GUWAHATI: The Gauhati High Court has ruled that section 4 of the Special Marriage Act does not save the second marriage of a Muslim man with a Hindu woman and as such, it would be void.
One Dipamani Kalita, second wife of Sahabuddin Ahmed, had filed a writ petition in the court aggrieved by the non-sanctioning of pension and other pensionary benefits to her after her husband’s death in a road mishap in 2017. She is a mother of a 12-year-old son.
Ahmed was serving as a Lat Mandal in the office of District Magistrate, Kamrup (Rural).
Quoting from section 4 of the Special Marriage Act, 1954, the court said one of the conditions relating to the solemnization of special marriages is that neither party has a spouse living.
“It is not in dispute that on the date of marriage between the petitioner and Late Sahabuddin Ahmed was registered under the Special Marriage Act, 1954, he had a spouse living...There is no document showing that the prior marriage of the husband of the petitioner with respondent no.6 (first wife) had been annulled,” the court said.
Referring to the Supreme Court judgment in the Md. Salim Ali (dead) versus Shamshudeen (dead) case, the court said, “It appears that under the principles of Mohammedan law, the marriage of a Muslim man with an idol worshiper is neither valid nor a void marriage, but is merely an irregular marriage.”
The court said 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,” the court said, adding, “From the above, it appears that section 4 of the Special Marriage Act does not save a second marriage contracted by a Mohammedan male.”
The court dismissed the writ petition but ruled that under the law, the petitioner’s minor son would still be entitled to his share of pension and other pensionary benefits. The court said it would be open to the petitioner to open a bank account in his name.