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SUPREME COURT OF INDIA
N.V. RAMANA, MOHAN M. SHANTANAGOUDAR, JJ.
MOHAMMED SALIM (D) THROUGH LRS. & ORS. – APPELLANTS
VERSUS
SHAMSUDEEN (D) THROUGH LRS. & ORS – RESPONDENTS
CIVIL APPEAL NO. 5158 OF 2013
Decided on : 22-01-2019
(b) Mohammedan law – Marriage of a Muslim with a Hindu woman – Neither a valid (sahih) nor a void (batil) marriage, but is merely an irregular (fasid) marriage – Son born of such irregular (fasid) marriage – Cannot be termed as illegitimate – Such wife will not inherit properties of her husband – But the son is entitled to inherit the property of the father. (Para 8, 12, 13)
(2012) 3 LW 937 (Mad); AIR 1928 Pat 19 – Cited with approval
Facts of the case:
A suit for partition and possession of 14/16th share in the Plaint Schedule ‘A’ property and half the rights over Plaint Schedule ‘B’ property was filed by the Respondent No. 1 herein (original plaintiff). Defendant No. 1 in the suit, Mohammed Idris, is the brother of Mohammed Ilias, the father of the plaintiff, and Defendant Nos. 2 to 7 are the children of Mohammed Idris. Both the plaintiff’s father and Defendant No. 1 are the sons of Zainam Beevi, who expired in 1955. Both Plaint properties belonged to her. Plaint Schedule ‘A’ property was gifted to Mohammed Ilias, based on a gift deed executed by Zainam Beevi.
As per the plaintiff Defendant No. 8 namely Saidat, was the first wife of Mohammed Ilias, and no issue was born out of the said wedlock. Thereafter, Mohammed Ilias married Valliamma in 1120 M.E. (as per the Malayalam Calendar, which corresponds to 1945 AD in the Gregorian system). Valliamma was a Hindu at the time of her marriage with Mohammed Ilias. Both Mohammed Ilias and Valliamma lived together as husband and wife at Thiruvananthapuram. Later, Valliamma was renamed Souda Beebi. Out of the said wedlock, Shamsudeen (the plaintiff) was born. Subsequent to the death of Mohammed Ilias in 1947 AD, Valliamma (Souda Beebi) married Aliyarkunju.
The plaintiff claimed that he was the only son of Mohammed Ilias and on his death, he became entitled to 14/16th of the share in Schedule ‘A’ property. He also claimed half the share in Schedule ‘B’ property through inheritance after the demise of Zainam Beevi, as the same would have devolved upon the plaintiff, being the son of the predeceased son of Zainam Beevi, and Mohammed Idris, Defendant No. 1, being the only surviving son of Zainam Beevi. Hence, the suit was filed.
It is the case of the defendants that Valliamma was not the legally wedded wife of Mohammed Ilias and that she was a Hindu by religion at the time of marriage. She had not converted to Islam at the time of her marriage, and thus the plaintiff being the son of Valliamma, is not entitled to any share in the property of Mohammed Ilias. It is their further case that Mohammed Ilias had died two years prior to the birth of the plaintiff.
The trial Court decreed the suit and the first appellate Court allowed the appeal and dismissed the suit by setting aside the judgment and decree of the trial Court. However, the High Court set aside the judgment passed by the first appellate Court and confirmed the judgment and decree passed by the trial Court.
Finding of the Court:
Marriage of a Muslim with a Hindu woman – Neither a valid (sahih) nor a void (batil) marriage, but is merely an irregular (fasid) marriage. Son born of such irregular (fasid) marriage cannot be termed as illegitimate.
Result: Appeal dismissed.
Certainly. Based on the provided legal document, the key points are as follows:
A public document, such as a birth register maintained by statutory authorities, is considered a relevant fact in legal proceedings (!) .
Under Muslim law, a marriage between a Muslim man and a woman of another religion, such as Hindu, is classified as neither valid (sahih) nor void (batil), but rather irregular (fasid). Children born from such a marriage are considered legitimate and have rights to inheritance (!) (!) .
The distinction between different types of marriages under Muslim law is clear: valid (sahih), irregular (fasid), and void (batil). An irregular marriage, even if consummated, confers legitimacy on children born from it, and such children are entitled to inheritance rights (!) (!) .
A fasid (irregular) marriage is characterized by certain irregularities, such as marriage without proper witnesses or prohibited relationships, but it is not unlawful in itself and does not render the offspring illegitimate. Such marriages can be terminated by either party, and the children are considered legitimate (!) .
The effect of a fasid marriage, if consummated, is that the wife is entitled to her dower, and the children are legitimate, but the marriage does not create mutual inheritance rights between the spouses (!) .
A void (batil) marriage is completely unlawful from the outset and does not produce any civil rights or obligations, and children from such marriages are considered illegitimate (!) .
The legal distinction between void (batil) and irregular (fasid) marriages is significant: void marriages are null and void from the beginning, whereas fasid marriages are irregular but do not invalidate the legitimacy of children born therefrom (!) .
The marriage of a Muslim man with a Hindu woman is classified as a fasid (irregular) marriage, not a valid or void marriage. Consequently, children born from such a marriage are legitimate and entitled to inheritance rights (!) (!) .
The law recognizes that children born out of a fasid marriage are legitimate, and the offspring of such unions have rights to inherit property, provided the marriage is recognized as a fasid marriage rather than void (!) .
The legal and doctrinal principles affirm that children born from a fasid marriage are entitled to inheritance, and such marriages do not affect the legitimacy of the children, even if the marriage itself is irregular (!) .
Overall, the courts were justified in concluding that the marriage in question was a fasid marriage, and the child born therefrom was legitimate and entitled to inheritance rights (!) (!) .
The appeal was dismissed, affirming that the legal position supports the legitimacy of children born from irregular (fasid) marriages between Muslim men and women of other religions, including Hindus (!) .
JUDGMENT :
MOHAN M. SHANTANAGOUDAR, J.
The judgment dated 05.09.2007 passed in S.A. No. 693 of 1994 by the High Court of Kerala at Ernakulam is the subject matter of this appeal. By the impugned judgment, the High Court set aside the judgment of the District Court, Thiruvananthapuram dated 12.07.1994 passed in AS No. 264/1989 and restored the judgment and decree passed in O.S. No. 144/1984 by the Additional Sub Court, Thiruvananthapuram dated 17.07.1989.
2. The facts leading to this appeal are that a suit for partition and possession of 14/16th share in the Plaint Schedule ‘A’ property and half the rights over Plaint Schedule ‘B’ property was filed by the Respondent No. 1 herein (original plaintiff). Defendant No. 1 in the suit, Mohammed Idris, is the brother of Mohammed Ilias, the father of the plaintiff, and Defendant Nos. 2 to 7 are the children of Mohammed Idris. Both the plaintiff’s father and Defendant No. 1 are the sons of Zainam Beevi, who expired in 1955. Both Plaint properties belonged to her. Plaint Schedule ‘A’ property was gifted to Mohammed Ilias, based on a gift deed executed by Zainam Beevi.
The case of the plaintiff is that Defendant No. 8 namely Saidat, was the first wife of Mohammed Ilias, and no issue was born out of the said wedlock. Thereafter, Mohammed Ilias married Valliamma in 1120 M.E. (as per the Malayalam Calendar, which corresponds to 1945 AD in the Gregorian system). Valliamma was a Hindu at the time of her marriage with Mohammed Ilias. Both Mohammed Ilias and Valliamma lived together as husband and wife at Thiruvananthapuram. Later, Valliamma was renamed Souda Beebi. Out of the said wedlock, Shamsudeen (the plaintiff) was born. Subsequent to the death of Mohammed Ilias in 1947 AD, Valliamma (Souda Beebi) married Aliyarkunju.
The plaintiff claimed that he was the only son of Mohammed Ilias and on his death, he became entitled to 14/16th of the share in Schedule ‘A’ property. He also claimed half the share in Schedule ‘B’ property through inheritance after the demise of Zainam Beevi, as the same would have devolved upon the plaintiff, being the son of the predeceased son of Zainam Beevi, and Mohammed Idris, Defendant No. 1, being the only surviving son of Zainam Beevi. Hence, the suit was filed.
3. It is the case of the defendants that Valliamma was not the legally wedded wife of Mohammed Ilias and that she was a Hindu by religion at the time of marriage. She had not converted to Islam at the time of her marriage, and thus the plaintiff being the son of Valliamma, is not entitled to any share in the property of Mohammed Ilias. It is their further case that Mohammed Ilias had died two years prior to the birth of the plaintiff.
4. As mentioned supra, the trial Court decreed the suit and the first appellate Court allowed the appeal and dismissed the suit by setting aside the judgment and decree of the trial Court. However, the High Court by the impugned judgment set aside the judgment passed by the first appellate Court and confirmed the judgment and decree passed by the trial Court. Hence, the instant appeal was filed by the original defendants and the legal representatives of those among them who have since died.
5. Mr. Guru Krishnakumar, learned Senior Counsel, taking us through the material on record, submitted that the Trial Court and the High Court were not justified in decreeing the suit, inasmuch as the plaintiff himself had admitted that he was born in the year 1949, whereas his alleged father Mohammed Ilias expired in the year 1947. Therefore, the plaintiff could not be treated as the son of Mohammed Ilias. He further submitted that since Valliamma was a Hindu by religion, she would not have any right over the property of Mohammed Ilias, and consequently the plaintiff would not get any share in the property of Mohammed Ilias.
6. It is not in dispute that Zainam Beevi gifted Plaint Schedule ‘A’ property to her son Mohammed Ilias. In view of the gift deed in favour of Mohammed Ilias, upon his death, Sc
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