Landmark judgment! Child born of Muslim father and Hindu mother can claim share in father’s property

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Updated: January 24, 2019 4:49:47 PM

The apex court upheld the Kerala High Court's verdict that the plaintiff, the son of a Hindu mother and a Muslim father, can inherit his father's shares with reference to family property.

Child born of Muslim father and Hindu mother can claim share in father’s property

Big news for Muslim-Hindu couples! A landmark judgment by the Supreme Court has held that a child born of a Muslim man and a Hindu wife can claim a share in his father’s property. The apex court bench comprising of Justices NV Ramana and Mohan M Shantanagoudar was deciding an appeal against a judgment of the Kerala High Court, which had upheld trial court’s finding that the son of a Hindu-Muslim couple is entitled to property in his father’s share in accordance with law. In this case, the apex court upheld the Kerala High Court’s verdict that the plaintiff, the son of a Hindu mother and a Muslim father, can inherit his father’s shares with reference to family property.

According to the facts of the case, the husband is a Muslim man and the wife is a Hindu by religion at the time of marriage. Her name was later changed to Sauda Beebi.

It was noted that the plaintiff’s birth has been registered and maintained by statutory authorities, indicating clearly that the birth register indicates the plaintiff as the legitimate son of the couple. As per laws pertaining to birth registration, any entry that has been made pertaining to the same in a public or an official register by a public servant who is discharging his duty, is valid for all legal purposes.

Now, you may wonder why a simple procedure such as the birth registration of the plaintiff assumes importance.

A key argument put forward against the plaintiff was that his mother was not legally wedded and she had been a Hindu at the time of marriage. The details recorded by a public servant and given in the birth registration details of the plaintiff establishes beyond doubt that the plaintiff is the legitimate son of the Muslim-Hindu couple.

Also, it was argued that the plaintiff’s mother, being a Hindu at the time of marriage, would not have any right over the property of her husband nor her son (the plaintiff) had any right over his father’s property. However, in this case, the Kerala High Court held that the plaintiff was born out of an irregular marriage (fasid) but he is not illegitimate.

To understand how marriage is dealt with as per Muslim law, a brief introduction may serve as a handy reference.

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According to Muslim personal laws pertaining to marriage, there are three types of marriage that are mentioned – valid, irregular and void.

Relying on ‘Mulla’s Principles of Mahomedan law’, the Kerala High Court had cited in its judgment a reference to page 345 of the 21st edition of Mulla’s. This clearly states that a Muslim man can contract a valid marriage with not only a Muslim woman but also a Jewess or a Christian. However, a Muslim man’s marriage with a ‘fire worshipper’ or an ‘idolatress’ is merely irregular, not void.

On page 164 of the same edition pertaining to section 204A, the difference between void and invalid marriage is explained.

A void marriage, as per Muslim personal law, is void is unlawful in itself. An invalid marriage (fasid) is not unlawful in itself as the prohibition is deemed either temporary or relative.

With reference to the 6th and 8th edition of ‘Mulla’s Principles of Mahomedan law’, the children conceived and born during ‘fasid’ marriage are considered as legitimate just as in the event of a valid marriage as per Muslim law.

In the second edition of Tahrir Mahmood’s book ‘Muslim Law in India and abroad’, a reference to page 151 also states that the child born out of a ‘fasid’ marriage will be considered legitimate as per Muslim law.

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A similar reference is made to page 76 of A.A.A. Fyzee’s book, “Outlines of Muhammadan Law”. This affirms that the position elucidated in ”Mulla’s law” that a Muslim man’s nikah with a fire-worshipper or idolatress is not void, only irregular, and that such a marriage does not affect the child’s legitimacy.

In Amina v. Hassan Koye [1985 Cr. L.J 1996], a division bench of Kerala High Court has explained how marriage (nikah) is a solemn pact among Muslims, whereby it takes the form of a contract. Relying upon several commentaries and in particular, Tyabji’s views, a Division Bench of the Kerala High Court had referred to his book, “Muslim Law”, in which the scholar explained how marriage, according to Muslim law, gives effect to a permanent contract between husband and wife as parties to the marriage.

Another reference is made to Neil B.E. Baillie’s book, “Digest of Moohummudan Law”, which also conveys that marriage under Muslim law is a contract for enjoyment and procreation of children.

The apex court in this case has held that both the trial Court and the Kerala High Court were justified in concluding that the plaintiff is the legitimate son of the Muslim-Hindu couple and entitled to a share in his father’s property as per the law.

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