The Supreme Court of India, in the case of Mohammed Salim vs Shamsudeen[1], has finalised the views of a number of High Courts by ruling that a child born out of the marriage of a Muslim man and Hindu woman is legitimate and the child is entitled to inherit the property of the father.
This is a very significant judgment in the current socio-cultural milieu, even though inter-faith marriages are still deeply frowned upon.
Inheritance Rights of a Child Born Out of an Irregular Marriage under Muslim Personal Laws
All matters (except those relating to agricultural land) with respect to intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of personal law, marriage, dissolution of marriage, maintenance, dower, gifts etc., of Muslim followers are governed by the Muslim Personal Law (Shariat) Application Act, 1937 (Shariat). Shariat extends to the whole of India except the state of Jammu & Kashmir.
The principles of Shariat have been codified in texts, including Mulla’s Principles of Mohammedan Law and Syed Ameer Ali’s Principles of Mohammedan Law. In the 21st edition of Mulla’s Principles of Mohammedan Law, under Section 250, at page 338, a marriage of a Muslim follower (Nikah) has been defined to be a contract with an objective of procreation and legalising of children.
Further, under the principles of Shariat, it has also been stated that a Nikah between a Mahomedan male and a Hindu female (Hindu religion followers are generally considered as idol or fire worshippers) is not void but merely irregular. However, the irregularity can be rectified by the wife converting to Muslim, Christian or Jewish Religion, or the husband adopting the Muslim faith.
Moreover, if consummation has taken place, the wife is entitled to dower (a widow’s share for life of her husband’s estate) but does not have the right to inherit the property of her husband. Further, the children born during the subsistence of the marriage are legitimate as in the case of a valid marriage and they are entitled to inherit the property of the father.
Facts of the Case
In this case, Mohammed Ilias (Mohammed) had married Saidat and no children were born out of this wedlock. Thereafter, Mohammed married Valliamma, a Hindu woman who later converted to Islam and changed her name to Souda Beebi (Souda). Out of the said wedlock with Souda, Shamsudeen (Shamsudeen) was born. In 1947, Mohammed died and Souda re-married Aliyarkunju.
At the time of his death, Mohammed was in possession of a property (First Property) gifted to him by his mother, Zainam Beevi (Zainam). Subsequent to Mohammed’s death, his mother Zainam passed away in 1955. Had Mohammed been alive at the time of Zainam’s demise, Mohammed would have been entitled to inherit half a share in the second property of Zainam (Second Property) along with his brother.
Some years later in 1984, Mohammed’s son Shamsudeen filed a suit for partition and possession of both the First Property and the Second Property before the Additional Sub-Court, Thiruvananthapuram, Kerala (Sub-Court).. In his suit, Shamsudeen claimed rights over 14/16th share in the First Property and half share in the Second Property as a legal heir of Mohammed. In 1989, the said suit was allowed in his favour.
However, in 1994, the decision of the Sub-Court was set aside by the District Court of Thiruvananthapuram (District Court). The order of the District Court was challenged in an appeal before the High Court of Kerala (High Court). In 2007, the High Court set aside the order passed by the District Court and upheld the decision of the Sub-Court. The decision of the High Court was challenged before the Supreme Court of India (SC) in an appeal. The SC in its judgement dated January 22, 2019 considered whether Shamsudeen being born out of an irregular marriage (fasid) is entitled to claim share in his father’s property.
After hearing the arguments and examining the law of the land, the SC held that the child born out of a marriage between a Muslim man and a Hindu women is a legitimate offspring and is entitled to his father’s property unless the marriage is held to be void.
The main contention before the SC was that since Valliamma was a Hindu by religion at the time of her marriage, the marriage was void and Shamsudeen should not be allowed to inherit the rights of Mohammed in his property. They also contested that Mohammed had died two years prior to Shamsudeen’s birth and hence there was no possibility of Shamsudeen being born out of consummation between Mohammed and Valliamma.
In response to the latter contention, Shamsudeen reproduced an extract of the birth register maintained by the statutory authorities, which was considered to be a relevant fact reproduced in a public document as per the provision under Section 35 of the Indian Evidence Act, 1892. The said birth register established that Shamsudeen was infact born two months prior to Mohammed’s death and not as claimed above.
The SC then examined the Shariat in detail regarding the types of marriages and their validity and held that there’s a clear distinction between batil (void marriage) and fasid (irregular marriage) in Shariat. The SC propounded that the marriage between a Muslim man and a Hindu woman would be considered to be a fasid since it consists of an irregularity which can, however, be cured.
Upon such rectification, the marriage would be considered as sahih (valid marriage). The SC also held that irrespective of the fact whether the irregularity in fasid is resolved or not, the child born out of the wedlock will be a legitimate child and shall have the inheritance rights to the estate of his/ her father. The SC thus ruled that there was no reason to interfere with the ruling of the High Court and Shamsudeen was entitled to his share in the property of his father.
With regard to the question whether Shamsudeen was born before or after the death of Mohammed, the SC relied upon the birth register and observed that the date of birth of Shamsudeen, as specified in the birth register, has not been disputed and, hence, it is proved. The SC also examined the date of demise of Mohammed from the public record maintained by the Trivandrum Public Library. As a result, it was concluded that Shamsudeen was born prior to the death of Mohammed.
Is this a Reformative Decision?
In view of the findings of the SC in the present case, and as per the Muslim law already laid down, it is an inevitable conclusion that the child born out of a fasid or irregular marriage is a legitimate child and is entitled to the inheritance rights over the estate of his/ her father.
This judgement has given finality to the principle already laid down by a number of High Courts and that the inherent right to the property of children born from an irregular marriage, as the legal heirs of their ancestors, will stay protected from the possible malafide intention of their family members. Moreover, this judgement also attempts to recognise the rights of spouses of Muslim men, who are Hindu religion followers, by upholding their right to receive dower upon the death of their husband and striking down the argument that the marriage between a Muslim man and a Hindu woman should be considered as Batil or void marriage.
It remains to be seen whether this particular judgement by the SC would act as a catalyst in the already fueled up campaign led by the Muslim women demanding equal rights under Shariat as compared to the Muslim men. Grant of right to inherit the property by a widow from an irregular marriage would definitely be a step in the right direction which shall also lead to the development of much needed jurisprudence for the courts in India to declare and uphold the equality of rights of women under Shariat.
[1] Civil Appeal No. 5158 of 2013 in Mohammed Salim (D) through L.Rs and Ors. Vs. Shamsudeen (D) through L.Rs. and Ors.
