Author: Sagar Mazumdar, student at Rabindra Shiksha Sammillani Law College, University Of Calcutta
To The Point
A recent order by the Hon’ble High Court of Madhya Pradesh has sparked a debate. It dealt on the issue whether marriage between a Hindu girl and a Muslim boy was valid or not. The Court delivering order against the motion held that it is according to the Muslim Law which considers marriage between a Hindu girl and a Muslim boy to be not valid. This has led a division among the people. While some are lauding the court on passing an appropriate order, others were of the view that the order is too narrow. It has gained more momentum because during the same time period the Allahabad High Court has passed an order directing the authority to provide necessary protection to the parties.
Legal Jargon
Before delving into the legal aspect which led to the negation of the validity of marriage between a Hindu girl and a Muslim boy. Let’s understand the background of the case.
Background of the Case
The petitioners (both boy and girl) belonged to two different communities. The boy belonged to Islam whereas the girl belonged to Hindu religion. They both loved each other. Both being of legal age to marry decided to get married under the Special Marriage Act, 1954. None were interested in converting their religion. They didn’t consider to perform Nikah as the marriage was taking place under Special Marriage Act, 1954. They even approached the Special Marriage Officer to register their marriage. But due to the objections raised by the respondent (relative of one of the petitioners), they could not get their marriage registered. The respondent also alleged that the petitioner has stolen jewels and cash from his house. And if the marriage gets solemnized then he shall not have any reputation left in front of the society and thus may face boycott issues also.
Prayer Before the Court
The prayer made by the petitioners were the protection to the petitioners by issuing Writ in the nature of mandamus and no registration of any kidnapping case or any other offence related to the petitioner in any police station.
Issues Before the Court
But before proving these the Court had to deal with the issue whether marriage between a Hindu girl and a Muslim boy is valid or not. There was also another issue whether marriage between Petitioner 1(Hindu girl) and Petitioner 2(Muslim boy) was valid or not.
What is the Law?
This entire question is depended upon the Mohammedan Law especially on the concept of Fasid marriage. There are three types of marriage recognized under the Mohammedan Law: Sahih, Fasid and Batil.
Proof
The Court passing its judgement relied upon the ratio held in Mohammed Salim (D) Through LRs. & Ors. Vs. Shamsudeen (D) Through LRs. & Ors.
Definition of Marriage in Muslim Law
It is well established that in Muslim Law, marriage is considered to be a contract which has as its object the procreation and legalization of children. It is more of a civil contract and not a sacramental act.
What does Muslim Law states about Marriage with a Non-Muslim?
According to the Mulla’s Principle of Mahomedan Law, a Muslim male may contract a valid marriage with a Muslim woman or a Kitabia, that is, a Jewess or a Christian, but he cannot contract a marriage with an idolatress or a fire-worshipper. If he at all marries an idolatress or a fire-worshipper the marriage is not void, but merely invalid.
As far as Muslim female is concerned, according to the Mulla’s Principle of Mahomedan Law, she cannot marry anyone except a Muslim male. If she ever contracts a marriage with a non-Muslim, the marriage shall however be irregular but not void.
What is Sahih, Fasid and Batil Marriage?
As discussed above, marriage according to Muslim Law are of three types: Sahih, Fasid and Batil.
Sahih marriage is held to be a valid marriage. It is according to Islamic Law proper marriage. When a marriage ceases to be Sahih or valid, it may fall under the other two categories that is Fasid and Batil.
Fasid marriage is held to be an invalid or irregular marriage. Fasid marriage is related to those marriages which are for the time being irregular but it may be corrected. It is not unlawful in itself but unlawful for something else. The problem is temporary and relative in nature.
According to Mulla’s Principle of Mahomedan Law, the following marriages are irregular or invalid, namely:
- a marriage contracted without witnesses;
- a marriage contracted with a fifth wife by a person who is already having four wives;
- a marriage contracted with a woman undergoing iddat;
- a marriage contracted when it is prohibited by reason of difference of religion;
- a marriage contracted with a woman so related to the wife that if one of them had been a male, they could not have lawfully intermarried.
According to Mulla’s Principle of Mahomedan Law, the effect of Fasid marriage are as follows:
- An invalid marriage has no legal effect before consummation.
- If consummation has taken place, the wife is entitled to dower, proper or specified, whichever is less, and children conceived and born during the subsistence of the marriage are legitimate just like any case of a valid marriage. But an invalid marriage does not, even after consummation of the marriage, create any mutual right of inheritance between the parties.
Batil is held to be void ab initio. In the case of Batil marriage, it is void from the very beginning. It is absolute and perpetual in nature. When a person marries against the prohibition mentioned under the Islamic Law, it becomes Batil. A marriage contracted with a woman if it is prohibited by reason of consanguinity, affinity, or fosterage, is held to be void. The prohibition against marriage with such a woman being perpetual and absolute.
Therefore, Valid, Invalid or Irregular, and Void marriages are Sahih, Fasid and Batil respectively.
Why is Fasid Marriage Irregular and Not Void?
As stated above, a Fasid marriage is basically irregular. The invalidity is not absolute unlike in the case of Batil marriages. The problem is curable. Once the problem is cured, the marriage automatically ceases to be invalid and becomes valid. The unlawful nature is temporary. Let’s understand how the problems can be cured:
- In case of marriage contracted without witnesses: The irregularity arises from an accidental circumstance;
- In case of marriage contracted with a fifth wife by a person having four wives: The objection may be removed by the man divorcing one of his four wives;
- In case of marriage contracted with a woman undergoing iddat: The impediment ceases on the expiration of the period of iddat;
- In case of marriage contracted when it is prohibited by reason of difference of religion: The objection may be removed by the wife converting her religion to Islam, Christianity or Judaism, or the husband adopting Islam;
- In case of a marriage contracted with a woman so related to the wife that if one of them had been a male, they could not have lawfully intermarried: The objection may be removed by the man divorcing the wife who is the main source of the obstacle. If a man who has already married one sister marries another, he may divorce the first, and make the second lawful to himself.
Abstract
Now dealing with the main issue whether protection be provided to the parties or not. It is held that marriage with a non-Kitabi is merely invalid or irregular. It may be corrected if the girl converts her religion. But until the time of her conversion the marriage between them shall be regarded as invalid.
Why Protection was Not Granted?
Since, the petitioner (Hindu girl) was not interested in converting the religion to Islam. This would render the marriage to be a Fasid marriage which is merely invalid. Now, as stated earlier, the Petitioner No. 1 was not interested in converting her religion. The marriage in this sense would remain invalid or irregular. This would come under the Section 4 of the Special Marriage Act which would make this marriage prohibited under the Muslim Law. Therefore, the court held that it would supervene the personal law of Muslims which does not consider marriage with a non-Kitabi. This will definitely not be an appropriate scenario. It is understood, through the Special Marriage Act, the State may recognize the marriage but according to the Islamic Law, it will still remain invalid or irregular. The petitioners were also not interested to be in a Live-in Relationship. That is why protection cannot be granted as prayed by the petitioners.
Why is the Allahabad High Court Order Trending?
It is because during the same time period the Allahabad High Court has passed an order directing the State authority to provide necessary protection to the petitioners. The facts and circumstances of both the cases are same to some degrees. But what is more important is that it is firstly an Order and not a judgement. And secondly, the order mentioned that the parties were before deciding to get married were living in a Live-in relationship. Rather, it will be too early to comment on the matter. We should wait for the judgement.
Case Laws
In Mohd. Salim v. Shamsudeen, the Supreme Court held that the marriage between an idolatress or a fire-worshipper is neither a valid marriage nor a void marriage but merely irregular. The child born out of such wedlock is legitimate.
In Aisha Bi v. Saraswathi Fathima, (2012) 3 LW 937 (Mad), the Madras High Court held that though the marriage between Hindu woman and Muslim man are irregular, the offspring from such marriage are legitimate.
In Lata Singh Vs. State of U.P., the Court allowed the writ petition. It also while quashing the pending police cases against the petitioners held that the police at all the concerned places shall provide the necessary protection to the petitioner, her husband and any of the relatives of the petitioner’s husband. It also held that if any person is found harassing them, appropriate action should be taken against them in accordance with the law.
Conclusion
The Court should give an elaborate description about the purpose of the Special Marriage Act, 1954. This case Sarika Sen vs. State of Madhya Pradesh has given rise to a new question about the status of those individuals who wants to get married without converting their religion. The Court should consider this question as this will be beneficial for the society in large. Even if any other law accepts the inter-religion marriage but still Muslim Law will consider those marriages to be invalid or irregular. Then in that case what will be the status of those people performing marriage under that condition.
FAQs
- What is the status of a Hindu girl and a Muslim boy?
Ans. According to Mohammedan Law, it is invalid or irregular but it can overcome this temporary situation by the Hindu girl converting her religion to Islam.
- What is the status of marriage between Hindu boy and Muslim girl?
Ans. According to Mohammedan Law, the marriage between Hindu boy and a Muslim girl is also irregular but not void. The marriage can become valid only if the boy converts to Islam.
- Can any invalid Marriage become Valid Marriage?
Ans. Yes, an invalid marriage can become valid marriage by performing any of the obligations mentioned under the Mohammedan Law.
References
- Sarika Sen vs. State of Uttar Pradesh W.P. 9158/2024
- Lata Singh vs State of Uttar Pradesh Writ Petition (crl.) 208 of 2004
- Mohammed Salim (D) Through LRs. & Ors. Vs. Shamsudeen (D) Through LRs. & Ors. Civil Appeal No.5158/2013
- Srimati Sunita Rani alias Sunita vs. State of Uttar Pradesh WRIT – C No. – 10862 of 2024
- Aisha Bi v. Saraswathi Fathima, (2012) 3 LW 937 (Mad)
- Mulla’s Principle of Mahomedan Law (Both 6th and 21st Edition)
- Special Marriage Act, 1954
- Constitution of India
