The Gauhati High Court observed that section 4 of the Special Marriage Act does not save a second marriage contracted by a Muslim male with a Hindu woman, and thus it would be void.
As per Section 4 of the Special Marriage Act, one of the conditions relating to solemnization of second marriages, is that neither party should have a spouse living.
In this case, the petitioner woman, who was the second wife of a muslim man, had approached the court aggrieved by non-sanctioning of pension and other pensionary benefits on the death of her husband. The issue in this case was whether the petitioner, being a Hindu and married to her husband, a Mohammedan under the Special Marriage Act, 1954 would be entitled to pension and other pensionary benefits?
Referring to Section 4 of the Act and the Supreme Court judgment in Md Salim Ali (dead) Vs. Shamshudeen (dead), the court observed that section 4 of the Special Marriage Act does not save a second marriage contracted by a Mohammedan male.
“It appears that under the principles of Mohammedan law, the marriage of muslim man with an idol worshiper is neither valid nor a void marriage, but is merely an irregular marriage. As per section 22 of the principles of Mohammedan law by Mulla (20th edition), the capacity of marriage relates to every Mohammedan of sound mind who had entered into the contract of marriage. The petitioner not being a Mohammedan, the marriage would not be a marriage without strict meaning of the Mohammedan law. In the present case in hand, it is seen that the petitioner was not married as per customary Mohammedan law but she was married under the Special Marriage Act, 1954 and that the provisions of Section 4(a) of the said Act renders the marriage as void. Moreover, the petitioner is still using her Hindu name and there is nothing on record to show that the petitioner had accepted the religion of Islam as her faith.”, Justice Kalyan Rai Surana observed.
Faced with this, the petitioner contended that, under section 24 of the Special Marriage Act, it was incumbent on part of the first wife to have the marriage between the petitioner and her husband declared to be void.
“The petitioner, who is a Hindu had married her deceased husband, who was a Mohammedan, under the Special Marriage Act, 1954, and at the time of such marriage, the condition precedent of Section 4(a) of the Special Marriage Act was conspicuously absent. Therefore, the marriage would be void.”, court observed.
While dismissing her claim, the court, held the minor son of the petitioner would still be entitled to his share on the pension and other pensionary benefits.