1. The principal question in appeal relates to the Muhammadan Law of fosterage. The necessary facts are as follows. The defendant No. 3, Newaz Ali, had a son born to him named Janab Ali, defendant No. 1. A few years later, Newaz Ali's wife, the mother of Janab Ali, took charge of Zohara Banu, defendant No. 2, and suckled her. Zohara Banu was then an infant in arms: the lower Courts have not found exactly what her age was when Newaz Ali's wife began to suckle her, but they have found that she had not been weaned and that she was suckled by the woman, which I regard as a finding that she was certainly less than two years and a half. Subsequently Newaz Ali, as certificated guardian of Zohara Banu, gave her in marriage to his son, Janab Ali. The lower Courts have held that such a marriage was unlawful, because by the law of fosterage the two children were prohibited from marrying.
2. The appellant, Newaz Ali, contends that the lower Appellate Court has misunderstood the authorities. The text-books on which both sides rely are Sir Roland Wilson's Digest of Anglo-Muhammadan Law, Article 37, Baillie's Digest of Muhammadan Law and Grady's Edition of Hamilton's Hedaya.
3. The difficulty arises from a clause in the explanation to Article 37 in Sir Roland Wilson's book viz., the clause, 'or the suckling of one and the birth of the other as the case may be.'
4. Where the relation established by fosterage is between two children who are both strangers to the foster mother, it may be that the prohibition attaches only if the two foster children partake of the same supply of milk, that is, if they are suckled within the same period of two years from the date when the flow of milk began, and, but for the clause which I have quoted, the explanation would seem to refer to this class of relation by fosterage. The clause, however, suggests by the words 'birth of one' that it refers to the relation between the woman's natural child and her foster child. If the words do mean that prohibition between the natural child and the foster child does not attach when there has been a certain interval between the birth of the natural child and the suckling of the foster child then, I think, with all respect to1 the learned author, he goes beyond the textbooks which he quotes. In the Hedaya there is this passage: Prohibition is attachto the milk of the man (that is to say, to the milk of which ho is the cause), if, for example, a woman nurse a female child, the latter is prohibited to her husband and to his father and son, because the husband through whom the woman's breasts have been filled with milk is as a father to the child.' Again it is not lawful for a female to marry any of the sons of the woman who has suckled her, because they are her brothers.' Baillie is equally olear: To the stickling, both his foster parents and their ascendants and descendants, either by natural descent or fosterage, are all prohibited, so that if his nurse should have already borne... a child to the same or to another man whether before the nursing or after it or should have nursed another infant...the whole would be brothers and sisters to the first suckling.'
5. In view of these passages I must hold that the' prohibition attaching to a woman's natural son and foster-daughter is absolute, and not conditional upon the birth of the one and the suckling of the other occurring within any limited period. That being so, there could not be a lawful marriage between Janab Ali and Zohara Banu.
6. It is also urged that the learned Subordinate Judge has erred in allowing the plaintiffs to question the validity of the marriage, because their motive is to escape from the liability to pay rent, and not to safeguard the welfare of Zohara Banu. It is found, however, that the plaintiffs are the girl's paternal relatives: they brought the suit within four months of the marriage; and the learned Munsif refers to various circumstances which suggest that Newaz Ali is abusing his position as guardian. Under those circumstances I cannot hold that there is any error in granting the plaintiffs' prayer.
7. The last suggestion is that as the marriage has been celebrated, and probably consummated, 'factum valet', but that principle does not render good in law a marriage which ought not in law to have been celebrated. See the case of Sri Balusu Gurulingaswami v. Sri Ramalakshmamma 22 M. 398 : 21 A. 460 : 26 I.A. 113 : 3C.W.N. 427 : 9 M.L.J. 67..
8. The appeal fails and it is dismissed with costs.