"No Right To Succession In Father's Property"- Karnataka HC While Holding That Child Born In "Batil" Marriage Is Illegitimate

The Karnataka High Court at Dharwad Bench of Justice V Srishananda has held that under Mohammadan law, a son born in a void-ab-initio or "Batil" marriage is illegitimate and does not have any right of succession under the law.

Counsel Sadiq N Goodwala and Counsel TM Nadaf appeared for the appellants, while Counsel Suraj M Katagi appeared for the respondent. 

In this case, Nabisab Agnnamani, the original plaintiff, filed an appeal challenging the first appellate court's decision to grant half share of ancestral property to Hatelsab Sannamani, the original defendant. The court had considered Hatelsab to be a legitimate son of Fakiramma and Huchchesab, who is the father of the plaintiff.

Nabisab's main argument was that Fakiramma was already married to Moulasab Menasagi, and without any proof of the dissolution of that marriage, her second marriage to Huchchesab was void under Section 253 of Mohammadan Law.

On hearing the parties and perusing the material on record, the Court observed that it was presupposed that Fakiramma must have been married Moulasab Menasagi earlier to her marriage with Huchchesab. 

In that vein, the Court held that, "Unless the first marriage of Fakiramma with Moulasab Menasagi is duly dissolved as per the Mohammadan law, her marriage with Huchchesab should be considered as a 'Batil' marriage."

Subsequently, it was held that even though the defendant is the son of Huchchesab through Fakiramma, he would be considered as an illegitimate son. In that context, it was said that, "In the absence of any plausible evidence placed on behalf of the defendant that Fakiramma was eligible to marry Huchchesab, without there being a decree of divorce or dissolution of marriage in accordance with the Mohammadan law as is discussed by the trial Court in paragraph No.41 referred to supra, this Court is of the considered opinion that contrary finding recorded by the learned Judge in the First Appellate Court holding that the defendant is a legitimate son and therefore dismissing the suit, in the considered opinion of this Court is a perverse finding."

Cause Title: Nabisab v. Hatelsab

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