May 26, 2013 | 07:51 AM (BD Time)
26 May, 2013 Sunday
Evidence of conduct, reputation and consummation make a marriage valid
(From previous issue)
13. To use the words of Baillie, marriage, like other contracts, "is constituted by ejab wa kabul or declaration and acceptance, but it confers no rights on either party over the property of the other. The legal capacity of the wife is not sunk in that of the husband; she retains the same powers of using and disposing of her property, of her entering into all contracts rendering it, of suing and being sued without his consent, as if she were unmarried. On the principle of contract of marriage, the author stated, in the language of the law, as in the common parlance, the formal conclusion of the contract is called 'akd' conveying the same meaning as the term obligation in the Roman Law. In fact, 'akd' is the completion of the contract which commences with the proposal or demand in marriage and ends with the consent." Radd-ul-Muhtar, Vol. II, says 'akd' signified both proposal and assent, and that the word means the contract of marriage as well as co-habitation."
14. On the capacity of the parties to marry each other, Syed Ameer Ali says, "the validity of a marriage under the Mohammedan Law depends primarily on the capacity of the parties to marry each other. "The performance of the marriage according to the form prescribed in the place where the marriage is celebrated, or which would impress on the woman by the customary law of the Musalmans the status of a wife is a matter of secondary consideration." Dicey on Domicile stated, it is recognized principle of law that the capacity of each of the parties to a marriage is to be judged of by their respective Lex domicilii. If they are each, whether belonging to the same country or to the different counties, capable, according to their Lex domicilii, of marriage with the other they have the capacity required by the rule under consideration.
15. Fatawai Alamgir. Vol.I page 377 says among the conditions which are requisite for the validity of a contract of marriage are understanding, puberty and freedom in the contracting parties, with this difference that whilst the first requisite is essentially necessary for the validity of the marriage, as a marriage can not be contract by a majnun (non compos mentis) or a boy without understanding: the other two conditions are required only to give operation to the contract, as the marriage contracted by a (minor) boy (possessed) of understanding is dependent of its operation on the consent of the guardian."
16. The essentials of a marriage mentioned in paragraph 252 by M. Hidayatullah on Mulla's principles of Mahomedan Law are based on the arguments made in Moung Kyi V. Ma Shwe Baw (1929) 7 Rang 777. 121 I.C. 718, Gagu Bibi V. Mesal Shaikh (1936) 63 cal 415 and 164 IC. 957. In the absence of witnesses to the marriage, Mulla says in paragraph 254 "A marriage contracted without witnesses as required by sec.252 is irregular, but not void", This rule has been upheld in Shahzada Begum V. Abdul Hamid (1950) Lah 773. As regards irregular marriage, Mulla fol1owing Baillie. 155 said in paragraph 264(3):
"An irregular marriage is one which is not unlawful in itself but unlawful 'for something else' as where the prohibition is temporary or relative or when the irregularity arises from an accidental circumstances, such as the absence of witnesses."
17. It has been explained, the reason why certain marriages though irregular but not void that a marriage which contracted without witnesses, the irregularity arises from an accidental circumstance. The effects of an irregular marriage may be terminated by either party either before or after consummation, by words showing an intention to separate, as where either party say's to the other about the intention' of 'relinquishment. Even in respect of irregular marriage, if consummation has taken place, Mulla says, the wife is entitled to dower, proper or specified, whichever is less (Paragraph 267(2). The High Court Division, in the premises, on a superficial consideration of the principles of a legal marriage, termed the living of the appellant and the respondent together as husband and wife "adulterous relations".
18. Mr. Wadud Bhuiyan, learned Counsel submitted that the plaint is totally silent as to the date, place and presence of witnesses of the marriage and the appellant having failed to prove the essentials of a manage under Mohammedan Law, the High Court Division is perfectly justified in dismissing the suit. In support of his contention the learned counsel has referred to the cases of Khorshed Alam @ Shah Alam V. Amir Sultan Ali Hyder and another, 38 DLR(AD) 133, Debendra Mohan Rai V. Sona Kunwar, (1904) 36 Mahbad 295, Abdool Razack V. Aga Mahomed Jaffer Bindaneem, 21 Indian appeal 56 and some other decisions.
19. Under Hanafi and the Maliki Law, a presumption of manage is inferred if the marriage is consummated from the retirement of the husband and the wife into the nuptial chamber, under circumstances which lead to the natural inference of matrimonial intercourse.
20. Syed Ameer Ali stated that Muhammadan Law does not insist upon any particular form in which the contractual performance should be effected or that the union should be evidenced by any writing, nor is the presence of witnesses essential for its legality. For, though among the Sunnis the presence of witnesses is considered necessary to the validity of a marriage, their absence only renders it invalid which is cured by consummation. Therefore, according to the author, even if the person seeking a declaration of legal marriage failed to prove it in the absence of the witnesses, if he or she proves the consummation of marriage, it may be treated as valid marriage. "A marriage may be proved directly or presumptively; directly, by means of the oral testimony of the witnesses present at the marriage, or by documentary evidence in the shape of a deed of marriage; presumptively, by statement of parties or by evidence of conduct and reputation. As in many cases invalid marriages are rendered valid by consummations, and as the dower does not become due in its entirety until the marriage has been actually or constructively consummated, the question of consummation forms often an important element in the status of marriage".
21. Section 50 of the Evidence Act declares that "when the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct as to the existence of such relationship of any person, who as a member of family or otherwise, has special means of knowledge on the subject is a relevant fact". Illustration (a) to section 50 says ; "the question is, whether A and B were married. The fact that they were usually received and treated as husband and wife, is relevant". This section says when the question arises as to the presumption of marriage, the opinion that makes relevant is opinion expressed by conduct as to the existence of such relationship and not merely as to that relationship. It is for the Court to weigh such evidence and to come to its own opinion as to the relationship in question. When the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct, as to the existence of such relationship, or any person who, as a member of family or otherwise, has special means of knowledge on the subject, is a relevant fact.
22. To narrow the ground by limiting it to "opinion expressed by conduct" so far an opinion expressed by conduct i.e. by evidence of specific facts of the conduct mentioned in the illustration to section 50 of the Evidence Act. When a woman lives for a number of year" in close association with a man and their children, who are acknowledged by the man as born to him; relations and persons of the village
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