JANAB ALI MIA Vs. NAZAMADDIN PRADHANIA

JUDGEMENT

(1.) The principal question in appeal relates to the Muhammadan Law of fosterage. The necessary facts are as follows. The defendant No. 3, Newaz Ali, had a son born to him named Janab Ali, defendant No. 1. A few years later, Newaz Ali s wife, the mother of Janab Ali, took charge of Zohara Banu, defendant No. 2, and suckled her. Zohara Banu was then an infant in arms: the lower Courts have not found exactly what her age was when Newaz Ali s wife began to suckle her, but they have found that she had not been weaned and that she was suckled by the woman, which I regard as a finding that she was certainly less than two years and a half. Subsequently Newaz Ali, as certificated guardian of Zohara Banu, gave her in marriage to his son, Janab Ali. The lower Courts have held that such a marriage was unlawful, because by the law of fosterage the two children were prohibited from marrying.

(2.) The appellant, Newaz Ali, contends that the lower Appellate Court has misunderstood the authorities. The text-books on which both sides rely are Sir Roland Wilson s Digest of Anglo- Muhammadan Law, Article 37, Baillie s Digest of Muhammadan Law and Grady s Edition of Hamilton s Hedaya.

(3.) The difficulty arises from a clause in the explanation to Article 37 in Sir Roland Wilson s book viz., the clause, "or the suckling of one and the birth of the other as the case may be."