AKBAR HUSSAIN SAHIB Vs. SHOUKHAH BEGAM SAHEBA (DIED)

JUDGEMENT

(1.) This is an appeal by two youths, who are the sons of a lady called Mahfil Nagir Bee. They bring this action against a number of relatives of the late Nawab of Masulipatam, as he was called by courtesy, to have it declared that they are the legitimate sons of the late Nawab and entitled to take part in the partition of his landed property.

(2.) The question that has to be determined can be put in two ways. In the first place, has it been affirmatively shown that Mahfil Nagir Bee was a wife of the late Nawab? Secondly, it may be put in another way--do the known circumstances of the relations of the Nawab and his family to Mahfil Nagir Bee lead to the presumption that a marriage must have taken place, though no definite date can be assigned?

(3.) The first question, therefore, is one of fact--is it true or is it proved that a marriage actually took place between the Nawab and this lady? If she was married to the Nawab, it is not contended that she was married in any other form except the lowest form of marriage known to Muhammadan Law, viz., muta, marriage, which is said by some to be so low a form of union as to be practically indistinguishable from concubinage. The two known features about it are: first, there must be a definite period for the marriage to last either in this world or in the next or in both--which in this case is said to be 99 years--and secondly, a sum of money must be paid to the bride as her dower--and it is said in this case that a sum of Rs. 525 was paid to this girl. The history of Mahfil Nagir Bee is inevitably bound up with that of another lady, called Dildar Bee, who was a witness in this case. They were acquired from their parents, who were poor and unknown, by the senior wife of the Nawab, when they were little children six or seven years old. Their parentage seems to be very vaguely known to anybody, including themselves. There were apparently Hindus and pariahs by caste, and became converted to Muhammadanism after their introduction into the zenana of the Nawab. In the year 1887, the shadi wife of the Nawab was taken ill, and after a few weeks illness, she.died in child-birth. That we know to be on the 26th November 1887. The story told by the appellants is that shortly afterwards--a few weeks after the death of the shadi wife--the Nawab proceeded in turn to contract muta marriages with both Mahfil Nagir Bee and Dildar Bee; and it seems clear that more or less about the same time, he did no doubt contract a muta marriage with another young woman in the zenana, namely Fiza Bee. Several witnesses were called for the appellants to establish the allged celebration in Madras of the muta marriage with Mahfil Nagir Bee Most of the witnesses identified the occasion by reference to some other events. One of the events by which some of them tried to fix it, is by reference to the marriage of a lady, called Amthus Salam Begam, who is the 5th defendant in this case. They say Dildar Bee and Nagir Bee s marriages were a little before that of Amthus Salam. But, unfortunately, the marriage register has been produced and it turns out that that marriage was not celebrated till the year 1892; and, therefore, these witnesses must, at any rate, be entirely mistaken when they imagined themselves to be consistent in fixing the occasion of the marriage of Mahfil Nigar Bee with reference to that of Amthus Salam Begam. Another method of identifying, adopted by some other witnesses, was by reference to the marriage of Fiza Bee, and those of them who adopted this method are all agreed that, of the three girls, Fiza Bee was the one married last. A letter which was produced--Exhibit XXXII--a letter written by the Nawab to a friend, is dated 17th April 1887, and it specifically recites, that on that date, he had just married Fiza Bee as muta wife. After that, it becomes impossible to place any reliance on these witnesses, as it is clear on their own showing that it was more than six months out by this last method, and five years out by the other method of fixing it by the marriage of Amthus Salam Begam.