SC: Child born out of “fasid” marriage can claim a share in father’s property

Today, i.e. on 22ndJanuary 2019, the Hon’ble Supreme Court, in the matter of Mohammed Salim (D) through Lrs. & Ors. v. Shamsudeen (D) through Lrs. & Ors. pronounced that under muslim law, a marriage of a Hindu female with a Muslim male is not a regular or valid (sahih) marriage, but merely an irregular (fasid) marriage and any child born out of such wedlock (fasid marriage) is entitled to claim a share in his father’s property.

The Hon’ble Supreme Court observed that:

Under Muslim law, there are three types of marriage—valid, irregular and void. (Para 8)

The legal effect of a fasid marriage is that in case of consummation, 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 entitled to inherit the property of the father. (Para 8)

Evidently, Muslim law clearly distinguishes between a valid marriage (sahih), void marriage (batil), and invalid/irregular marriage (fasid). Thus, it cannot be stated that abatil (void) marriage and a fasid (invalid/irregular) marriage are one and the same. The effect of a batil (void) marriage is that it is void ab initio and does not create any civil right or obligations between the parties. So also, the offspring of a void marriage are illegitimate.(Para 9)

The marriage of a Muslim man with an idolater or fire­ worshipper is neither a valid (sahih) nor a void (batil) marriage, but is merely an irregular (fasid) marriage. Any child born out of such wedlock (fasid marriage) is entitled to claim a share in his father’s property. It would not be out of place to emphasise at this juncture that since Hindus are idol worshippers, which includes worship of physical images/statues through offering of flowers, adornment, etc., it is clear that the marriage of a Hindu female with a Muslim male is not a regular or valid (sahih) marriage, but merely an irregular (fasid) marriage. (Para 13)

Copy of judgement: Judgement 22-Jan-2019

-Tushar Kaushik

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