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Child Born From Hindu Muslim Wedlock is recognized: Supreme Court

Wedlock of a Hindu woman with a Muslim man is not a “regular or valid” but the child born out of such marriage is recognised, the Supreme Court on Tuesday held.

It also said that the legal effect of such an uncertain marriage is that a wife is qualified to get dower but cannot acquire the husband’s property.

The government held that the child born in an irregular marriage is legal just like in the case of valid wedlock and is entitled to acquire the property of the father.

A bench of justices N V Ramana and M M Shantanagoudar upheld the order of the Kerala High Court by which it was ordered that the son of a couple – Mohammed Ilias and Valliamma (who was Hindu at the time of marriage) – was rightful and was entitled for a share in his father’s property as per the law.

“We conclude that the marriage of a Muslim man with an idolater or fire­worshipper is neither a valid nor void wedlock, but is solely an unusual marriage. Any child born out of such marriage is authorised to claim a share in his father’s property,” the bench said.

The top court while rejecting the plea against the high court order said that since Hindus are idol worshippers, which involves worship of physical images or statues through the offering of flowers and adornment, it is clear that the wedlock of a Hindu woman with a Muslim man is simply an unusual one.

It was hearing a property dispute resolution in which Shamsuddin, son of Ilias and Valliamma, claimed a share in the inherited property through heritage after the death of his father.

It said “the legal effect of irregular wedlock is that in case of culmination, though the wife is entitled to get dower, she is not entitled to inherit the properties of the husband.

But the child born in that marriage is legitimate just like in the case of a valid marriage and is allowed to inherit the property of the father.

” The court said on the other hand, the effect of void wedlock is that it does not create any civil right or responsibilities between the parties and the children born out of such marriage are illegal.

The bench said that under Muslim law, a union is not a ritual but a civil contract and there are three types of marriage – valid, irregular and void.

The court said that high court relied on principles of Islamic law to decide that such rules do not treat the marriage of a Muslim with a Hindu woman as void, and gives legitimacy upon children born out of such wedlock.

Regarding this law, the bench said that wedlock which is not valid may be either void or invalid.

“A void marriage is one which is unlawful in itself, the prohibition against such a marriage being perpetual and absolute. An unreasonable marriage is defined as one which is not unlawful in itself, but unlawful for something else (like the absence of witnesses),” the bench said.

Shamsuddin’s claim over property was denied by his cousins who claimed that his mother was not the lawfully wedded wife of Ilias and she was a Hindu by religion at the time of marriage.

They insisted that she had not changed to Islam at the time of her marriage, and thus Shamshuddin being the son of Valliamma, is not allowed to any division in Ilias’s property.

The top court said that it was not discussed that Valliamma was the wife of Ilias and opposed to the claims, birth register records maintained by statutory rights intimate that Shamshuddin was their son.

“On the contrary, he is the legal son of Mohammed Ilias, and consequently is qualified to inherit the shares required in the estate of his father,” it said.

It said that it was also not rejected that Ilias and Valliamma were residing together as husband and wife at Thiruvananthapuram.

“Under these conditions, in our considered opinion, the trial court and the high court were explained in concluding, based on the power of probabilities, that Valliamma was the lawfully wedded wife of Mohammed Ilias, and the plaintiff (Shamshuddin) was the child born out of the said marriage,” it held.

The court also confirmed the finding of the high court that though Shamshuddin was born out of a ‘fasid’ (irregular) wedlock, he cannot be termed as an illegal son of Ilias.

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