In an interesting development, the Gauhati High Court has ruled that the Special Marriage Act, 1954 does not save the second marriage of a Muslim man with a Hindu woman and as such, it would be invalid, a court official said on Tuesday.
According to a high court order, one Dipamani Kalita, mother of a 12-year-old boy and second wife of Sahabuddin Ahmed, had earlier filed a writ petition in the court after the authority had rejected her claim of pension and other pensionary benefits after her husband's death in a road mishap in July 2017.
The writ petition was filed in 2019 under Article 226 of the Constitution of India.
Ahmed at the time of his death was serving as a 'Lat Mandal' in the Deputy Commissioner's office in Kamrup (Rural) district.
Gauhati High Court judge Justice Kalyan Rai Surana said that Section 4 of the Special Marriage Act, 1954 provides that one of the conditions relating to the solemnisation 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, the latter 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 a Supreme Court judgment, the judge 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 the 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 15-page court order said.
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.
"Accordingly, it would be open to the petitioner to open a bank account in the name of her minor son and the petitioner may record her name as mother and natural guardian of her son," the court order said.
Accordingly, the court is inclined to direct the the Deputy Commissioner of Kamrup (Rural) district to make a proposal for pension and other pensionary benefits by providing for a share of the pension on account of late Sahabuddin Ahmed to Priyanku Parash, the son of the petitioner Dipamani Kalita and late Sahabuddin Ahmed.
