Muslim Law – Irregular (Fasid) Marriage – Entitlement of child born out of irregular (fasid) marriage in his father’s properties – Respondent No.1-plaintiff case was that his father ‘M’ and defendant No.1 were sons of one ‘Z’ – Two plaint properties (Schedule ‘A’ and Schedule ‘B’) belonged to Z – Z gifted Plaint Schedule ‘A’ property to ‘M’ – ‘M’ married defendant No.8 and no issue was born out of the wedlock – M’ also married one ‘V’ (a Hindu woman) and out of the said wedlock plaintiff was born – Plaintiff claimed entitlement to 14/16th of the share in Schedule ‘A’ property after the demise of ‘M’ and half the share in Schedule ‘B’ property through inheritance after the demise of ‘Z’ – Suit was filed – Suit was decreed by the trial Court in favour of plaintiff – First appellate Court set aside the judgment and decree of the trial Court – However, the High Court confirmed the judgment and decree passed by the trial Court – Appellants-defendants contended that plaintiff was not the son of ‘M’ as he was born in the year 1949 and his alleged father ‘M’ had expired in the year 1947 and furthermore, ‘V’ was a Hindu woman by religion she had no right over the property of ‘M’, consequently plaintiff would not get any share in the property of ‘M’ – On appeal, held: Birth register extract of the plaintiff maintained by the statutory authorities indicated that the plaintiff was the son of ‘M’ and ‘V’, and was born on 12.02.1949 – It is a public document maintained by a public servant in discharge of his official duty, thus, relevant as per s.35 of the Evidence Act – Also, admittedly, ‘M’ and ‘V’ were living together as husband and wife, and ‘M’ had died on 10.09.1124 M.E., which corresponds to 22.04.1949 in Gregorian calender as seen from the Government Almanac – Thus, plaintiff was born two months prior to the death of ‘M’ and High Court was correct in concluding, based on the preponderance of probabilities that ‘V’ was legally wedded wife of ‘M’ and plaintiff was the child born out of the said wedlock – Insofar as right of plaintiff over the suit properties is concerned, the marriage of a Muslim man with an idolater or fire-worshipper is neither a valid (sahih) nor 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 – Therefore, the trial Court and the High Court were justified in concluding that the plaintiff was the legitimate son of ‘M’ and ‘V’, and is entitled to his share in the property as per law – Evidence Act, 1872 – s.35.
Dismissing the appeal, the Court
HELD: 1. It is not in dispute that ‘Z’ gifted Plaint Schedule ‘A’ property to her son ‘M’. In view of the gift deed in favour of ‘M’, upon his death, Schedule ‘A’ property would have devolved upon his legal heirs as an absolute property as provided under Muslim law. Plaint Schedule ‘B’ property admittedly belonged to ‘Z’ and upon her death, it devolved on her legal heirs. Since ‘Z’ had two sons; ‘M’ and defendant No.1, both the sons/their respective legal heirs would have inherited half a share each after the death of ‘Z’. [Para 6][946-D-E]
2. It is also not in dispute that Defendant No. 8 is the widow (first wife) of ‘M’. She has clearly admitted in her written statement that ‘M’ married ‘V’, Defendant No. 9, and out of the said wedlock, the plaintiff was born. The birth register extract of the plaintiff maintained by the statutory authorities, which indicates that the plaintiff is the son of ‘M’ and ‘V’. It is a public document. An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law in accordance with which such book, register or record is kept, is itself a relevant fact, as per section 35 of the Indian Evidence Act, 1872. Additionally, a specific pleading was found in the plaint that ‘M’ and ‘V’ were living together as husband and wife which has not been denied in the written statement of the defendants. [Para 7][942-E-H]
3. As per Extract from birth register maintained by the statutory authorities, the plaintiff was born on 01.07.1124 M.E. (12.02.1949 as per the Gregorian Calendar) and the same has not been seriously disputed. Admittedly, ‘M’ died on 10.09.1124 M.E. The said date corresponds to 22.04.1949 in the Gregorian Calendar, as seen from the Government Almanac, which cannot be disputed inasmuch as it is a public record maintained by the Trivandrum Public Library (Government of Kerala). Thus, it can be concluded that the plaintiff was born two months prior to the death of ‘M’. Under these circumstances, the Trial Court and the High Court were justified in concluding, based on the preponderance of probabilities, that ‘V’ was the legally wedded wife of ‘M’, and the plaintiff was the child born out of the said wedlock. [Para 7][947-A-C]
4. In instant case, the High Court was also justified in concluding that though the plaintiff was born out of a fasid (irregular) marriage, he cannot be termed as an illegitimate son of ‘M’. On the contrary, he is the legitimate son of ‘M’, and consequently is entitled to inherit the shares claimed in the estate of his father. The High Court relied upon various texts, including Mulla’s Principles of Mahommedan Law and Syed Ameer Ali’s Principles of Mahommedan Law, to conclude that Muslim law does not treat the marriage of a Muslim with a Hindu woman as void, and confers legitimacy upon children born out of such wedlock. The position that a marriage between a Hindu woman and Muslim man is merely irregular and the issue from such wedlock is legitimate has also been affirmed by various High Courts. [Paras
8 and 12][947-D-E; 953-C]
5. Thus, based on the above consistent view, this Court concludes that 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][953D-E]
6. In this view of the matter, the trial Court and the High Court were justified in concluding that the plaintiff is the legitimate son of ‘M’ and ‘V’, and is entitled to his share in the property as per law. [Para 14][953-F]
Aisha Bi v. Saraswathi Fathima (2012) 3 LW 937 (Mad); Ihsan Hassan Khan v. Panna Lal AIR 1928 Pat
19 – affirmed.
Chand Patel v. Bismillah Begum (2008) 4 SCC 774 : [2008] 5 SCR 1 – referred to.
Principles of Mahommedan Law (21st Edition of Mulla); Syed Ameer Ali’s Principles of Mahommedan Law; A.A.A. Fyzee’s Outlines of Muhammadan Law (5 th edition) – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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