What are the Various Grounds which make a Marriage Batil (Void)?

(iii) Affinity

(iv) Fosterage

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(i) Polyandry:

A married woman cannot contract a second marriage during the subsistence of the first marriage. Muslim law forbids polyandry, although it recognises polygamy to the extent that a Muslim may have as many as four wives at a time. A marriage with a woman, whose husband is alive and who has not been divorced by him, is void.

Under Muslim law, a wife cannot have more than one husband at a time, whereas as, stated above, the male is at liberty to have as many as four wives at a time. A Muslim marriage, therefore, would not be a valid marriage under English law.

A Muslim Nawab, having other wives, married an English woman in the Muslim form. The English Court refused to recognise the marriage. “The marriage was a Muslim marriage, and by consequence, a polygamous marriage, and not intended to be monogamous.

Even if the ceremony were according to the English law, it is not a marriage binding on any spouse of English domicile, the reason being that it was not intended to be monogamous.” (Re Ullee the Nawab Nizam of Bengal’s Infants, 54 L.T. 286)

But, where a Muslim marries, in England, a Christian woman according to the Christian rites, all the rights and obligations springing from the marriage relationship will be governed by English law.

Thus, where a Muslim in India married an English woman domiciled in England, according to the English form before a Registrar, the King’s Bench Division of the High Court of Justice held that the husband could not divorce his wife by merely handing to her a talaknama, (a writing of divorce), although that would be an appropriate mode of effecting a divorce according to Muslim law. (Rex.v. Hammersmith, (1917) 1 K.B. 634)

Khambatta v. Khambatta, 36 Bom. L.R. 1021:

J, a Christian woman, domiciled in Scotland, married G, and a Muslim domiciled in India, by civil marriage in Scotland according to the requirements of Scottish law. After the marriage, the parties became domiciled in India, and J embraced Islam.

Sometime later, G divorced J by pronouncing talak under Muslim law. J thereafter contracted a second marriage with K, a Parsi convert to Christianity. A question having arisen whether the marriage between J and G was validly dissolved by the talak given by G, the Bombay High Court, applying the principle mentioned above, held that, in the absence of any express contract, the intention of the parties to the marriage must be taken to be that their rights under the marriage contract were to be governed by the law of their domicile, that is, the law of India.

As soon as J embraced Islam, the law applicable to Christians ceased to be applicable to her, and she became subject to the law applicable to Muslims, which entitled the husband to divorce her by talak. The spouses, having been, at the date of the talak, of Islamic faith and domiciled in India, the Court was bound to recognise that the husband had the right to divorce his wife by talak, and that the marriage had been legally dissolved.

(ii) Consanguinity:

The second prohibition is that of consanguinity. Thus, no valid marriage can be contracted with the (i) ascendants e.g., mother or grand-mother, how highsoever; (ii) descendants, e.g., daughter or grand­daughter, how lowsoever; (iii) relations of the second rank, e.g., brothers or sisters and their descendants; and (iv) paternal and maternal uncles and aunts, how highsoever. These are the restrictions laid down on marriage by the Muhammandan law on the ground of consuanguinity. A marriage with a woman prohibited by reason of consanguinity is altogether void (batil).

(iii) Affinity:

The third prohibition is on the ground of affinity. Thus, a man cannot contract a valid marriage with (i) his wife’s mother or grand-mother, how highsoever; (ii) his wife’s daughter or granddaughter, how lowsoever, if his marriage with the wife is consummated; (iii) his father’s wife or any other ascendant’s wife; and (iv) his son’s or any other lineal descendant’s wife. A marriage which is prohibited by reason of affinity is also void.

(iv) Fosterage:

Fosterage is as much a prohibition to marriage as consanguinity, because the act of suckling is regarded as equal to the act of procreation. Thus, whoever is prohibited by consanguinity or affinity is also prohibited by reason of fosterage, except certain foster relations, as for example, a sister’s foster-mother or a foster-father’s mother with whom a valid marriage can be contracted. A marriage which is prohibited by reason of fosterage is totally void.