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2008 Supreme(SC) 495

ALTAMAS KABIR, J.M.PANCHAL
Chand Patel – Appellant
Versus
Bismillah Begum – Respondent


Judgement Key Points

Based on the provided legal document, here are the key points regarding the case Chand Patel vs. Bismillah Begum & Anr.:

  • Legal Status of Marriage: Under Hanafi law, a marriage between a man and his wife's sister while the first marriage is subsisting is considered irregular (fasid) rather than void (batil). This is because the prohibition is temporary and can be removed by divorcing the first wife. (!) (!) (!)
  • Continuation of Rights: Since the marriage is irregular and not void, it continues to subsist until it is legally terminated or declared void by a competent court. (!) (!)
  • Entitlement to Maintenance: Because the marriage subsists, both the wife and her children born from such a union are entitled to maintenance under Section 125 of the Code of Criminal Procedure, 1973. (!) (!) (!)
  • Scope of Section 125 CrPC: Section 125 of the Code of Criminal Procedure applies to all persons regardless of religion and is not dependent on the personal law of the parties. The bar of unlawful conjunction renders a marriage irregular, not void, thereby preserving the right to maintenance. (!) (!)
  • Court Findings: The Supreme Court held that the unlawful conjunction renders the marriage irregular. Consequently, the wife (Bismillah Begum) and her minor daughter (Taheman Bano) are entitled to maintenance. (!) (!)
  • Outcome: The appeal filed by the appellant (Chand Patel) was dismissed. The appellant was directed to pay arrears of maintenance within six months, continue paying current maintenance from March 2008, and pay litigation costs. (!) (!)
  • Precedents Relied Upon: The judgment distinguished between void marriages (perpetual prohibition) and irregular marriages (temporary prohibition), relying on authorities such as Tajbi Abalal Desai vs. Mowla Alikhan Desai and Mulla's "Principles of Mahomedan Law". (!) (!) (!)

judgment

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.

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.

4.The facts which give rise to the aforesaid question, in 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 Bano, under Section 125 of the Code of Criminal Procedure, against one Chand Patel, in the Court 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 was consummated and two














































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