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Married Hindu can marry a Muslim girl without divorce

Shivendra Pratap Singh

Advocate

18/06/2021/ 1:26:48 PM

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Question: I’m a Hindu. Is it possible that a married Hindu man can marry a Muslim girl without divorce? Marry a Muslim without conversion is possible or not. She loves me a lot and suggesting me to convert in Muslim. Whereas I don’t want conversion because I have a wife and two kids. In the prevailing law can a Hindu “Nikah” without conversion is possible?

I do not want to divorce my wife as I have 2 kids. But I’m in love with a Muslim girl. She is suggesting I do a nikah nama by changing my name. It would just be for nikahnama. I don’t want to change my official Hindu name for any reason. Post nikahnama can get marriage done in court. This way I can keep my name and religion, yet marry her also. Is this possible? Please advise.

Question from: Tamil Nadu

You are a Hindu so the Hindu’s personal law will apply towards marriage and divorce. Section 5 of the Hindu Marriage Act does not allow a Hindu to solemnise another marriage without divorce. Hindu’s second marriage is void under Section 17 of the Hindu Marriage Act (HMA) if his spouse is living at the time of the second marriage. 

A married Hindu can marry a Muslim girl without divorce

No, a married Hindu man cannot solemnise second marriage with a Muslim girl without divorce from first marriage. If he do so the such a marriage is void and has no legal status. Hindu law prohibits the act of bigamy. Hence, the Hindu oftenly convert in Muslim religion for contracting second marriage. This kind of conversion is indeed a cheating because it is just for to avail the benefits of Muslim personal law. Muslim personal law allows more than one marriage but for those who have faith in the “Allah”. 

In Sarla Mudgal v. Union Of India AIR 1995 SC 1531 the Supreme Court has held that the second marriage solemnised after conversion is illegal and punishable under section 494 IPC. The man’s first marriage under Hindu law is still valid.

The child born out of such a second marriage would be illegitimate. They cannot claim any right in the father’s property but they can claim maintenance under section 125 crpc. The wife of such a second marriage cannot get legal status of wife. She cannot even claim maintenance from her husband.  

Conversion in Muslim religion only for marriage 

Conversion in Muslim religion only for marriage is void and illegal. In Sarla Mudgal case the Supreme Court has held that such a conversion is void and hurts the practices of Muslim religion. The purpose behind such a conversion is to contract the second marriage and take the shelter of Muslim personal law. Though a married Hindu can not marry a Muslim girl hence, he practices conversion.

How to solemnise second marriage with a Muslim

If you want to contract second marriage with a Muslim then you should divorce your first marriage. You should file a civil suit under Section 13 of the HMA and get a decree of the court. Thereupon, you can solemnise second marriage with a Muslim girl. Nikah without conversion is not possible for a Hindu man.

Muslim personal law does not allow a Muslim girl to contract Nikah with a Hindu. Such a marriage (nikah) is void (Batil). There are three kinds of marriage in Muslim law. Sahi (valid), Fasid (irregular) and Batil (void). The pirates of Batil marriage have no mutual rights of inheritance. Their children are illegitimate.

You don’t want to change your religion. Hence, you can contract a second marriage with a Muslim girl in the Special Marriage Act. Only this way a married Hindu can marry a Muslim girl after the divorce from first marriage. If you do Nikah without conversion and divorce you will be prosecuted for bigamy.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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