The Supreme Court has said that a muslim who marries his wife's sister during the subsistence of the first marriage has to pay maintenance allowance to the "second wife" and the children from the marriage.
The fact that the marriage was not solemnised as per the custom and was "irregular" cannot be a ground for depriving the woman or the children from that marriage of the maintenance claims as provided under Section 125 CrPC, a bench of Justices Altamas Kabir and J M Panchal has ruled.
"As far as Muslims in India are concerned, an irregular marriage continues to subsist till terminated in accordance with law and the wife and the children of such marriage would be entitled to maintenance under the provisions of Section 125 of the Code of Criminal Procedure," the apex court observed.
It rejected the argument of a Muslim man that the proviso of the CrPC cannot override the community's personal law.
The marriage of a Muslim with his wife's sister is "irregular" and "not void" and in such circumstances, the husband has to pay maintenance to the wife and her children until the marriage is terminated in accordance with the law, the apex court said interpreting the Islamic Hanafi Law with Section 125 CrPC.
Under Section 125 CrPC, a duty is cast upon a person to maintain his wife, minor children, handicapped children (even if major) besides aged parents if either of them is unable to fend for himself.
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