22 May 2010

Muslim man cannot marry non-Muslim woman: High Court

In a path-breaking decision pronounced recently, the Allahabad High Court has declared that it is not open for a Muslim man to marry a non-Muslim woman without her being converted to Islam. Declining to interfere in a petition filed by a Muslim man seeking relief against criminal proceedings against him for having married a Hindu girl, the High Court noted the Ayats of the Holy Quaran and other scholars of Muslim law to declare the law thus.

The High Court inter alia held as under;
... Writ Petition further reveals that Khushboo never converted herself into Islam. There is no document regarding her such conversion. In our above conclusion we are fortified by the fact that in the affidavit and application filed by Khusboo herself subsequent to her alleged contract marriage she has described herself as Khushboo and not by any Islamic name. As Khushboo she could not have contracted marriage according to Muslim customs. In those referred documents she has addressed herself as Khushboo Jaiswal daughter of Rajesh Jaiswal. Thus what is conspicuously clear unerringly without any ambiguity is that Khushboo Jaiswal never converted and embraced Islam and therefore her marital tie with the petitioner Dilbar Habib Siddiqui is a void marriage since the same is contrary to Islamic dicta and tenets of Holy Quran.
It is recollected here that Nikah i.e. marriage in pre- Islamic Arabia, meant different forms of sex relationships between a man and a woman. Prophet Mohammed brought about a complete change in the position of woman in society through Holy Quran, which is the primary and basic source of Islamic Law. In this respect we can do no better than to refer the verses of Holy Quran. Sura 2 Ayat 221 of The Holy Quran as is mentioned in the text book of Mohammedan Law by I.Mulla, Ist Edition, 2nd reprint, at page 162,provides as follows:-
“Do not marry unbelieving women until they believe...... Nor marry your girls to unbelievers until they believe” .
Here a believing women is referred to such a women who has embraced Islam and has faith in Prophet Mohammed. Marriage in Muslim law is not only a ritual but is also “a devotional act” as Dr.M.U.S. Jang referred it in his book 'Desertion on the Development of Muslim Law in British India' (page 1.2.). I. Mulla in his above text book at page 166 has written thus:-
“Koranic injunctions recognise in Islam, marriage as the basis of society. Though it is a contract, it is also a sacred covenant. Temporary marriages are forbidden. Marriage as an institution leads to the uplift of man and is a means for the continuance of human race.”
Thus what is well recognised in Muslim Law is that marriage is a sacred act. For essentials of a valid muslim marriage, AL-HAJ MAULANA FAZLUL KARIM in his translation and commentary of Mishkat-ul- Masabih , ALHADIS (BOOK II), CHAPTER XXVII, SECTION 2,has written thus:-
“ In tradition, we find that the following qualifications of a bride should be sought. The bride should be (1) a Muslim (2) chaste (3) virgin,(4) beautiful, (5) accomplished, (6) having sweet tongue, and good manners, (7) possessing property , (8) having children bearing capacity and affectionate nature and (9) equal respectibility.”
Thus for a valid muslim marriage both the spouses have to be muslim. In the present writ petition this condition is not satisfied as the writ petition lacks credible and accountable material in this respect on which reliance can be placed. 
The High Court also noted the allegation made by the first wife of the petition to the effect that "the petitioner deals in human trafficking by indulging into matrimony with various girls and then leaving them as destitutes" and thus declared that subsequent marriage of the petitioner was not allowed even in terms of the Quaran which allowed bigamy only if the Husband was able to provide for other wives. On this note, the High Court observed as under;
Coming to another limb of argument raised by counsel for the petitioner that a muslim man is entitled to marry four time, we once again revert back to recognised treatises. We find that Sura 4 Ayat 3 of The Holy Quran provides for giving due care and provisions for a Muslim women. The said Ayat, as is referred to in the treatise by I.Mulla, is referred to below:-
“(vi) Number of wives- If ye fear that ye shall not be able to deal justly with the orphans ( orphan wives and their property); marry woman of your choice, two or three or four; But if you fear that ye shall not be able to deal justly (with them), then only one...........that would be more suitable to prevent you from doing injustice.” 
From the perusal of above Ayats it is abundantly clear that bigamy is not sanctified unless a man can do justice to orphans. The said Ayat mandates all Muslims men to 'deal justly with orphans and then they can marry women of their choice two or three or four but if they fear that they will not be able to deal justly with them then only one. We are of the view, that such a religious mandate has been given to all the Muslims for a greater social purpose. If a Muslim man is not capable of fostering his wife and children then he cannot be allowed the liberty to marry other women as that will be against the said Sura 4 -Ayat-3.This aspect of the matter should not vex our mind further as the same came up before the apex court as well in Javed And Others versus State of Haryana: AIR 2003 SC 3057 and therefore we conclude this aspect of the submission by referring to the words of the apex court in that decision, which are as follows:-
“The Muslim Law permits marrying four women. The personal law nowhere mandates or dictates it as a duty to perform four marriages. No religious scripture or authority provides that marrying less than four women or abstaining from procreating a child from each and every wife in case of permitted bigamy or polygamy would be irreligious or offensive to the dictates of the religion. The question of the impugned provision of Haryana Act being violative of Art. 25 does not arise.”
Reverting back to the facts of the present writ petition it is recollected that the facts are such where the petitioner has left his wife and the three children born of the said wedlock as destitutes. He cannot be allowed to remarry to leave his wife and children as a destitutes as that will be against the tenets of The Holy Quran which no Muslim can even dare to disobey.
Have a look at the decision.


Post-Script Supplement


Reading this post, Bhagwat has rightly pointed out that the law would not be correctly reflected unless it is noted that the Special Marriage Act of 1954 does allow persons from any religion or caste to inter-marry without any restriction even whereas the same may be prohibited under their respective personal laws. However in as much as the same was not the factual situation before the High Court, it has not been noted in the decision. Thanks Bhagwat for pointing it out. 

1 comment:

Bhagwad said...

I think you should clearly mention that this only applies to marriages under muslim law. According to the Special Marriage Act 1954, any two male and female adult citizens of India can get married irrespective of religion, caste, creed, gotra etc..