Child Legitimacy in Irregular Muslim Marriages Upheld: Supreme Court Decision in Mohammed Salim vs. Shamsudeen (22 January 2019)

Date of the Judgment: 22 January 2019

Citation: [Not Available in Source]

Judges: N.V. Ramana, J. and Mohan M. Shantanagoudar, J.

Can a child born to a Hindu mother and a Muslim father, in a marriage not considered valid under Muslim law, be denied inheritance rights? The Supreme Court of India addressed this critical question in a recent case involving a property dispute. The core issue revolved around the legitimacy of a child born from a marriage deemed irregular (fasid) under Muslim law and the child’s right to inherit his father’s property. This judgment clarifies the legal position on the rights of children born from such unions. The bench was composed of Justices N.V. Ramana and Mohan M. Shantanagoudar, with the majority opinion authored by Justice Mohan M. Shantanagoudar.

Case Background

The case involves a dispute over the partition and possession of properties. The original plaintiff, Shamsudeen, claimed a 14/16th share in Plaint Schedule ‘A’ property and half rights over Plaint Schedule ‘B’ property. These properties originally belonged to Zainam Beevi. Plaint Schedule ‘A’ property was gifted to Mohammed Ilias, the father of the plaintiff, by Zainam Beevi. The plaintiff claimed inheritance rights as the son of Mohammed Ilias. The defendants, including Mohammed Idris (brother of Mohammed Ilias) and his children, contested the plaintiff’s claim, asserting that Valliamma (the plaintiff’s mother) was not legally married to Mohammed Ilias as she was a Hindu at the time of the marriage and had not converted to Islam. They also contended that the plaintiff was born after the death of Mohammed Ilias.

Timeline:

Course of Proceedings

The trial court decreed the suit in favor of the plaintiff. However, the first appellate court reversed the trial court’s decision and dismissed the suit. The High Court of Kerala, in the impugned judgment, set aside the first appellate court’s decision and restored the trial court’s decree, leading to the current appeal before the Supreme Court.

Legal Framework

The Supreme Court examined the relevant aspects of Muslim law concerning marriage and legitimacy. According to Mulla’s Principles of Mahommedan Law, marriage (nikah) is a contract aimed at procreation and legalizing children. The essentials of a valid marriage include a proposal and acceptance in the presence of two male or one male and two female witnesses. A Muslim man can marry a Muslim woman or a Kitabia (Jewess or Christian), but marriage with an idolatress or fire-worshipper is considered irregular (fasid), not void (batil).

The Court referred to Section 35 of the Indian Evidence Act, 1872, which states that entries in public registers are relevant facts. The birth register extract (Exhibit A3) was considered a public document and relevant to the case.

The court also discussed the three types of marriage under Muslim law:

• Sahih (Valid): A marriage that meets all legal requirements.
• Fasid (Irregular): A marriage that is not unlawful in itself but is irregular due to some temporary or relative impediment.
• Batil (Void): A marriage that is unlawful from the beginning and has no legal effect.

The court noted that while the term “fasid” was earlier translated as “invalid,” it is now understood as “irregular.” The key distinction is that a void marriage (batil) has no legal effect, and the children are considered illegitimate, whereas an irregular marriage (fasid), if consummated, confers legitimacy on the children, though the wife does not inherit from the husband.

Arguments

Appellants’ Arguments:

• The appellants argued that the plaintiff could not be the son of Mohammed Ilias because the plaintiff admitted to being born in 1949, while Mohammed Ilias died in 1947.
• They contended that Valliamma, being a Hindu at the time of marriage, could not be the legally wedded wife of Mohammed Ilias, and therefore, the plaintiff had no right to inherit from Mohammed Ilias.

Respondents’ Arguments:

• The respondent (plaintiff) argued that he was the son of Mohammed Ilias and Valliamma, who lived together as husband and wife.
• The plaintiff relied on the birth register extract (Exhibit A3) and the fact that the defendants did not deny that Mohammed Ilias and Valliamma lived together as husband and wife.
• The respondent argued that even if the marriage was irregular, the child born out of such a wedlock is legitimate under Muslim law.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section, however, the main issue was:

1. Whether the plaintiff is the legitimate son of Mohammed Ilias and entitled to inherit his property, given that his mother was a Hindu at the time of her marriage to Mohammed Ilias.

Treatment of the Issue by the Court

Authorities

The Court relied on several authorities to reach its decision:

Judgment

How each authority was viewed by the Court?

The Court relied on the following authorities:

• Section 35 of the Indian Evidence Act, 1872*: The Court used this provision to validate the birth certificate as evidence of the plaintiff’s parentage.
• Mulla’s Principles of Mahommedan Law*: The Court extensively used Mulla’s text to define and differentiate between valid (sahih), irregular (fasid), and void (batil) marriages under Muslim law. It relied on the text to establish that a marriage with an idolater is fasid and not batil.
• Syed Ameer Ali’s Principles of Mahommedan Law*: The Court cited this work to support the view that children born from irregular marriages are legitimate.
• Chand Patel v. Bismillah Begum [(2008) 4 SCC 774]*: The Supreme Court’s previous ruling was used to reiterate the distinction between void and irregular marriages and their legal effects.
• Aisha Bi v. Saraswathi Fathima [(2012) 3 LW 937 (Mad)]*: This High Court judgment was cited to support the conclusion that a marriage between a Muslim man and a Hindu woman is irregular.
• Ihsan Hassan Khan v. Panna Lal [AIR 1928 Pat 19]*: This High Court judgment was cited to support the conclusion that a marriage between a Muslim man and a Hindu woman is irregular.
• Muslim Law in India and Abroad by Tahir Mahmood*: This book was cited to affirm that a child of a fasid marriage is legitimate.
• Outlines of Muhammadan Law by A.A.A. Fyzee*: This book was cited to reiterate that the nikah of a Muslim man with an idolater is irregular and not void.

What weighed in the mind of the Court?

The Court’s decision was primarily influenced by the following factors:

• Public Documents: The birth register extract (Exhibit A3) was crucial in establishing the plaintiff’s parentage and date of birth.
• Muslim Law Principles: The Court relied heavily on established texts of Muslim law, such as Mulla’s Principles of Mahommedan Law, to distinguish between different types of marriages and their implications for child legitimacy.
• Precedent: The Court considered previous judgments and scholarly opinions to support its view that a marriage between a Muslim man and a Hindu woman is irregular and that children born from such a union are legitimate.
• Consistency of Legal Interpretation: The Court emphasized the consistent interpretation of the term “fasid” as “irregular” rather than “void” in later editions of Mulla and other scholarly works.

Logical Reasoning

Judgment

The Supreme Court upheld the High Court’s decision, concluding that the plaintiff is the legitimate son of Mohammed Ilias and Valliamma. The court emphasized that even if the marriage between Mohammed Ilias and Valliamma was irregular (fasid) due to Valliamma’s Hindu faith at the time of marriage, the child born out of such a union is considered legitimate under Muslim law and is entitled to inherit his father’s property. The court noted that “a marriage with an idolatress or a fire-worshipper, is not void, but merely irregular.” The court also observed that “the issue of the marriage is legitimate.” The court further stated that “an irregular marriage has no legal effect before consummation” but after consummation the “issue of the marriage is legitimate.”

Key Takeaways

• A marriage between a Muslim man and a Hindu woman is considered irregular (fasid) under Muslim law, not void (batil).
• Children born out of such irregular marriages are considered legitimate and have the right to inherit their father’s property.
• The distinction between void and irregular marriages is crucial in determining the rights of the parties and their children.
• The Court emphasized the importance of public documents, such as birth registers, in establishing facts related to parentage and date of birth.
• The judgment reinforces the principle that Muslim law recognizes the legitimacy of children born from irregular marriages, ensuring their inheritance rights.

Directions

No specific directions were issued by the Supreme Court in this case. The court simply upheld the High Court’s decision and dismissed the appeal.

Development of Law

The ratio decidendi of this case is that a child born out of an irregular (fasid) marriage under Muslim law is legitimate and entitled to inherit his father’s property. This judgment reaffirms the established principle in Muslim law that distinguishes between void and irregular marriages, ensuring the rights of children born from such unions. This case does not change any previous position of law but reinforces the existing law.

Conclusion

In conclusion, the Supreme Court’s judgment in Mohammed Salim vs. Shamsudeen clarifies that children born from irregular (fasid) Muslim marriages are legitimate and entitled to inherit from their fathers. This decision reinforces established principles of Muslim law and provides legal certainty for families in similar situations. The court’s reliance on public documents, established legal texts, and previous judgments underscores its commitment to upholding justice and ensuring the rights of all individuals, particularly children.