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2012 DIGILAW 1620 (MAD)

Aisha Bi (Died) v. Saraswathi Fathima

2012-03-29

R.S.RAMANATHAN

body2012
Judgment :- 1. The defendants 2 to 9 are the appellants. The respondents filed the suit in O.S. No.91 of 2004 claiming 9/20 share in the properties belonged to Mohammed Haneefa and filed the suit for partition. The suit was dismissed and the appeal filed in A.S. No.78 of 2009 was allowed and hence the Second Appeal is filed by the defendants 2 to 9. 2. The case of the respondents was that the suit properties belonged Mohammed Haneefa and he was having the relationship with the 1st plaintiff/ 1st respondent and that matter was reported to the Zamath of Ulundurpet. At the instance of Zamath the 1st plaintiff who was a Hindu converted into Islam and married Mohammed Haneefa. The deceased 1st defendant was the first wife and she was also aware of the marriage of the 1st respondent with her husband Mohammed Haneefa and the respondents 2 and 3 were born to Mohammed Haneefa and they were also acknowledged by him as his children and the appellants herein are the children of Mohammed Haneefa through the first wife the deceased 1st defendant and therefore the respondents are entitled to 9/20 share in the properties. 3. The appellants contested the suit stating that the 1st respondent was not the wife of Mohammed Haneefa and no marriage took place between them as alleged by the 1st respondent and the respondents 2 and 3 though born to the 1st respondent and Mohammed Haneefa, they cannot be considered as the legitimate children of Mohammed Haneefa and therefore they are not entitled to claim any share in the properties. It was further contended that the 2nd defendant namely the 1st appellant that he has purchased Items 2, to 5 and 7 of properties in his own name and he is the owner of the properties and Mohammed Haneefa had no right over the properties. 4. The trial Court held that the 1st respondent/ 1st plaintiff failed to prove her marriage with Mohammed Haneefa and the Document Ex. X1 would prove that she was not married to Mohammed Haneefa and the respondents 2 and 3 were not born during the subsistence of the valid marriage and in Exs.B4 and B5, the 1st respondent was described only as a concubine of Mohammed Haneefa and therefore the respondents/ plaintiffs are not entitled to any share. 5. X1 would prove that she was not married to Mohammed Haneefa and the respondents 2 and 3 were not born during the subsistence of the valid marriage and in Exs.B4 and B5, the 1st respondent was described only as a concubine of Mohammed Haneefa and therefore the respondents/ plaintiffs are not entitled to any share. 5. The lower appellate Court reversed the finding of the trial Court and held that the 1st respondent herein was the wife of Mohammed Haneefa and the 1st respondent and Mohammed Haneefa lived together as husband and wife for a long period of time and the respondents 2 and 3 were born to them and the deceased Mohammed Haneefa acknowledged the respondents 2 and 3 as his own children and those were evidenced by Exs.A3 to A9 and therefore by reason of acknowledgment of paternityby the father Mohammed Haneefa, the respondent 2 and 3 are the legitimate children of Mohammed Haneefa and by reason of long cohabitation the marriage between Mohammed Haneefa and the 1st respondent can be presumed and Exs. B1 and B2 would also prove the properties were purchased in the name of Mohammed Haneefa and even though in Ex.B3 the joint patta in the name of the 1st appellant/ 2nd defendant is mentioned that will not give any right and declared that the respondents are entitled to claim 9/20 share in the properties of Mohammed Haneefa and passed preliminary decree. 6. At the time of admission of the Second Appeal, the following substantial questions of law were framed: (1) Whether the Judgment of the Lower Appellate Court is vitiated in holding that the 1st plaintiff converted to Islam and married Mohammed Haneefa without considering properly the admission of the 1st plaintiff in the Exhibits particularly Exs.B4, B5, B6 and X1 ? (2) Whether in any event the Lower Appellate Court erred in granting 9/20 share to the plaintiffs without considering the rules applicable to Muslims relating to Law of Inheritance? (3) Whether the Lower Appellate Court erred in granting decree in respect of items 2 to 5 and 7 without considering the entitlement of the same by the 2nddefendant? 7. Mr. T.Dhanyakumar, the learned counsel for the appellants submitted that the lower appellate Court without properly appreciating the Mohammedan Law and without considering Ex. (3) Whether the Lower Appellate Court erred in granting decree in respect of items 2 to 5 and 7 without considering the entitlement of the same by the 2nddefendant? 7. Mr. T.Dhanyakumar, the learned counsel for the appellants submitted that the lower appellate Court without properly appreciating the Mohammedan Law and without considering Ex. X1, Ex.B4 to B6 and the admission of PW1 the 1st respondent herein erred in holding that there was a valid marriage between the 1st respondent and Mohammed Haneefa and the respondents 2 and 3 were born to them during the subsistence of valid marriage. According to the learned counsel for the appellants Mr. T.Dhanyakumar that admittedly the 1st respondent was a Hindu and her admission in evidence was that the marriage took place after the execution of settlement deed Ex.A6 and prior to the execution of settlement deed Ex.A6, the respondents 2 and 3 were born and at the time of her marriage with Mohammed Haneefa the respondents 2 and 3 were already born. He further submitted that in Ex. X1, the statement given by her for getting the legal heirship certificate on 26.5.2003 wherein she had specifically admitted that Mohammed Haneefa promised to marry her on 2.12.1977 and he failed to come to the Mosque on 2.12.1977 to marry her and therefore no marriage took place between them on 2.12.1977 and no marriage took place between her and Mohammed Haneefa either under the Hindu Law or under the Mohammedan Law. Ex.A6 is dated 3.1.1972 and therefore having regard to the admission of PW1 that the marriage took place after Ex.A6 which is contrary to her statement given on 26.5.2003 that no marriage took place between her and Mohammed Haneefa coupled with the fact that in Exs.B4 and B5 she admitted that she is the concubine of Mohammed Haneefa, the lower appellate Court ought to have held that there was no marriage between the 1st respondent and Mohammed Haneefa and the respondents 2 and 3 were not born during the subsistenceof marriage and therefore they are not entitled to the relief of partition. He further submitted that the acknowledgment made by Mohammed Haneefa acknowledging the respondents 2 and 3 as his children will not give any right to them to claim partition unless it is proved that they were born during the subsistenceof a marriage between the 1st respondent and Mohammed Haneefa. He further submitted that the acknowledgment made by Mohammed Haneefa acknowledging the respondents 2 and 3 as his children will not give any right to them to claim partition unless it is proved that they were born during the subsistenceof a marriage between the 1st respondent and Mohammed Haneefa. In support of his contention, he relied upon the Judgments reported in AIR (36) 1949 Privy Council 254 (Fatma Binti Hafidh Vs. The Administrator-General, Zanzibar Protectorate), 1981 (1) MLJ 402 (Mohammed Khan Sahib Vs. Ali Khan Sahib and another), and 1989(2) Law Weekly 197 (Mohan and another Vs. Santha Bai Ammal and others). He also relied upon the passages from Mohammedan Law to substantiate his contention. 8. On the other hand, the learned counsel for the respondents Mrs. Chitra Sampath submitted that even though the 1st respondent was a Hindu, her marriage with Mohammed Haneefa, the Muslim was not a void marriage, under the Mohammedan Law the said marriage can be said to be an irregular marriage and offspring’s of irregular marriage are legitimate children and the father Mohammed Haneefa acknowledged the paternity of the respondents 2 and 3 as evidenced by Exs.A7, A8 and A3 Voters list would also prove that the 1st respondent was living with Mohammed Haneefa and from 1961 onwards both of them were living together as husband and wife and having regard to the birth of two children and having regard to the fact that Mohammed Haneefa settled some properties in favour of the respondents would cumulatively to prove that there was a marriage between Mohammed Haneefa and the 1st respondent and that marriage was only an irregular marriage and not void marriage and therefore, the respondents are entitled to claim 9/20 share in the properties. She further submitted that the reference to the 1st respondent herein in Exs. A6 and A7 would not make her relationship illegal and it only confirms that she was living with Mohammed Haneefa and the term “ mgpkhd kidtp ” used in Exs.A6 and A7 would only confirm that they were living as husband and wife and considering the long cohabitation,the lower appellate Court rightly held that there was a valid marriage and the children were born during the subsistence of the marriage and the Courts need not give serious consideration to Ex. X1 and that was given by her without knowing the legal implications and therefore the order of the lower appellate Court cannot be set side. She also relied upon the Judgments reported in AIR 1929 Privy Council 135 (Mohabbat Ali Khan Vs. Muhammad Ibrahim Khan and others), 2001 (3) Law Weekly, 747 (A. Abdul Rahim Vs. I.Julaiga Beevi and another), 2008 (2) CTC, 308 (Chand Patel Vs. Bismillah Begum and another) and AIR 2008 Kerala 59 (Shamsudeen M. Illias Vs. Mohammed Salim M.Idris and others) in support of her contention. She also brought to my noticethe passages from Mulla's Mohammedan Law in support of her contention. 9. Heard both sides. 10. Admittedly, the 1st respondent was born as a Hindu and according to her admission in the plaint that she converted to Islam and married Mohammed Haneefa and the respondents 2 and 3 were born to them and the marriage was celebrated at Ulunderpet in the presence of relations of herself and Mohammed Haneefa and the first wife of Mohammed Haneefa also knew about the same. In the plaint she has not given the year, month and date on which her marriage with Mohammed Haneefa took place. It is also admitted by her that even prior to the alleged marriage she is having intimacy with Mohammd Haneea and she complained to Zamath and thereafter she became a Muslim and married Mohammed Haneefa. In her evidence she has reiterated the same statement. She also admitted in the cross-examination that her marriage took place after the execution of settlement deed Ex.B6 and at the time of her marriage with Mohammed Haneefa the two children respondents 2 and 3 were born. Ex.A6 is the settlement deed dated 3.1.1972 and even according to her she married Mohammed Haneefa only after 3.1.1972 and even prior to the marriage the two children were born to her through Mohammed Haneefa. Ex. X1 is the statement given by her on 26.2.2003 wherein she has specifically stated that no marriage took place between her and Mohammed Haneefa and though he promised to marry her on 2.12.1977, he did not come to the Mosque to marry her. In Exs.B4 and B5 she admitted herself to be the concubine of Mohammed Haneefa. In Exs. A6 and A10 she was described as “mgpkhdkidtp”. In Exs.B4 and B5 she admitted herself to be the concubine of Mohammed Haneefa. In Exs. A6 and A10 she was described as “mgpkhdkidtp”. Bearing these things in mind we will have to see whether the 1st respondent can be said to be the wife of Mohammed Haneefa and whether the respondents 2 and 3 are the legitimate children of Mohammed Haneefa. 11. In the Judgment reported in 2001 (3) Law Weekly, 747 (A. Abdul Rahim Vs. I.Julaiga Beevi and another), the Hon'ble Mr.Justice P.Sathsivam as he then was, quoted the passage from Mohammedan Law by Mulla as follows: “Section 252, Essentials of a marriage, - It is essential to the validity of a marriage that there should be a proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal by or on behalf of the other, in the presence and hearing of two male or one male and two female witnesses, who must be sane and adult Mahomedans. The proposal and acceptance must both be expressed at one meeting; a proposal made at one meeting and an acceptance made at another meeting do not constitute a valid marriage. Neither writing nor any religious ceremony is essential.” It is clear that the legal essentials of the valid Mahomedan marriage are that there should be a proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal by or on behalf of the other, in the presence and hearing of two male or one male and two female witnesses, who must be sane and adult Mahomedans. The proposal and acceptance must both be expressed at one meeting. Marriages under Mohomedan Law are of 3 kinds. First there are valid marriages, second there are marriages which are void and thirdly there are marriages which are fasid, a word which has been translated as vitiated. Like most other systems, the Mohomedan Law discountenances a marriage between a Mohomedan male and a woman professing other religion. A Muslim cannot marry an idolatress or a fire-worshipper. A Hindu Woman comes within the category of idolatress fire-worshipper. 12. As per Section 257 and 259 of Mohammedan Law by Mulla, a marriage between a Mohammedan with an idolatress or a fire-worshipper is not void but merely irregular. A Muslim cannot marry an idolatress or a fire-worshipper. A Hindu Woman comes within the category of idolatress fire-worshipper. 12. As per Section 257 and 259 of Mohammedan Law by Mulla, a marriage between a Mohammedan with an idolatress or a fire-worshipper is not void but merely irregular. Therefore, having regard to the fact that the 1st respondent was born as a Hindu, she was an idolatress or a fire-worshipper and therefore even assuming that she married Mohammed Haneefa as contended by her, her marriage is not a void marriage but it is a irregular marriage. 13.Section 264 of Mohammedan Law deals with distinction between void and irregular marriage is as follows: (1) A marriage which is not valid may be either void or irregular. (2) A void marriage is one which is unlawful in itself, the prohibition against the marriage being perpetual and absolute. Thus a marriage with a woman prohibited by reason of consanguinity (s. 260), affinity (s. 261), or foster-age (s. 262), is void, the prohibition against marriage with such a woman being perpetual and absolute. (3) An irregular marriage is one which is not unlawful in itself, but unlawful “for something else”, as where the prohibition is temporary or relative, or when the irregularity arises from an accidental circumstance, such as the absence of witnesses. Thus the following marriages are irregular, namely-- (a) a marriage contracted without witnesses (s. 254); (b) a marriage with a fifth wife by a person having four wives (s. 255); (c) a marriage with a woman undergoing iddat(s. 257); (d) a marriage prohibited by reason of difference of religion (s. 259); (e) a marriage with a woman so related to the wife that if one of them had been a male, they could not have lawfully intermarried (s. 263). The reason why the aforesaid marriages are irregular, and not void, is that in cl. (a) the irregularity arises from an accidental circumstance; in cl. (b) the objection may be removed by the man divorcing one of his four wives; in cl.(c) the impediment ceases on the expiration of the period of iddat; in cl. (d) the objection may be removed by the wife becoming a convert to the Mussalman, Christian or Jewish religion, or the husband adopting the Moslem faith; and in cl. (b) the objection may be removed by the man divorcing one of his four wives; in cl.(c) the impediment ceases on the expiration of the period of iddat; in cl. (d) the objection may be removed by the wife becoming a convert to the Mussalman, Christian or Jewish religion, or the husband adopting the Moslem faith; and in cl. (e) the objection may be removed by the man divorcing the wife who constitutes the obstacle; thus if a man who has already married one sister marries another, he may divorce the first, and make the second lawful to himself.” 14. Section 264 of Mohammedan Law deals with effects of an irregular (fasid) marriage.-- “(1) An irregular marriage may be terminated by either party, either before or after consummation, by words showing an intention to separate, as where either party says to the other “I have relinquished you”. An irregular marriage has no legal effect before consummation. (2) If consummation has taken place --- (i) the wife is entitled to dower, proper or specified, whichever is less (ss. 286, 289); (ii) she is bound to observe the iddat, but the duration of the iddat both on divorce and death is three courses {see s. 257(2) }; (iii) the issue of the marriage is legitimate. But an irregular marriage, though consummated, does not create mutual rights of inheritance between husband and wife {Baillie, 694, 701}. The Chief Court of Oudh has held that it does create such rights, but the decision, it is submitted, is not correct.” 15. Therefore, as per the contention of the learned counsel for the respondents, the marriage between Mohammed Haneefa and the 1st respondent was only an irregular marriage and therefore any children born to them are legitimate children and therefore they are entitled to their share in the properties. 16. Further, under Section 268 of Mohammedan Law by Mulla, marriage can be presumed under the following circumstances: “Presumption of marriage.--- Marriage will be presumed, in the absence of direct proof, from -- (a) prolonged and continual cohabitation as husband and wife; or (b) the fact of the acknowledgment by the man of the paternity of the child born to the woman, provided all the conditions of a valid acknowledgment mentioned in sec. 344 below are fulfilled; or, (c) the fact of the acknowledgment by the man of the woman as his wife. 344 below are fulfilled; or, (c) the fact of the acknowledgment by the man of the woman as his wife. The presumption does not apply if the conduct of the parties was inconsistent with the relation of husband and wife, nor does it apply if the woman was admittedly a prostitute before she was brought to the man's house. The mere fact, however, that the woman did not live behind the purda, as the admitted wives of the man did, is not sufficient to rebut the presumption. “ 17. Therefore, it is contended that because of the long cohabitation it can be presumed that they lived as husband and wife. According to me, the contention of the learned counsel for the respondents cannot be accepted, having regard to the admission of PW1. In Ex. X1, she admitted that no marriage took place between her and Mohammed Haneefa and EX.X1 was given on 26.5.2003. In the maintenance case filed by her Exs. B4 and B5, she described herself as a Concubine of Mohammed Haneefa. She admitted in her evidence that her marriage took place after the settlement deed was executed and she was not able to give when the marriage took place after 1972. Therefore, having regard to the statement given by her, in the maintenance proceedings Exs.B4 and B5 and the statement given by her on 26.5.2003, it cannot be presumed that she was the wife of Mohammed Haneefa or a any form of marriage had taken place between her and Mohammed Haneefa. 18. The next question is whether by reason of acknowledgment of paternity by Mohammed Haneefa admitting the respondents 2 and 3 as his children can the marriage between Mohammed Haneefa and the 1st respondent be presumed as a valid marriage. 19. In the Judgment reported in AIR 1929 Privy Council 135 (Mohabbat Ali Khan Vs. Muhammad Ibrahim Khan and others), it was held that when a claimant admitted that a son was born to him, the marriage is proved and legitimacy is established unless the marriage is disproved. In the same Judgment it is held that an acknowledgment which involves the assertion that the father is married to the mother undoubtedly raises a presumption in favour of the marriage and of the legitimacy. In the same Judgment it is held that an acknowledgment which involves the assertion that the father is married to the mother undoubtedly raises a presumption in favour of the marriage and of the legitimacy. In this case, even though the respondents 2 and 3 were acknowledged as the children of Mohammed Haneefa as seen from Exs.A7 and A8, Mohammed Haneefa did not recognize or acknowledge the 1st respondent as his wife and on the other hand, he referred her as a Concubine in Exs.A6 and A10 and the 1st respondent also admitted in Exs.B4 and B5 that she was the concubine of Mohammed Haneefa. Therefore, the acknowledgment by the father Mohammed Haneefa will not give the status of legitimacy to the respondents 2 and 3 unless there is an evidence to the effect that Mohammed Haneefa and the 1st respondent lived together as husband and wife and they underwent any form of marriage. As stated supra, under Mohammedan Law a marriage between Mohammedan with a Hindu like the 1st respondent is only a irregular marriage and offspring’s of that marriage are legitimate. Nevertheless, to claim the status, it has to be proved that there was a marriage between Mohammed Haneefa and the 1st respondent, and when there was no marriage between the 1st respondent and Mohammed Haneefa and the respondents 2 and 3 were not born during the subsistence of marriage, even though the respondents 2 and 3 were acknowledged as children of Mohammed Haneefa, they will not get the status of legitimate children of Mohammed Haneefa. It has been made clear in the Judgment reported in 1981 (1) MLJ 402 (Mohammed Khan Sahib Vs. Ali Khan Sahib and another), and approved in the Judgment reported in 2008 (3) Law Weekly 401 (H.Anwar Basha Vs. The Registrar General (Incharge), Madras High Court & another). Further, the Privy Council in the Judgment reported in AIR (36) 1949 Privy Council 254 (Fatma Binti Hafidh Vs. The Administrator-General, Zanzibar Protectorate) also held that admission of paternity will not lead to the proof of marriage and only after the marriage is established the acknowledgment of paternity will be taken into consideration for giving status to the children. In the Judgment reported in 1989 (2) Law Weekly 197 (Mohan and another Vs. The Administrator-General, Zanzibar Protectorate) also held that admission of paternity will not lead to the proof of marriage and only after the marriage is established the acknowledgment of paternity will be taken into consideration for giving status to the children. In the Judgment reported in 1989 (2) Law Weekly 197 (Mohan and another Vs. Santha Bai Ammal and others), it has been held that the recitals in birth extract register and School Certificate are not sufficient to establish marriage, when the same is disputed. 20. Therefore, having regard to the law laid down by our High court and Privy Council and having regard to the admitted facts, it cannot be stated that the respondents 2 and 3 were born to the 1st respondent and Mohammed Haneefa, when they lived as husband and wife. When there was no marriage between them and having regard to the admission of PW1 that the marriage took place after 1972 and prior to that the respondents 2 and 3 were born, it can be held that the respondents 2 and 3 were not the legitimate children of Mohammed Haneefa and having regard to Ex. X1, Exs.B4 and B5, the orders passed in the maintenance case wherein the 1st respondent herself described as a Concubine of Mohammed Haneefa, the presumption of marriage due to long cohabitation cannot be drawn and I hold that the 1st respondent was not the wife of Mohammed Haneefa and there was no marriage much less irregular marriage between her and Mohammed Haneefa and therefore the respondents 2 and 3 were not the legitimate children of Mohammed Haneefa. The Judgment of the Hon'ble Supreme Court reported in 2008 (2) CTC 308 (Chand Patel Vs. Bismillah Begum and another) only deals with the difference between void and irregular marriage and even though offspring’s of irregular marriage are legitimate, having regard to the finding that there was no form of marriage either valid or irregular between the 1st respondent and Mohammed Haneefa, the respondents 2 and 3 are not entitled to the relief of any partition. Bismillah Begum and another) only deals with the difference between void and irregular marriage and even though offspring’s of irregular marriage are legitimate, having regard to the finding that there was no form of marriage either valid or irregular between the 1st respondent and Mohammed Haneefa, the respondents 2 and 3 are not entitled to the relief of any partition. Hence, the substantial question of law No.1 is answered in favour of the appellants and I hold that there was no proof of marriage much less irregular marriage between the 1st respondent and Mohammed Haneefa and the respondents 2 and 3 are not the legitimate children of Mohammed Haneefa and therefore they are not entitled to any share in the properties. Having regard to the answer given to the substantial question No.1, there is no need to consider the substantial questions of law Nos. 2 and 3. 21. In the result, the Judgment and Decree of the lower appellate Court are set aside and the Judgment and Decree of the trial Court are restored and the Second Appeal is allowed. No costs. Consequently, the connected Miscellaneous Petitions are closed.