Mohd. Salim v. Shamsudeen, (2019) 4 SCC 130. Civil Appeal No. 5158 of 2013, decided on January 22, 2019.
Relevant paragraphs: 16. Before proceeding further, it is crucial to note that under Muslim law, there are three types of marriage—valid, irregular and void, which are dealt with in Section 253 at p. 342 of Mulla (21st Edn.): “A marriage may be valid (sahih), or irregular (fasid) or void from the beginning (batil).” The High Court, while dealing with the contention that the correct translation of the Arabic word “fasid” was “invalid”, and not “irregular”, and that therefore a fasid marriage was a void marriage, considered the changes over time in the interpretation of “fasid”. It would be worthwhile for us to refer to these changes as well. In the 6th Edn. of Mulla, at Sections 197, 199 and 200, fasid marriage is interpreted as “invalid”. So also in Sections 197, 199 and 204-A of the 8th Edn. of Mulla, fasid is stated to mean “invalid”. For instance, in the 6th Edn. of Mulla, Section 200 at p. 162, dealing with the difference of religion, reads: “(1) A Mahomedan male may contract a valid marriage not only with a Mahomedan woman but with a Kitabia, that is, a Jewess or a Christian, but not with an idolatress or a fire-worshipper. If he does marry an idolatress or a fire-worshipper the marriage is not void (batil), but merely invalid (fasid).”.
17. Section 204-A at p. 164 of the same edition deals with the distinction between void (batil) and invalid (fasid) marriage. It provides that a marriage which is not valid may either be void (batil) or invalid (fasid). A void marriage is one which is unlawful in itself, the prohibition against such a marriage being perpetual and absolute. An invalid marriage (fasid marriage) is described as one which is not unlawful in itself, but unlawful “for something else”, as here the prohibition is temporary or relative, or when the invalidity arises from an accidental circumstance such as the absence of a witness. Section 204-A(3) at p. 165 of the 6th Edn. of Mulla reads: “…Thus, the following marriages are invalid, namely—(a) a marriage contracted without witnesses (Sections 196-197);(b) a marriage by a person having four wives with a fifth wife (Section 198);(c) a marriage with a woman who is the wife of another (Section 198-A);(d) a marriage with a woman undergoing iddat (Section 199);(e) a marriage prohibited by reason of difference of religion (Section 200);(f) 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 (Section 204).…”.
18. The reason why the aforesaid marriages are invalid and not void has also been provided later in the same paragraph. With respect to marriages prohibited by reason of difference of religion, it is stated thus: “… in clause (e), the objection may be removed by the wife becoming a convert to the Mussulman, Christian or Jewish religion, or the husband adopting the Moslem faith….”.
19. In the 10th Edn., a change has been made to the meaning of fasid marriage. In Section 196-A, valid, irregular and void marriages are dealt with. It reads: “A marriage may be valid (sahih) or irregular (fasid), or void from the beginning (batil).”
20. From the 10th Edn. onwards, fasid marriage has been described as an irregular marriage, instead of invalid, but there has been no change with regard to the effect of a fasid marriage from the 6th Edn. onwards. The effects of an invalid (fasid) marriage have been dealt with in the 6th Edn. of Mulla at Section 206 at p. 166, clauses (1) and (2) of which read: (1) An invalid marriage has no legal effect before consummation.(2) If consummation has taken place, the wife is entitled to dower [“proper” (Section 220) or specified (Section 218), whichever is less], and children conceived and born during the subsistence of the marriage are legitimate as in the case of a valid marriage. But an invalid marriage does not, even after consummation, create mutual rights of inheritance between the parties.”
21. In the 8th Edn. of Mulla, the effects of a fasid marriage have been dealt with in Section 206 at p. 173. As in the 6th Edn., it is stated that children conceived and born during the subsistence of a fasid marriage are legitimate, as in the case of a valid marriage. As noted supra, the same position has been followed in the subsequent editions also, except that fasid has been described as “irregular” from the 10th Edn. onwards rather than as “invalid”.
22. Irrespective of the word used, the legal effect of a fasid marriage is that in case of consummation, though the wife is entitled to get dower, she is not entitled to inherit the properties of the husband. But the child born in that marriage is legitimate just like in the case of a valid marriage, and is entitled to inherit the property of the father.
23. Evidently, 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 (Section 205-A of the 6th and 8th Edns. and Sections 205-A of the 10th Edn., and 266 of the 18th Edn. of Mulla). Therefore, the High Court correctly concluded that the marriage of Defendant 9 with Mohammed Ilias cannot be held to be a batil marriage but only a fasid marriage.
24. We find that the same position has been reiterated in the 21st Edn. of Mulla as follows. The distinction between void and irregular marriages has been dealt with in Section 264 at p. 349:“(1) A marriage which is not valid may be either void or irregular. (2) A void marriage is one which is unlawful in itself, the prohibition against the marriage being perpetual and absolute. Thus, a marriage with a woman prohibited by reason of consanguinity (Section 260), affinity (Section 261), or fosterage (Section 262), is void, the prohibition against marriage with such a woman being perpetual and absolute.(3) An irregular marriage is one which is not unlawful in itself, but unlawful ‘for something else’, as where the prohibition is temporary or relative, or when the irregularity arises from an accidental circumstance, such as the absence of witnesses. Thus, the following marriages are irregular, namely:(a) a marriage contracted without witnesses (Section 254);(b) a marriage with a fifth wife by a person having four wives (Section 255);(c) a marriage with a woman undergoing iddat (Section 257);(d) a marriage prohibited by reason of difference of religion (Section 259);(e) 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 (Section 263).The reason why the aforesaid marriages are irregular, and not void, is that in clause (a) the irregularity arises from an accidental circumstance; in clause (b) the objection may be removed by the man divorcing one of his four wives; in clause (c) the impediment ceases on the expiration of the period of iddat; in clause (d) the objection may be removed by the wife becoming a convert to the Mussalman, Christian or Jewish religion, or the husband adopting the Moslem faith; and in clause (e) the objection may be removed by the man divorcing the wife who constitutes the obstacle; thus, if a man who has already married one sister marries another, he may divorce the first, and make the second lawful to himself.”
25. The effect of an irregular (fasid) marriage has been dealt with in Section 267 at pp. 350-51 of the 21st Edn. of Mulla as follows: “267. Effect of an irregular (fasid) marriage.—(1) An irregular marriage may be terminated by either party, either before or after consummation, by words showing an intention to separate, as where either party says to the other “I have relinquished you”. An irregular marriage has no legal effect before consummation.(2) If consummation has taken place—(i) the wife is entitled to dower, proper or specified, whichever is less (Sections 286, 289);(ii) she is bound to observe the iddat, but the duration of the iddat both on divorce and death is three course [see Section 257(2)];(iii) the issue of the marriage is legitimate. But an irregular marriage, though consummated, does not create mutual rights of inheritance between husband and wife….”.
27. In Syed Ameer Ali’s Mohamedan Law also, the same principle has been enunciated. The learned author, while dealing with the issue of the legitimacy of the children, observed at p. 203 of Vol. II, 5th Edn.: “The subject of invalid marriages, unions that are merely invalid (fasid) but not void (batil) ab initio under the Sunni law, will be dealt with later in detail, but it may be stated here that the issue of invalid marriage is without question legitimate according to all the sects.For example, if a man were to marry a nonscriptural woman, the marriage would be only invalid, for she might at any time adopt Islam or any other revealed faith, and thus remove the cause of invalidity. The children of such marriage, therefore, would be legitimate.”
28. Tahrir Mahmood in his book Muslim Law in India and Abroad, (2nd Edn.) at p. 151 also affirms that the child of a couple whose marriage is fasid i.e. unlawful but not void, under Muslim law will be legitimate. Only a child born outside of wedlock or born of a batil marriage is not legitimate.
29. A.A.A. Fyzee, at p. 76 of his book Outlines of Muhammadan Law (5th Edn.) reiterates by citing Mulla that the nikah of a Muslim man with an idolater or fire-worshipper is only irregular and not void. He also refers to Ameer Ali’s proposition that such a marriage would not affect the legitimacy of the offspring, as the polytheistic woman may at any time adopt Islam, which would at once remove the bar and validate the marriage.
31. Thus, based on the above consistent view, 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 from 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.
Compiled by S.Basavaraj, Advocate, Daksha Legal
Daksha Legal 