing from a valid  marriage continued to be available to the  respondent No.1 and her minor daughter till

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such time a competent Court of law directed  such marriage to be invalid and void. 19.  The answer to the question, which we are  called upon to answer in this case, will depend  on the legal status of the union effected by  the appellant with the respondent No.1.  Though  the factum of marriage between them was denied  by the appellant, the courts below negated the  appellant’s case and proceeded on the basis  that a marriage had been performed between  them.  If the marriage which was said to have  been performed between the appellant and the  respondent No.1 is held to be void then, in  such event, the respondent No.1 will not be  entitled to maintenance from the appellant  under Section 125 Crl.P.C.  If, on the other  hand, the marriage is held to be irregular,  then in such event, the marriage will subsist  for all purposes, unless declared to be void by  a competent court.  Till such a declaration is  made, along with the respondent No.2, the  respondent No.1 will also be entitled to  maintenance under Section 125 Cr.P.C.   Although, the law applicable in this case is  under the personal law of Muslims, it has many  similarities with the provisions of Sections 11  and 12 of the Hindu Marriage Act, 1955.   Section 11 of the 1955 Act, defines "Void  Marriages" and provides that any marriage  solemnized after the commencement of the Act  shall be null and void and on a petition  presented by either party thereto, be so  declared by a decree of nullity if it  contravened any one of the conditions specified  in clauses (i), (iv) and (v) of Section 5 of  the Act.  In Yamunabai Anantrao Adhav vs.  Anantrao Shivram Adhav (AIR 1988 SC 644), this  Court had held that marriages covered by  Section 11 are void ipso-jure, that is void  from the very inception and have to be ignored  as not existing in law at all.  A marriage in  contravention of Section 11 must be treated as  null and void from its very inception. 20.     Section 12 of the 1955 Act defines  "voidable marriages" and provides that any  marriage solemnized before or after the  commencement of the Act shall be voidable and  may be annulled by a decree of nullity on any  of the grounds enumerated in the Section.  In  the case of a marriage covered by Section 12 of  the 1955 Act, the marriage is not void ipso- jure from its inception, but a decree would  have to be obtained from the competent court  declaring the marriage to be void and so long  as such declaration is not made, the marriage  will continue to subsist.    21.     Under the Muslim law also a distinction  has been drawn between void marriages and  irregular marriages.  The same has been dealt  with in Mulla’s "Principles of Mahomedan Law"  in paragraphs 260 to 264. Paragraphs 260, 261  and 262 deal with complete prohibition of  marriage between a man and the persons included  therein and any marriage in violation of such  provision would be void from its very inception

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(batil).  Paragraph 263 which is relevant for  our purpose reads as follows:- "263.  Unlawful conjunction \026 A man may  not have at the same time two wives who  are so related to each other by  consanguinity, affinity and fosterage,  that if either of them had been a male,  they could not have lawfully intermarried,  as for instance, two sisters, or aunt and  niece.  The bar of unlawful conjunction  renders a marriage irregular, not void."

 22.     The above provision fell for the  consideration of different High Courts and the  earliest decision is that of the Calcutta High  Court in the case of Aizunnissa vs. Karimunissa  (ILR 1895 23 Calcutta page 130) which was  decided on 23rd July, 1895.   After discussing  the various authorities on the subject the  Calcutta High Court took the view that a  marriage with a wife’s sister while the earlier  marriage was still subsisting was void and the  children of such marriage were illegitimate and  were not entitled to inherit.  It was held that  the sister of a person’s wife was prohibited  from the very inception and a marriage  contracted with her would from the very  inception be void (batil).

23.     The said decision subsequently came to be  considered by the Bombay High Court in the case  of Tajbi Abalal Desai vs. Mowla Alikhan Desai  (39 Indian Cases 1917 page 603) and was decided  on 6th February, 1917.  The Bombay High Court  differed with the decision rendered in  Aizunnissa’s case (supra) and placing reliance  on the views expressed in Fatawa-i-Alamgiri  held that a marriage with the sister of an  existing wife was not void (batil) but   irregular (fasid).  The reasoning adopted was  that marriage with a permanently prohibited  woman had always been considered by the  exponents of Muslim law to be void and has no  legal consequence, but marriage with a  temporarily prohibited woman if consummated may  have legal consequences.  The logic behind the  aforesaid reasoning was that a marriage with  the sister of an existing wife could always    become lawful by the death of the first wife or  by the husband divorcing his earlier wife and  thereby making the marriage with the second  sister lawful to himself.   The Bombay High  Court after considering various authorities,  and in particular Fatawa-i-Alamgiri, ultimately  observed as follows:-

       "Taking the whole current of  authority and the general trend of  informed thought on this subject, it  points clearly to some such distinctions  having always been recognized by the  Muhammadan Law.  Where that is so and a  particular case on the borderland of  such distinctions, to which it may be

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doubtful whether they can be applied in  the ordinary way, arises, surely the  Courts would be well advised to accept  the authoritative statement of the law  as it was then understood by the authors  of the Fatawa-i-Alamgiri.  It is  impossible to say that that statement  conflicts with the textual authority of  the Kuran. Speaking generally, it  appears to us to harmonize with the  course the law took during the  intervening period, and to be in  consonance with the soundest practical  principles.   It has the support of such  a great modern text-book writer as  Baillie.   The eighth chapter of his  first book appears to us to reach  conclusions by unanswerable reasoning,  and while those conclusions may be his  own, they are the conclusions of a  writer of profound knowledge intimately  versed at first hand with all the best  writings of Muhammadan lawyers.  The  modern Muhammadan tex-book writers,  Ameer Ali, Tyabji and Abdur Rahim, are  in substantial agreement.   All  authority appears to us to point one  way.  Against this is nothing but the  judgment of the Calcutta High Court in  Aizunnissa’s case and after having given  it and the materials upon which it  avowedly rests our most careful and  respectful attention, we find ourselves  wholly unconvinced by its reasoning and  unable to agree with the law it lays  down."

24.     The aforesaid question also fell for the  consideration of the Oudh Chief Court in the  case of Mussammat Kaniza vs. Hasan Ahmad Khan  (92 Indian Cases 1926 page 82) decided on 24th  November, 1925 and by the Lahore High Court in  Taliamand vs. Muhammad Din (129 Indian Cases  1931 page 12) decided on 16th July, 1930, and  also by the Madras High Court in Rahiman Bibi  Saheba vs. Mahboob Bibi Saheba (ILR  1938  page  278) which was decided on 1st September, 1937.  All the said courts favoured the view taken by  the Bombay High Court in Tajbi’s case (supra)  and were of the view that the decision of the  Calcutta High Court in Aizunnissa Khatun’s case  (supra) was incorrect. 25.     Paragraph 264 which deals with the  distinction between void and irregular  marriages reads as follows:- "264. Distinction between void and  irregular marriages \026

(1)     A marriage which is not valid may  be either void or irregular.

(2)     A void marriage is one which is  unlawful in itself the prohibition  against the marriage being perpetual and  absolute.   Thus a marriage with a woman

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prohibited by reason of consanguity,  affinity, or fosterage is void, the  prohibition against marriage with such a  woman being perpetual and absolute.

(3)     An irregular marriage is one which  is not unlawful in itself, but unlawful  "for something else," as where the  prohibition is temporary or relative, or  when the irregularity arises from an  accidental circumstance, such as the  absence of witnesses.  Thus the  following marriages are irregular,  namely \026  

(a)     a marriage contracted without  witness;

(b)     a marriage with a fifth wife by a  person having four wives;

(c)     a marriage with a woman undergoing  iddat;

(d)     a marriage prohibited by reason of  difference of religion;  

(e)     a marriage with a woman so related  to the wife that if one of them had been  a male, they could not have lawfully  intermarried.

The reason why the aforesaid marriages  are irregular, and not void, is that in  cl.(a) the irregularity arises from a  accidental circumstance; in cl. (b) the  objection may be removed by the man  divorcing one of his four wives; in  cl.(c) the impediment ceases on the  expiration of the period iddat; in  cl.(d) the objection may be removed by  the wife becoming a convert to the  Mussalman, Christian or Jewish religion,  or the husband adopting the Moslem  faith; and in cl(e) the objection may be  removed by the man divorcing the wife  who constitutes the obstacle; thus if a  man who has already married one sister  marries another, he may divorce the  first, and make the second lawful to  himself."

26.     Paragrph 266 deals with the effects of a  void (batil) marriage and provides that a void  marriage is no marriage at all.  It does not  create any civil rights or obligations between  the parties. The offspring of a void marriage  are illegitimate.   Paragraph 267 which deals  with the effects of irregular (fasid) marriages  reads as follows:-         "267.  Effect of an irregular  (fasid) marriage \026

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(1)     An irregular marriage may be  terminated by either party, either  before or after consummation, by words  showing an intention to separate, as  where either party says to the other  "I have relinquished you". An  irregular marriage has no legal effect  before consummation.

(2)     If consummation has taken place \026

(i)     the wife is entitled to dower,  proper or specified, whichever is  less;  

(ii)    she is bound to observe the iddat,  but the duration  of the iddat both on  divorce and death is three courses;

(iii)   the issue of the marriage is  legitimate. But an irregular marriage,  though consummated, does not create  mutual rights of inheritance between  husband and wife (Baillie, 694, 701)."   

27.     On consideration of the decisions of the  various High Courts referred to hereinabove and  the provisions relating to void marriages and  marriages which are merely irregular, we are  also of the view that the decision rendered by  the Bombay High Court in the case of Tajbi’s  case (supra) is correct. Since a marriage,  which is temporarily prohibited may be rendered  lawful once the prohibition is removed, such a  marriage is in our view irregular (fasid) and  not void (batil).    28.     The answer to the question raised at the  very outset, therefore, 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 the  children of such marriage would be entitled to  maintenance under the provisions of Section 125  of the Code of Criminal Procedure.

29.     The decisions cited during the hearing of  this case do not really come to the aid of the  parties, except to the extent that a marriage  which is merely irregular or voidable continues  to subsist till it is set aside or declared to  be void in accordance with law.   30.     In view of what has been stated  hereinabove, we hold that the unlawful  conjunction and/or marriage between the  appellant and respondent No.1 continues to  subsist not having been declared void by any  competent forum and that accordingly, the  respondent No.1 and the respondent No.2 will  both be entitled to maintenance under Section

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125 of the Code of Criminal Procedure. There  is, therefore, no reason to interfere with the  order passed on 20.6.2005 by the Karnataka High  Court in Criminal Petition No. 3002 of 2004 or  that of the Judicial Magistrate, First Class,  Chincholi, on 28.6.2003 in Criminal Misc. No. 6  of 2001.  The appeal is accordingly dismissed  and the interim stay granted on 14.8.2006 is  vacated. 31.     The appellant shall pay to the respondents  all the arrears of maintenance, within a period  of six months from the date of this Judgment  and will also go on paying the current  maintenance with effect from the month of  March, 2008.  In addition, the appellant will  also pay to the respondent No.1 a sum of  Rs.10,000/- towards the cost of litigation.