May 18, 2013 | 04:21 PM (BD Time)
18 May, 2013 Saturday
Evidence of conduct, reputation and consummation make a marriage valid
(From previous issue)
25. Mulla on the Principle of Mohammadan Law, 'presumption of marriage' has been stated in paragraph 268 as under:
"Presumption of marriage Marriage will be presumed, in the absence of direct proof, from-
(a) prolonged and continual cohabitation as husband and wife (e); or
(b) the fact of the acknowledgment by the man of the paternity of the child born to the woman, provided that the conditions, of a valid acknowledgment mentioned in section 344 below are fulfilled (f); or, (c) the fact of the acknowledgment by the man of the woman as his wife (g)."
26. The presumption does not apply if the conduct of the parties was inconsistent with the relation of husband and wife nor does it apply if the woman was admittedly a prostitute before she was brought to the man's house. The mere fact, however, that the woman did not live behind the purda, as the admitted wives of the man did, is not sufficient to rebut the presumption.
27. In Abdool Razack V. Age Mahomed
Jaffer Bindaneen, 21 Indian Appeal 56. Lord Maenaghten argued on the point of presumption of marriage that if the conduct of the parties were shown to be compatible with the existence of the relation of husband and wife, the conduct is a very good test. and a safer guide than the recollection or imagination or interested of biased witnesses, Their lordships accepted the argument that every presumption ought to be made in favour of marriage "when there had been a lengthened cohabitation, especially in a case where the alleged marriage took place so long ago that it must be difficult if not impossible to obtain a trustworthy account of what really occurred".
28. The appeal was, however, dismissed on other grounds as to the acknowledgment of the legitimacy of the child. It was argued that the word acknowledgment in its legal sense under Mohammedan Law of acknowledgement of antecedent right established by the acknowledgment on the acknowledger, that is, in the sense of a recognition, not simply of sonship, but of legitimacy of a son. Their lordships were of the opinion that the term acknowledgment is used say, a child born out of wedlock is illegitimate; if acknowledged, he acqures the status of legitimacy. When, therefore, a child really illegitimate by birth becomes legitimated it is by force of an acknowledgment expressed or implied, directly proved or presumed. The facts are that Abdul Hadee left a will bequeathing everything to his brother Hadjee Hosain, in which he mentioned that he had offspring in Burma. According to one witness, the offspring is Abdool Razack and expressed a wish that his brother should give him something. Their lordships are of the opinion that every word in the will is said about it to he perfectly true, the evidence falls very far short of such an acknowledgement as would confer the status of legitimacy upon an illegitimate child.
29. In Ghaganfor V. Kaniz, Fatima, their Lordships of the judicial committee said:
"The learned Judges fully recognized that prolonged cohabitation might given rise to a presumption of marriage, but that presumption is not necessarily a strong one, and their lordships agree that it does not apply in the present case, for the mother before she was brought to the father's house was according to the case on both sides, a prostitute."
30. There is no evidence that the appellant was a prostitute or woman of a bad character. Therefore, the conduct proved by the witnesses suggested a presumption in favour of a legal marriage.
31. In Ma Khatoon V. Ma Mya and others, 165 IC 232, a Division Bench of the Rangoon High Court argued that according to Mohammedan Law, where there had been continual cohabitation between a man and a woman, which is not a mere casual concubinage, but a more permanent connection and a child has been born, and where there is no insurmountable obstacle to such a marriage, then the presumption is in favour of such a marriage having taken place.
It is further argued that where cohabitation between a man and a woman was continuous from the time when they first met, either through an elopement or in consequence of an ordinary marriage before a moulvi, and that that cohabitation was with repute, it must be held that a valid marriage existed between them. These views have been taken with the approval of the views taken in Khajah Hidayut Oolah V. Rai Jan Khanum, 3 MIA 295.
32. In Bashir and others V. Alam Din and others, PLD 1988 SC 8, Nasim Hasan Shah J. argued "Muslim Law presumes in Cavour of marriage in the absence of direct evidence on the point provided. however, evidence exists to show that a man and a woman have lived together than and wife for a long time". The above views were taken from a passage of Tyabjee, Muhammadan Law, as under.
"Legitimacy, of a child may be presumed where there had been continuous cohabitation of the alleged percents, acknowledgment of the child by the father, treatment by the father of the mother and child, and repute and notoriety amongst members of the family, the community, or respectable members of the locality."
33. In Hamida Begum V. Murad Begum, PLD 1975 SC 624, the Supreme Court of Pakistan endorsed the views taken by the judicial committee in Syed Habibur Rehman Chowdhury V. Syed Altaf Ali Chowdhury, AIR 1922 PC 159, and made the following observations.
"Legitimacy is a status which results from certain facts, whereas legitimation is a proceeding which creates a status which did not exist before. This proceeding becomes necessary where either the existence of a valid marriage can not he expressly proved or where the child is born within six months of the marriage as stated above. To such cases, acknowledgment of legitimacy in favour of the child may be either expressed or by necessary, implication from the course of treatment by the man or the mother and the child, or from the evidence of repute and notoriety amongst the members of the family, community and respectable members of the locality. Such all acknowledgment raises a presumption of a valid marriage and legitimate birth.'
34. In Khorshid Alam Vs. Amir Ali 38 DLR (AD) 133, the point in dispute was as to the legitimacy of Khorshed Ali is the son of Amir Ali Mia. Leave was granted to consider whether the principle or acknowledgment of sonship under the Muslim Law has been correctly considered by the High Court Division. In the said case, the question of marriage between Monwara Begum and Amir Ali Mia came under consideration. Khorshid Alam, the defendant pleaded about the legal marriage.
This Division though noticed that the defendant failed to prove marriage but taking consideration or the doctrine of acknowledgment of sonship held that there was legal marriage between Monwara Begum and Amir Ali Mia and that once acknowledgment of parentage is established, the marriage will be held proved. In that case this Division Considered a decision of the Privy Council in 56 T.A.201 wherein it was argued that 'until the claimant establish his acknowledgment the onus is on him to above marriage. Once he establishes an acknowledgment the onus is on those who deny a marriage to negative it in fact.' The plaintiff denied the existence of the marriage and this Division shifted the onus upon the plaintiff to prove that there was no marriage. This Division concluded opinion with the observation that "the person who deny it (marriage) will have to be established. In other words it was for the plaintiff to prove that there was no marriage with Monwara Begum as alleged". I fail to understand why Mr. Bhuiyan has referred this decision which rather supports the case of the appellant.
35. In Masit-un-Nissa V. Pathani, XXVI All 295, referred by Mr. Bhuiyan, the suit was brought t
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