important point
Under the Hanafi law, an irregular marriage continues to subsist till terminated in accordance with law. Therefore the wife and the children of such marriage would be entitled to maintenance under the provisions of Section 125.

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 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 Bano being a minor, is under the care and guardianship of her mother, the petitioner No. 1, in the said 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 executed but the same had been misplaced. It was 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.

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 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.

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 put up by the appellant was not accepted by the learned Trial Court, which prima facie came to a finding that the respondent No.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 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 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 revision petitions were taken up together for disposal and wee disposed of by a common order. After considering several 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 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