Saturday, March 15, 2008

'Muslim man's marriage to 2 sisters not illegal'

NEW DELHI: Settling a longstanding
debate in Moslem Personal Law concerning the position of two ses marrying a
man, the Supreme Court have ruled that the latter's matrimony to his wife's
sister, during the subsistence of the earlier marriage, was merely irregular
though not illegal. This judgement would set a halt to the pattern by
certain people who get married ses of their wives and then decline maintenance,
citing the Moslem usage that termed the 2nd matrimony to the wife's sister as
void. A Bench comprising Justices Altamas Kabir and Joule Meter Panchal,
after tracing the development of law as well as at odds opinions of HCs right
from 1895, came to the decision that such as matrimonies are merely irregular and
not void, so the right to acquire care was not extinguished by law. Justice
Kabir started with the question: "Whether a matrimony performed by a person
professing Moslem religion with his wife's sister, while his earlier matrimony with
the other sister was still subsisting, would be nothingness in law or merely irregular
or voidable even though the subsequent matrimony may have got been
consummated?" On the footing of a request by one Bismillah Begum,
Justice Kabir said: "The reply is that the barroom of unlawful conjunction (jama bain-al-mahramain) renders a
marriage irregular and not void." "Consequently, under the Hanafi
law, as far as Muslims in Republic Of India are concerned, an irregular matrimony continues
to subsist till terminated in conformity with law and the married woman and children
would be entitled to care under Section 125 of CrPC," he said. One Chand Patel was married to Mustaq Bee. With the consent of his
wife, he married her sister, Bismillah Begum, and had a girl from her. Later, he started neglecting Bismillah Begum, who had no agency to support
herself and child. She moved the trial tribunal seeking care for
each of them. The trial tribunal granted the petition and this order was upheld both
by the territory tribunal and the high court. Ambitious HC order, Patel
argued that the matrimony was prohibited under the law, which disentitles her
from any maintenance. Rejecting the argument, the Bench said matrimony to the
wife's sister, during the subsistence of the earlier marriage, was only
irregular (fasid) and not invalidate (batil). The tribunal ordered Chand Patel to pay all

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