Child born out of marriage between muslim man and a hindu woman entitled to claim his father's property

Mohammed Salim through Lrs and Ors Vs Shamsudeen through Lrs and Ors

Supreme Court

22/01/2019

CIVIL APPEAL NO. 5158 OF 2013

About/from the judgment:

"It would not be out of place to emphasise at this juncture that since Hindus are idol worshippers, which includes worship of physical images/statues through offering of flowers, adornment, etc., it is clear that the marriage of a Hindu female with a Muslim male is not a regular or valid (sahih) marriage, but merely an irregular (fasid) marriage."

 

The Supreme Court held that a child born out of a marriage between a Muslim man and his Hindu wife is entitled to claim a share in his father's property.

 

The bench comprising of Justice NV Ramana and Justice Mohan M. Shantanagoudar also observed that the marriage of a Muslim man with an idolater or fire-worshipper is neither a valid (sahih) nor a void (batil) marriage, but is merely an irregular (fasid) marriage.

 

A marriage according to Muslim law is not a sacrament but a civil contract.

 

The bench was considering an appeal against a Kerala High Court judgment that upheld trial court finding that the plaintiff is the legitimate son of couple Mohammed Ilias and Valliamma (his hindu wife), and is entitled to his share in the property as per law.

 

Assailing these judgments, Senior Advocate Guru Krishnakumar, who appeared for the defendants, contended that since Valliamma was a Hindu by religion, she would not have any right over the property of Mohammed Ilias, and consequently the plaintiff would not get any share in the property of Mohammed Ilias.

 

Only child born outside of wedlock or born of a batil marriage is not legitimate

 

The bench, referring to texts, including Mulla's Principles of Mahommedan Law and Syed Ameer Ali's Principles of Mahommedan Law, observed that the Muslim law clearly distinguishes between a valid marriage (sahih), void marriage (batil), and invalid/irregular marriage (fasid). "Thus, it cannot be stated that a batil (void) marriage and a fasid (invalid/irregular) marriage are one and the same. The effect of a batil (void) marriage is that it is void ab initio and does not create any civil right or obligations between the parties. So also, the offspring of a void marriage are illegitimate", the court said.

 

The court held that the child of a couple whose marriage is fasid, i.e., unlawful but not void, under Muslim law will be legitimate and only that child born outside of wedlock or born of a batil marriage is not legitimate.

 

Marriage Between Muslim Man & Idolator/Fire Worshipper Wife Merely Irregular

 

Upholding the view expressed by the High Court, the bench observed: "We conclude that the marriage of a Muslim man with an idolater or fire-worshipper is neither a valid (sahih) nor a void (batil) marriage, but is merely an irregular (fasid) marriage. Any child born out of such wedlock (fasid marriage) is entitled to claim a share in his father's property. It would not be out of place to emphasise at this juncture that since Hindus are idol worshippers, which includes worship of physical images/statues through offering of flowers, adornment, etc., it is clear that the marriage of a Hindu female with a Muslim male is not a regular or valid (sahih) marriage, but merely an irregular (fasid) marriage."

Read the Judgment

Knowledge and content of about almost all their respective descriptions are borrowed from law-related blogs and websites, we, therefore, wish to give proper credit to all the respective law-related blogs and websites like LiveLaw, Bar and Bench, LatestLaws, PathLegal, FirstLaw, Lawctopus, IndianKanoon, Manupatra, LegallyIndia etc.. Many of the judgments are also taken from them websites of Hon'ble Supreme Court and other respective Hon'ble High Courts!

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