Chand Patel v Bismillah Begum (Supreme Court, 2008) — marrying the wife's sister is irregular, not void

The void/irregular distinction is the most examined point in the module, and unlawful conjunction is its favourite illustration. Chand Patel decides it at the highest level, and it does so in a maintenance case — which is exactly how the point reaches a court.

Bismillah Begum applied under the criminal-procedure maintenance provision (then s. 125 of the Code) for herself and her minor daughter, claiming to be Chand Patel's legally wedded wife of some eight years and that the marriage had been consummated and produced the child. The husband's answer was that his marriage to her had taken place while his earlier marriage with her sister was subsisting, and was therefore void, so that no maintenance could be ordered. The Magistrate at Chincholi and the Karnataka High Court ordered maintenance; he appealed.

In the Court's words: "whether a marriage performed by a person professing the Muslim faith with his wife's sister, while his earlier marriage with the other sister was still subsisting, would be void in law or merely irregular or voidable even though the subsequent marriage may have been consummated."

Altamas Kabir J., reviewing the High Court decisions and the texts on void and irregular marriages, approved the Bombay view in Tajbi's case. Since a marriage that is only temporarily prohibited may become lawful once the prohibition is removed, such a marriage is irregular (fasid) and not void (batil). The answer to the question was therefore that "the bar of unlawful conjunction (jama bain-al-mahramain) renders a marriage irregular and not void". Consequently, under the Hanafi law applicable to Muslims in India, "an irregular marriage continues to subsist till terminated in accordance with law and the wife and the children of such marriage would be entitled to maintenance under the provisions of Section 125". The Court also restated the incidents of a consummated irregular marriage: the wife takes dower, proper or specified, whichever is less; she must observe iddat; the children are legitimate; but there is no mutual inheritance between the spouses. The appeal was dismissed and arrears ordered to be paid.

1. A prohibition that can be removed (here, by the death or divorce of the first sister) makes the marriage irregular, not void.
2. An irregular marriage subsists until terminated according to law; while it subsists, the wife and children are entitled to maintenance.
3. The incidents of a consummated irregular marriage: dower (the lesser of proper and specified), iddat, legitimacy of children, no mutual inheritance.

The maintenance provision the Court applied, s. 125 of the Code of Criminal Procedure, 1973, is now s. 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023; the reasoning is unchanged.