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Child born out of marriage between Muslim man & Hindu woman entitled to father's property: SC

The plea was filed by Mohammed Salim, son of couple Mohammed Ilias and Valliamma (his hindu wife). Salim claimed share in the ancestral property through inheritance after the death of his father.

Jan 23, 2019 13:03 IST
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The Supreme Court on January 22, 2019 held that a child born out of a marriage between a Muslim man and his Hindu wife is entitled to claim a share in his father's property.

Marriage between Hindu woman and Muslim man irregular

The bench comprising Justice NV Ramana and Justice Mohan M. Shantanagoudar observed that the marriage of a Muslim man with Hindu woman or fire-worshipper is neither a valid (sahih) nor a void (batil) marriage, but is merely an irregular (fasid) marriage.

Since Hindus are idol worshippers who worship physical images or statues through offering of flowers and adornment, it is clear that the marriage of a Hindu woman with a Muslim man is merely an irregular one.

Void marriage and Irregular marriage

The bench referred to texts, including Mulla's Principles of Mahommedan Law and Syed Ameer Ali's Principles of Mahommedan Law while giving out the ruling.

It cannot be stated that a void marriage and an irregular marriage are one and the same. The effect of a void marriage is that it does not create any civil right or obligations between the parties. So also, the child born out of a void marriage is illegitimate.

The child of a couple, whose marriage is irregular, that is, unlawful but not void under the Muslim law, is legitimate.

Note

Under Muslim law, a marriage is not a sacrament but a civil contract and there are three types of marriages - valid, irregular and void.

Who filed the Plea?

The plea was filed by Mohammed Salim, son of couple Mohammed Ilias and Valliamma (his hindu wife). Salim claimed share in the ancestral property through inheritance after the death of his father.

The bench was considering an appeal against a Kerala High Court judgment that upheld trial court finding that the petitioner Mohammed Salim is the legitimate son of couple Mohammed Ilias and Valliamma (his hindu wife), and is entitled to his share in the property as per law.

The appeal was filed by Salim’s cousins who argued that his mother was not legally wedded to Mohammed Ilias and that she was a Hindu by religion at the time of marriage.

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