CHELLAMMA Vs. HAMZA

JUDGEMENT

(1.) AFTER the death of Ummar an application was filed by the petitioner for obtaining a succession certificate in respect of the assets left by deceased Ummar. The respondents contested the matter and according to them there was no valid marriage between the petitioner and deceased Ummar. They admitted the execution of marriage udampadi, but denied the existence of a valid marriage. The trial court found that there was only an irregular marriage, since under the Mahomedan Law a marriage between a Mahomedan and a hindu woman was not permissible. The trial court held that the petitioner was entitled to 1/3 of the amount under the Provident Fund and gratuity as her name was nominated by the subscriber. The trial court construed the nomination as a gift. The appellate court concurred with the finding that the petitioner was not a legal representative of deceased Ummar. However, the court held that the nomination by the deceased subscriber would only confer a right to receive the amount and it did not operate as a gift. The revision petition is directed against the order passed by the appellate court.

(2.) THE fact that deceased Ummar and the petitioner entered into a marriage agreement and they lived as husband and wife is not disputed. THE short question that arises for consideration is whether the marriage between a Hindu woman and a Mahomedan is legal and whether the wife is entitled to inherit the property of the deceased husband. If only the marriage was legal, it could be held that the wife was a legal representative of the husband.

(3.) THE learned counsel for the petitioner contended that the irregularity in the marriage could be cured and the wife would be entitled to inherit the property. Reliance was placed on the decision reported in mohammed Shafi v. Rounag Ali (AIR. 1928 Oudh 231 ). In that case the marriage was contracted within the period of idath. THErefore, the court held that such a marriage was irregular or vitiated by a temporary defect and the marriage cannot be altogether void. A'fasid' marriage which is vitiated only by some temporary defect can become valid when the defect is removed.