Apex court rules for maintenance to estranged Muslim woman

March 23rd, 2008 - 10:38 am ICT by admin  

By Rana Ajit
New Delhi, March 23 (IANS) In a ruling of profound socio-religious significance, the Supreme Court has held that a Muslim woman married to her sister’s husband, termed an “irregular” marriage within Islam, is entitled to maintenance from her husband. A bench of Justices Altamas Kabir and J.M. Panchal gave the ruling earlier this month on a plea for maintenance by a Muslim woman, Bismillah Begum, from Chincholi in Karnataka. She had married Chand Patel, the husband of her elder sister Mashaq Bee, in 1992 but the couple had fallen apart in 2001 after the birth of their daughter, Taheman Bano.

Patel had denied in court that he ever married Bismillah Begum. He had contended that even if he married her “it was void from the word go and never valid as per the Muslim personal law, which forbids marriage with the wife’s sister during the latter’s life or continuation of her marriage”.

However, the bench ruled that unless nullified by a “competent forum”, a Muslim woman within an “irregular” marriage would be entitled to maintenance as per Section 125 of the Criminal Procedure Code. So would be her children out of such wedlock.

The crucial legal provision binds a man, irrespective of his religion, to maintain his wife, including the divorced one till her remarriage, the legitimate or illegitimate minor children or even major ones with mental or physical abnormality and old parents unable to fend for themselves.

For its ruling, the apex court had to draw from a Bombay High Court ruling of 1917 vintage in a case known as Tajbi Abalal Desai versus Mowla Alikhan Desai.

Citing the pre-Independence ruling, the bench ruled that “a marriage with the sister of an existing wife (a temporarily prohibited woman) was not illegal and void (batil) per se but only irregular (fasid) and voidable.”

The bench held the marriage with the wife’s sister as merely “irregular” and it could become perfectly legal and lawful in the case of the death of the first wife or her divorce from her husband.

Bismillah had earlier approached the Chincholi judicial magistrate, who had ordered Chand Patel to pay Rs.1,000 every month to her and her daughter for maintenance.

The judicial magistrate’s order was subsequently endorsed by the Gulbarga sessions court and then by the Karnataka High Court, which held that “the Muslim personal law cannot come in the way of a Muslim woman to pray for and obtain maintenance under Section 125 of the CrPC”.

The Karnataka High court judgement was challenged in the apex court by Chand Patel, who denied that he ever married Bismillah Begum.

He also cited the Muslim personal law to support his case and said that Bismillah and her minor daughter were never conferred with any right and not entitled to maintenance from him.

“With Islam forbidding a man from marrying the wife’s sister and a woman from marrying the sister’s husband during the subsistence of the earlier marriage”, the bench faced what it termed “an interesting question of law”.

The question was: “Whether a Muslim man’s marriage with his wife’s sister during the continuation of his marriage with the other sister would be void to begin with or merely irregular or voidable.”

Looking for the answer, the bench scoured through ancient works of eminent Islamic scholars like those of Mulla’s “Principles of Mahomedan Law” and Fatwa-i-Alamgiri (religious edicts from Mughal emperor Aurangzeb’s court), besides other old judicial verdicts.

The bench eventually held that “a marriage with the sister of an existing wife was not void (batil) but irregular (fasid)” as she does not fall in the category of “permanently prohibited woman”, the marriage with whom would be void ab initio as per the Muslim personal law.

Quoting the 1917 Bombay High Court ruling, the bench said as per Islamic laws, the wife’s sister falls in the category of only “temporarily prohibited” woman, the marriage with whom could become perfectly lawful in case the first wife died or divorced the husband.

(Ajit Rana can be contacted at rana.ajit@ians.in)

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