By Vaishali Singh
The state of marriage in a society is a good indicator of that society's overall health and well-being because marriage is one of the fundamental structures of both Indian society and the family. This fundamental organization needs to be protected from the myriad of forces that could eventually cause the crumbling of its underpinnings. This is accomplished through the prevention of such a cause from breaking apart marriages and through the punishment of such events as they take place.
Facts
The respondent's older sister, Mushtaq Bee, is married to the appellant, Chand Patel. While he was still married to his first wife, he made the decision to marry Bismillah Begum, who was his wife's sister.
He wed his first wife’s younger sister, Bismillah Begum, with his first wife's approval. The respondent claimed that they had an affair throughout their marriage, which resulted in their having a kid outside of the confines of their legal marriage.
After they had been married for two years, a girl by the name of Taheman Bano was born to them. Because she was a juvenile at the time, the court designated her as the second respondent in this matter.
Bismillah Begum stated that for the past eight years, she has been Chand Patel's lawfully wedded wife and that a "Nikahnama"(1) had been executed but was lost. She asserted in her petition that she and her daughter lived under the same roof with Chand Patel's first wife, and that the respondent accepted the girl and brought her up as his own.
However, after a few years of being married to that man, her relationship with her husband began to deteriorate with time, and it got to the point where he began to neglect both her and their young daughter. However, the irony was that Chand Patel disputed that any of them had ever been married to each other.
Judgment
Trial Court Verdict
The trial court did not agree with Chand Patel's assertion that there had been no marriage between the two, and as a result, the court rejected his position since the evidence that was presented on its face indicated that there had been a marriage. As a consequence of this, the lower court ordered Chand Patel to pay an allowance of one thousand rupees per month to Bismillah Begum and their younger daughter until the latter reached the age of majority.
Sessions Court Verdict
The decision that had been passed by the trial court was upheld by the Sessions Court in Gulbarga, and it was held that the maintenance amount that had been set by the trial court must be paid to the wife and daughter of the defendant for as long as his marriage to Bismillah Begum is not declared by a competent court to be void or is not nullified.
High Court Verdict
The petition was thrown out when the case was brought before the High Judge because the court determined that there was no basis for the petition to be heard. Chand Patel filed an appeal with the Supreme Court of India after the lower courts, including the Trial court, the Sessions court, and even the High court, all agreed that he was required to pay support.
Supreme Court Verdict
According to the decision of the Supreme Court, a Muslim man who marries his wife's sister while he is still married to his first wife will have both of his marriages considered to be irregular, but the weddings will not be judged to be void. The decision made by the lower court was upheld by the apex court, which held that the unlawful marriage would still exist and that the Muslim man shall be liable to pay maintenance to his wife until the marriage is declared void by a competent court. The apex court also held that the lower court's decision would still be in effect. Chand Patel was given an order by the court to pay maintenance within six months of the judgment's issuance, and the court also ordered Chand Patel to pay the cost of litigation of the other party.
Analysis
The two concerns were the primary focal points of the lawsuit. The first question is whether or not, according to Islam, a marriage that includes the husband's sister is considered invalid. And the second question is, if the marriage with the wife's sister may have been void or irregular, does that woman have the right to maintenance after the divorce?
As the legal position of the marriage between the respondent and the appellant would be the determining factor in the claim to maintenance, the bench in this instance thought it was vital to define the legal status of the marriage between the two parties.
This matter falls within the purview of Muslim legal doctrine. According to Mohammedan law, an unlawful conjunction occurs "where a man at the same time has two wives who are related to each other by consanguinity, affinity, and fosterage, that if either of them had been male, they could not have been lawfully intermarried, for example, two sisters or aunt or niece and this bar of unlawful conjunction render a marriage irregular not void".(2) In other words, if either of the spouses had been male, they would not have been able to lawfully intermarry.
In addition, the bench relied on the case of Tajbi Abalal Desai vs. Mowla Alikhan Desai(3), in which it was held that such marriages are irregular and not void. This was due to the fact that such marriages could become lawful in case of the death or divorce of the first wife, thereby reducing it to a lawful marriage. The court made the observation that although the law that is applicable in this case is the Muslim personal law, the definition of void marriages that is provided under section 11 and 12 of the Hindu Marriage Act, 1955(4) is very similar. This is despite the fact that the Muslim personal law is the law that applies. Due to the fact that the definition of "void marriages" in the aforementioned provision does not render a marriage null and void from the moment it was first contracted, a decree from the appropriate court is required in order to do so. This order will remain in effect until such time as it is superseded by a subsequent one that declares marriages contracted in violation of the law to be null and void. In addition, the judgement emphasises that a Magistrate should not decide upon the validity of a marriage in the process of granting an order for maintenance to a man's wife and children unless and until the marriage has been declared to be invalid or has been nullified by a court. This is because the Magistrate's decision could affect the man's ability to provide for his family. Because of this, neither Section 391 nor Section 125 of the Code can be used to make a determination regarding the legitimacy or legality of the marriage. A wife's right to maintenance may not be taken away from her under any circumstances, even if the marriage in question violates personal law or is otherwise invalid. It is never permissible for the personal laws to be used as an obstacle for a party seeking maintenance under section 125 (5) of the Criminal Procedure Code. It is important to emphasise that it is applicable to people of all religions and that it has absolutely nothing to do with the individualised laws of any religion. In addition, the requirements of Section 125 cannot ever be overturned in these kinds of circumstances, even if there is a conflict between the provisions of this section and the personal laws. In the case of Muslims living in India, the Hanafi legal system dictates that an irregular relationship will continue to exist unless it is dissolved and the wife and any children born from it are given the right to receive support.
Conclusion
The section 125 of Cr.P.C. gives right to the wife and the children to get the maintenance for their livelihood and cases like these can be considered as a landmark judgment where it sets a precedent for further cases like these and the way it has moved from Trial Courts to Session/District Court to High Court and finally to the Supreme Court of India also paves a way for appellant to take their voice to higher courts if they are not satisfied with the decision given by the court at lower levels. The consistency in the decision of this case by all the courts and the justice provided to Bismillah Begum increases the faith in our justice system and the judges.
The author of this article is Vaishali Singh, a second-year BALLB student at NALSAR, Hyderabad.
[1] Principles of Mahomedan Law by Mulla, https://ia902605.us.archive.org/27/items/principlesofmaho00mulluoft/principlesofmaho00mulluoft_bw.pdf
[2] Principles of Mahomedan Law by Mulla, https://ia902605.us.archive.org/27/items/principlesofmaho00mulluoft/principlesofmaho00mulluoft_bw.pdf
[3] (1917) 19 BOMLR 300.
[4] Hindu Marriage Act, 1955; https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf
This article contains the view of the author and the publisher in no way associates with the views or ideologies of the author. All the moral rights vests with the Author(s).
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