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2023 Supreme(Mad) 2988
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
N. MALA, J.
Abdulla – Appellant
Versus
Ismail Pathuma (Died) – Respondent
A.S. (MD) No. 91 of 2017, C.M.P. (MD) No. 5643 of 2018
Decided On : 13-07-2023
Advocate Appeared:
For the Appellants : M.V. Venkatashesan, S. Vellaisamy.
For the Respondents: V. Ragavachari, S.A. Ajmal Khan, K. Prabhakar, Babu Rajendran, P. Pethu Rajesh.
The main legal point established in the judgment is the presumption of marriage arising from prolonged cohabitation and acknowledgment of paternity in Mohammedan law, and its implications for establishing legitimacy and entitlement to property.
Headnote:
Marriage - Muslim Law - Marriage (Nikah) - 250, Irregular (Fasid) marriage - 243 to 259, Effects of Irregular Marriage - 267 - The court discussed the concept of marriage in Mohammedan law, including the types of marriages and their legal effects. It emphasized the presumption of marriage arising from prolonged cohabitation and acknowledgment of paternity, and their legal implications.
Fact of the Case:
The suit involved a dispute over the entitlement to certain properties. The plaintiff claimed that the defendants were not the legitimate children of Samsudeen Rowthar and therefore not entitled to the suit properties. The trial court found in favor of the plaintiff, but the defendants appealed the decision.
Finding of the Court:
The court found that Samsudeen Rowthar had married Mangala Devi, and the defendants were legitimate children of the marriage. It also held that Mangala Devi's marriage with Samsudeen Rowthar was an irregular (fasid) marriage, and the defendants were entitled to a share in the suit properties.
Issues: The court addressed the issues of the validity of the marriage between Samsudeen Rowthar and Mangala Devi, Mangala Devi's conversion to Islam, acknowledgment of paternity, and the entitlement of the defendants to the suit properties.
Ratio Decidendi: The court relied on the presumption of marriage arising from prolonged cohabitation and acknowledgment of paternity to establish the legitimacy of the defendants and their entitlement to the suit properties.
Final Decision: The appeal was allowed, and the 2nd defendant was entitled to 2/4th share, and the 3rd defendant was entitled to 1/4th share in the suit properties.
Key Points: - The court recognizes a strong presumption of marriage between Samsudeen Rowthar and Mangala Devi based on prolonged cohabitation and documentary/evidentiary support (!) (!) (!) . - Even if Mangala Devi’s marriage to Samsudeen Rowthar is irregular (fasid), the marriage, if consummated, can legitimize the children and grant them inheritance rights (!) (!) (!) . - There is a heavy burden to rebut the presumption of wedlock; the evidence presented supports a valid marriage in this case (!) (!) (!) . - The trial court’s finding that Mangala Devi did not convert to Islam was not accepted as fatal to the marriage; conversion evidence was considered but not dispositive (!) . - The judgment concludes that defendants 2 and 3 are legitimate children of Samsudeen Rowthar and Mangala Devi, entitled to shares in the suit properties: 2nd defendant to 2/4th share and 3rd defendant to 1/4th share (!) . - The appeal is allowed; the plaintiff’s claims to exclusive ownership are rejected; the defendants are entitled as legitimate heirs (!) (!) . - The final order: 2nd defendant 2/4th share, 3rd defendant 1/4th share; no costs awarded; miscellaneous petition closed (!) .
Question 1?
What is the presumption of marriage by long cohabitation and acknowledgment in Mohammedan law as applied in this case?
Question 2?
What are the effects of an irregular (fasid) marriage on inheritance and legitimacy of children under Mohammedan law as discussed in this judgment?
Question 3?
What are the shares of the defendants in the suit properties according to the final decision?
JUDGMENT :
N. MALA, J.
PRAYER: The Appeal Suit is filed under Order 41 Rules 1 and 2 r/w. Section 96 of CPC, praying to set aside the Judgment and Decree dated 05.12.2016 made in O.S. No. 202/2004 on the file of the Learned VI Additional District Court, Madurai.
1. This case raises interesting questions on Muslim law relating to Marriage, conversion, legitimacy and acknowledgment. Marriage at the Micro level (i.e.) domestic level is the reflection of the relationship between parties and the legal incidents attached thereto. But at the Macro level it is an institution that forms the base of the family and the society.
2. Before embarking on the factual matrix of the case, I deem it fit to discuss the legal issues first. The concept of marriage, interfaith marriage, legitimacy and acknowledgment under Mohammedan law is discussed as a preclude to the legal issues arising therefrom.
Marriage (Nikah) (250)
3. Marriage in Mohammedan law is a contract which has for its object the procreation and the legalising of children, Principles of Mohammedan law by Mulla - 20th Edn.
4. The Supreme Court of Pakisthan in Khurshid Bibi vs. Muhammad Amin, held that “among muslims, Marriage is not a sacrament, but is in the nature of civil contract.” The said Judgment speaks of Marriage to be in a nature of civil contract, but not purely a civil contract. Therefore as a Muslim marriage is in the nature of a civil contract, the ingredients of a valid contract like capacity to contract, proposal, acceptance and witnesses are necessary (See 251, 252)
5. There are three types of Marriages under Mohammedan law. They are Valid (Sahih), irregular (Fasid) and Void (Batil). Valid marriage is one which confirms to all the legal formalities and void marriage is one which has no legal sanctity and is still born.
Irregular (Fasid) marriage: (243 to 259)
The following marriages are considered as Irregular (Fasid) Marriage:
1. Marriage without witnesses.
2. Number of wives 5
3. Plurality of husbands
4. With a woman undergoing Iddat
5. Marriage between Sunni and Shia.
6. Difference of Religion.
Effects of Irregular Marriage: (267)
An irregular Marriage may be terminated either before or after consummation by either party, by words forming an intention to separate. An irregular Marriage has no legal effect before consummation. If consummation takes place then:
(1) Wife is entitled to Dower.
(2) She is bound to observe Iddat.
(3) The issue of the Marriage is legitimate.
But an irregular Marriage though consummated does not create mutual rights of inheritance between husband and wife.
When there is no direct proof of marriage, marriage can be presumed. (s.268). The presumption of marriage arises in the following situations:
1. Prolonged and continual cohabitation as Man and Wife.
2. Acknowledgment of Paternity by the man subject to the fulfillment of condition of a valid acknowledgment.
3. Acknowledgment by the man of the woman as his wife.
These are the basic legal concepts which are to be borne in mind for the examination of the facts and the issues involved in the case.
Backdrop of facts:
The facts of the case succinctly stated are as follows:
6. The suit was originally filed by the 1st plaintiff against 15 defendants of whom defendants 4 to 15 were tenants of various items of suit properties. In the course of the trial several parties died and their legal heirs were impleaded. The suit property originally had one schedule, but by an amendment the 2nd schedule of property was added. The plaintiffs case was that the suit properties were the properties of her deceased brother, Mohammed Mathar. Mohammed Mathar got some of the suit properties by succession and some others were purchased by him. Mohammed Mathar died issueless on 20.08.2001, leaving the 1st plaintiff and the 1st defendant as his only legal heirs. The 1st plaintiff is the sister and the 1st defendant is the widow of Mohammed Matha
