CHAND PATEL versus BISMILLAH BEGUM AND ANR.

Citation: [2008] 5 S.C.R. 1 · Decided: 14-03-2008 · Supreme Court of India · Bench: ALTAMAS KABIR · Disposal: Dismissed

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Judgment (excerpt)

[2008] 5 S.C.R. 1 
CHAND PATEL 
A 
v. 
BISMILLAH BEGUM AND ANR. 
(Criminal Appeal No. 488 of 2008) 
MARCH 14, 2008 
B 
1 
[ALTAMAS KABIR AND J.M. PANCHAL, JJ.] 
Code of Criminal Procedure, 1973 -
s.125 -
Maintenance - Second marriage by muslim with his wife's 
sister while his earlier marriage with other sister still subsisting c 
- Daughter born out of this wedlock - Claim for maintenance 
by second wife and her daughter - Entitlement to - Held: 
Muslim Law prohibits 'unlawful conjunction' which means that 
a man cannot marry his wife's sister in his lifetime - However, 
bar of 'unlawful conjunction' renders such marriage irregular, 
D 
but not void - Such irregular marriage would continue to subsist 
till terminated in accordance with Jaw - Since marriage not 
declared void by competent court, second wife and daughter 
entitled to maintenance -
Muslim law - Jama bain-al-
mahramain. 
E 
Hindu Marriage Act, 1955 - ss.11, 12 - Muslim law -
Jama bain-al-mahramain -
Void and Voidable marriage -
Distinction between. 
The prosecution case was that the respondent no.1 
F 
was legally wedded wife of the appellant and her marriage 
v·ith the appellant had taken place about 8 years prior to 
the filing of petition under s.125 Cr.P.C. Two years after 
marriage, a daughter was born from the wedlock. In her 
petition, the respondent no.1 categorically admitted that 
the appellant was married to her elder sister and that he G 
married her with the consent of his first wife. She prayed 
t 
for maintenance for herself and for her minor daughter @ 
Rs.1000 p.m. for each of them. Appellant denied his 
marriage with respondent No.1. 
1 
H 
2 
SUP.REME COURT REPORTS 
[2008] 5 S.C.R. 
A 
Trial Court prima facie came to a finding that 
respondent no.1 was wife of appellant and respondent 
no.2 was his daughter, and accordingly, directed appellant 
to pay Rs.1000/- p.m. each. The revisional Court confirmed 
the order of Magistrate and held that the personal law of 
B the parties could not come in the way of a Muslim to pray 
for and obtain maintenance under s.125 Cr.P.C. since an 
obligation is cast upon the appellant to maintain his wife 
and children till the marriage between them was declared 
null and void by compEitent court. Appellant filed an 
C application under s.482 Cr.P.C. which was dismissP.d. 
In appeal to this Court, the appellant contended that 
the Muslim Law specifically prohibits 'unlawful 
conjunction' meaning that a man could not marry his 
wife's sister in his wife's life time; that the appellant had 
D from the very initial stage denied having married the 
respondent No.1, who is his wife's younger sister and that 
he did not have any sexual relations with her, thereby 
disputing the paternity of the respondent No.2 through 
him and that since such unlawful conjunction is 
E prohibited, even if the marriage had been performed the 
same was void in law and did not confer any rights either 
on the respondent No.1 or on respondent No.2. 
Dismissing the app1eal, the Court 
F 
HELD: 1. Though the factum of marriage between 
them was denied by the appellant, the courts below 
negated the appellant's case and proceeded on the basis 
that a marriage had been performed between them. If the 
marriage which was said to have been performed between 
G the appellant and the respondent No.1 is held to be void 
then, in such event, thei respondent No.1 would not be 
entitled to maintenance from the appellant under s.125 
Cr.P.C. If, on the other hand, the marriage is held to be 
irregular, then in such event, the marriage would subsist 
H for all purposes, unli::!ss declared to be void by a 
+ 
CHAND PATEL v. BISMILLAH BEGUM AND ANR. 
3 
,). 
competent court. Till such a declaration is made, along A 
with the respondent No.2, the respondent No.1 would also 
be entitled to maintenance under s.125 Cr.P.C. Although, 
the law applicable in this case is under the personal law 
of Muslims, it has many similarities with the provisions of 
ss.11and12 of the Hindu Marriage Act, 1955. S.11 of Hindu 8 
, 
Marriage Act defines 'void marriages' and s.12 defines 
'voidable marriages'. Under the Muslim law also a 
distinction has been drawn between void marriages 
and irregular marriages. [Paras 19, 21] [10-G, H; 
11-A, B, C, G, H] 
c 
Nanak Chand v. Chandra Kishore Aggarwal and Ors. AIR 
(1970) SC 446; Re-Hussain Saheb (1985) Criminal Law 
Journal 1505 (A.P.); Rameshchandra Rampratapji Daga v. 
Rameshwari Rameshchandra Daga (2005) 2 SCC 33; 
Savi

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