W. Comer Petheram, C.J. and Beverley, J.
1. This was an administration suit in respect of the estate of one Golam Ali Chowdhry, a wealthy Mahomedan landholder of the Sunni sect resident in Furridpore. Golam Ali left three widows, Aizunnissa, Izzatunnissa and Jamedunnissa, the two former being uterine sisters. By Aizunnissa he left a son, Ali Ahmed (who died during the pendency of this appeal and who is now represented by his legal heirs), and two daughters. By Izzatunnissa he left two sons and six daughters, and by Jamedunnissa he left two daughters. The plaintiffs in the suit, as originally brought, were three daughters of Izzatunnissa, one daughter of Aizunnissa and the widow Jamedunnissa. They prayed to set aside a certain will alleged to have been made by Golam Ali as being invalid according to Mahomedan Law, to have it ascertained and declared what properties Golam Ali left as his estate, and what right and what share each of the parties had in such estate, and for possession and mesne profits in respect of such shares as fell to the plaintiffs.
2. During the pendency of the suit plaintiffs Nos. 2 to 5 entered into a compromise with the defendants, and the suit as regards them was decided in terms of such compromise. As against plaintiff No. 1, who is a daughter of Golam Ali by Izzatunnissa, the Court set aside the will of Golam Ali, and gave her a decree for a 17i gundas share in a large number of properties set out in the decree, with mesne profits and costs.
3. Against that part of the decree Aizunnissa, the eldest of the widows and defendant No. 10 in the original suit, appeals, and her appeal is practically restricted to two questions, which, after repeated attempts to compromise the matter, have been argued before us at great length.
4. The first of these questions is a question of Mahomedan Law, and it is this whether the plaintiff, as the daughter of Izzatunnissa, whose marriage to Golam Ali admittedly took place while her sister Aizunnissa was his lawful wife, is a legitimate heir of Golam Ali, and whether, if she was not so by birth, she was ever legitimatized by acknowledgment on the part of Golam Ali.
5. The second question is a question of fact and relates to the property No. 97, which is claimed by the appellant Aizunnissa as her own property and as not forming any part of the estate of Golam Ali.
6. We shall first deal with the question of fact, and then proceed to discuss the more important question of Mahomedan Law which is raised in this case.
[After deciding the question of fact, the judgment continued.]
7. We now turn to the consideration of the more important question whether the plaintiff is a legitimate daughter of Golam Ali so as to be capable of inheriting under Mahomedan Law, and whether, supposing that she is not legitimate by birth, she has been legitimatized by the Mahomedan doctrine of acknowledgment.
8. This latter point has not been very seriously pressed upon us, and we think it may be shortly disposed of. It is admitted by everybody that Izzatunnissa was married to Golam Ali many years after he had married her sister Aizunnissa, and while Aizunnissa was still his lawful wife; that the marriage was celebrated with due form and ceremony; that the plaintiff was the issue of that marriage, and that she was always treated by Golam Ali as his daughter. But the doctrine of acknowledgment is not applicable to a case in which the paternity of the child is known, and it cannot therefore be called in to legitimatize a child which is illegitimate by reason of the unlawfulness of the marriage of its parents. This was distinctly laid down in the case of Muhammad Allahdad Khan v. Muhammad Ismail Khan I.L.R. 10 All. 289. See also Ameer Ali's Personal Law of the Mabomedans second edition, pp. 215-218. The doctrine of acknowledgment therefore, will not avail to help the plaintiff in the present case she being known and admitted to be the daughter of Golam Ali and Izzatunnissa, and the question really resolves itself into this: Whether the marriage of Golam Ali with Izzatunnissa, at a time when Golam Ali was already married to her sister Aizunnissa, was such a marriage that the issue of it would be capable of inheriting under the Mahomedan Law.
9. It is admitted on both sides that the contemporaneous union of two sisters in marriage is prohibited by the Koran, and is therefore unlawful, and it is contended on behalf of the appellant that in such a case the second marriage is absolutely void (batil), and the issue illegitimate and incapable of inheriting. For the respondent, on the other hand, it is argued that the second marriage is not absolutely void (batil), but merely invalid or vitiated (fasid), and that the issue is entitled to inherit. A large number of authorities have been cited to us on both sides, and the translations of the passages referred to (which have been accepted as accurate by the pleaders on both sides) will be found in an appendix to this judgment (Post, p. 147). So far as these go, the respondent has the advantage of a text directly in her favour in the Fatawa-i-Alamgiri, which is to be found in Baillie's Digest, p. 32; and among the modern writers on Mahomedan Law, Baillie and Ameer Ali appear to support her contention; but it is argued, on the other hand, that the view taken by these writers is opposed to the principles of the Mahomedan Law and to the opinions of many learned commentators. With the exception referred to, however, the texts cited on behalf of the respondent merely go to show that in the case of a fasid or invalid marriage the nasab is established, or, in other words, the issue is held to be legitimate; there is no other text which goes so far as to say that a marriage with a wife's sister under the circumstances of this case is invalid merely, and not absolutely void.
10. There is no doubt that under the Mahomedan Law, in order to constitute a legal marriage, the woman must be what is called a fitting subject or mahal. A woman whose marriage with a certain person is prohibited is not a fit subject of marriage as regards that person. Of such prohibited or forbidden women, there are several classes, as set out in Baillie's Digest, Book I, Chapter 3. In respect of some of these classes, the prohibition depends upon some disqualification inherent in the woman herself, as in the case of women related by consanguinity, affinity or fosterage. In such cases the disqualification being constant, the prohibition is said to be perpetual, and a marriage with a woman of such a class is admittedly batil or void, and the issue is admittedly illegitimate. But there are other classes of prohibited women in which the obstacle or impediment to a legal marriage is temporary only, being liable to be removed by some subsequent event. Among the instances which are given of such temporarily prohibited women are: a polytheist who may subsequently to converted to Islam; a thrice repudiated wife who may become lawful again after marriage to, and divorce from, a second husband; and a woman who is observing her iddat, after the death of, or after divorce from, a former husband, and who would become lawful as soon as the period of the iddal had expired. In these cases it is said that the marriage is not altogether batil or void, but only fasid or invalid; and in such cases the issue is generally acknowledged to be legitimate. Mr. Baillie, in Book I, Chapter VIII of his Digest, discusses the distinction between void and invalid marriages; but it is to be borne in mind that that chapter is not, and does not profess to be, like some other parts of his work, 'an abridged translation of the Fatawa-i-Alamgiri with occasional extracts from other authorities.' It is really, as the preface shows, a disquisition upon the subject by Mr. Baillie himself, and except so far as it is correctly based on translations from recognized authorities, it has no greater value than any other English text book. Nor, again, can the chapter in Mr. Ameer Ali's Personal Law, which treats of this subject (Part II, Chapter 7), be implicitly relied on as a guide, inasmuch as the author appears to have been misled in places by Baillie's quotations from the original Arabic authorities.
11. In the chapter of his Digest above referred to, Mr. Baillie arrives at the conclusion that it is only in the case of those women who are prohibited by reason of consanguinity, affinity or fosterage, that the marriage is void, and that in the case of women prohibited on other grounds the marriage is merely fasid or vicious, and the offspring legitimate, and among this latter class he includes the case of two sisters as coming under class IV mentioned in Chapter III : Women who cannot be Iwfully joined together. Mr. Ameer Ali's view on the point is not clear. At page 275 he appears to include a sister-in-law among women prohibited on the ground of affinity. After specifying a wife's mother and a wife's daughter as prohibited on this ground, he goes on to say: 'Accordingly, sisters, full, consanguine or uterine, by valid or invalid marriage or adulterous connection, are forbidden.' And this prohibition, he says on page 276, is absolute. Mr. Ameer Ali then discusses the relative prohibitions, among which he enumerates a contemporaneous marriage with two women so related to each other that, supposing either of them to be a male, a marriage between them would be illegal. And such a marriage, he says, is invalid only, and the children of the second union are in no case illegitimate. And in Chapter VIII, section I, where he discusses the difference between illegal and invalid marriages (pp. 318-321) he says: 'Connections which are illegal are null and void ab initio (batil), and create no civil rights and obligations between the parties. Marriages which are not vitiated and rendered illegal by a radical defect of the character above described, stand on a different footing. in such cases consummation, generally speaking, removes the flaw to the legality of the union. The children conceived and born during the existence of the contract are held to be legitimate. Consequently, all marriages between two persons who are perpetually interdicted to one another by reason of consanguinity, affinity or fosterage, are illegal and void; the other unions are merely invalid, for the supervenient objection may be removed.' And among such invalid marriages he appears to class 'a contemporaneous marriage with two sisters.'
12. The punishment for adultery and fornication under the Mahomedan Law -death by stoning-was so severe, and the natural objection to bastardize offspring was so strong, that it was probably a desire to mitigate the rigour of the law in these respects that led to the distinction in the Mahomedan law books between void and invalid marriages. Abu Hanifa, as is well known, went so far as to hold that consummation was sufficient to legalise any marriage so as to dispense with the necessity of inflicting the punishment of hadd, and to establish the legitimacy of the children. He was of opinion that the woman was always a fitting subject, inasmuch as all the daughters of Adam were qualified for procreation, which is the primary object of marriage. This broad doctrine, however, was not accepted by his disciples, Abu Yusuf and Mahomed, who held that a marriage with a prohibited woman was void and the fruit of it illegitimate, and that a person contracting such a marriage was liable to hadd if he were aware of the illegality. The severity of the punishment of hadd also doubtless led to the doctrine of semblance or doubtful marriages, which is discussed in many of the Mahomedan law books. See Baillie's Digest, pp. 2-3; Ameer Ali's Personal Law of the Mahomedans, pp. 268-9. It appears to have been the opinion of the two disciples, however, that when the marriage is one that is generally allowed to be unlawful, there can be no shubha or semblance of right, and that the doctrine will not apply to validate the marriage.
13. Now it is a very remarkable fact that, with the exception of the passage in the Fatawa-i-Alavigiri, with which we shall presently deal, none of the authorities that have been cited to us treat a marriage with a sister-in-law as other than a void marriage.
14. Instances of the joining of two sisters under certain circumstances are, indeed, referred to, but they are referred to, apparently, as exceptions to a general rule; and if in such exceptional cases the union is declared to be fasid or invalid, that fact only serves to emphasise the general rule which declares a marriage with a sister-in-law to be no marriage at all, One of such instances is the case where the two sisters are married at once or by one contract. Mr. Ameer Ali makes use of the expression a 'contemporaneous marriage of two sisters,' but the meaning in the original authorities would seem to be a contemporaneous or simultaneous contract of marriage, that is to say, a contract of marriage with two sisters at the same time, as distinguished from a marriage with a second sister, while the marriage with the first is still subsisting. And the reason for the exception in the case of two sisters married by one contract in given in the Hedaya and elsewhere, and is based upon an intelligible principle. If it can be ascertained which marriage preceded the other, the first is held to be a good marriage and the second is absolutely void.. But if it cannot be ascertained which was the first, then both marriages are vitiated (fasid), but neither the wife nor the issue is to be made to suffer, inasmuch as either sister was at the time a fitting subject of marriage, the husband not being already married to the other. Another instance of an invalid marriage mentioned in the books is, a marriage with one sister during the iddat of another. And the reason for the exception in this case is also obvious. The marriage with the first sister having been dissolved, the marriage with the second would be valid on the expiration of the first sister's iddat, and for that reason it is declared to be not absolutely void, but fasid or irregular only. These cases, however, are clearly mentioned as exceptions to the generally accepted rule, that a marriage with the sister of an existing wife is illegal and void.
15. Another exception to the general rule is that referred to in the Hedaya (Book VII Chapter V) of cohabitation with a slave with whose sister the man has cohabited either as his wife or as his slave. See also the Inaya II, 496. In thin case, although the sisters are unlawfully joined, still, as they are the man's slaves, he has a certain right of property in them, and the connexion is therefore not looked on as zina. But; this again is obviously an exception to the general rule, and only serves to throw that rule into more prominent relief.
16. The rule is laid down in the Koran itself, and its general acceptance is, we think, sufficiently indicated in the extracts from the Arabic commentators, translations of which are given in the appendix (post., p. 147). That it is the commonly accepted rule of law may also, we think, be inferred from the practice and custom of the people. We are given to understand that the contemporaneous marriage of two sisters, meaning by that term a marriage with a second sister during the continuance of the union with the first, is practically a thing unknown and unheard of among Mahomedans in the present day. At the hearing of this appeal, we enquired whether any one in Court had ever known or heard of another similar case, and although there were many Mahomedan Pleaders and Moulvis in Court, the answer we received was in the negative. We think that that fact goes a long way towards showing that such a marriage is generally allowed to be unlawful.
17. Looking at the matter from a common-sense point of view, it seems difficult to understand why the case of a sister-in-law should not fall within the class of those women who are prohibited, by reason of affinity. There seems to be no sufficient reason why a marriage with a wife's mother or a wife's daughter should be absolutely void, and not also a marriage with a wife's sister. The prohibition is the same in the case of all, and is contained in the same text of the Koran. Nor are we able to appreciate the force of the argument that has been used in support of the position that such a marriage is fasid or vicious only and not absolutely void. It is said that prior to the marriage with either, each sister is a fitting subject in herself, there being no inherent disqualification; that the disqualification of the one only arises at the time of the marriage with the other, and may be removed by the subsequent death or divorce of that other But all prohibitions by reason of affinity come into existence only on marriage; before the marriage, the wife's mother or daughter was a fitting subject equally with the wife. And if it be urged that in the case of a sister the marriage is not void, because the impediment may be removed at some future date, the same argument may be used in support of the validity of a marriage with a fifth wife at a time when four legal wives are already in existence. The authorities are, indeed, agreed in saying that a marriage with a fifth wife during the iddat of the fourth after divorce is not void, but invalid only; but that is clearly intended to be an exception to the rule that a marriage with a fifth wife, while four other wives are in existence and none of them have been divorced, is absolutely void. Similarly, when we find cited, as an instance of an invalid marriage, a marriage with a second sister during the iddat of the first, we think that we must understand that that is an exception to the rule that a marriage with a second sister before the dissolution of the marriage with the first is absolutely void.
18. There is, however, as we have said above, one text in the Fatawa-i- Alamgiri quoted by Baillie at page 32, which is directly in favour of the plaintiff, and which has naturally been greatly relied on her behalf. The passage is as follows:
Should the sisters be married by separate contracts, the marriage of the last married is invalid (fasid), and it is incumbent on the husband to separate from her. If the Judge be aware of the fact, he is bound to make the separation, and if he do so before consummation, none of the legal effects of marriage are inferred; but if not till after consummation, the woman is entitled to dower, and the husband liable to whichever may be the less of her proper dower and the dower specified. She must also observe her iddat (or term of probation), and the paternity of her offspring is established, the husband being bound to abstain from matrimonial intercourse with his wife until the expiration of the sister's iddat.
19. The authority for this opinion, which is cited in the Fatawa-i-Alamgiri' but is not given by Baillie, is the Muhit of Sarakhsi, who died A. D. 1096. We have not been referred to the original text, and we are informed that no copy of the Muhit is available in Calcutta. We are, therefore, unable to judge the passage by its context, or to see for ourselves how far it corresponds with the opinion expressed in the Fatawa-i-Alamgiri. It appears, however, as pointed out by Moulvi Mahomed Yusoof, that some of the opinions expressed in the Fatawa-i-Alamgiri, as well as in the Muhit, are directly challenged in the Rudd-ul-Muhtar, and it is clear therefore that neither of those authorities is considered to be infallible or conclusive. Be that as it may, the passage in question is a solitary authority, and it is not shown that it has been accepted by any commentator other than the Fatawa-i-Alamgiri during the last 800 years, or that it has ever been acted on in practice. Moreover, it is distinctly opposed to the authorities which lay down that when a man marries two sisters by one contract, and one marriage is known to precede the other, the marriage which is the later of the two is absolutely void. We do not think, therefore, that, upon the authority of the Fatawa-i-Alamgiri alone, and in the face of so many conflicting opinions in other commentators, we ought to hold that a marriage which is distinctly forbidden by the Koran, which rests on precisely the same basis as a marriage with a mother-in-law or a daughter-in-law, and which is so opposed to the customs of the people as to be rarely or never met with in practice, is such a legal and valid marriage that the children are capable of inheriting.
20. The conclusion at which we have arrived upon a consideration of the texts placed before us, is not altogether without judicial authority. In the case of Shureefoonisa v. Khizurooinisa Khanum 3 S.D.A. Sel. Rep. 210, it was held by the Sudder Dewanny Adawlut, after consulting the law offices of the Court, that the marriage of. a Mahomedan with his wife's sister, his wife being alive and undivorced, was null and void. The following is an extract from the reply of the Mufti in that case:
It is, however, necessary to enquire what is the legal consequence of marrying two sisters, supposing no other legal objection to have existed. It is unlawful, however contracted, whether by one or two contracts, but as far as dower is concerned, the cases are different. If a person has married two sisters by the same contract, both of them on the dissolution of the marriage are entitled to a dower proportioned to their rank (muhur-i-misul), or the stipulated dower, whichever is least. If they are married by two separate contracts, then the first wife will receive a dower proportioned to her rank, or the stipulated dower, whichever is least, on. account of the dissolution of the marriage contract; but the second wife can obtain nothing, on account of the invalidity of her marriage contract.
21. The case in question is cited in Macnaghten's Principles and Precedents of Mahomedan Law, and is thus put by him at page 257 (edition of 1870):
Q. If A, having married B, should afterwards marry her sister C during the lifetime of B, and if such second marriage should be invalid according to law, will the first marriage nevertheless hold good, and will B be entitled to dowel'?
R. - The marriage of A with B will stand good, notwithstanding the fact of his having subsequently married her uterine sister C. As C, however, by reason of her affinity falls within the prohibited degrees of relation, her marriage with A is null and void, and she is not entitled to dower; but this fact does not invalidate the prior contract with B, and on the death of A, his wife B will be entitled to the full amount of her dower out of his estate.
22. For these reasons we must hold that the plaintiff was not entitled to any share in the estate of Golam Ali, and upon that ground this appeal must be allowed, and the plaintiff's suit dismissed with costs in both Courts.