Children born out of Irregular Marriage legitimate in Muslim Law, Supreme Court [Read Judgment]
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Children born out of Irregular Marriage legitimate in Muslim Law, Supreme Court [Read Judgment]

Meera Emmanuel

The Supreme Court has noted that children born out of irregular marriages, including one between a Muslim man and a Hindu woman, are legitimate and therefore eligible to inherit intestate property as per applicable rules in Muslim law.

As stated in the judgment passed today,

… the marriage of a Muslim man with an idolater or fire­worshipper 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.

The Bench of Justices NV Ramana and MM Shantanagouder made the observation while dismissing a challenge made to a 2007 Kerala High Court judgment.

The parties before the Court were uncle and nephew, although the uncle denied the relation. The nephew (plaintiff) had filed the suit for partition to begin with, staking a claim on the property devolved to his Muslim father. The plaintiff was born out of the second marriage of his father. His mother was a Hindu at the time of marriage.

However, his paternal uncle (defendant/appellant) contested the plaintiff’s claim, arguing that the plaintiff was not his brother’s legitimate son. It was the defendant’s case that the marriage between his brother and the plaintiff’s mother was not valid. Further, it was submitted that the plaintiff was born two years after the defendant’s brother died. Therefore, the plaintiff could not be a legitimate heir.

Whereas the trial court ruled in the plaintiff’s favour, the district court overturned the trial court verdict on appeal. However, the High Court thereafter ruled in favour of the plaintiff again, and restored the original trial court verdict.

On further appeal by the defendant, the Supreme Court affirmed the view taken by the trial court and the High Court, finding that there were public documents to prove that the plaintiff was a legitimate heir, born only two months before the death of his father. The Bench held,

Mohammed-Salim-v-Shamsudeen-SC-Jan-22-2019.pdf
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