MARRIAGE WITH SISTER OF AN EXISTING WIFE 2020

    INTRODUCTION: MARRIAGE WITH SISTER OF AN EXISTING WIFE

    Who is a Mohammedan: the essence of Mohammadanism (Islam: Peace) consists in the feet that there is only one God and that Mohammad is his Prophet. A person become a Muhammad and usually by birth to parents to professing Mohammadanism. a person belonging to another sheet maybe, convert to Mohammadanism.

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa
    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    The mohammedans are divided principally into two sects, namely, the Sunnis and Shias.

    The Sunni sect is once again divided into four sub-sects, namely, the Hanafis, the Malikis, the Shafeis and the Hanbalis. The Shia sect is sub divided into three sub-sects, namely, Athna-Asharias, the Ismailyas and the Zaidyas.

    Before the advent of Islam, the Arabs lived as nomadic tribes. The tribal customs were observed. According to this customs idol worship was practiced. The religion was primitive paganism. There was no restriction on the number of wives a mail could marry. Disputes were settled by the tribal chief and there was no settled system of law.

    Birth of Islam

    “Islam” means peace or submission to God’s will. The spiritual movement culminating in the foundation of Islam (Known after the Prophet as Mohammadanism) is the inspired work of Muhammad the Prophet. The Prophet was born in Mecca, around 570 A.D. in his 40th year (610 A.D.) he became inspired and received the first message from God. He began preaching against Paganism and idol worship. He was joined in this by his father in law Abu Bakar, his son-in-law Ali (husband of Fatima, daughter of the Prophet) and other disciples like Omar.

    The orthodox people of Mecca opposed the Prophet who had to flee from Mecca to Madina in 622 A.D. This flight (Hegira is the starting point of the mohammedan era). The prophet rallied his forces and defeated the Meccans in the battle of Badr (623 A.D. = 1 Hegira). After this victory the prophet’s supremacy was acknowledged both temporally and spiritually at Mecca as well as at Madina and in Arabia generally. Till his death in 623 A.D. Prophet Mohammed consolidated Islam and his followers, those who have faith in Islam, are called Muslims.

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    A Muslim marriage (nikah) is defined as a contract for the object of the procreation and legalization of children. A marriage under the mohammedan law is not a sacrament but a civil contract. No religious ceremony is necessary to bring about this relationship. What is necessary is the agreement between the parties arising out of proposal and its acceptance. The rights and obligations under the contract of marriage arise immediately after the marriage and are not dependent on any condition precedent to the contract.

    The term “Nikah” has been used for marriage under Muslim law. Nikah literally means sexual connection. In the language of the law, it implies “a particular contract used for the purpose of legalizing generation”. Among the Arabs, nikah is a wide term comprising many different forms of sex relations.

    But in Mohammedan law, it has a very definite legal meaning. It is a contract for the legalization of intercourse and the procreation of children. Hence “Nikah” means union of sexes which confers the status of husband and wife on the parties to the marriage and the status of legitimacy on the children born out of such union.

    IMPORTANCE OF MARRIAGE IN ISLAM

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    Allah has created men and women as company for one another, and so that they can procreate and live in peace and tranquility according to the commandments of Allah and the directions of His Messenger. The Quran says: 

    And among His signs is this that He created for you made from among yourselves, that you made dwell in tranquility with them, and He has put love and Mercy between your hearts. Undoubtedly in these are signs for those who reflect.

    and Allah has made for you are made of your own nature, and made for you, out of them, sons and daughters and grandchildren, and provided for you sustenance of the best.

    These verses of the Noble Quran clearly show that in contrast to other religions like Christianity Buddhism, Judaism, etc., which consider celibacy or monasticism as a great virtue and a means of salvation, Islam considers marriage as one of the most virtuous and approved institutions. The Messenger of Allah declared, “There is no monasticism in Islam.” He further ordained,

    O you young men! whoever is able to marry should marry, for that will help him to lower his gaze and guard his modesty.

    CONDITIONS OF A VALID MARRIAGE

    The following are essentials of a nikah:

    1. There should be a proposal made by or on behalf of one of the parties to the marriage.
    2. There should be an acceptance of the proposal by or on behalf of the other party.
    3. The offer and acceptance of the proposal must be made in the presence and hearing of two male or one male and two female witnesses who are competent persons in the mohammedan law.
    4. The proposal and acceptance must be made at one meeting. Writing or any religious ceremony is not necessary for valid marriage.
    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    KINDS OF MARRIAGES

    According to mohammedan law there are three kinds of marriages, namely:

    1. Valid (sahih)

    A marriage that fulfills the essential conditions is a valid marriage. A marriage which is not valid is either irregular or void. As a matter of fact, the only kind of Muslim marriage which is accepted to be fully lawful is the valid marriage. a marriage which has been contracted in violation of any of the essential legal conditions is no marriage at all, therefore, it does not constitute any separate category as ‘void marriage’.

    • Irregular (fasid)

    A marriage in which there is some irregularity, is an incomplete marriage which becomes perfectly valid as soon as the particular irregularity is removed. An irregular marriage is not unlawful in itself but unlawful “for something else.” The prohibition in this case is not absolute but temporary. It arises from an accidental mistake, such as absence of witnesses. A marriage maybe irregular due to the following circumstances:

    1. A marriage is contracted without witness.
    2. A marriage is contracted with fifth wife by person having four wives living.
    3. A marriage is contracted with a woman who is undergoing iddat.
    4. A marriage is contracted with one who is prohibited by reason of difference of religion.
    5. A marriage is contracted with a woman who is related to the wife in such a way that if one of them had been a male, they could not have been lawfully married.

    The above irregularities may be removed, and as soon as these are done, the irregular marriage is turned into a valid marriage.

    • Void (batil)

    A void marriage is unlawful in itself. It is no marriage at all from the very beginning. Thus, when a marriage takes place with a woman prohibited by reason of consanguinity, affinity or fosterage, it is void. The prohibition against marriage with such woman is perpetual and absolute.

    IRREGULAR MARRIAGE

    The marriage should not be vitiated by irregularities arising from certain temporary disqualifications. They are termed as relative prohibitions. Relative prohibitions or prohibition, in the violation of which if a married is contracted, it is irregular, but not void, its validity is not affected, according to the Sunni Law.

    Relative prohibitions are those prohibitions the compliance of which is not mandatory but their presence is deemed to be unjust. A marriage contract is in violation of these prohibitions is merely irregular, but not void. As soon as that irregularity is removed, the marriage becomes valid. In absence of evidence it cannot be held that irregular marriage become legal on account of conversion of plaintiff to mohammedan.

    The relative prohibition are as follows:

    1. Unlawful conjunction

    A Muslim is prohibited to have two wives at a time if these two wives are related to each other (by consanguinity, affinity or fosterage) in such a manner that if they had been of different sexes, they could not have intermarried. Two women thus related should not be wives of a mohammedan at the same time. This is the bar of unlawful conjunction. For example, A man is prohibited to marry the sister of his wife because, if one of them is presumed to be a male, they would have become brother and sister and could not intermarry.

    Chand Patel v. Bismillah Begum

    The supreme court held that marriage of Muslim husband with sister of existing wife would be irregular and not void and it continue to subsist till terminated in accordance with law. Wife and children of such marriage are entitled to maintenance under section 125 of the CRPC. However, under Sunni long, a marriage against the rule of unlawful conjunction is irregular however under Shia law, a marriage against the rule of unlawful conjunctions is void.[6]

    • Marriage with fifth wife

    Muslim law allows a limited polygamy of four wives. So, a Muslim is free to keep four wives at a time. But he is prohibited to marry with a fifth wife. However, marriage with fifth wife is only irregular. This irregularity can be removed either by the divorce of any of the four wives or if one of them died, this irregularity does not exist. Of course, if he divorces one of them, he will have then only three wives and can again marry. If without divorcing one of them, he takes a fifth wife, there would be and irregularity. Under Shia law, marriage with fifth wife is void.

    • Marriage with non-Muslim

    Under the Muslim law, as we have already discussed earlier, a Sunni male can contract the marriage with a kitabia female, but he is prohibited to marry a non-Muslim or non kitabia woman. For example, he is prohibited to marry a Hindu woman, however a marriage against the prohibition is irregular, not void ab initio. A Shia Muslim may do so provided the marriage is a mutta marriage. The woman may at any time embrace Islam and cures this irregularity. Till then the marriage would be irregular among Sunnis.

    • Marriage without witnesses

    Sunni law prohibits a marriage being contracted without two competent witnesses. A marriage without witnesses is merely irregular. However, under the Shia law, the presence of witnesses is not necessary.

    • Marriage during iddat

    Marriage with a woman undergoing iddat is prohibited under Muslim law. Under Sunni law, a marriage with a woman observing iddat, is irregular, but according to Shia law, the marriage is void. A widow (whether or not her marriage was consummated) has to remain in seclusion for 4 months and 10 days from the death of her husband.

    If she is pregnant at the time of the husband’s death and does not have delivery during this period, iddat lasts until delivery. During the period of iddat a woman should not remarry. A divorced woman whose marriage has been consummated, i.e., who had sexual intercourse with the husband, should observe seclusion for three lunar months.

    If she is subject to menstruation, the period is 3 menstrual courses point when she is pregnant, Iddat terminates upon delivery and it is not necessary to wait for the for the menstrual courses. Iddat need not be observed by a woman whose marriage terminated by divorce, if the marriage has not been consummated. It is obvious that the observance of iddat is primarily for ascertaining whether the woman is pregnant or not. Marriage with a woman while she is observing iddat is irregular. Among Shias such a marriage is void if the person marrying knows that she is observing iddat.

    MARRIAGE WITH WIFE’S SISTER

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    A Muslim cannot marry at the same time, two wives who are related to each other by consanguinity, affinity or fosterage, and if we suppose either of them to be a male, they could not have lawfully married. Accordingly, a Muslim male cannot marry two sisters or an aunt and a niece at the same time. Even if he marries, the marriage is irregular. To regularize the marriage with the other, he may divorce the former wife. The bar continues only if the marriage is subsisting. But when the marriage is dissolved, no bar terminates.

    The Quranic verse relating to prohibition of marriage with two sisters is: “And prohibited to you (for marriage) are two sisters in wedlock at one and the same time.” There is nothing to prevent a person from marrying his wife’s sister after the death or divorce of his wife; but it is unlawful to marry two sisters at the same time or to marry the sister of the wife during the wife’s lifetime.

    But the Quranic prohibition has been extended by both Hedaya and the Fatwa-i-Alamgiri; they generalize the proposition thus- “it is not lawful for a man to marry two women within such degrees of consanguinity, affinity or fosterage as would render a marriage between them illegal, if one of them were a man” This extension of the prohibition has not been accepted by the Shias.

    Fayrooz al-Daylami said: I came to the Prophet (peace and blessings of Allah be upon him) and said: O Messenger of Allah, I have become Muslim and I am married to two sisters. The Messenger of Allah (peace and blessings of Allah be upon him) said: “Choose whichever of them you want [i.e., and divorce the other].

    Aizunnissa v. Karimunnissa

    In this case, Izzatunnissa was married to one Golam Ali after many years he had married her sister Aizunnissa, and while Aizunnissa was still his lawful wife. The daughter Karimunnissa was the issue of the second marriage. On the death of Golam Ali, the dispute about property arose in which, the first wife (widow) Aizunnissa challenged the validity of the marriage of Golam Ali with Izzatunnissa. It was held that the marriage was void and the children were illegitimate and incapable of inheriting the property. The court held that, “we ought not to hold that a marriage which is distinctly forbidden by the Quran, which rests on precisely the same basis as a marriage with a mother-in-law or a daughter-in-law, is such a legal and valid marriage that the children are capable of inheriting

    Consequently, the High Courts of Bombay and Madras and the Chief Court of Oudh have held such marriages to be merely irregular and the children legitimate. The rule may be said to be firmly established in India.

    Thus, under Sunni School of law, a man cannot marry aunt and niece together. Under Shia law, a valid marriage may be contracted with wife’s aunt but one can marry with the niece of his wife only with the consent of her wife. The marriage performed in violation of this condition is void. Under Sunni law, a marriage performed against unlawful conjugation is not void but irregular and the children born out of such union are legitimate.

    MAINTAINENCE TO CHILDREN OF SUCH MARRIAGE

    Such marriage is irregular but the children born to them are legitimate. The Supreme Court has noted that children born out of irregular marriages are legitimate and therefore eligible to inherit intestate property as per applicable rules in Muslim law.

    In the Ata Mohd. V. Saiqul Bibi, Justice karamat Husain has held that where a marriage is not certainly prohibited then alone it is irregular. If, however the marriage is certainly prohibited then it would be void if the person had knowledge of the fact but if there was ignorance of its unlawfulness in fact and not in law then the marriage would be irregular and the children would be legitimate.

    The ‘irregular marriage’ of Islam is a connection between a man and a woman which, though not amounting to a lawful marriage, confers the status of legitimacy on the children. In this respect it is similar to a Scottish or Canadian putative marriage.

    The logical separation of the question of the legitimacy of the child from that of the validity of the parent’s marriage was also developed by canon law and has been accepted in English law. It was said by the privy council in a case dealing with a Chinese conjugal union that ‘a court may do well to recollect that it is a possible jural conception that a child may be legitimate though its parents were not and could not be legitimately married’

    In Rohiman Bibi V. Mehaboob Bibi the Madras High Court held that an irregular marriage has no legal effect before consummation if consummation has taken place the wife is entitled to dower and the children born of such marriage are legitimate.

    The court said “the legal effect of an irregular 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.”

    It said that high court relied on principles of Islamic law to conclude that such rules do not treat the marriage of a Muslim as void, and confers legitimacy upon children born out of such wedlock.

    Referring to this law, the bench said that a marriage which is not valid may be either void or invalid.

    “A void marriage is one which is unlawful in itself, the prohibition against such a marriage being perpetual and absolute. An invalid marriage is described as one which is not unlawful in itself, but unlawful for something else…(like absence of witnesses),” the bench said.

    CONCLUSION

    To wrap up the article, it is safe to say that marriage with the sister of an existing wife is irregular but not void. If the impediment or prohibition to marriage is temporary, then a marriage performed in violation of such impediments is not void, but, as the Muslim law calls it, irregular. An irregular marriage is not same thing as voidable marriage under English law or Hindu law.

    A voidable marriage is a perfectly valid marriage till it is avoided, and it can be avoided only by either party to the marriage. No third person can take a stand on it. A voidable marriage on its annulment has, practically, the same consequences as a void marriage. On the other hand, an irregular marriage is not a valid marriage: nor is it a void marriage.

    A fasid marriage is not a valid marriage to begin with, but it can be validated and made a fully valid marriage by removing the impediment, or by remedying the prohibition. Thus, when a person marries his wife’s sister, the marriage is irregular, but he can validate it by pronouncing talak on his wife. Such a marriage has been held fasid and not batil, therefore, till terminated in accordance with law it continues to subsist.

    Hence the wife and children of such marriage were entitled to maintenance. The children born of such marriages are perfectly legitimate. The ‘irregular marriage’ of Islam is a connection between a man and a woman which, though not amounting to a lawful marriage, confers the status of legitimacy on the children.

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa

    MARRIAGE WITH SISTER OF AN EXISTING WIFE, Chand Patel v. Bismillah Begum, Aizunnissa v. Karimunnissa


    [1] H.K. Saharay, Family Law in India, p. 171, (2011)

    [2] Dr. Rakesh Kumar Singh, Textbook on Muslim Law, p. 58, (2011)

    [3] G.C.V.Subba Rao, Family Law in India, p. 409, (7th ed. 2001)

    [4] Ibid

    [5] SC AIR (2008)

    [6] Dr. Rakesh Kumar Singh, Textbook on Muslim Law, p. 72, (2011)

    [7] G.C.V.Subba Rao, Family Law in India, p. 409, (7th ed. 2001)

    [8] DR. Nishi Purohit- The Principles of Mohammedan law, 2nd edn. 1998, p.130, Orient Publishing Company, Allahabad.

    [9] Quran, Sura IV, Ayat 23; The Holy Quran, translated by Abdullah Yusuf Ali, Ayman Publications, New Delhi.

    [10] 23 Cal. 130, (1895)

    [11] 8 ALJ 953, (1910)

    [12] Khoo Hooi Leong V. Khoo Hean Kwee (1926) A.C. 529, 543, per Lord Phillimore: Ameer Ali, II176

    [13] AIR (1938)