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N. MALA
Abdulla – Appellant
Versus
Ismail Pathuma (Died) – Respondent
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?
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 (!) .
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 Cour
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