A valid marriage under Muslim law can be presumed from continued cohabitation, acknowledgment of the wife and children, and the absence of evidence to disprove the marriage.

This Rule is directed against an order of maintenance passed by the learned Magistrate under Section 125 of the Code of Criminal Procedure awarding a sum of Rs. 500/- to the petitioner's wife per month and Rs. 250/- for each of the two children per month, as maintenance,

2. The case of the opp. party wife is that she was a refugee from Sind and she became acquainted with the petitioner at Baroda from where she came away with him to Calcutta and as he was a Muslim, she agreed to be converted to Islamism and she married him, thereafter according to Muslim rites and customs. Thereafter, she lived with him for long 21 years and bore him three daughters, and a son who died. The daughters were born in 1963, 1965 and 1967 respectively. The opposite party wife's case further is that the petitioner is very well to do man having a Cinema house and several race horses and a five storied building which fetches him very handsome amount, as rent. Further being a business man he has a really good income. That while the opp. party lived with the petitioner as husband and wife, he used to pay her for family expenditure a sum of Rs. 1,500/- per month, but since 1975 the petitioner has ceased to pay any maintenance to her as a result, she having no income of her own is somehow managing to maintain her family upon the charity of her relations and friends and by selling her valuables. The case of the petitioner is that it is false to say that he has married the opp. party or that the children have begotten by him. In fact, he denied knowing any lady by the name of Noorjahan. That the opp. party is out to black mail him in order to extort money from him.

3. Mr. Prasun Chandra Ghose appearing for the petitioner has submitted that the opp. party and the children are not entitled to maintenance inasmuch as it has neither been proved that the petitioner has married the opp. party or that the children are begotten by him. The opp. party has failed to adduce evidence of Maulabis who performed the marriage ceremony according to Mohammedan Law nor has she produced any witnesses who were present at the time of marriage. She has miserably failed to produce any document relating to marriage contract or for the matter of that, any document relating to dower etc. Therefore, the marriage being denied by the petitioner the onus to prove the same is on the opp. party, failing which there cannot be any finding that the opp. party is legally married wife of the petitioner nor the children have been begotten during the subsistence of valid marriage, Mr. Ghose however has overlooked certain evidence which in absence of proof of marriage by direct evidence constitutes proof by indirect or circumstantial evidence. Under the Mohammedan Law a valid marriage may be proved either by direct evidence or may be presumed (1) from continued cohabitation as husband and wife, (2) from an acknowledgment by the man : (a) That the woman is his married wife provided that a marriage between them is not unlawful or (b) that the children of the woman are his children provided that the acknowledgment satisfies the condition as follows :

An acknowledgment, express or implied, by a person who is of sound mind that another person is his child or that the mother of the child is his wife by a valid marriage confers upon such child the status of legitimacy provided that the following conditions are satisfied; (a) that the marriage is not disproved; (b) that the acknowledgement is one of the legitimacy of the child; (c) that the relationship is not impossible by reason of disparity between the ages or otherwise; (d) that the person acknowledged, if he has attained discretion, does not repudiate the acknowledgment. It is well settled law that the presumption is always in favour of marriage and against concubinage when the person has been living with the woman as husband and wife for a large number of years. In this connection, support is to be had from the following cases i e., (1912) ILR 3