CHAND PATELversusBISMILLAH BEGUM AND ANR.

                            [2008] 5 S.C.R. 1


                            CHAND PATEL                                 A
                                    v.
                   BISMILLAH BEGUM AND ANR.
                 (Criminal Appeal No. 488 of 2008)
                           MARCH 14, 2008
1
                                                                        B
           [ALTAMAS KABIR AND J.M. PANCHAL, JJ.]

           Code of Criminal Procedure, 1973 - s.125 -
    Maintenance - Second marriage by muslim with his wife's
    sister while his earlier marriage with other sister still subsistingc
    - Daughter born out of this wedlock - Claim for maintenance
    by second wife and her daughter - Entitlement to - Held:
    Muslim Law prohibits 'unlawful conjunction' which means that
    a man cannot marry his wife's sister in his lifetime - However,
    bar of 'unlawful conjunction' renders such marriage irregular,
                                                                         D
    but not void - Such irregular marriage would continue to subsist
    till terminated in accordance with Jaw - Since marriage not
    declared void by competent court, second wife and daughter
    entitled to maintenance - Muslim law - Jama bain-al-
    mahramain.
                                                                         E
           Hindu Marriage Act, 1955 - ss.11, 12 - Muslim law -
    Jama bain-al-mahramain - Void and Voidable marriage -
    Distinction between.
          The prosecution case was that the respondent no.1
    was legally wedded wife of the appellant and her marriage F
    v·ith the appellant had taken place about 8 years prior to
    the filing of petition under s.125 Cr.P.C. Two years after
    marriage, a daughter was born from the wedlock. In her
    petition, the respondent no.1 categorically admitted that
    the appellant was married to her elder sister and that he G
    married her with the consent of his first wife. She prayed
    for maintenance for herself and for her minor daughter @
t   Rs.1000 p.m. for each of them. Appellant denied his
    marriage with respondent No.1.
                                 1                             H
    2        SUP.REME COURT REPORTS              [2008] 5 S.C.R.


A      Trial Court prima facie came to a finding that
  respondent no.1 was wife of appellant and respondent
  no.2 was his daughter, and accordingly, directed appellant
  to pay Rs.1000/- p.m. each. The revisional Court confirmed
  the order of Magistrate and held that the personal law of
B the parties could not come in the way of a Muslim to pray
  for and obtain maintenance under s.125 Cr.P.C. since an
  obligation is cast upon the appellant to maintain his wife
  and children till the marriage between them was declared
  null and void by compEitent court. Appellant filed an
C application under s.482 Cr.P.C. which was dismissP.d.
       In appeal to this Court, the appellant contended that
  the Muslim Law specifically prohibits 'unlawful
  conjunction' meaning that a man could not marry his
  wife's sister in his wife's life time; that the appellant had
D from the very initial stage denied having married the
  respondent No.1, who is his wife's younger sister and that
  he did not have any sexual relations with her, thereby
  disputing the paternity of the respondent No.2 through
  him and that since such unlawful conjunction is
E prohibited, even if the marriage had been performed the
  same was void in law and did not confer any rights either
  on the respondent No.1 or on respondent No.2.
        Dismissing the app1eal, the Court
F       HELD: 1. Though the factum of marriage between
  them was denied by the appellant, the courts below
  negated the appellant's case and proceeded on the basis
  that a marriage had been performed between them. If the
  marriage which was said to have been performed between
G the appellant and the respondent No.1 is held to be void
  then, in such event, thei respondent No.1 would not be
  entitled to maintenance from the appellant under s.125
  Cr.P.C. If, on the other hand, the marriage is held to be
  irregular, then in such event, the marriage would subsist        +
H for all purposes, unli::!ss declared to be void by a
         CHAND PATEL v. BISMILLAH BEGUM AND ANR.                3

,).
      competent court. Till such a declaration is made, along A
      with the respondent No.2, the respondent No.1 would also
      be entitled to maintenance under s.125 Cr.P.C. Although,
      the law applicable in this case is under the personal law
      of Muslims, it has many similarities with the provisions of



,     ss.11and12 of the Hindu Marriage Act, 1955. S.11 of Hindu 8
      Marriage Act defines 'void marriages' and s.12 defines
      'voidable marriages'. Under the Muslim law also a
      distinction has been drawn between void marriages
      and irregular marriages. [Paras 19, 21] [10-G, H;
      11-A, B, C, G, H]                                           c
           Nanak Chand v. Chandra Kishore Aggarwal and Ors. AIR
      (1970) SC 446; Re-Hussain Saheb (1985) Criminal Law
      Journal 1505 (A.P.); Rameshchandra Rampratapji Daga v.
      Rameshwari Rameshchandra Daga (2005) 2 SCC 33;
      Savitaben Somabhai Bhatiya v. State of Gujarat and Ors. D
 '(   (2005) 3 SCC 636; Yamunabai Anantrao Adhav v. Anantrao
      Shivram Adhav AIR 1988 SC 644 - referred to.
           Mu/la's "Principles of Mahomedan Law" in paragraphs
      260 to 264 - referred to.
                                                                     E
           2.1. A marriage with the sister of an existing wife was
      not void (batil) but irregular (fasid). A marriage with the
      sister of an existing wife could always become lawful by
      the death of the first wife or by the husband divorcing his
      earlier wife and thereby making the marriage with the          F
      second sister lawful to himself. [Para 23] [12-G; 13-A, B]
           Tajbi Abalal Desai v. Mow/a Alikhan Desai 39 Indian
      Cases 1917 - affirmed.
          Aizunnissa v. Karimunissa ILR 1895 23 Calcutta;
                                                                     G
      Mussammat Kaniza v. Hasan Ahmad Khan 92 Indian Cases
      1926; Taliamand v. Muhammad Din 129 Indian Cases 1931;
      Rahiman Bibi Saheba v. Mahboob Bibi Saheba ILR 1938 -
t     referred to.
           2.2. The bar of unlawful conjunction Uama bain-al-        H
    4         SUPREME COUFff REPORTS                    [2008] 5 S.C.R.

                                                                            >...
A mahramain) renders a marriage irregular and not void.
  Consequently, under the Hanafi law as far as Muslims in
  India are concerned, an irregular marriage continues to
  subsist till terminated in accordance with law and the wife
  and the children of such marriage would be entitled to
B maintenance under the provisions of s.125 of the Code
  of Criminal Procedure. [Para 28] [16-D, E]
                                                                                   -
         3. The unlawful conjunction and/or marriage between
    the appellant and respondent No.1 continues to subsist
    not having been declared void by any competent forum
c   and accordingly, the respondent No.1 and the respondent
    No.2 will both be entitlied to maintenance under s.125
    Cr.P.C. [Para 30] [16-G, H]
         CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
    No. 488 of 2008.
D
         From the final Judgment and Order dated 20.6.2005 of
    the High Court of Karnatal<a at Bangalore in Crl. Petition No.
    3002 of 2004.
      Raja Venkatappa Naik, Raja Raghavendra Naik, S.P.
E Adgaonkser and Rameshwar Prasad Goyal for the Appellant.

         K. Sarada Devi for the Respondents.
         The Judgment of the Court was delivered by

F        ALTAMAS KABIR, J. 1. Leave granted.
         2. The application for condonation of delay in filing the
    Special Leave Petition is allowed and the delay in filing the same
    is condoned.

G         3. This appeal raises an interesting question of law as to
    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.
H
               CHAND PATEL v. BISMILLAH BEGUM AND ANR.                        5
                         [ALTAMAS KABIR, J.]
 1~              4. The facts which give rise to the aforesaid question, in        A
           brief, are set out hereunder.
                  5. The respondent No.1 herein, Bismillah Begum, filed an
           application for her maintenance and for the maintenance of her
           minor daughter, Taheman Ba no, under Section 125 of the Code
           of Criminal Procedure, against one Chand Patel, in the Court            B
     ·1
           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     c
           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 Sano being a minor, is under the care and
           guardianship of her mother, the petitioner No.1, in the said            D
     '(    application.
                 6. 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               E
           executed but the same had been misplaced. ltwas 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.                                                         F
     'I'
                 7. That with the passage of time the relationship between
           the appellant and the respondent No.1 began to deteriorate and
           he started neglecting the respondents who have no means to
           support themselves. The respondent No.1 prayed for
                                                                                   G
           maintenance for herself and for her minor daughter@ Rs.1,000/
           - per month for each of them from the date of filing of the petition.
,,
._ t            8. The case made out on behalf of the respondent No.1
           was denied on behalf of the appellant herein. He categorically
           denied that he had married the respondent No.1. The defence             H
    6         SUPREME COURT REPORTS                    [2008] 5 S.C.R.

                                                                          _,
A put up by the appellant was not accepted by the learned Trial
  Court, which prima facie came to a finding that the respondent
  N o.1 was, in fact, the wife of the appellant and that the petitioner
  No.2 is his daughter. The Trial Court also came to the finding
  that the appellant had neglected the respondents and had failed
B to maintain them, which he was in law required to do, and
  accordingly, directed the appellant to pay Rs.1,000 per month
  to the respondent No.1 towards her life support maintenance
  and to the respondent No.2 till she reached adulthood.

        9. The aforesaid decision was challenged by the appellant
c herein in the revision filed by him, being Criminal Revision No.76
  of 2003, in the Court of the District and Sessions Judge at
  Gulbarga. The respondent No.1 herein, both on her own behalf
  and on behalf of her minor daughter, also filed Criminal Revision
  No.96 of 2003 before the same learned Judge and both the
D revision petitions were taken up together for disposal and wee
  disposed of by a common order. After considering several                'y

  decisions of different High Courts and this Court the learned
  Fourth Additional District Judge, Gulbarga, dismissed both the
  revision petitions and confirmed the order passed by the Judicial
E Magistrate, First Class, Chincholi, in Criminal Misc. No.6 of
  2001. While arriving at the aforesaid decision, the learned
  revisional Court held that the personal law of the parties could
  not come in the way of a Muslim to pray for and obtain
  maintenance under Section 125 of the Code of Criminal
F Procedure since an obligation is cast upon the appellant herein
  to maintain his wife and children till the marriage between them        y
  was declared null and void by a competent court. While referring
  to various decisions of different High Courts, the revisional Court
  relied to a large extent on a decision of this Court in the case of
  Nanak Chand Vs. Chandra Kishore Aggarwal and others (AIR
G
  1970 SC 446) in which it was, inter alia, held that Section 488
  of the old Code which corresponds to Section 125 of the new
  Code is applicable to all persons belonging to all religions and
  has no relationship to the personal law of the parties. The learned     t ,,.,,
  Judge also referred to the decision of this Court in the case of
H
          CHAND PATEL v. BISMILLAH BEGUM AND ANR.                    7
                    [ALTAMAS KABIR, J.]

l~    Re- Hussain Saheb (1985 Criminal Law Journal 1505 (A.P.)
      (W.P. No.858of1985) wherein it was held that the provisions of
                                                                          A

      maintenance of a divorced wife under Section 125 of the Code
      of Criminal Procedure could not be struck down on the ground
      of inconsistency between the said provisions and the personal
      laws of the parties. On the basis of the above, the learned         B
      Additional Sessions Judge held as follows:

           "Thus in the above said dictum the personal law of the
           Muslim no way coming in the way of Muslim to maintenance
           of the respondent. Moreover the Magistrate cannot go
           into validity of the marriage while dealing u/Section 125 of c
           Cr.P.C. The petitioner must maintain the wife and chlldren
           till the marriage between them declares null and void by
           the competent court. Therefore, by relying upon the rulings
           of the Hon'ble Supreme Court the marriage between the
           petitioner and respondent No.1 is presumed to be legal D
 '(        and validity of the marriage cannot be decided under
           proceedings u/sec. 125 of Cr.P.C. or Section 391 of Cr.P.C.
           Therefore, I do not find any illegality or irregularity
           committed by the Magistrate while granting maintenance
           to the respondents. Hence I answer Point no.1 and 2 in E
           the negative."

            10. Subsequently, the appellant herein filed an application
      under Section 482 of the Criminal Procedure Code for setting
      aside the order dated 28.6.2003 passed by the Judicial
      Magistrate 1st Class in Criminal Misc. No.6 of 2001. From the       F
 '<   order disposing of the said petition it is apparent that the High
      Court had occasion to look into the orders passed both by the
      Trial Court as well as the revisional Court and after considering
      the same was of the view that there was no merit in the petition
      and dismissed the appellant's application under Section 482         G
      of the said Code.
           11. Much the same arguments as had been advanced
•     before the Courts below have been advanced on behalf of the
      respective parties in these proceedings.
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    8         SUPREME COURT REPORTS                    [2008] 5 S.C.R.


A       12. On behalf of the appellant it has been urged that the         -'
  Muslim law specifically prohibits 'unlawful conjunction' which has
  been interpreted to mean that a man could not marry his wife's
  sister in his wife's life time. It was urged that in the instant case
  the appellant had from the very initial stage denied having
B married the respondent No.1 herein, who is his wife's younger
  sister and that he did not have any sexual relations with her,           r
  thereby disputing the paternity of the respondent No.2 through
  him. It was also submitted that since such unlawful conjunction
  is prohibited, even ifthe marriage had been performed the same
c was void in law and did not confer any rights either on the
  respondent No.1 or on respondent No.2 since from the very
  inception the marria~1e was void and invalid.
          13. In support of his aforesaid contention Mr.Raja
    Venkatappa Naik, learned counsel for the appellant, firstly
D   referred to the decision of this Court in Rameshchandra
    Rampratapji Daga Vs. Rameshwari Rameshchandra                         -,
    Daga,(2005) 2 SCC 33, in which this Court had occasion to
    consider, inter alia, the provisions of Sections 11 and 12 as
    also Section 5(i) of the Hindu Marriage Act, 1955. The facts of
E   the said case are to some extent similar to the facts of this case,
    although, the same involved the provisions of the Hindu Marriage
    Act, 1955. In the said case the wife was first married to someone
    but according to her the customary rituals of the marriage·had
    not been completed, inasmuch as, during the marriage
F   ceremony the family members quarrelled over dowry. She,
    thereafter, filed a petition for divorce but did not prosecute the
    same and no decree of divorce was passed in the said                  ""
    proceedings. However, in accordance with the prevalent
    customs in the Maheshwari community, a chhor chithhi or a
G   document of dissolution of marriage was executed between the
    wife and the said person and it was also registered. The said
    documents were shown and also given to the person with whom
    the second marriage was performed and a daughter was also
    born from the second marriage. According to the wife, her              _.,
    second husband began to ill treat her, and, ultimately, she had
H
       CHAND PATEL v. BISMILLAH BEGUM AND ANR.                     9
                 [ALTAMAS KABIR, J.]

#   to file proceedings in the Family Court for grant of a decree of A
    judicial separation and maintenance of Rupees Three thousand
    per month both for herself and for her minor daughter. The second
    husband filed a counter petition seeking a declaration that his
    marriage with his present wife was a nullity on the ground that
    on the date of the second marriage her earlier marriage with B
    her previous husband had not been dissolved by any Court in
    accordance with the provisions of the Hindu Marriage Act, 1955.
    The Family Court allowed the petition of the wife and granted a
    decree of judicial separation as also the maintenance claimed
    by her and dismissed the counter petition filed by the husband.    c
    The High Court, however, reversed the finding of the Family Court
    and held that since the first marriage of the present wife with the
    previous husband had not been dissolved by the Court, the
    second marriage was in contravention of Section 5(i) of the
    aforesaid Act and was, therefore, a nullity under Section 11 of
                                                                        D
    the Act. The High Court granted a decree of separation holding
    that the marriage was a nullity, though it maintained the decree
    granted in respect of maintenance to the respondent No.1 and
    her daughter.
          14. Dismissing the two appeals preferred both by husband     E
    and the wife, the Supreme Court held that in the facts of the
    case the Courts below were fully justified in granting
    maintenance both to the wife and the daughter since the
    evidence of the wife had been rightly believed by the Courts
    below. The High Court accepted the validity of the document of     F
    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, both the
    appeals came to be dismissed.
          15. Mr. Naik also relied on another decision of this Court G
    in the case of Savitaben Somabhai Bhatiya vs. State of Gujarat
    and others, (2005) 3  sec    636, in which it was observed that

•   the legislature had considered it necessary to include within the
    scope of Section 125 of the Code an illegitimate child, but it
    had not done so in respect of a woman not lawfully married. It H
    10        SUPREME COURT REPORTS                  [2008] 5 S.C.R.


A was observed that however desirable it may be, to take note of
  the plight of the unfortunate woman, the legislative intent being
  clearly reflected in Section 125 of the Code, there was no scope
  for enlarging its scope by introducing any artificial definition to       ~
  include a woman not lawfully married in the expression "wife".
B       16. On the basis of the aforesaid two decisions, learned
    counsel for the appellant submitted that having regard to the       r   ~
                                                                             r
    letter and spirit of Section 125 of the Code, the Courts below
    had erred in granting maintenance to the respondent No.1 when
    her marriage itself was void from its very iriception.
c                                                                           ;..
        17. Mrs. K. Sarada Devi, learned counsel for the
  respondents, however, questioned the decision of the High
  Court on the ground that in a proceeding under Section 125 of
  the Code, the Court was not required to adjudicate upon the
  validity of a marriage and on a prima facie view it could pass an
D
  order for maintenance of both the wife and her daughter. She
  however, also contende·d that the marriage between the parties
  had been solemnised inspite of the existing facts which were
  known to both the partiies. She urged that it was the appellant
  who, despite having married her elder sister, not only chose to
E marry the respondent No.1 as well, but was now taking recourse
                                                                             ~




  to technicality to avoid payment of maintenance which he was              ./
  required to pay under the provisions of Section 125 of the Code.
        18. She urged that till such time as the marriage between
F the appellant and the respondent No.1 was not declared to be
  void by a competent Court of law, it continued to subsist and all
  rights flowing from a valid marriage continued to be available to
  the respondent No.1 and her minor daughter till such time a
  competent Court of law directed such marriage to be invalid
G and void.
       19. The answer to the question, which we are called upon
  to answer in this case, will depend on the legal status of the
  union effected by the appellant with the respondent No.1. Though
  the factum of marriage between them was denied by the
H appellant, the courts beilow negated the appellant's case and
"
             CHAND PATEL v. BISMILLAH BEGUM AND ANR.                    11
                       [ALTAMAS KABIR, J.]

> ).     proceeded on the basis that a marriage had been performed            A
         between them. If the marriage which was said to have been
         performed between the appellant and the respondent No.1 is
         held to be void then, in such event, the respondent No.1 will not
         be entitled to maintenance from the appellant under Section
         125 Crl.P.C. If, on the other hand, the marriage is held to be       B
         irregular, then in such event, the marriage will subsist for all
         purposes, unless declared to be void by a competent court. Till
         such a declaration is made, along with the respondent No.2,
         the respondent No.1 will also be entitled to maintenance under
         Section 125 Cr.P.C. Although, the law applicable in this case is     c
         under the personal law of Muslims, it has many similarities with
         the provisions of Sections 11 and 12 of the Hindu Marriage Act,
         1955. Section 11 of the 1955 Act, defines "Void Marriages" and
         provides that any marriage solemnized after the commencement
         of the Act shall be null and void and on a petition presented by
                                                                              D
         either party thereto, be so declared by a decree of nullity if it
    'i   contravened any one of the conditions specified in clauses (i),
         (iv) and (v) of Section 5 of the Act. In YamunabaiAnantraoAdhav
         vs. Anantrao ShivramAdhav (AIR 1988 SC 644), this Court had
         held that marriages covered by Section 11 are void ipso-jure,
         that is void from the very inception and have to be ignored as       E
         not existing in law at all. A marriage in contravention of Section
         11 must be treated as null and void from its very inception.
               20. Section 12 of the 1955 Act defines "voidable
         marriages" and provides that any marriage solemnized before          F
         or after the commencement of the Act shall be voidable and
         may be annulled by a decree of nullity on any of the grounds
         enumerated in the Section. In the case of a marriage covered
         by Section 12 of the 1955 Act, the marriage is not void ipso-
         jure from its inception, but a decree would have to be obtained
                                                                              G
         from the competent court declaring the marriage to be void and
         so long as such declaration is not made, the marriage will
         continue to subsist.
              21. Under the Muslim law also a distinction has been drawn
         between void marriages and irregular marriages. The same has         H
A
    12        SUPREME COURT REPORTS                    [2008] 5 S.C.R.


    been dealt with in Mulla's "Principles of Mahomedan Law" in           ~ ,
                                                                              '
    paragraphs 260 to 264. Paragraphs 260, 261 and 262 deal
    with complete prohibition of marriage between a man and the
    persons included therein and any marriage in violation of such
    provision would be void from its very inception (batil). Paragraph
B   263 which is relevant for our purpose reads as follows:-

         "263. Unlawful conjunction - A man may not have at               1
         the same time two wives who are so related to each other
         by consanguinity, affinity and fosterage, that if either of
         them had been a male, they could not have lawfully
c        intermarried, as for instance, two sisters, or aunt and niece.
         The bar of unlawful conjunction renders a marriage
         irregular, not void."

        22. The above provision fell for the consideration of different
D High Courts and the earliest decision is that of the Calcutta High
  Court in the case of Aizunnissa vs. Karimunissa (ILR 1895 23
  Calcutta page 130) which was decided on 23rd July, 1895. After
  discussing the various authorities on the subject the Calcutta
  High Court took the view that a marriage with a wife's sister
  while the earlier marriage was still subsisting was void and the
E children of such marriage were illegitimate and were not entitled
  to inherit. It was held that the sister of a person's wife was
  prohibited from the very inception and a marriage contracted
  with her would from the very inception be void (batil).

F      23. The said decision subsequently came to be
  considered by the Bombay High Court in the case ofTajbi Abalal
  Desai vs. Mowla Alikhan Desai (39 Indian Cases 1917 page
  603) and was decided on 5th February, 1917. The Bombay High
  Court differed with the decision rendered in Aizunnissa's case
G (supra) and placing reliance on the views expressed in Fatawa-
  i-Alamgiri held that a marriage with the sister of an existing wife
  was not void (batil) but irregular (fasid). The reasoning adopted
  was that marriage with a permanently prohibited woman had
  always been considered by the exponents of Muslim law to be
H void and has no legal consequence, but marriage with a
I



        . CHAND PATEL v. BISMILLAH BEGUM AND ANR.                   13
                    [ALTAMAS KABIR, J.]
.,,   temporarily prohibited woman if consummated may have legal         A
      consequences. The logic behind the aforesaid reasoning was
      that a marriage with the sister of an existing wife could always
      become lawful by the death of the first wife or by the husband
      divorcing his earlier wife and thereby making the marriage with
      the second sister laWful to himself. The Bombay High Court after   B
      considering various authorities, and· in particular Fatawa-i-
      Alamgiri, ultimately observed as follows:-

            "Taking the whole current of authority and the general
           trend of informed thought on this subject, it points clearly
           to some such distinctions having always been recognized C
           by the Muhammadan Law. Where that is so and a particular
         · case on the borderland of such distinctions, to which it
           may be doubtful whether they can be applied in the ordinary
           way, arises, surely the Courts would be well advised to
           accept the authoritative statement of the law as it was D
           then understood by the authors of the Fatawa-i-Alamgiri.
           lt is impossible to say that that statement conflicts with the
           textual authority of the Kuran. Speaking generally, it
           appears to us to harmonize with the course the law took
           during the intervening period, and to be in consonance E
           with the soundest practical principles. It has the support of
           such a great modern text-book writer as Baillie. The eighth
           chapter of his first book appears to us to reach conclusions
           by unanswerable reasoning, and while those conclusions
           may be his own, they are the conclusions of a writer of F
           profound knowledge intimately versed at first hand with all
           the best writings of Muhammadan lawyers. The modern
           Muhammadan tex-book writers, Ameer Ali, Tyabji aWi
           Abdur Rahim, are in substantial agreement. All authority
           appears to us to point one way. Against this is nothing but G
           the judgment of the Calcutta High Court in Aizunnissa's
           case and after having given it and the materials upon
           which it avowedly rests our most careful and respectful
           attention, we find ourselves wholly unconvinced by its
           reasoning and unable to agree with the law it lays down<
                                                                          H
                                                                                 I

                                                                                  '
    14        SUPREME COURT REPORTS                   [2008] 5 S.C.R.
                                                                                 ,,.
A       24. The aforesaid question also fell for the consideration        -'\.
  of the Oudh Chief Court in the case of Mussammat Kaniza vs.
  Hasan Ahmad Khan (92 ln<;lian Cases 1926 page 82) decided
  on 24th November, 1925 and by the Lahore High Court in
  Taliamand vs. Muhammad Din (129 Indian Cases 1931 page
B 12) decided on 15th July, 1930, and also by the Madras High
  Court in Rahiman Bibi Saheba vs. Mahboob Bibi Saheba (ILR
  1938 page 278) which was decided on 1st September, 1937.
  All the said courts favoured the view taken by the Bombay High
  Court in Tajbi's case (supra) and were of the view that the
c decision of the Calcutta High Court inAizunnissa Khatun's case
  (supra) was incorrect.
         25. Paragraph 264 which deals with the distinction between
    void and irregular marriages reads as follows:-
         "264. Distinction between void and irregular
D
         marriages -
                                                                          ',.
         (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
E        prohibition against the marriage being perpetual and
         absolute. Thus a marriage with a woman prohibited by
         reason of consanguity, affinity, or fosterage is void, the
         prohibition against marriage with such a woman being
         perpetual and absolute.
F
         (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 circl.lmstance, such as the
         absence of witness1:is. Thus the following marriages are
G
         irregular, namely -
         (a) a marriage contracted without witness;
         (b) a marriage with a fifth wife by a person having four
         wives;
H
         CHAND PATEL v. BISMILLAH BEGUM AND ANR.                      15
                   [ALTAMAS KABIR, J.]

           (c) a marriage with a woman undergoing iddat                     A
           (d) a marriage prohibited by reason of difference of
           religion;
           (e) a marriage with a woman so related to the wife that
           ifone of them had been a male, they could not have lawfully      B
           intermarried.
          ·The reason why the aforesaid marriages are irregular,
           and not void, is that in cl.(a) the irregularity arises from a
           accidental circumstance; in cl. (b) the objection may be
           removed by the man divorcing one of his four wives; in C
           cl.(c) the impediment ceases on the expiration of the period
           iddat; in cl.(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
           cl(e) the objection may be removed by the man divorcing D
           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."
              26. Paragrph 266 deals with the effects of a void (batil)
      marriage and provides that a void marriage is no marriage at          E
    · all. It does not create any civil rights or obligations between the
      parties. The offspring of a void marriage are illegitimate.
      Paragraph 267 which deals with the effects of irregular (fasid)
      marriages reads as follows:-
                                                                            F
          "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 G
          marriage has no legal effect before consummation.

i
          (2) If consummation has taken place -
          (i) the wife is entitled .to dower, proper or specified,
          whichever is less;                                                H
    16        SUPREME COURT REPORTS                    [2008] 5 S.C.R.


A        (ii) she is bound to observe the iddat, but the duration of
         the iddat both on divorce and death is three courses;
         (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 (Baillie,
B        694, 701 )."
          27. On consideration of the decisions of the various High
    Courts referred to hereinabove and the provisions relating to
    void marriages and marriage~s which are merely irregular, we
c   are also of the view that the decision rendered by the Bombay
    High Court 1:1 the case of Tajbi's case (supra) is correct. Since
    a marriage, which is temporarily prohibited may be rendered
    lawful once the prohibition is removed, such a marriage is in
    our view irregular (fasid) and not void (batil).
D      28. The answer to the question raised at the very outset,
  therefore, is that the bar o~ unlawful conjunction Uama bain-al-
  mahramain) renders a marriage irregular and not void.
  Consequently, under the Hanafi law as far as Muslims in India
  are concerned, an irregular marriage continues to subsist till
E terminated in accordance with law and the wife and the children
  of such marriage would be entitled to maintenance under the
  provisions of Section 125 of the Code of Criminal Procedure.
        29. The decisions cited during the hearing of this case do
  not really come to the aid of the parties, except to the extent that
F a marriage which is merely irregular or voidable continues to
  subsist till it is set aside or declared to be void in accordance
  with law.
        30. In view of what has been stated hereinabove, we hold
G that the unlawful conjunction and/or marriage between the
  appellant and respondent No . 1 continues to subsist not having
  been declared void by any competent forum and that accordingly,
  the respondent No.1 and the re1spondent No.2 will both be entitled
                                                                           r
  to maintenance under Section 125 of the Code of Criminal
  Procedure. There is, therefore, no reason to interfere with the
H
   CHAND PATEL v. BISMILLAH BEGUM AND ANR.                 17
             [ALTAMAS KABIR, J.]

order passed on 20.6.2005 by the Karnataka High Court in         A
Criminal Petition No. 3002 of 2004 or that of the Judicial
Magistrate, First Class, Chincholi, on 28.6.2003 in Criminal
Misc. No. 6 of 2001. The appeal is accordingly dismissed and
the interim stay granted on 14.8.2006 is vacated.
      31. The appellant shall pay to the respondents all the     B
arrears of maintenance, within a period of six months from the
date of this Judgment and will also go on paying the current
maintenance with effect from the month of March, 2008. In
addition, the appellant will also pay to the respondent No.1 a
sum of Rs.10,000/- towards the cost of litigation.               C
D.G.                                      Appeal dismissed.