A Muslim man married a Muslim woman and had no child then he married a Hindu woman and later on she converted to Islam and changed her name. The said couple had a child. After some time the Muslim man died and his converted wife remarried another person. At the time of his death, he had possession of a property that he received as a gift from his mother. Subsequently, to the death of the Muslim man, his mother passed away in 1955. If the man was alive at the time of his mother’s demise, then he would be entitled to inherit half of the share in the second property along with his brother.
After few years, the child of a Muslim man and the Hindu women filed a suit for partition and possession of both the properties in which he claimed 14/16 share of the property his father possessed at the time of his death and half of the share of the property which his father will get if he was alive at the time of his mother’s death before the court. The Sub-court decreed in his favor. However, after five years, the decree was set aside by the District Court.
An appeal was filed on the decision of the district court in the high court of Kerala. The High Court set aside the same and validated the decree passed by the sub-court.
The aggrieved party filed an appeal before the Supreme Court of India. After hearing both the parties the court held that the child born out of a marriage between a Muslim man and Hindu woman is a legitimate offspring and is entitled to his father’s property unless the marriage is void.
The defendant contented that the converted woman was Hindu at the time of marriage, the marriage is void and the plaintiff is not entitled to claim the right in the property. It was also contested that the plaintiff was born after 2 years of death of his father. On this, the plaintiff produces the birth register maintained by the concerned authority after the examination which, it was considered a relevant fact that the plaintiff was born prior to two months of the death of his father. On closely observing the Personal laws of the Muslims, the Supreme Court held that a void marriage is different from irregular marriage and an irregular marriage can be cured later on. Here, the marriage solemnized is irregular and after rectifying, the same shall be a valid marriage.
Irrespective of the fact that whether the issue of irregularity of a marriage may be resolved or not, the child born out of wedlock is a legitimate child and is entitled to claim a share in his father’s property. The Supreme Court on examining the birth register and the date of demise of the plaintiff’s father concluded that the plaintiff was born two months prior to his father’s death. Thus, he is entitled to claim his share in the property of his father.