BUDANSA ROWTHER Vs. FATMA BI

JUDGEMENT

(1.) The plaintiff, who died during the pendency of the suit, was one of the daughters of Jaila Rowther by his first wife Fatma Bi, and the 7th defendant who was the principal of those who contested the claim is a daughter by a later marriage. The suit was brought for the recovery of the plaintiff s share of her father Jaila Rowther s share in the estate of the plaintiffs grandfather, Ahamsa. It was resisted on the ground that the plaintiff s mother having been married to a Hindu husband, named Maniya Gounder, her subsequent marriage to Jaila Rowther, while the first marriage was subsisting, was not legal, and, therefore, the plaintiff and the defendants Nos. 2, 4 and 5 were illegitimate and as such debarred by the form of Mahomedan law in force among Sunnis from inheriting as sharers. The suit failed in both the Lower Courts and the plaintiff s legal representatives appeal by their next friend.

(2.) Five contentions based on questions of law have been put forward at the hearing of this second appeal, namely: (1) By conversion to Islam the 1st Defendant became a good Mahomedan and the tie of her marriage with a Hindu became thereby dissolved and her subsequent marriage to a Mahomedan was valid. (2) a marriage of this kind, though irregular, would be regarded by the Mahomedans as not invalid, and by the principle of factum valet the irregularity would be condoned by the couple living together as husband and wife; (3) in considering whether the marriage is valid, it is necessary to apply the law prevailing in the French possessions in India. Hindus and Mahomedans living in French India are not necessarily governed by the Law recognised in British India, and it is incumbent on the defendants to show that the French Courts have adopted the same principles as the courts in British India. (4) by the custom and usages of persons belonging to the Palli caste, Marriage with a second husband during the life time of the first husband is permissible; and the onus lies on them, who assert that such a custom is not applicable in a particular case to prove it; and (5) the finding of fact by the Lower Courts amount to the establishment of the fact that there was an acknowledgment on the part of Jaila Rowther of the legitimacy of his children by the first defendant. It is conceded that if the Marriage was invalid and the parties knew it, no acknowledgment could make legitimate the offspring of a union which has its inception in illegitimacy, but it is contended that it has not been proved that the parties to the marriage knew it to be an invalid one.

(3.) We may briefly dispose of the last of these contentions by observing first that the Mahomedan and Hindu laws being personal laws are attached to the followers of each religion where ever they may be living, and that the facts found by the lower Courts are that the plaintiff s mother, Fatima alias Unnarhalai was Married to Maniya Gounden at Kariam Puthur in Pondicherry, but her marriage to Jaila Rowther was performed at Sholavalli in the South Arcot District which is Brritish territory, and therefore as the marriage to Jaila Rowther has come before the British Courts, the law we must administer is that prevailing in British India; Secondly, that, assuming that there is a custom among Pallis or Vanniyans of allowing a woman to marry again during the life time of her first husband, such a custom is contrary to public policy and to morality and appears to be condemned by the community (seep. 103, Gazetteer of the South Arcot District), and, therefore, the courts will refuse to recognise it; and thirdly that a mere recognition of paternity is not equivalent to a recognition of legitimacy (vide Abdul Razak v. Agd Mahammed Jajar Bindami (1894) I.L.R. 21. C. 666 and that acknowledgment cannot make legitimate the offspring of Zina (Fornication or adultery) (vide Mardan saheb v. Rajak Saheb (1909) I.L.R. 34 B. 111.