1. [After setting out the pleadings and contentions of the parties the judgment proceeded :] The case set up in the plaint is that the plaintiff was married to the defendant in March, 1932. An application was made at the commencement of the hearing to amend the plaint by including an allegation of acknowledgment. For reasons given in my judgment at that time I refused that application.
2. According to Mahomedan law a man is not obliged to maintain his mistress or his illegitimate children, in the sense that in a civil Court such an obligation cannot be established. Therefore, the question to be considered is whether the plaintiff is the wife of the defendant as alleged in the plaint. Amongst Mahomedans no particular ceremonies are required for a marriage. The question whether there was a marriage or not is one of fact. That fact may be proved by direct evidence by calling witnesses who were present at the time or producing the nikahnama signed by the parties. It may be proved by indirect evidence which may raise a presumption of marriage.
3. In Mulla's Mahomedan Law it is stated as follows :
Marriage will be presumed, in the abstence of direct proof, from-
(a) prolonged and continual cohabitation as husband and wife;
(b) the fact of the acknowledgment by the man of the paternity of the children born to the woman, provided all the conditions of a valid acknowledgment (mentioned in Section 249 below) are fulfilled.
The presumption does not apply if the conduct of the parties was inconsistent with the relation of husband and wife.
In dealing with acknowledgments it is stated as follows :
Marriage may be established by direct proof. If there may be no direct proof, it may be established by indirect proof, that is by presumption drawn from certain facts. It may be presumed from prolonged co-habitation combined with other circumstances, or from an acknowledgment of legitimacy in favour of a child.
4. In dealing with the conditions of a valid acknowledgment it is stated as follows :
In order to render an acknowledgment valid and effective the following conditions must be fulfilled :-
(1) The acknowledgment must be not merely of sonship, but must be made in such a way that it shows that the acknowledger meant to accept the other not only as his son, but as his legitimate son....
(3) The person acknowledged must not be an oifspring of zina... (fornication). If the marriage is disproved the issue would be the issue of fornication.
5. In Wilson's Mahomedan Law it is stated that adoption is not recognised as a mode of establishing paternity. In all cases in which marriage may be presumed from co-habitation combined with other circumstances for the purpose of conferring upon a woman the status of a wife, it may also be presumed for the purpose of establishing paternity. In para. 85 it is stated as follows :-
If a man has acknowledged another as his legitimate child, the presumption of paternity arising therefrom can only be rebutted by
(a) Disclaimer ... etc.
In the explanation it is stated :
A mere casual acknowledgment of the fact of paternity, not intended to confer the status of legitimacy, will not have that effect.
6. Several cases were cited in support of the plaintiff's contention that if acknowledgment is proved the marriage must be presumed. In Khajah Hidayut Oollah v. Rai Jan Khartum (1844) 3 M. I.A. 295, the head-note runs as follows :-
By the Mahomedan law, continual co-habitation and acknowledgment of parentage is presumptive evidence of marriage and legitimacy.
7. The observations in each case have to be read along with the facts in the case. In that case, on March 7, 1797, Fyz Ali Khan inter-married with the respondent who was then about ten or twelve years of age. On the same day a deed of marriage settling large sums was executed. The marriage was celebrated in the presence of witnesses. Thereafter the parties cohabited together as husband and wife, and were so universally acknowledged and reputed by their neighbours and acquaintances. In 1808 the respondent gave birth to a daughter who survived but a short time. In 1813 Fyz Ali Khan was about to be married to the original appellant. The respondent opposed this union and presented a petition to the Jilla Court relying on the marriage deed of settlement with her and prayed that her husband may be prevented from granting a deed of marriage settlement without her concurrence. At that time the husband did not raise any dispute about the respondent being his wife. The petition was rejected on the ground that the respondent was not entitled to require the interposition of the Court. In December, 1813, the second marriage was celebrated. Both wives continued to live with the husband thereafter until 1816, when the second wife was reported to have run away. Thereafter the husband became addicted to opium and his property was taken charge of by the Collector who paid to the respondent maintenance on the footing that she was the wife. The respondent after a few months reported that she was pregnant and applied for expenses for confinement. A son was born to her in the husband's house. In 1822 the respondent petitioned for an increased allowance, when for the first time the second wife alleged that the respondent was not the wife. Proceedings were adopted by both parties and the Collector made his report. The suit was filed for the purpose of obtaining possession of the property which was transferred to the son's name. In the course of the judgment the following passages from Macnaghten's Mahomedan Law were considered (p. 317) :
The Mahomedan lawyers carry this disinclination (that is against bastardizing) much further; they consider it the legitimate of reasoning to infer the existence of marriage from the proof of co-habitation'.... ' None but children who are in the strictest sense of the word spurious are considered incapable of inheriting the estate of their putative father... where by any possibility a marriage may be presumed, the law 'will rather da so than bastardize the issue, and whether a marriage be simply voidable or void ab initio the offspring of it will be deemed legitimate.
In the judgment reference was made also to the following passage from Macnaghten's Book on Mahomedan Law (p. 318):-
The mere fact of casual concubinage is not sufficient to establish legitimacy; and if there be proved to have existed any insurmountable obstacle to the marriage of their putative father with their mother, the children, though not born of common women, will be considered bastards to all intents and purposes.
In the judgment it was observed as follows (p. 318):-
The effect of that appears to be, that where a child has been born to a father, of a mother where there has been no mere casual concubinage, but a more permanent connection, and where there is no insurmountable obstacle to such a marriage, then, according to the Mahomedan Law, the presumption is in favour of such marriage having taken place.
8. In Ashrufood Dowlah Ahmed Hossain Khan Bahadur v. Hyder Husein Khan (1866) 11 M. I.A. 94 the head-note runs thus :
According to Mahomedan Law the presumption of legitimacy from marriage follows the bed, and while the marriage lasts, the child of the woman is taken as the husband's child; but this presumption is not anti-dated by relation.
The observations in Khaja Hidayat Oollah's case came to be considered, and it was observed that the cohabitation alluded to in that judgment was continual; it was proved to have preceded conception and to have been between a man and a woman cohabiting together as man and wife, and having that repute before the conception commenced ; and the case decided that no cohabitation simply and birth, but that cohabitation and birth with treatment tantamount to acknowledgment, sufficed to prove legitimacy. The presumption throughout the whole judgment is treated as one of fact. Those observations set at rest the contention that mere proof of cohabitation was sufficient to raise a presumption of marriage and legitimacy.
9. In Muhammad Allahdad Khan v. Muhammad Ismail Khan I.L.R. (1888) All. 289, the question of legitimacy, acknowledgment and presumption came to be considered by the Court. In the course of a critical and exhaustive judgment, Mahmood J. examined the original texts which are the foundation of Mahomedan law and the decisions of the Privy Council, and held that where legitimacy could not be established by direct proof of such marriage, acknowledgment was recognised by the Mahomedan law as a means whereby marriage of parents or legitimate descent might be established as a matter of substantive law. Such acknowledgment always proceeds upon the hypothesis of a lawful union between the parents and the legitimate descent of the acknowledged person from the acknowledgor, and there is nothing in the Mahomedan law similar to adoption as recognised by the Roman and the Hindu systems, or admitting of affiliation which has no reference to consanguinity or legitimate descent. The child whose illegitimacy is proved beyond doubt, by reason of the marriage of his parents being either disproved or found to be unlawful cannot be legitimatised by acknowledgment. Acknowledgment has only the effect1 of legitimation where either the fact of the marriage or its exact time, with reference to the legitimacy of the child's birth, is a matter of uncertainty.
10. In Abdul Razak v. Aga Mahomed Jaffer Bindanim I.L.R. (1893) Cal. 666 the question again came to be considered. The headnote is :
As to the question whether the son bom to them had been legitimated by the father's acknowledgment of him, it was held, that under the Mahomedan law, legitimation of a son, born out of legal wedlock, may be effected by the force of his father's acknowledgment of his being of legitimate birth; but that a mere recognition of sonship is insufficient to effect it. Acknowledgment in the sense meant by that law is required, viz., of antecedent right, and not a mere recognition of paternity.
11. In the course of the judgment their Lordships considered the language of the judgment in Khaja Hidayat Oollah's case and Ashrufood Dowlah's case and it was pointed out that the previous judgment did not amount to any statement of law to the effect that an acknowledgment of paternity by itself was sufficient to amount to an acknowledgment of legitimacy. In that judgment the following passage was quoted without any qualification (p. 6790 :-
When, therefore, a child really illegitimate by birth becomes legitimated, it is. by force of an acknowledgment, expressed or implied, directly proved or presumed.
12. In Aizunnissa Khatoon v. Karimunnissa Khatoon I.L.R. (1895) Cal. 130 the doctrine of acknowledgment came to be considered by the Court. It was stated that the doctrine of acknowledgment was not applicable to a case in which the paternity of a child was known, and therefore, it could not be called in to legitimatize a child which was illegitimate by reason of the unlawfulness of the marriage of its parents. A reference was made to the passages in Bailey and Mr. Ameer Ali's Mahomrnedan Law. The question was considered to be a question of fact to be decided on the evidence.
13. In Masit-un-nisa v. Pathan I.L.R. (1904) All. 295 the question of cohabitation and acknowledgment was considered by the Allahabad Court. The two Privy Council decisions in, Khajah Hidayat Oollah's case and Ashrufood Dowlah's case were noticed, and in dealing with the language used therein it was stated (p. 298):-
The difference between the two interpretations is this; whereas taken literally the judgment in the earlier case apparently decided that continual cohabitation plus birth after such cohabitation without any other evidence or circumstances afforded a prima jacie presumption of marriage under the Mahomedan Law, the later ruling held that not merely cohabitation and birth after cohabitation would amount to such a presumption, but that the cohabitation must be a cohabitation as man and wife and there must be treatment tantamount to acknowledgement of the fact of the marriage and the legitimacy of the children.
Following the latter ruling of the Privy Council it was held that the evidence was not sufficient to establish an acknowledgment of that type. This is the passage relied upon by Sir W. Wilson for the explanation to paragraph 83 of his book.
14. In Ghazanfar Ali Khan v. Kaniz Fatima I.L.R. (1910) All. 345 the question of absence of direct evidence of marriage and presumption from long cohabitation came to be considered by the Privy Council again. Their Lordships observed that the learned Judges fully recognised that prolonged cohabitation might give rise to a presumption of marriage, but that presumption was not necessarily a strong one. On the facts it was held that instances of alleged acknowledgment by the father of the mother as his wife, and the fact that two of the appellant's sisters, who were in the same position as to their legitimacy as he was, were married to respectable men with due formalities, were, under the circumstances, insufficient to affect the question favourably for the appellant. The Court held that those facts were insufficient to establish the alleged marriage.
15. In Sadik Husain Khan v. Hashim Ali Khan (1916) L.R. 43 IndAp 212 the question of acknowledgment again came to be considered. The head-note there appears to be in somewhat wider terms than justified by the judgment of the Board. In dealing with this question it was observed as follows (p. 234):-.
If this be so the rule of the Mahomedan law applicable to the case is well-established : No statement made by one man that another (proved to be illegitimate) is his son can make that other legitimate, but where no proof of that kind has been given such a statement or acknowledgment is substantive evidence that the person so acknowledged is the legitimate son of the person who makes the statement provided his legitimacy be possible.
16. It is therefore clear from that decision that if marriage is disproved, no amount of statements that the son was of the person making the acknowledgment can raise a presumption of marriage or legitimacy. It appears that in that case witnesses who knew the father, and who were the friends of the father for years were called to establish his relation with the lady with whom it was claimed he was validly married.
17. In Imambandi v. Mutsaddj the question of presumption came for consideration. It was observed that clear and reliable evidence that a Mahomedan had acknowledged a child as his legitimate issue raised a presumption of valid marriage between him and the child's mother. In examining the evidence critically their Lordships pointed out that there was no evidence on record to disprove the alleged marriage. Certain entries in certain books which were alleged to displace the presumption were considered and the argument was rejected. That case also shows that the acknowledgment must be not merely of paternity but of legitimacy.
18. All the cases on this point of presumption, marriage and acknowledgment came to be critically examined by the Privy Council in Habibur Rahman Chowdhury v. Altaf Ali Chowdhury , The head-note is in these terms :
Under the Mohammedan law no statement made by a man that another, proved to be illegitimate, is his son can make that other legitimate. If an acknowledgment is of legitimate sonship, and that relationship is possible in fact and law, it gives rise to a rebuttable presumption that there was a marriage between the parents.
Lord Dunedin in the course of his judgment made the distinction between legitimacy and legitimation clear and observed as follows (p. 120) :-
Before discussing the subject, it is as well at once to lay down with precisian the difference between legitimacy and legitimation. Legitimacy is a status which results from certain facts. Legitimation is a proceeding which creates a status which did not exist before. In the proper sense there is no legitimation under the Mohammedan law. Examples of it may be found in other systems. The adoption of the Roman and the Hindu law effected legitimacy. The same was done under the Carton law and the Scotch law in respect of what is known as legitimation per subsequens matrimonium. By the Mohammedan law a son to be legitimate must be the offspring of a man and his wife or of a man and his slave; any other offspring is the offspring of zina, that is, illicit connection, and cannot be legitimate. The term ' wife' necessarily connotes marriage; but, as marriage may be constituted without any ceremonial, the existence of a marriage in any particular case may be an open question. Direct proof may be available, but if there be no such, indirect proof may suffice. Now one of the ways of indirect proof is by an acknowledgment of legitimacy in. favour of a son. This acknowledgment must be not merely of sonship, but must be made in such a way that it shows that the acknowledgor meant to accept the other not only as his son, but as his legitimate son. It must not be impossible upon the face of it; i.e., it must not be made when the ages are such that it is impossible in nature for the acknowledgor to toe the father of the acknowledgee, or when the mother spoken to in the acknowledgement, being the wife of another, or within prohibited degrees of the acknowledger, it would be apparent that the issue would be the issue of adultery or incest. The acknowledgement may be repudiated by the acknowledgee. But if none of these objections occur, then the acknowledgement has more than a mere evidential value. It raises a presumption of marriage-a presumption which. may be taken advantage of either by a wife-claimant or a son-claimant. Being, however, a presumption of fact, and not juris et de jure, it is, like every other presumption of fact, capable of being set aside by contrary proof. The result is that a claimant son who has in his favour a good acknowledgement of legitimacy is in this position : The marriage will be held proved and his legitimacy established unless the marriage is disproved. Until the claimant establishes his acknowledgment the onus is on him to prove a marriage. Once he establishes an acknowledgment, the onus is on those who deny a marriage to negative it in fact.
Lord Dunedin further pointed out that in the earlier cases not only was stress laid on the fact that an acknowledgment of legitimacy had more than a mere evidential value but also there were expressions used such as by a proper acknowledgment the status of legitimacy was acquired. It was pointed out that the phraseology of such expressions must not be pressed to disturb what was the ruling principle, and that principle was that under the Mahomedan law such an acknowledgment was a declaration of legitimacy and not of legitimation.
19. This judgment approved of the exhaustive statement of law on the point by Mahmood J. in Muhammad Allahadad v. Muhammad Ismail and finally in the case of Sadik Hoosain v. Hashim Ali and the passages quoted from those cases above.
20. This was followed by the case of Mohabbat Ali Khan v. Mahomed Ibrahim Khan (1929) L.R. 56 IndAp 201 . The question there was in respect of a son of a Mahomedan by a female servant in his house. The parents had continuously cohabited for many years and the father on several occasions had acknowledged the plaintiff as his son. Lord Shaw in delivering the judgment noticed the passage from Khajah Hidayat Oollah's case and the statement of law in Wilson's Mahomedan Law. The Board accepted as correct the statement of law by Lord Dunedin in the passage quoted above.
21. Having regard to these authorities it is clear that the question of marriage is one of fact and the presumption does not arise merely from the fact of some years of cohabitation. It is required to be proved that the man treated the woman as his wife and had recognised her as such, not merely casually but with the intention and knowledge of giving her the status of a wife. In respect of acknowledgment of a son it is further clear that the acknowledgment must be as of a legitimate son and mere acknowledgment of paternity is not sufficient to raise a presumption of legitimacy or marriage. It is further clear that in the event of disproof of marriage no amount of acknowledgment can make the presumption override the fact and persuade the Court to decide the matter on the presumption. It is useful in this connection to bear in mind the definitions of ' proved', ' unproved ' and ' disproved ' given in the Indian Evidence Act. Applying those definitions to the question of marriage and legitimacy it appears proper to state that if marriage is proved no question of acknowledgment remains to be considered. Only when by reason of time or circumstances the question of marriage is in a state of being ' unproved,' the question of acknowledgment arises, and in dealing with that question satisfactorily evidence has to be led of clear acknowledgment. If the plaintiff leads such evidence of acknowledgment of the woman as his wife or acknowledgment of a child as his legitimate child, in the absence of proof by the defendant the presumption of marriage will hold good and the plaintiff should be considered as having discharged the burden of proof.
22. It is clear that the plaintiff having come to Court to establish the plea of marriage the burden of proof is on her to start with. In considering the evidence it is again to be borne in mind that statements made by persons behind the back of the defendant cannot be binding on him and cannot be regarded as evidence against him. Therefore, statements made even by the plaintiff in the absence of the defendants are not evidence of the fact, of marriage or acknowledgment against the defendant.
23. [On questions of fact arising in the case, his Lordship examined the evidence at considerable length and reached the conclusion that the plaintiff had failed to establish her case. The suit was therefore dismissed with costs.- Eds.]