Examine the validity of a marriage with a wife’s sister after the death of the wife.
Question: Examine the validity of a marriage with a wife’s sister after the death of the wife. [HJS 1998] Find the answer only on Legal Bites. [Examine the validity of a marriage with a wife’s sister after the death of the wife.] Answer A Muslim man cannot marry a woman who is related to his wife by consanguinity,… Read More »
Question: Examine the validity of a marriage with a wife’s sister after the death of the wife. [HJS 1998]
Find the answer only on Legal Bites. [Examine the validity of a marriage with a wife’s sister after the death of the wife.]
Answer
A Muslim man cannot marry a woman who is related to his wife by consanguinity, affinity, or fosterage before the death of his wife or divorce. In Aizunnissa Khatoon v. Karimunnissa Khatoon, ILR 23 Cal 130, the Calcutta High Court held that the issue of a sister of the husband’s first wife, if the second marriage was contracted or consummated during the continuance of the first, that is, before the sister first married had died or been divorced, was illegitimate. It was later realized that the decision of the Hon’ble court was not valid.
The ground of permanent prohibition is that marriage with a woman so permanently prohibited would be incestuous at any time by reason of consanguinity or at any time after the bar had been established by affinity.
The grounds for temporary prohibitions are various. But the notion of incest indeed underlies the particular prohibition now under discussion. But the ground of the prohibition, confined to that notion, is clearly not permanent. It is incestuous to have two sisters in marriage together, but it is not incestuous to marry a wife’s sister after the wife has been divorced or died. It at once becomes clear that, unlike the cases of permanent prohibition for affinity (although this too is preferable to an affinity for its substantial reason), the prohibition will not survive the removal of the person by death or divorce, marriage with whom has first set up the bar of affinity.
The distinction is quite simple and plain. On the ground of affinity, a man is permanently prohibited from marrying his mother-in-law or his step-daughter. He could not marry them after the death of his wife, but a man is not permanently prohibited from marrying his wife’s sister on the ground of affinity or any other ground. After his wife’s death, he may, of course, marry her sister.
