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Musammat Bashirunnisa and ors. Vs. Bunyad Ali and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1919All206; 50Ind.Cas.677
AppellantMusammat Bashirunnisa and ors.
RespondentBunyad Ali and anr.
Excerpt:
muhammadan law - marriage--witnesses required, class or type of--absence of witnesses, effect of. - .....there were two witnesses to prove the fact of the marriage. in spite of all this evidence, the learned judge of the lower appellate court has dismissed the suit on the ground that it had not been proved that bashirunnisa was legally married to khadim ali. the learned judge says that no 'formal' witnesses to the marriage have been produced although two witnesses have sworn that in their presence the marriage took place. the learned judge cites a number of authorities, the effect of which is to lay down that amongst sunnis it is necessary for the validity of a marriage that there should be a proposal and acceptance by the contracting parties in the presence and hearing of two male or one male and two female witnesses. what the learned judge means by 'formal witnesses' it is difficult.....
Judgment:

P.C. Banerji, J.

1. The suit which has given rise to this appeal was brought by Musammat Bashirunnisa and two purchasers from her for partition of two sihams out of eight sihams of property alleged to have belonged to one Khadim Ali. Bashtr-unnissa stated that she was the second wife of Khadim Ali and as such, was entitled to two sihams out of eight sihams. Khadim Ali died in May 1916 leaving no issue. The defendants are his brother and sisters. If Musammat Bashirunnisa was the widow of Khadim Ali she inherited the share claimed by the plaintiffs. The defendants, however, denied that Musammat Bashirunnissa was married to Khadim Ali and they stated that she lived with him as a servant and cook. They also raised a question as to the ownership of the houses claimed. The Court of first instance found in favour of the plaintiffs and decreed the claim. The defendants appealed and in their appeal in the lower Appellate Court the only question which they raised was whether it had been proved that Bashirunnisa was the lawfully married wife of Khadim Ali. Bashirunnisa had a husband who died some years ago. It is alleged that after the death of her first husband she was married to Khadim Ali who was about 70 years of age. It was proved that she lived with Khadim Al for nearly seven years in the same house and it is manifest from the 'evidence ant the finding of the Court of first instance that they lived as man and wife. It has also been proved that Khadim Ali whilst identifying Musammat Bashirunnisa before the Sub-Registrar at the time of the registration of a sale-deed executed by her in regard to property inherited by her from her first husband stated that she was his second wife. In addition to this, the learned Munsif found that there were two witnesses to prove the fact of the marriage. In spite of all this evidence, the learned Judge of the lower Appellate Court has dismissed the suit on the ground that it had not been proved that Bashirunnisa was legally married to Khadim Ali. The learned Judge says that no 'formal' witnesses to the marriage have been produced although two witnesses have sworn that in their presence the marriage took place. The learned Judge cites a number of authorities, the effect of which is to lay down that amongst Sunnis it is necessary for the validity of a marriage that there should be a proposal and acceptance by the contracting parties in the presence and hearing of two male or one male and two female witnesses. What the learned Judge means by 'formal witnesses' it is difficult to understand. In the present cage, as stated above, there are two witnesses who stated that in their presence the marriage was celebrated, the Nikah was read by the Maulvi and the dower was fixed. The contracting parties were persons of advanced years and the lady was personally known to the persons who performed the marriage ceremony. I have had the evidence of the witnesses Sharafat Ali and Abdul Salam read out to me. Both of them depose that they were present at the time when Bashirunnisa was married to Khadim Ali and that in their presence the marriage took place, the formula was read and the dower was fixed. It is not necessary, according to Muhammadan Law that the witnesses should be of a particular type or a particular class. All that is required is the presence of two witnesses at the time of the contract of marriage--and such witnesses we have in this case. In addition to the witnesses we have the admission of Khadim Ali that Bashirunnisa was his second wife and we have the further fact that they lived together for nearly seven years. According to Mr. Ameer Ali (see Muhammadan Law, Volume II, 3rd Edition, page 325), what is necessary is that there should be witnesses present to attest the conclusion of the contract, but a marriage contracted without witnesses is not illegal. If there were no witnesses to the contract the marriage would be irregular and this irregularity would be 'cured if the marriage was consummated. In the present case there was no illegality or irregularity in the marriage, and if there was any irregularity that was cured by the fact that the two lived together for nearly seven years, a fact from which consummation of the marriage may be reasonably presumed. In my opinion the decree of the lower Appellate Court was incorrect, and the view which the learned Judge took is too technical to be accepted. This being, the only question which was urged in the Court below--and the finding of the Court below on that question being, in my opinion, erroneous, I allow the appeal, set aside the decree of the Court below and restore that of the Court of first instance. The appellants will get their costs in all Courts including in this Court fees on the higher scale.


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