Supreme Court upholds child born out of irregular marriage is entitled to property under Muslim Law.

The Supreme Court on January 22, 2018 upheld the Kerala High Court’s order in the case of Mohammed Salim v. Shamsudeen, Civil Appeal No. 5158 of 2013 that children born out of irregular marriages, like the one between a Muslim man and a Hindu woman, are legitimate and therefore eligible to inherit intestate property as per rules in Muslim law.

In the said case the Appellant being the uncle of the Defendant had appealed before the Supreme Court about the Defendant not being entitled to property of his brother as he was a child born out of irregular(fasid) marriage as per Muslim Law as the Defendant was born out of Muslim father and a Hindu mother.
 

The High Court relied upon various texts, including Mulla’s Principles of Mohammedan Law and Syed Ameer Ali’s Principles of Mohammedan Law, to conclude that Muslim law does not treat the marriage of a Muslim man with a Hindu woman as void, and confers legitimacy upon children born out of such wedlock. 

In the 21st edition of Mulla’s Principles of Mohammedan Law, at page 338, 250, marriage is defined as follows :­ “Marriage or nikah is defined to be a contract which has for its object the procreation and the legalizing of children.”

Under Muslim law, there are three types of marriage—valid, irregular and void, which are dealt with in Section 253 at page 342 of Mulla’s Principles of Mohammedan Law (21st edition).

Section 259(1) at page 345 of the 21st edition in Mulla’s Principles of Mohammedan Law deals with difference of religion and provides that marriage of a Muslim man with a non-Muslim woman who is an idolatress or fire worshipper (referring to a Hindu) is not void, but merely irregular. 

The Supreme Court, in Chand Patel v. Bismillah Begum, (2008) 4 SCC 774, while considering the question of the validity of a marriage of a Muslim man with the sister of his existing wife also referred to the above passages from Mulla (from an earlier edition, as reproduced in the 21st edition) while discussing the difference between void and irregular marriages and the effects of such irregular marriage.

Muslim marriages may be divided into three types:

1. Sahih- A marriage which is valid in all respects.
    
2. Fasid- A irregular marriage.
    
3. Batil- A void marriage which is void from the beginning.

The Supreme Court as a closing concluded 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. “

Hence, the appeal was dismissed leading to upholding the Kerala High Court’s order that the Defendant was entitled to the said property.

Takeaway:

1. Islam considers marriage between a Hindu and Muslim as “irregular”. But a child born to such a couple is “legitimate”, ruled Supreme Court and also said that the child has a claim on the father’s property.
    
2. Instances of invalid marriages in Muslim Law which are void ab intio are as follows:
   1. A marriage contracted without witnesses (S. 254);
       
   2. A marriage with fifth wife by a person having four wives (S. 255);
       
   3. A marriage with a woman undergoing iddat (S. 257);
       
   4. A marriage prohibited by reason of difference of religion with reference to Shia Law (S. 259);
       
   5. 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 (S. 263).
       
3. The decision that a marriage between a Hindu woman and Muslim man is merely irregular and the issue from such wedlock is legitimate has also been affirmed by various High Courts, e.g:- Aisha Bi v. Saraswathi Fathima, (2012)3 LW 937(Mad), Ihsan Hassan Khan v. Panna Lal, AIR 1928 Pat 19.