Chand Patel V. Bismillah Begum, 1 (2008) DMC588 (SC)
| Citation | (2008) 4 SCC 774, AIR 2008 SC 1915 |
| Date of Judgment | 14 March, 2008 |
| Court | Supreme Court of India |
| Case Type | Criminal Appeal No. 488 of 2008 |
| Appellant | Chand Patel |
| Respondent | Bismillah Begum & Anr |
| Bench | Altamas Kabir & J.M. Panchal |
| Referred | Section 125 of the Code of Criminal Procedure |
FACT OF THE CASE
- The appellant Chand Patel married Mushtaq Bee the elder sister of the respondent. During the existence of his 1st wife, he decided to marry his wife’s sister Bismillah Begum.
- With the consent of his 1st wife Mushtaq Bee he married his wife’s younger sister Bismillah Begum. It was stated by the respondent that they consummated the marriage and hence a child was born to them out of wedlock.
- The daughter named Taheman Bano was born after 2 years of their marriage who was still a minor at that time and was made respondent no. 2 in this case.
- Bismillah Bano said that she was the legally wedded wife of Chand Patel for the past 8 years and a ‘Nikahnama’ was executed but was misplaced. She stated in her petition that she and her daughter lived under the same roof with Chand Patel’s 1st wife and that the respondent accepted the daughter and was brought up by him.
- But after a few years in that marriage, her relationship with her husband started deteriorating with time to the extent that he started neglecting her and their minor daughter. But the irony was that Chand Patel denied any marriage taking place between the two.
ISSUES
Whether a marriage performed by a person professing the Muslim faith with his Wife’s Sister, while his earlier marriage with the other Sister was still subsisting, would be void in law or merely irregular or voidable even though the subsequent marriage may have been consummated?
ARGUMENTS
The respondent No.1 herein, Bismillah Begum, filed an application for her maintenance and for the maintenance of her minor daughter, Taheman Bano, under Section 125 of the Code of Criminal Procedure, against one Chand Patel, in the Court of the Judicial Magistrate, First Class, Chincholi, being Criminal Misc. No.6 of 2001. In her petition she claimed that she was the legally wedded wife of the appellant herein and that her marriage with the appellant had taken place about eight years prior to the filing of the said petition. Her further case was that the marriage was consummated and two years after the marriage a daughter was born from the wedlock and she has been made petitioner No.2 in the application for maintenance. The petitioner No.2 Taheman Bano being a minor, is under the care and guardianship of her mother, the petitioner No.1, in the said application.
In her petition the respondent No.1 herein categorically admitted that the appellant herein was married to her elder sister, Mashaq Bee, and that the appellant, with the consent of his first wife married the respondent No.1 and a Nikahnama was also executed but the same had been misplaced. It was also admitted that the appellant herein lived with his first wife Mashaq Bee and the respondent No.1 under one roof and the appellant had even accepted the petitioner No.2 as his daughter and had brought her up.
JUDGMENT
Trial Court Verdict:
Although Chand Patel denied any marriage taking place between the two, this contention did not go well with the trial court and the court thus rejected his stance as the prima face evidence pointed out otherwise. The court observed that Bismillah Begum was his wife and the minor girl was his daughter and both the persons were not maintained by him. Hence, the trial court ordered Chand Patel to pay a monthly allowance of Rupees 1,000 to Bismillah Begum & their minor daughter until she reached adulthood.
District & Session Judge Verdict:
District and Session Judge held that the obligation is cast upon the appellant herein to maintain his wife and children till the marriage between them was declared null and void by a competent court.
High Court Verdict:
The High Court accepted the validity of the document of dissolution of marriage executed between the parties and also took into consideration the fact that they had lived as husband and wife for about 9 years. On such consideration, there was no merit in the petition; both the appeals came to be dismissed u/s 482 of Cr.P.C.
Supreme Court Verdict:
The Supreme Court held that a Muslim man who marries a wife’s sister during the existence of his marriage with his 1st wife, such marriages shall be deemed to be irregular and not illegal or void.
The apex court upheld the decision passed by the lower court and held that the unlawful marriage would still subsist and the Muslim man shall be liable to pay maintenance to his wife until his marriage is declared void by a competent court.
The court ordered Chand Patel to pay maintenance within 6 months from the date of the judgement and was also ordered to pay the respondent’s cost of litigation.
REFERENCE
This Article is written by Sarthak Dwivedi of Vikramajit Singh Sanatan Dharma College Kanpur, Intern at Legal Vidhiya
