13. A Muslim male already married to a Muslim lady, wants to marry her sister. If contracted, what will be the nature of such marriage? Will it be valid? 14. A Muslim male, who is living abroad would like to divorce his wife living in India. For this purpose, he delegated this right to his father. Will such delegation be valid?

1. Facts of the Case

Case 1:

‘A’, a Muslim male, is lawfully married to a Muslim woman ‘B’. During the lifetime of ‘B’, he wishes to marry ‘C’, who is the sister of his existing wife.
He proceeds to contract this second marriage while the first wife ‘B’ is still alive. The question arises — whether such a marriage is valid under Muslim Law.

Case 2:

‘D’, a Muslim male residing abroad, intends to divorce his wife ‘E’, who is living in India.
He delegates the right of pronouncing Talaq to his father who is residing in India. The issue is — whether such delegation of the right to divorce is valid under Muslim Law.

2. Issues in the Case

Case 1:

1. Can a Muslim male marry the sister of his existing wife during her lifetime?
2. If he does so, is the marriage void, irregular, or valid under Muslim Law?
3. What are the legal consequences of such a marriage (regarding legitimacy of children and dower)?

Case 2:

1. Whether a Muslim husband can delegate the power of divorce to another person (his father in this case)?
2. What are the conditions and limitations for valid delegation (Tafweez-e-Talaq)?
3. Whether the delegated divorce pronounced by the father would be legally recognized and valid?

3. Legal Principles Covered

Case 1: Marriage with Sister of Existing Wife

A. Relevant Law

• Sources:
  • The Holy Quran, Surah An-Nisa (Chapter 4, Verse 23)
  • Muslim Personal Law (Shariat) Application Act, 1937
  • Principles of Sunni and Shia law of prohibited degrees (Mahram and unlawful conjunctions)

B. Principle of Prohibited Degrees (Unlawful Conjunctions)

• A Muslim male cannot marry two women who are so related by blood or affinity that, if one were male, they could not have married each other.
• Marriage with the wife’s sister while the wife is alive is an unlawful conjunction (Jam’ Bainal Ukhtain) under Islamic Law.

C. Legal Effect

• Such a marriage is irregular (Fasid), not void (Batil).
• The irregularity can be removed if the first wife dies or the marriage is dissolved by divorce.
• If consummated, the children are legitimate, and dower (mahr) is payable.
• Authority: Hedaya, Fyzee’s Outlines of Mohammedan Law, Abdur Rahim’s Principles of Muslim Jurisprudence.

Case 2: Delegation of Right to Divorce (Tafweez-e-Talaq)

A. Relevant Law

• Muslim Law (Shariat) permits the delegation of the power of divorce by the husband to any person or to the wife herself.
• This is known as Tafweez-e-Talaq (Delegated Divorce).
• It is based on the principle that the power of divorce lies primarily with the husband, but he may authorize another person to pronounce it on his behalf.

B. Conditions for Valid Delegation

1. Delegation must be express and not implied.
2. The husband must be sane, adult, and acting voluntarily.
3. The agent (father in this case) must pronounce Talaq clearly and in accordance with Muslim law procedures.
4. Delegation may be general (for all times) or special (for a specific instance).
5. Authority: Mst. Zubaida v. Sardar Shah (1939), Rashid Ahmad v. Anisa Khatun (1932) AIR PC 25.

C. Legal Recognition

• Delegation of the power to pronounce Talaq to father or any agent is valid under Muslim law, provided it is done with free consent and clear authorization.
• The divorce so pronounced by the delegated person has the same legal effect as if pronounced by the husband himself.

4. Possible Judgement

Case 1: Marriage with Wife’s Sister

• The marriage between ‘A’ and the sister of his wife ‘B’ during the subsistence of the first marriage is irregular (Fasid), not void.
• It is not valid until the first marriage is dissolved by divorce or death.
• If consummated, the children are legitimate, and dower (mahr) is due to the wife.
• Once the first wife ceases to exist in marriage (divorced or deceased), the bar of unlawful conjunction is removed, and the marriage becomes valid.

Therefore, the second marriage is irregular but not void, and can be validated upon cessation of the first marriage.

Case 2: Delegation of Right to Divorce

• The delegation by ‘D’ to his father to pronounce Talaq on his behalf is valid under Muslim Law as it falls within the principle of Tafweez-e-Talaq.
• Once the father pronounces Talaq on behalf of the husband with proper authorization and in compliance with the procedural requirements (communication and witnesses as per law), the divorce becomes effective.

Hence, the delegation is valid, and the divorce pronounced by the father will have full legal effect under Muslim Law.

Summary Table

Case	Legal Question	Legal Nature	Judgement / Effect
Marriage with wife’s sister	Whether valid?	Irregular (Fasid) marriage	Not valid during lifetime of wife; can be validated after dissolution of first marriage
Delegation of Talaq	Whether delegation valid?	Valid under Tafweez-e-Talaq	Divorce by delegated father valid if authorized and pronounced properly

About lawgnan:

Under Sunni Muslim law, marriage with the sister of a living wife is considered irregular (Fasid), not void, and becomes valid only after the first marriage ends by divorce or death. Children from such unions are legitimate, and dower remains payable. Similarly, a husband may delegate the power of divorce (Tafweez-e-Talaq) to another person, such as his father, provided it is done voluntarily and expressly. Such delegated Talaq is legally valid if properly pronounced. To understand your rights and obligations under Muslim marriage and divorce laws, visit lawgnan.in for expert legal guidance and actionable advice.