ROSHANBAI Vs. SULEMAN HAJI AHMED UMAR

JUDGEMENT

(1.) [After setting out the pleadings and contentions of the parties the judgment proceeded :] The case set up in the plaint is that the plaintiff was married to the defendant in March, 1932. An application was made at the commencement of the hearing to amend the plaint by including an allegation of acknowledgment. For reasons given in my judgment at that time I refused that application.

(2.) ACCORDING to Mahomedan law a man is not obliged to maintain his mistress or his illegitimate children, in the sense that in a civil Court such an obligation cannot be established. Therefore, the question to be considered is whether the plaintiff is the wife of the defendant as alleged in the plaint. Amongst Mahomedans no particular ceremonies are required for a marriage. The question whether there was a marriage or not is one of fact. That fact may be proved by direct evidence by calling witnesses who were present at the time or producing the nikahnama signed by the parties. It may be proved by indirect evidence which may raise a presumption of marriage.

(3.) IN Wilson's Mahomedan Law it is stated that adoption is not recognised as a mode of establishing paternity. IN all cases in which marriage may be presumed from co-habitation combined with other circumstances for the purpose of conferring upon a woman the status of a wife, it may also be presumed for the purpose of establishing paternity. IN para. 85 it is stated as follows : If a man has acknowledged another as his legitimate child, the presumption of paternity arising therefrom can only be rebutted by (a) Disclaimer ... etc. IN the explanation it is stated : A mere casual acknowledgment of the fact of paternity, not intended to confer the status of legitimacy, will not have that effect.