Wife of Irregular Marriage can claim Maintenance under section 125 CRPC

Chand Patel vs. Bismillah Begum and Ors. (14.03.2026 - SC) : MANU/SC/1331/2008

Case Note:
Family - Legality of - Marriage - Irregular (fasid) marriage or void (batil) - Muslim personal Law - Appellant married to Respondent No. 1 with the consent of his first wife who is elder sister of Respondent No. 1 - Marriage was consummated and Respondent N0.2 was born out of the wedlock after two years - Relationship between the Appellant and Respondent No. 1 deteriorated - Respondent No. 1 filed a application under Section 125 of the Cr.P.C for maintenance claiming to be legally wedded wife of the Appellant - Trial Court held that Respondent No. 1 was entitled for maintenance and Respondent No. 2 also entitled for maintenance till she reaches adulthood - High Court dismissed the petition for lacking of merit - Hence, present appeal - 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 - Appellant contended that Muslim Law specifically prohibits the marriage between a man and his wife’s sister, even the marriage was consummated same was void and did not confer any right to Respondent No. 1 and 2 - Held, marriage, which is temporarily prohibited may be rendered lawful once the prohibition is removed - Such a marriage is irregular (fasid) and not void (batil) - Bar of unlawful conjunction (jama bain-al-mahramain) renders a marriage irregular and not void - Consequently, under the Hanafi law as far as Muslims in India are concerned, an irregular marriage continues to subsist till terminated in accordance with law - Appeal dismissed

Family - Irregular marriage - Maintenance - Section 125 of Code of Criminal Procedure, 1973 - Whether the Respondent No. 1and 2 can claim maintenance even though the marriage is void or irregular - Held, under the Hanafi law as far as Muslims in India are concerned, 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 of the Code - Unlawful conjunction and/or marriage between the Appellant and Respondent No. 1 continues to subsist not having been declared void by any competent forum - Respondent No. 1 and Respondent No. 2 will both be entitled to maintenance under Section 125 of the Code - No reason to interfere with the Order passed by the Karnataka High Court or that of the Judicial Magistrate - Appeal dismissed

Ratio Decidendi:
“Under the Hanafi law as far as Muslims in India are concerned, 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, Cr.PC.”