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 Mulla's Mahomedan Law it is stated as follows : Marriage will be presumed, in the abstence of direct proof, from- (a) prolonged and continual cohabitation as husband and wife; (b) the fact of the acknowledgment by the man of the paternity of the children born to the woman, provided all the conditions of a valid acknowledgment (mentioned in Section 249 below) are fulfilled. The presumption does not apply if the conduct of the parties was inconsistent with the relation of husband and wife. In dealing with acknowledgments it is stated as follows : Marriage may be established by direct proof. If there may be no direct proof, it may be established by indirect proof, that is by presumption drawn from certain facts. It may be presumed from prolonged co-habitation combined with other circumstances, or from an acknowledgment of legitimacy in favour of a child.