MARDANSAHEB GANSUSAHEB Vs. RAJAKSAHEB KASHIMSAHEB

JUDGEMENT

(1.) It is found by the lower appellate Court that the second respondent, Miya Saheb valad Maula Saheb, who was defendant No. 4 in the suit which has led to this second appeal, was acknowledged by Maula Saheb as his son, and that the acknowledgment fulfills all the requirements of and is, therefore, valid according to Muhammadan law. This latter finding as to the legal validity of the acknowledgment is impugned before us upon the ground that, on the facts found the second respondent must be held to have been born of what in Muhammadan law is called zina, fornication or adultery and that such a boy cannot, according to that law, be acknowledged as son.

(2.) The findings of the learned District Judge in appeal are not sufficiently clear. He holds upon the evidence that even if Jainabi's husband was still living when the child was born, he had divorced his wife before that birth." But that leaves the question still open whether at the time of conception Jainabi had been divorced. On that point all the learned Judge says is that he "should not be prepared to hold the acknowledgment was invalid even if it were proved that at the time of conception Maula was having adulterous intercourse with Jainabi."

(3.) It is, however, not necessary to send the case back for a finding on that question, because even upon the facts, so far found definitely, the acknowledgment cannot be legal, according to Muhammadan law.