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1998 DIGILAW 711 (GUJ)

Sajan Husen Kumbhat v. State of Gujarat

1998-11-12

A.K.TRIVEDI, S.M.SONI

body1998
JUDGMENT : S.M. Soni, J. 1. Rule. Ld. APP- Mr. K.T. Dave waives service of rule. 2. These are the applications filed by the applicants, who are brothers, for temporary bail as the marriage of Suleman Husen Kumbhar, the applicant of Cri.Misc.Appln.No.4547/98 is arranged with one Hajaraben Eliyas Paththai, aged 22 years. As this court had in mind that under Mahomedan Law, a marriage can not be performed with a person who is not able to achieve the object of the marriage under Mahomedan Law. Definition of marriage under Section 250 of Mulla's Principles of Mahomedan Law, 19th Edition reads as under: "250 Definition of marriage:--Marriage (nikah) is defined to be a contract which has for its object the procreation and legalising of children". 3. Thus, the object of marriage among Muslims is to procreate children and legalise the children. A person who is undergoing life imprisonment can not consummate marriage till the sentence to undergo is complete or the appeal is finally heard and he is acquitted. It is not known when the appeal may be heard finally, however, it would not in be near future as Criminal Appeals of 1990 or about are heard now. It can not be said that he may be released on bail and he may consummate marriage. Such consummation, if any, in our opinion can not be said to fulfill the object of marriage. 4. Thus the marriage if performed with a person who is undergoing life imprisonment, this object can not be fulfilled, and such a marriage, therefore, can not be performed. Looking from the other angle, if a married person is ordered to undergo life imprisonment, then the Muslim wife is entitled to claim divorce. This right to get divorce is based on the very object of marriage, as the same could not be fulfilled because of life imprisonment. If a Muslim woman marries a Muslim man knowingly that he is a life convict, then her right to divorce is lost as she may be stopped from claiming such a right. This is why we wanted to verify this state of fact and also as to free consent of the girl who proposes to marry Suleman, a life prisoner. We therefore asked the Ld. Advocate to see that the girl remains personally present before this court. 5. Today the girl was required to remain present personally before this court. This is why we wanted to verify this state of fact and also as to free consent of the girl who proposes to marry Suleman, a life prisoner. We therefore asked the Ld. Advocate to see that the girl remains personally present before this court. 5. Today the girl was required to remain present personally before this court. However, we are told by the Ld. Advocate - Mr. Solanki that he has given instructions to his client that if they get advice from Moulvi who has to perform the marriage of the said girl with Suleman, that a marriage with life convict is not barred under Mahomedan Law, then the girl may be brought to Ahmedabad from Rapar, Tal. Rapar, Dist.Kutch. The Ld. Advocate-Mr. Solanki states on instructions that said Moulvi has advised the father of the girl that as the object of the marriage could not be achieved as the person with whom she has to marry is undergoing life imprisonment, such marriage can not be performed and he would not like to be a party to such marriage. In view of this advice, the father of the girl and the girl herself are not present today. As the marriage could not be performed as advised by Moulvi, Ld. Advocate-Mr. Solanki seeks permission to withdraw these applications. Permission granted. Applications stand disposed of as withdrawn. Rule in each application is discharged. Disposed of as withdrawn.