Case BriefsSupreme Court

Supreme Court: The bench of NV Ramana and MM Shantanagoudar, JJ, on the issue relating to legality of the marriage of a Muslim man with an idolater or fireworshipper, said that such marriage “is neither a valid (sahih) nor a void (batil) marriage, but is merely an irregular (fasid) marriage.”

In the present case, the plaintiff had claimed his share in property of his Muslim father, who had married his Hindu mother. However, the defendants argued that the plaintiff’s mother was not the legally wedded wife of Mohammed Ilias and that she was a Hindu by religion at the time of marriage. She had not converted to Islam at the time of her marriage, and thus the plaintiff was not entitled to any share in the property in question.

The Court, however, after considering that the marriage in question was an irregular marriage, noticed:

“the legal effect of a  fasid marriage is that in case of consummation, though the wife is entitled to get dower, she is not entitled to inherit the properties of the husband.  But the child born in that marriage is legitimate just like in the case of a valid marriage, and is entitled to inherit the property of the father.”

Based on the finding that any child born out of a fasid  marriage is   entitled   to   claim   a   share   in   his   father’s property, the Court held that the plaintiff was entitled to his share in his father’s property. [Mohammed Salim v. Shamsudeen, 2019 SCC OnLine SC 52, decided on 22.01.2019]

Case BriefsHigh Courts

Jharkhand High Court: A Single Judge bench comprising of Aparesh Kumar Singh, J. while dealing with a civil writ petition challenging the termination of services, upheld the order of termination.

Brief background of the case is that in the pre-constitutional set-up, the practice in Bihar was to appoint village chowkidars for a lifetime who worked without any leave or retirement. During his illness or absence, any of his family members would assist him in the performance of his duties and when he died or became infirm; usually his family member nominated by him took over the functions of chowkidar, though the post was not strictly hereditary. In the post-constitutional set-up, there was a gradual change in the village administration and several hereditary/ semi-hereditary appointments gave way to regular public service with appointments based on equal opportunity.

In the present case, the petitioner was appointed as chowkidar in the place of his father. However, in view of this court’s order in the case Nandan Vohra v State of Jharkhand, WPS No. 2072 of 2007, Order dated 02-03-2016, holding that a public post cannot be given as an inheritance to the son/daughter of a retired employee and equal opportunity for appointment to the public post is a requirement under Articles 14 and 16 of the Constitution of India; the petitioner’s services were terminated by way of a show cause notice issued by the Deputy Commissioner. The challenge to this termination order is the subject matter of the instant writ petition.

The High Court opined that in view of the judgment of Apex Court in the case of Surendra Paswan v State of Bihar, (2010) 6 SCC 680the State government had taken decision to remove /terminate all the chowkidars appointed on the inheritance basis and the principle of law laid in therein was uniformly followed in subsequent cases including the Nandan Vohra case. As such, the writ petition was dismissed holding that there was no infirmity in the impugned termination order. [Vijay Kumar Paswan v. State of Jharkhand,2018 SCC OnLine Jhar 1203, Order dated 17-09-2018]

High Courts

Kerala High Court: On a Writ Petition filed by several petitioners to declare Shariat Law applicable in regard to inheritance of property by Muslim women as unconstitutional and void for being violative of Articles 14, 15, 19, 21 and 25 of the Constitution, a division bench of Ashok Bhushan CJ and A.M. Shaffique J dismissed the petition on the ground that the issues raised in the Writ Petition cannot be adjudicated in proceedings under Article 226 of the Constitution and has to be left to the wisdom of Legislature which is competent to enact law on the subject.

The Counsel for the petitioner K. Ramakumar pleaded that Shariat law discriminates among Indian citizens on the ground of sex, as it provides that if a Muslim father dies leaving only daughters, those daughters will not get share equivalent to that of the share she would get if she was a male and will have to share properties along with distant relatives of the deceased, whereas the male child takes the entire property and has to share it only with the spouse and parents of the deceased. The Counsel further pleaded that religious practices have to be made more practicable and workable to adapt itself to the changing needs of the Society. The Counsel for the respondent pleaded that for challenging the Shariat law which has got statutory recognition, a legislation has to be brought into by the competent legislature.

The Court referred Maharshi Avadhesh v. Union of India 1994 Supp (1); SCC 713, where it was held that “the respondent cannot be directed to enact Shariat Law as these are the all matters for legislature”. The Court held that the issue of modification of personal law is not something which can be adjudicated by this Court in a Public Interest Litigation and has to be left for the Legislature to consider the issues raised and frame a competent legislation thereof. Accordingly, the Court dismissed the PIL challenging the constitutionality of Shariat law. Khuran Sunnath Society v. Union of India2015 SCC OnLine Ker 13643decided on 02.07.2015