Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Regular First Appeal No. 111 of 1.956, decided on 19th May 1967.
Presumption‑Long con tinual co‑habitation of woman with man coupled with man's acknowledgment of marriage‑Does not give rise to presumption of marriage, in absence of proof of Nikah ceremony, if conduct of parties inconsistent with such relationship or if woman was formerly a prostitute.
Mst. Jariut‑oll‑Batool v. Mst. Hoseinee Begum 11 M I A 194 ; Ghazanfar Ali Khan v. Kaniz Fatima and another 6 1 C 674 and Irshad Ali and others v. Mst. Kariman and others A I R 1917 P C 169 ref.
Marriage‑Nature and constituents stated.
In Islam marriage is a legal notion (Amr‑i‑Sharayee). It is an act of piety (Abadat). The Holy Prophet (peace of Allah be on him) said : "Men marry women for their piety or their property or their beauty : but ye should marry for piety". (Tirmizi, Jami, 1.331). The Nikah (contract of marriage) is a Sunnat‑e‑muakkada'--a rule of conduct, laid down by the Holy Prophet, the observance with which is considered meritorious and a deviation from which is regarded as a sin. It is a contract 'uberima fides', requiring utmost good faith. It originates‑ a legal relation or consortium, a partnership in life, securing harmony, happiness, peace of mind, good fellowship and connubial relations between the couple. The marriage is solemnized by Nikah. According to Hedaya (translation by Charles Himalton, Groove Grady Edition, page 25): "In the language of the law, it implies a particular contract used fo. the purpose of legalising genera tion." Similarly according to Viqaya (Vol. II, page 1) "marriage is a contract which creates ownership of enjoyment". No rituals are necessary under the law to enter into the contract (akd) of marriage. The ceremony is simple and yet impressive. The contract is completed by a proposal and acceptance (Ejab wa Kabool) by the parties competent for the Nikah' in the presence of witnesses. "Nikah" (marriage), says the Kifaya "cannot be effected except by its pillars emanating from an Ahal (one who is competent to contract) and in reference to one who is Mahal (fitting subject) as in the case of legal contracts. The pillar (rookn) consists of proposal and acceptance. The Ahal (person competent to contract Marriage) is one who is Abal (competent) for all contracts. The Mahal is she who is a fit subject for the effect of it" (Kifaya, Vol. II, Cal. Edo., p. 1‑2). Similarly according to Inayah, another commentary on Hidaya: "the general (aam) condition of marriage is competency (ahliyat) in the matter of sanity and majority and a (mahal)or fitting subject and this Mahal is a woman to whose marriage there is no legal bar ; and the pillar (rookn) of marriage consists of proposal and acceptance as is the case in all contracts, and proposal is what is first pro nounced from whichever side it may emanate and the acceptance is the answer to the proposal" (Inziyah, Vol. II, Cal. Edn., p. 7).
In a valid (saheeh) marriage the husband is (ahal) possessed of the capacity and tae woman a fit subject (mahal) to contract the marriage in accordance with the shara. The pillar (rookn) on which it rests in the proposal and the acceptance by the two willing parties to it.
Marriage ‑ Holy Quran, Ch. IV, Verse 3, (Sura Nisa)‑Injunctions contained in verse‑Not restricted to times of emergency only‑Marriage of a Muslim with a fifth wife in presence of already existing four wives‑Invalid (firsid) though not inherently void (batil).
arriage‑Classes of women with whom marriage is prohibited.
There are in all 19 classes of women who are prohibited to a man and a marriage with them is unlawful. They are as under :‑
(i) Mothers ; (ii) Daughters ; (iii) Sisters ; (iv) Father's sister ; (v) Mother's sister ; (vi) Brother's daughter ; (vii) Sister's daughter ; (viii) Foster‑mother ; (ix) Foster‑sister ; (x) Mother- in‑law ; (xi) Wives' daughters (step‑daughters) ; (xii) Son's wives; (xiii) Father's wife (step‑mother) ; (xiv) Two sisters in conjunc tion ; (xv) married. woman ; (xvi) Idolatress (Mushrikat) ; (xvii) one's thrice divorced wife ; (xviii) a woman in Iddat (pro bation) ; (xix) more than four wives. In legal terminology they are generally called "Moharramat" (women forbidden in marriage). These prohibitions in the Nikah are of two kinds, perpetual and temporary. Broadly speaking the perpetual prohibition against the marriage arises on account of consanguinity (Nasab or Kara bat), for Average (reza) and affinity (Musaharat). In these cases the prohibition is absolute and eternal. But the temporary or relative prohibition arises from some impediment in the way of the marriage which is not permanent in its nature and the obstacle is liable to be removed. Fatawa‑e‑Kazi Khan (pages 167‑169), in the "Chapter on Munarramat" (women forbidden to be married), has dilated upon this broad division into the two classes of women ; mo‑abbada (permanently prohibited) and Ghair‑mo abbada (temporarily prohibited) women in marriages: In all there are the seven classes of women falling in this last category, "Ghair‑mo‑abbada" (temporarily prohibited women). The inter dict against the marriage with them is not perpetual. These temporary prohibitions are against (i) exceeding the number of wives allowed by law ; (ii) conjunction of two‑sisters ; (iii) con junction of a free woman and a slave girl ; (iv) marriage with an idolatress ; (v) marriage with another's wife ; (vi) marriage with another's Moattada (in the Iddat of another) ; (vii) conjunction of two such females as could not have inter‑married, if one of them was a male.
The Holy Quran ‑ Interpretation Rules of interpretation of statutes evolved by Western Jurists Could not be borrowed for interpretation of Quranic verses but such rules, however, may be of assistance to a sophisticated mind in understanding problem entirely its own.
Marriage‑Classes.
Fornication (zina)‑Definition and consequences.
Sexual intercourse by a man with a woman without any actual or supposed right in liar, either by marriage or bondage, amounts to fornication (zina); which is looked down as one of the greatest sin against society under the Muslim Law. Islam has shown no compassion towards those guilty of adultery and deterent punishment, technically called the "hadd" is prescribed for it.
Marital status‑Doctrine of Shubh (doubt or error)‑‑Kinds, applicability, and extent.
Marriage‑Legitimacy‑Succession- Children born of fifth wife in presence of jour other wives‑Legiti mate by consensus of opinion among learned‑‑Such fifth wife, how ever, not entitled to succeed to estate of deceased husband.
Sources ‑ Cannot be modified or annulled by Constitution (1962).
Among the Sunnis, the fountain‑head and the source of all laws is the Holy Quran. It contains the fundamental prescriptions to regulate the various relations of life. But it is silent on many points and is supplemented by, the precepts delivered by the Prophet from time to time, the Sunnah. These are the funda mental basis of jurisprudence. The other sources of Islamic Law in order of precedence, recognized by the Sunni Sect, are the Ijma's‑ul‑Ummat (Concordance among the followers) and Kiyas (the exercise of private judgment based on analogy). All these go to constitute the basis upon which Sunni Jurisprudence is founded. Therefore, even after the promulgation of the present Constitution, these sources of the Muslim Law in their application to the Sunni Sect are kept in tact and in no way been modified or annulled.
S. 11‑Matter directly and substantially in issue in previous suit‑Res judicata.
Sh. Bashir Ahmad for Appellants.
Maulvi Sirajud‑Din Ahmad, Raja Said Akbar Khan and Sh. Abdur Rashid for Respondents Nos. 1, 2, 3 and 5 to 9.
Asif Jan for Respondent No. 4.
Dates of hearing : 18th and 19th March 1964, 31st January, 2nd and 3rd February 1966.
This judgment shall dispose of the two cross appeals, R. F. A. No. 111 of 1956 and R. F. A. No: 114 of 1956, directed against the decree passed by the Senior Civil Judge, Lyallpur, on 28th May 1956, in the suit brought by Iftikhar Nazir Ahmad and others against Ghulam Kibria and others, concerning the dispute about the estate left by Raja Ghulam Rasul.
2. Raja Ghulam Rasul Advocate, Lyallpur, died on 9th May 1949. His estate is comprised of the land in suit measuring 1127 kanals 11 marlas situated in Chak No. 224/R. B., District Lyallpur. Soon after his death, differences arose between the different claimants to the estate. This led to the suit brought by the plaintiffs for a declaration that they along with defendants 3 to 7 were the only legal heirs entitled to succeed to land to the exclusion of the remaining defendants Nos. 1, 2, 8 and 9. Accord ing to the plaintiffs, Raja Ghulam Rasul had, in his life‑time, in all contracted five marriages. His first wife is Mst. Raj Begum, defendant No. 5 Ghulam Ahmad defendant No. 4 and Mst. Zubeda Begum defendant No. 6 are his children born of her. He contracted the second marriage with Mst. Razia Begum, plaintiff No. 4 and the deceased had no issue from her. He then married Mst. Sardar Begum plaintiff No. 5 who gave birth to a daughter, Mst. Salma defendant No. 7 from him. His fourth wife is Mst. Aisha Begum plaintiff No. 3 who gave birth to three sons, namely, Iftikhar Nazir Ahmad, Gulzar Shabir Ahmad, plaintiffs Nos. 1 and, 2 and Zulfiqar Bashir Ahmad defendant No. 3 and a daughter Mst. Sitara Jabin plaintiff No. 6, from him. It is the case of the plaintiffs that Ghulam Rasul had illegally contracted his fifth marriage with Mst. Khurshid Begum defendant No. 8, but there are no off springs of the deceased from her. The plaintiffs have denied that the deceased had during his life time also married Mst. Rata Begum (deceased) and Mst. Mehr‑un‑Nisa defendant No. 9, who gave birth to Ghulam Kibria defendant No. 1 and Ahmad Mukhtar defendant No. 2 respectively from him. According to the plaintiffs under the Shariat Law, at any rate, Raja Ghulam Rasul was not at all competent to contract the two marriages in the presence of his four wives mentioned above. As such defendants Nos. 1, 2, 8 and 9 are not entitled to succeed to the estate in question as his heirs.
3. Defendants Nos. 1, 2 and 9 contested the suit of the plaintiffs, but defendant No. 8 admitted their claim.
According to Ghulam Kibria, defendant No. 1, he is the son of Ghulam Rasul, deceased, born of his lawful wedlock with Mst. Rafia Begum, who was afterwards divorced by him. There after, she died in the lifetime of Ghulam Rasul. Defendant No. 1 has admitted that Ahmad Mukhtar defendant No. 2 is also the son of the deceased born to him from Mst. Mehr‑un‑Nisa defendant No. 9, a legitimate wife. He has denied that Mst. Aisha Begum plaintiff No. 3 was the lawfully wedded wife of the deceased. According to him, she was already married to some one before she developed her relations with the deceased and as such she could not have contracted any valid marriage with him during the subsistence of her first marriage. It is, therefore, alleged that she along with her children, plaintiffs Nos. 1 to 3, 6 and defendant No. 3 are not entitled to inherit the deceased as his lawful heirs. Defendant No. 1 has further alleged that Mst. Razia Begum plaintiff No. 4 was divorced by Raja Ghulam Rasul before he contracted the marriage with his mother Mst. Rafia Begum (deceased). At that time the deceased had only two wives, namely, Mst. Sardar Begum plaintiff No. 5 and Mst. Raj Begum defendant No. 5. Defendant No. 1 has also denied that the deceased was ever married to Mst. Khurshid Begum defendant No. 3.
4. Defendants 2 and 9 filed separate written statements, According to them, Mst. Mehr‑un‑Nisa defendant No. 9 was lawfully married to the deceased and Ahmad Mukhtar defendant No. 2 was born out of this wedlock. Bout of them are, there fore, entitled to succeed to the estate left by the deceased. They have' admitted that the deceased was lawfully married to Mst. Raj Begum defendant No. 5, Mst. 5ardar Begum plaintiff No. 5, Mst. Aisha Begum plaintiff No. 3 and Mst. Rafia Begum mother of defendant No. 3. Afterwards he divorced Mst. Rafia Begum and in her place he married defendant No. 3. The defendants have denied that the deceased was ever married to Mst. Razia plaintiff No. 4 or Khurshid Begum defendant No. 8.
5. It is admitted on all hands and there is no dispute about it that Mst. Sardar Begum plaintiff 5 and Mst. Raj Begum defendant No. 5 were lawfully wedded to the deceased and that they along with their offsprings, defendants 4, 6 and 7 are entitled to their share in the inheritance. From the pleadings of the parties the trial Court framed the following issues :‑
(i) Did Raja Ghulam Rasul divorce Mst. Razia Begum plaintiff No. 4 before contracting marriage with Mst. Rafia Begum, the mother of defendant No. 1
(2) Was Mst. Aisha Begum plaintiff No. 3 lawfully married to Raja Ghulam Rasul
(3) Is Mst. Khurshid Begum defendant No. 8 a wedded wife of the deceased Raja Ghulam Rasul
(4) Did Raja Ghulam Rasul lawfully marry Mst. Mehr‑un- Nisa, defendant No. 9 and is Ahmad Mukhtar a legitimate son of the deceased
(5) Are the plaintiffs and defendants other than defendants 2 and 9 estopped by the rule of res judicata from denying Mst. Mehr‑un‑Nisa to be the widow and Ahmad Mukhtar to be the legitimate son of Raja Ghulam Rasul
(6) Is Mst. Razia a wedded wife of the deceased
(7) If issue No. 2 is found in the affirmative, are not plaintiffs 1, 2 and 6 and defendant No. 3 entitled to inherit the estate of Raja Ghulam Rasul as his legitimate issues
(8) Was Mst. Rafia Begum, mother of defendant No. 1 lawfully married to Raja Ghulam Rasul
(9) If so, is not defendant No. 1 entitled to inherit the estate
(10) Did Raja Ghulam Rasul acknowledge defendant No. 1 as his legitimate son and with what effect
(11) Relief.
6. The trial Court has held that in his life time Raja Ghulam Rasul had married all the seven ladies named above. He married Mst. Rafia Begum (deceased), Mst. Khurshid Begum defendant No. 8, and Mst. Mehr‑un‑Nisa defendant No. 9 in the presence of his previous four wives. A Muslim cannot have more than four wives and, therefore, these marriages contracted by Raja Ghulam Rasool were irregular under the Muslim Law. As such they were not entitled to succeed to him as his lawful wives. But that did not preclude, defendants Nos. 1 and 2, his sons from them, to share in the inheritance. In the result the Court below passed the decree distributing the estate of the deceased between the plaintiffs Nos. 1 to 6 and defendants Nos. 1 to 7, to the exclusion of defendants Nos. 8 and 9, in accordance with the Muslim Shariat Law.
7. This has led to the two first appeals in this Court; R. F. A. No. 111 of 1956 by the plaintiffs challenging the decree passed in favour of defendants 1 and 2 and R. F. A. No. 114 of 1966 by Mst. Mehr‑un‑Nisa Begum defendant No. 9 asking for her share in the inheritance as the legitimate wife of the deceased. She has attacked the findings by the trial Court that Mst. Razia Begum plaintiff No. 4 and Mst. Khurshid Begum defendant No. 8 were proved to be the wedded wives of the deceased.
8. It would be convenient to deal with the disputed cases of the different wives of the deceased separately:--
Razia Begum plaintiff No. 4.‑As regards Mst. Razia Begum, admittedly she has no issues from the deceased. According to defendant No. 1 she bad contracted a valid marriage with Raja Ghulam Rasul, but was later on divorced by him. Defen dants Nos. 2 and 9 on the other hand have denied that she was at all married to the deceased.
On behalf of the plaintiffs, a number of witnesses have been examined to prove that Mst. Razia Begum was related to the deceased, she was lawfully married to him and he never divorced her in his life time. P. W. 1 Raja Mohammad Akram is the brother of Mst. Razia Begum. He is also the father's brother's son of Raja Ghulam Rasul. According to him Mst. Razia Begum was the second wife of the deceased and was never divorced by him. P. W. 2 Mr. Muhammad Sharif Randhawa, Advocate, Lyallpur, knew the deceased from the year 1932. He has deposed that the sister of Muhammad Akram was one of the four wives of the deceased. The next witness is P. W. 3, Lt. Col. M. M. Siddiq Raja, father's brother's son of the deceased and according to him the deceased had four wives including Razia Begum, who was never divorced by him. The witness had stayed with Ghulam Rasul from 1921 to 1933 in Lyallpur and received his education under him. P. W. 5 Subedar Ghulam Husain is the brother of Mst. Sardar Begum, the other widow of the deceased. He was also the father's sister's son of the deceased. According to him, at the time Raja Ghulam Rasul was married to his sister about 32 years back, he had already two wives, Mst. Raj Begum and Mst. Razia and the deceased had four wives including Razia living with him till his death. Nek Muhammad (P. W. 6) had been working as a servant of Raja Ghulam Rasul from 1914 till his death, and he deposed that his master had married his second wife Mst. Razia a few years after he shifted to Lyallpur. P. W. 7 Abdul Ghani Shah deposed that Mst. Razia Begum was the wife of the deceased and was living with him till his death. P. W. 11 Ali Muhammad is a resident of Dhok Bari Sher, Tehsil Chakwal, District Jhelum, to which place Mst. Razia Begum, originally belonged and according to this witness, she was married to Ghulam Rasul in the village in his presence. P. W. 14 Ch. Ghulam Muhammad Advocate, Lyallpur started practice as a Pleader in August 1925 in Lyallpur, where Raja Ghulam Rasul was also practising as a lawyer. He worked jointly with Raja Ghulam Rasul for about 12 to 14 years and used to visit his house. He knew Mst. Razia Begum as one of the four wives who were living with the deceased. Mst. Khurshid Begum defendant No. 8, Mst. Sardar Begum plaintiff No. 5 and Mst. Aisha Begum plaintiff No. 3 have appeared as P. W. 15, P. W. 16 and P. W. 17 to support the case of Mst. Razia Begum D. W. 9 Hukam Din a witness for defendant No. 1 has admitted that Mst. Razia was the wife of the deceased, but according to him the deceased had divorced her in his life‑time. The marriage of Mst. Razia Begum is also admitted by defendant No. 1. There is no rebuttal by defendant No. 2 who has denied the marriage. There is no reason to disbelive the version of the plaintiffs' witnesses in this respect. True that Mst. Razia Begum plaintiff No. 4 has not appeared as her own witness but from this overwhelmingly strong evidence her marriage with the deceased is amply proved. In order of seniority she was his second wife. They have been living together as husband and wife and defendant No. 1 has failed to prove that she was at any time divorced by him.
We have, therefore, no hesitation in upholding the findings by the learned Court below on issues 1 and 6.
9. Mst. Aisha Begum plaintiff No. 3.‑Defendants 2 and 9 do not dispute the marriage of Mst. Aisha Begum with Raja Ghulam Rasul. Defendant No. 1 alone has challenged her alleged marriage with the deceased on the ground that she was already married to someone else and could not have been married again to the deceased in the presence of her first husband. The marriage of Mst. Aisha Begum with Ghulam Rasul as his fourth wife stands proved from the unrebutted testimony of P. W. I Raja Muhammad Akram, a relative of the deceased, P. W. 2 Muhammad Skarif Randhawa, Advocate, practising at Lyallpur, P. W. 3 Lt. Col. M. M. Siddiq Raja, a close relative of the deceased ; P. W. 5 Subedar Ghulam Hussain, P. W. 6, Nek Mohammad, a servant of the deceased who was serving him from the year 1914. P. W. 7 is a witness to the Nikah ceremony of the deceased and Mst. Aisha Begum, which was performed by one Ghulam Rasul, Imam of the village mosque in Chak No. 224‑R. B. to which Raja Sahib belonged. R. W. 14 Ch. Ghulam Muhammad, Advocate, Lyallpur has deposed that Mst. Aisha Begum was one of the four wives of the deceased, who was living with him till his death. Similarly P. W. 15 Mst. Khurshid Begum defendant No. 8, P. W. 16 Mst. Sardar Begum plaintiff No. 5 have supported her. Mst. Aisha Begum has appeared (P. W. 7) as her own witness. According to Mst. Sardar Begum, Aisha was married to Raja Ghulam Rasul in her presence in the Chak. D. W. 18 Allah Rakha, a domestic servant of Raja Ghulam Rasul has deposed that he used to see the four wives of Ghulam Rasul, namely, Raj Bibi, Aisha Bibi. Sardar Bibi and Mst. Mehr‑un‑Bibi. D. W. 19 Mst. Malook Bibi the mother of Mst. Mehr‑un‑Nisa defendant No. 9, admitted in her cross‑examination that she used to hear that Raja Ghulam Rasul had another wife named Mat. Aisha Begum. D. W.22, Gul Muhammad is another domestic servant of Raja Ghulam Rasul. He deposed that during his days Mst. Aisha Begum used to live with the deceased as one of his wives.
In addition to this, there is considerable documentary evidence in support of the marriage. Exh. P. 6, Exh. P. 5 and Exh. P. 4 are the certified copies of the birth entries from the Municipality concerning Zulfiqar Bashir Ahmad defendant No. 3, Iftikhar Nazir Ahmad plaintiff' No. 1; and Gulzar Shabbir Ahmad plaintiff No. 2 born to the deceased from Mst. Aisha Begum. Exh. P. 1 is the letter written by Ghulam Rasul on 3‑5‑1938 to the Headmistress Government School, Lyallpur asking for a discharge certificate for his daughter. Mst. Sitara Khatoon Begum (plaintiff No. 6). Exh. P. 2 is a declaration signed by Ghulam Rasul, father of Mst. Sitara Jabeen Akhtar, student of 7th class on 17th April 1935 in connection with the admission of her daughter. The signatures of Ghulam Rasul on Exh. P. 1 and Exh. P. 2 were proved by P. W. 10 Ch. Manzoor Ahmad, Secretary, Municipal Committee, Lyallpur; who has been working under Raja Ghulam Rasul, as the Executive Officer of the Committee for about 31 years from 1944 to 1948. Exh. P. W. 17/1 is the certificate issued by the Punjab Central Midwives Board on 2nd May 1927, showing that Mst. Aisha Begum wife of Ghulam Rasul of Lyallpur had passed the examination for Nurse (Dal) held at Ludhiana. P. W. 4/10 is the copy of the entries from the Capital Register of the Lyallpur Central Co‑operative Bank Limited, Lyallpur. It shows that the deceased had appointed Mst. Aisha Begum as his nominee. According to the statement of P. W. 4 Maqbool Hussain Qureshi, Accountant, Central Co‑operative Bank, Lyallpur, Ghulam Rasul was a share‑holder of the Bank and had appointed Mst. Aisha Begum, his wife, as his nominee for the shares held by him. Exh. P. 9 is a copy of the declaration form relating to the Provident Fund subscribed by Ghulam Rasul. Thereby the deceased appointed his sons, including Bashir Ahmad Khan defendant No. 3 and Nazir Ahmad Khan plaintiff No. 1 as his nominees.
The evidence discussed above proves beyond any doubt that Mst. Aisha Begum was lawfully wedded to the deceased. She was living with him as his wife till his death and plaintiffs 1, 2, 6 and defendant No. 3 were born to her out of this wedlock. The plea raised by defendant No. 1 to the effect that Mst. Aisha Begum was already married to someone else before she developed contacts with Raja Ghulam Rasul has no force. In the course of the cross‑examination of P. W. 16 Mst. Sardar Begum it was suggested to her by defendant No. 1 that Mst. Aisha was married to one Jalal Din, a Postman and bad eloped from his house before she was married to Raja Ghulam Rasul. Mst. Aisha Begum in her cross‑examination, when she appeared as P. W. 7, denied a similar suggestion put to her in her cross‑examination. P. W. 1 Raja Muhammad Akram, when cross‑examined stated that he did not know if Mst. Aisha Begum plaintiff was first married to Jamal Din a Postman. On 14th July 1956, Ghulam Kibria defendant No. 1 applied to the trial Court for permission to examine one Sardar Khan son of Amir Ali, allegedly the previous husband of Mst. Aisha Begum brought to Court. His name was not included in the list of witnesses. The counsel for the plaintiffs asked for an adjournment as he was not in a position to cross‑examine the witness without further instructions from his clients. The Court, therefore, adjourned the case to 16th January 1951, for the evidence of Sardar Khan, who failed to appear in Court at any time afterwards. This application, however, gives a lie to the original suggestions by defendant No. 1 that Mst. Aisha was already married to Jalal Din or Jamal Din Postman. There is no evidence on the record to establish that she was already a married woman when she contracted her marriage with Raja Ghulam Rasul.
As regards the antecedents of Mst. Aisha Begum, from the evidence of P. W. 1 Raja Muhammad Akram it appears that she and her father had engaged Raja Ghulam Rasul in a certain case in which they were concerned and thereafter they began to live with him. The father of Mst. Aisha was employed by Raja Ghulam Rasul as his Mali and after 4 or 5 years the Nikah ceremony of Raja Ghulam Rasul with Mst. Aisha Begum was performed. She had worked in the house of Raja Ghulam Rasul as a maid servant for 4 or 5 years. But no adverse inferences can be drawn against her from these facts. It is sufficiently proved by direct evidence that her nikah was duly performed with Ghulam Rasul at his Chak No. 224‑R. B. and that they had lived together as husband and wife. Therefore, agreeing with the trial Court, we find that Mst. Aisha Begum was lawfully married to Raja Ghutam Rasul as his fourth wife and plaintiffs Nos. 1, 2 and 6 and defendant No. 3 are his legitimate issues from that union. We have no reason to differ with these findings by the Court below on issues Nos. 2 and 7‑--
10. Mst. Khurshid Begums defendant No. 8.‑In this connec tion the case of the plaintiffs is that Raja Ghulam Rasul deceased had married Khurshid Begum as his fifth wife. But the contes ting defendants 1, 2 and 9 have altogether denied the alleged marriage between them.
For the plaintiffs, P. W. 2 Mr. Muhammad Sharif Randhawa, Advocate, has deposed that a woman named Mst. Khurshid Begum used to live with Raja Ghulam Rasul till his death and that she was one of his four wives. Similarly P. W. 3 Lt. Col. Siddiq Raja has stated that Ghulam Rasul brought Mst. Khurshid Begum to his house in' the year 1928‑29 on which protests were raised but she stayed on. In his cross‑examination he admitted that he did not know her antecedents. According to P. W. 5 Subedar Ghulam Hussain, the Nikah ceremony of Raja Ghulam Rasul with her took place about 26 years back and she continued to live with him till his death. The witness admitted in his cross‑examination that the Nikah ceremony of Khurshid Begum with Raja Ghulam Rasul did not take place in his presence and that he did not know if she was a prostitute. P. W. 6 Nek Muhammad was working as a servant of Raja Ghulam Rasul from 1914 till his death. According to him, Raja Ghulam Rasul married Mst. Khurshid Begum as his fifth wife about 24 years ago. The witness had to admit in his cross‑examination that the marriage did not take place in his presence. He did not know if she was a prostitute. P. W. 7 Abdul Ghani Shah is the Imam of the mosque in Chak No. 224‑R. B. He deposed that after atout 4 or 5 years of the marriage of Raja Ghulam Rasul with Mst. Aisha Bibi, he contracted the fifth marriage with Mst. Khurshid Begum. But the witness had to admit in his cross‑examination that the marriage did not take place in his presence. He did not know if she was a prostitute. P. W. 14 Ghulam Mohammad, Advocate, was a colleague of Raja Ghulam Rasul with whom he was on visiting terms. According to this witness Mst. Khurshid Begum was living with the deceased as his fifth 'married wife. He was married to her in or about the year 1930. P. W. 15 Mst. Khurshid Begum has deposed that she was married to Ghulam Rasul about 28/29 years back and had been living with him ever since. She has denied the sugges tion that she was a prostitute. According to her there was no writing about her Nikah with Raja Ghulam Rasul. She did not remember the name of the Nikah Khawan who performed her marriage. According to her Risaldar Mohammad Hayat and Bakhtawar Shah were the witnesses of her marriage with the deceased. She did not produce them as her witnesses in the case. She belonged to village Miani Athana in Hoshiarpur District and came to Lyallpur and married Raja Sahib a year afterwards. No issue was born to her from Raja Ghulam Rasul P. W. 16 Mst. Sardar Begum and P. W. 17 Mst. Aisha Begum have both deposed in their examination‑in‑chief that Raja Ghulam Rasul had married Mst. Khurshid Begum as his fifth wife. But in their cross‑examination they have admitted that the Nikah ceremony did not take place in their presence. Mst. Khurshid Begum has produced D. W. 21 Syed Maqbool Ahmad, D. W. 22 Gul Muhammad and D. W. 23 Zulfiqar Bashir Ahmad defendant as her. witnesses. D. W. 21 Syed Maqbool Ahmad worked as a tutor for the children of Raja Ghulam Rasul from 1938 to 1946. He also acted as the tutor for defendant No. 8 as well for about 1 months during the year 1944 when Raja Ghulam Rasul had told him that she was his wife and that he should give her lesson at his place. He saw Mst. Khurshid Begum at his house when he began to teach her. In his cross‑examination the witness admitted that to his knowledge Mst. Khurshid Begum was a prostitute in Lyallpur. As regards D. W. 22 Gul Mohammad he was a domestic servant of Raja Ghulam Rasul some 14 years back and he used to see Khurshid Begum living with Raja Sahib as his wife. .He did not know if Mst. Khurshid Begum was a prostitute to begin with. When the witness came to the house of Raja Ghulam Rasul about 15 years ago, Mst. Khurshid Begum was already there. According to Zulfiqar Bashir Ahmad defendant No. 5, from his childhood he has seen Mst. Khurshid Begum living with Raja Ghulam Rasul as his wife till his death. The witness knew nothing about her antecedents. To support her the plaintiffs have also produced, P. W. 20 Risaldar Mohammad Hayat of Chak No. 111‑G. D. He was posted in Lyallpur as an Inspector, Additional Police in the year 1922. He was a friend of the deceased. According to the witness, Mst. Khurshid Begum was married to Raja Ghulam Rasul and the ceremony was performed in the Jamya Masjid, Lyallpur. He is unable to tell the name of the Nikah Khawan: According to him, Syed Bakhat Bedar Shah and Sardar Mohammad Akbar were the other witnesses of the nikah but they have not been examined in the case. P. W. 15 Mst. Khurshid Begum does not name Sardar Muhammad Akbar as the witness of her alleged Nikah. P. W. 20 does not know if she was a prostitute. The witness professed that his eye sight was weak, so that he was not in a position to recognize the wives of Ghulam Rasul from the photograph shown to him. He even did not know the age of Mst. Khurshid Begum at the time she was married to Raja Ghulam Rasul. There appears to be hardly any reason for this marriage to be performed in the Jamya Masjid and not at the houses of the spouse.
The nikah of Mst. Kburshid Begum with Raja Ghulam Rasul does not stand proved from this evidence. The testimony of P. W. 20 Risaldar Muhammad Hayat, on the point, is too weak to be accepted, and it does not contain any ring of truth in it Obviously the witness has appeared with partisan spirit. He was wrong in impliedly denying the marriages of Mst. Rafia Begum and respondent No. 9 with the deceased. The evidence of the other witnesses discussed above, merely, go to show that Mst Khurshid Begum had been living with Raja Ghulam Rasul for more than 14 years. According to Mst. Khurshid Begum, Raja Ghulam Rasul got her admitted as an apprentice Nurse for the course of midwifery at Ludhiana Mission Hospital and she passed the examination for which D. W. 16/1 is the certificate. The statement by D. W. 21, Syed Maqbool Ahmad shows that Raja Ghulam Rasul had acknowledged Mst. Khurshid Begum to be his wife and he taught lessons to her for about 1 month in the year 1945. At the same time the witness made a significant admission that Mst. Khurshid Be‑um used to be a prostitute in Lyallpur. In her case, no presumption of her marriage with Ghulam Rasul can be raised from these circumstances. Even her long continual cohabitation with Raja Ghulam Rasul coupled with his acknowledgment about the marriage, in the absence of any proof of the Nikah ceremony of the deceased, is not sufficient to raise any presumption of marriage in her favour. She did not produce the witnesses of her alleged Nikah with the deceased.
According to para. 268 of Mulla's Muhammadan Law, pre sumption in favour of the marriage may arise, in the absence of direct proof of the Nikah, from prolonged and continued cohabitation as husband and wife or the fact of the acknowledgment by the man of the woman as his wife. This presumption, however, does not arise if the conduct of the parties was inconsistent with the relationship of husband and wife or if the woman was admittedly a prostitute before she was brought to be man's house. In Mst. Jariut‑oll‑Batool v. Mst. Hoseinee Begum (11MIA194) the facts found were that a Mahomedan cohabited for many years with a Mohamedan woman who had been a prostitute and who lived in his house. At his death she claimed to be his wife, and called witnesses to prove an actual marriage, but which fact she failed to establish. On these findings the Privy Council held that "the Court of last resort could not presume, in such circumstances, that a woman, once a concubine, had, merely by lapse of time and propriety of conduct, become a wife, and that the ordinary legal presumption was that there had been no marriage." Similarly in Ghazanfar Ali Khan v. Kaniz Fatima and another (6 I C 674), the Privy Council has held that "prolonged cohabitation may give rise to a presumption of marriage, but that presumption is not necessarily a strong one and does not apply where the mother, before she was brought to the father's house, was a prostitute". But in Irshad Ali and others v. Mst. Kariman and others (AIR 1917 P C 169), the Court further remarked that : "It is not safe to draw the inference, from the evidence as to the girl's original occupation of prostitute, of the humble and even ignoble character of her origin and surroundings that marriage with a person in a good position and prospects was improbable, especially when the husband was undoubtedly under the spell of infatuation for her. It is impossible to measure by standards of probabilities what might have been done in those circumstances of a man to secure for himself permanently and as of right the society of the woman he so greatly desired". This last mentioned case is distinguish‑able. The woman was a prostitute, but there was a writing evidencing the marriage which was found to have been proved Even otherwise the presumption of a valid marriage may not be possible in favour of the fifth wife.
For the reasons discussed above I cannot uphold the finding by the trial Court, on issue No. 3, to the effect that Mst. Khurshid Begum defendant No. 8 was proved to be the legally wedded wife of Raja Ghulam Rasul. In my opinion she has failed to discharge the onus resting on her to establish that she was the lawfully wedded wife of the deceased. It is noteworthy that the trial Court excluded her from the inheritance on the ground that she was the fifth wife of the deceased and her marriage with him was irregular. She did not file any appeal against this decision. Throughout, her only role has been to lend support to the suit of the plaintiffs.
11. Mst. Raffia Begum deceased.‑--D. W. 8 Nawab Khan, resident of Chak No. 61, Mohranwala, is the brother of Mst. Rafia Begum deceased. He deposed that about 25 years back, his sister was married to Raja Ghulam Rasul and Ghulam Kibria defendant No. 1 was born to her a year after their marriage. She lived with Raja Ghulam Rasul as his wife for two years and afterwards he divorced her. D. W. 4 Nazir Ali Khan is the Lambardar of Chak No. 61, Mohranwala. He was the Vakil of the Nikah and Mian Hayat Mohammad deceased was the Nikah Khawan. Another witness of the Nikah ceremony is D. W. 7 Umar Din. Both these witnesses have deposed as to the marriage of Ghulam Rasul with Mst. Rafia Begum about 25 years ago. She lived with him as his wife for about 21 years and thereafter he divorced her. Ghulam Kibria defendant No. 1 was born to them from the wedlock. D. W. 1 Mohammad Iqbal, D. W. 3 Nur Mohammad, D. W. 6 Nawab Din and D. W. 10 Raja Mohammad Nazir Khan are the other witnesses who have corroborated this evidence.
D. W. 5 Ch. Aziz Din Advocate, Lyallpur, has deposed that on 14th May 1942 at the instance of Raja Ghulam Rasul he made the application, Exh. D. 2 to the Guardian Court, Lyallpur, for his appointment as the guardian of his minor son Ghulam Kibria defendant Na. 1. But the application was dismissed by the learned Guardian Judge on 14th October 1943 (Exh. D. 5) as it was not competent under the law. Nonetheless, these two documents go a long way to establish that the deceased had acknowledged Mst. Rafia Begum as his wife and Ghulam Kibria defendant No. 1 as his son. Exh. D. 4 is a certified copy of the birth entry showing that Ghulam Kibria son of Raja Ghulam Rasul deceased was born on the 13th of April 1932 in Chak No. 61, Tehsil Jaranwala, District Lyallpur.
She lived with him for about three years as his wife. There after he divorced her and later on she had died. In rebuttal the evidence led by the plaintiffs is altogether inconclusive. P. W. 1 Raja Muhammad Abram is the brother of Razia Begum plaintiff. He does not know Ghulam Kibria defendant No. 1 and has further deposed that he bad never seen Rafia Begum. Similarly P. W. 2 Mr. Muhammad Sharif Randhawa Advocate, Lyallpur, does not know Rafia Begum being the wife of Ghulam Rasul. But the witness has admitted that Ghulam Rasul deceased used to acknowledge defendant No. 1 as his son. This admission goes a long way to negative the case set up by the plaintiffs. P. W. 6 Nek Muhammad was a servant of Raja Ghulam Rasul but according to him he had never seen Mst. Rafla Begum living with his master. P. W. 7 Abdul Ghani Shah deposed that Mst, Aisha; Mst. Razia; Mst. Sardar Begum and Mst. Khurshid Begum were living with Raja Ghulam Rasul as his wives but he did not know if Rafia Begum was also his wife. P. W. 15 Mst. Khurshid Begum defendant No. 8 ; P. W. 18 Mst. Sardar Begum plaintiff and P. W. 17 Mst. Aisha Begum plaintiff have denied the marriage of Mst. Rafia with Raja Ghulam Rasul. But in the face of the overwhelmingly strong oral and documentary evidence led by defendant No. I to prove this marriage, it is difficult to accept the interested statements of the plaintiffs and their witnesses. Their testimony is mostly negative and altogether inconclusive.
Therefore, we agree with the findings by the learned Court below on issue No. 8 to the effect that Mist. Rafia Begum was married to Ghalam Rasul about '25 years before the suit. She was his fifth wife and at the time he had his four previous wives with him. She gave birth to Ghulam Kibria defendant No. 1 out of this wedlock. Afterwards Raja Ghulam Rasul had divorced her in his life‑time.
12. Mst. Mehr‑un‑Nisa defendant No. 9.--The case of Ahmad Mukhtar defendant No. 2 and Mst. Mehr‑un‑Nisa defendant No. 9 is that she was also a lawfully wedded wife of Ghulam Rasul. Defendant No. 1 Ghulam Kibria admits that Raja Ghulam Rasul was married to Mst. Mehr‑un‑Nisa and that Ahmad Mukhtar was born out of the wedlock. The plaintiffs and defendants Nos. 3, 4, 5 and 8 have altogether denied, the factum and the validity of this marriage.
To prove their case, defendants Nos. 2 and 9 have produced oral as well as documentary evidence. Mst. Mehr‑un‑Nisa has appeared as her own witness (D. W. 20). According to her she was married to Raja Ghulam Rasul In 1941 at Multan in her father's house. She lived with the deceased as his wife and Ahmad Mukhtar was born to her on 10th July 1947 at Lyallpur. She was in the throes of delivery, on 10th July 1947 when Raja Ghulam Rasul sent a telegram, written by him in her presence, to her father at Multan to send for her mother to Lyallpur as she was sick. In pursuance to this call, her mother reached Lyallpur on 11th July 1947, when she was already delivered of the child born to her. She has further deposed that she remained living with Raja Ghulam Rasul as his wife till his death. She joined the Government Normal School, Multan in 1942 and the expenses for her education were borne by Raja Ghulam Rasul. He wrote (copy Exh. P. 3) to the Lady Principal of the School in this connection. She has also tendered in evidence the Photograph (Exh. D. 1) in which Ahmad Mukhtar defendant No. 2, is shown fn the lap of Abdul Rashid son of Ghulam Hussain, brother's son of Mst. Sardar Begum plaintiff and son's son of the mother's brother of Raja Ghulam Rasul. D. W. 19 is Mst. Maluk Bibi, the mother of defendant No. 9. She has deposed that Mst. Mehr‑un‑Nisa was married to Ghulam Rasul in 1941 at Multan in their house. Amir Bakhsh acted as the Nikah Khawan. Wali Muhammad Lambardar and Khawaja Abdur Rahim were the two witnesses of the ceremony. Abdur Rahim has since died. Ahmad Mukhtar defendant No. 2 was born out of this wedlock. While at Multan she received the telegram from Raja Ghulam Rasul informing them of the illness of their daughter and she had to go to Lyallpur in this connection on the occasion of the birth of defendant No. 2. D. W. 17 Hafia Muhammad Yar is the father of defendant No. 9. He has also deposed about the marriage of defendant No. 9 with Raja Ghulam Rasul at his house in the year 1941 and defendant No. 2 was born to them. He produced the telegram (Exh. D. 6) sent to him by Raja Ghulam Rasul to send Mst. Maluk Bibi to Lyallpur as defendant No. 9 was indisposed. D. W. 13 Maulvi Amir Bakhsh performed the Nikah ceremony between defendant No. 9 and Ghulam Rasul. The witness was, however, mistaken in saying that Ghulam Rasul had come from Jullundar. This appears to be due to a lapse of memory on his part and no capital can be made out of this discrepancy. D. W. 14 Wali Muhammad is one of the witnesses of the Nikah ceremony. He has deposed about the marriage of defendant No. 9 with Raja Ghulam Rasul, a lawyer at Lyallpur. D. W. 15 Feroze Din is related to defendant No. 9. He was present at the Nikah and has supported her. Another witness in support of the marriage is D. W.16 Muhammad Abdullah a resident of Multan. D. W. 18 Allah Rakha, worked as a domestic servant of Raja Ghulam Rasul for 4 years from 1944 to 1948 in Lyallpur and in those days Mst. Mehr Bibi was living with him as his wife. She gave birth to defendant No. 2. D. W. 8 Nawab Khan and D. W. 11 Ghulam Kibria defendant No. 1 have admitted that Mst. Mehr‑un‑Nisa was one of the wives of the deceased.
As regards the documentary evidence produced by the defendant, Exh. D. 6 is the telegram dated 10th July 1947 sent by Raja Ghulam Rasul to Muhammad Yar at Multan to summon his mother‑in‑law, Maluk Bibi, to Lyallpur in connection with the birth of defendant No. 2. Exh. D. 14 is the certified copy of the birth entry showing that on 11th July 1947 "Ahmad Khan" was born to Khan Babadur Raja Ghulam Rasul son of Raja Ghulam Muhammad, Executive Officer, Municipal Committee, Lyallpur. In all probability the child born was none else than respondent No. 2. This is fully by the version given by Mst. Mehr‑un‑Nisa and her parents. Exh. D. 9 is the application made by defendant No. 9 on 11th February 1942 for admission to J. V. Class for Women in the Normal School for J. V. at Multan. Ghulam Rasul Advocate, Lyallpur, gave his consent in writing to this admission sought by her. Exh. D. 10 is the guarantee which he gave to the school authorities for her. Exh. D. 3 is the letter which Raja Ghulam Rasul wrote to the Lady Principal, Girl Normal School, Multan, on 18th April 1942 in the same connection. Exh. D. 13 shows that Mst. Mehr‑un‑Nisa was working as a teachress in M. B. High School, Lyallpur, and on the 2nd of May 1949 the school was ordered to be closed for the day as a mark of respect on the death of Raja Ghulam Rasul, the ex‑Executive Officer and the husband of defendant No. 9. On 19th March 1956, Ahmad Mukhtar got the succession certi ficate (Exh. P. 7) in his name. He also brought a suit through Mst. Maluk Bibi, his maternal grand‑mother as his next friend for recovery of Rs. 490 on account of his share in the lease money relating to some land left by the deceased. All the heirs of Raja Ghulam Rasul were impleaded as parties to the suit. The suit was decreed and Exh. D. 17 is a certified copy of the judgment passed in his favour.
The evidence discussed above sufficiently go to establish that Mst. Mehr‑un‑Nisa defendant No. 9 was married to Raja Ghulam Rasul in the year 1941 at Multan and that Ahmad Mukhtar defendant No. 2 was born to them out of this wedlock.
The evidence led by the plaintiffs in rebuttal is hardly worth anything. P. W. 1 Raja Muhammad Akram is the brother of Mst. Razia Begum plaintiff No. 4. He does not know Mst. Mehr‑un‑Nisa defendant No. 9 and her son Ahmad Mukhtar defendant No. 2. P. W. 5 Subedar Ghulam Hussain is the brother of Sardar Begum plaintiff No. 5. Raja Ghulam Rasul was his father's sister's son. The photograph Exh. D. 1 was shown to him and he admitted that his son Abdul Rashid was sitting with a baby in his arms, but he professed that he did not know if the baby was Ahmad Mukhtar defendant No. 2 as he had never seen him. The evidence by P. W. 6 Nek Muhammad is to the effect that he had never seen Mst. Mehr‑un‑Nisa living with Raja Ghulam Rasul. Similarly P. W. 7 Abdul Ghani Shah did not know if Raja Ghulam Rasul was married to Mehr‑un -Nisa. P. W. 10 Ch. Manzoor Ahmad is the Secretary, Municipal Committee, Lyallpur, and in his cross‑examination he candidly admitted that Mst. Mehr‑un‑Nisa had been living with Raja Ghulam Rasul as his wife and had a son Ahmad Mukhtar from her. Mst. Aisha Begum plaintiff No. 3 has deposed that she did not know Mst. Mehr‑un‑Nisa nor her son Ahmad Mukhtar. This evidence is hardly sufficient to rebut the over whelmingly strong evidence led by the defendants to prove issue No. 4.
We have, therefore, no hesitation in affirming the findings by the Court below in this connection. By the time of his marriage with defendant No. 9, Raja Ghulam Rasul had already divorced that. Rafia Begum. So that on her marriage defendant No. 9 became his fifth wife living in the presence of his first four wives, Mst. Raj Begum defendant No. 5; Mst. Rasia Begum defendant No. 4 ; Mst. Sardar Begum defendant No. 5 and Mst. Aisha plaintiff No. 3. It is further proved that Ahmad Mukhtar, defendant No. 2 was born to bet from Ghulam Rasul during their wedlock.
13. To sum up it is established from the above that Raja Ghulam Rasool contracted his first marriage with Mst. Raj Begum defendant No. 5, and defendants Nos. 4 and 5 were born to them out of this wedlock. Mst. Razia Begum plaintiff No. 4 was his second wife and was never divorced by him. They had no issue from this marriage. Thereafter, he was wedded to Mst. Sardar Begum plaintiff No. 5. She was his third wife and defendant No. 7 was born to them from this marriage. His fourth lawfully wedded wife was Mst. Aisha Begum plaintiff No. 3 and plaintiffs Nos. 1, 2, 6 and defendant No. 3 are their legitimate issues from this marriage. In the presence of these four wives, Raja Ghulam Rasul contracted his fifth marriage with Mst. Rafia Begum who gave birth to defendant No. 1 from him. He then divorced her during his lifetime. Afterwards he contracted yet another marriage with defendant No. 9 in the presence of his four wives, and defenant No. 2 was born to them out of this wedlock. So that at the time of his death Raja Ghulam Rasul was survived by him five wives and the respective children from them. Defendant No. 8 has failed to prove that she was also lawfully wedded to the deceased.
These facts, therefore, give rise to the following two important questions for answer:--
(i) Were the successive marriages contracted by Raja Ghulam Rasool with Mst. Rafia Begum deceased and Mst. Mehr‑un -Nisa defendant No. 9, in the presence of his first four wives, valid under the Muslim Law If not, what is its effect on the right of inheritance by the parties to the deceased.
(ii) Are defendants I and 2, the issues from these marriages, affiliated the their deceased father as his legitimate heirs under the Muslim Law
14. In Islam marriage is a legal notion (Amr‑i‑Sharayee). It is an act of piety (abadat). The Holy Prophet (peace of Allah be on him) said : "Men marry women for their piety or their property or their beauty t but ye should marry for piety". (Tirmizi, Jami, 1.331). The Nikah (contract of marriage) is a 'Sunnat‑e‑moakkada'‑‑a rule of conduct, laid down by the Holy Prophet, the observance with which is considered meritorious and a deviation from which is regarded as a sin. It is a contract 'uberima fides', requiring utmost good faith. It originates a legal relation or consortium, a partnership in life, securing harmony, happiness, peace of mind, good fellowship and connubial relations between the couple. The marriage is solemnized by Nikah. According to Hedaya (translation by Charles Himalton, Groove Grady Edition, page 25) : "In the language of the law, it implies a particular contract used for the purpose of legalising generation." Similarly according to Viqaya (Vol. II, page 1) "marriage is a contract which creates ownership of enjoyment". No rituals are necessary under the law to enter into the contract (akd) of marriage. The ceremony is simple and yet impressive. The contract is completed by a proposal and acceptance (Ejab wa Kabool) by the parties competent fort the 'Nikah' in the presence of witnesses. "Nikah" (marriage), says the Kifaya "cannot be effected except by its pillars emanating from an Ahal (one who is competent to contract) and in reference to on‑, who is Mahal (fitting subject) as in the case of legal contracts. The pillar (rookn) consists of proposal and acceptance. The Ahal (person competent to contract marriage) is one who is Ahal (competent) for all contracts. The Mahal is she who is a fit subject for the effect of it" (Kifaya, volume II, Cal. Ed., pages 1‑2). Similarly according to Inayah, another commentary on Hidaya : "the general (sam) condition of marriage is competency (ahliyat) in the matter of sanity and majority and a (mahal) or fitting subject and this Mahal is a woman to whose marriage there is no legal bar ; and the pillar (rooks) of marriage consists of proposal and acceptance as is the case in all contracts, and proposal is what is first pronounced from whichever side it may emanate and the acceptance is the answer to the proposal" (Inayah, Vol. II, Cal. Ed., page 7).
In a valid (saheeh) marriage the husband is (ahal) possessed of the capacity and the woman a fit subject (mahal) to contract the marriage in accordance with the share. The pillar (rooks) on which it rests in the proposal and the acceptance by the two willing parties to it.
15. During the dark days of Arabia, before the advent of Islam, there was no limit on the number of wives a man used to keep. The restriction in this connection was imposed by the revelation in verse 3, Chapter IV, Sura An Nisa (women) Part 1V by the Holy Quran. According to Savary; cited by Sales in his commentary, when this verse was sent down from heaven, the greater part of the Arabs had each of them eight or ten wives ; and they often treated them badly. The Holy verse, in this connection says:--
" .Fankahoo Ma Taba Lakum Min‑an‑Nisae Masna Wa Sulasa Wa Roba'‑Fa‑in Khiftum al la Ta' deloo Fa Waheda . . . . . Zalika Adna al la Ta'ooloo."
Alama Abdullah Yusuf Ali has literally translated the verse to mean :--
" . Marry woman of your choice, two, or three, or four ; but if ye fear that ye shall not be able to deal justly with them, then only one, . . . . . to prevent you from doing injustice."
Muhammad Marmduke Pickthal in his "Glorious Kuran" has translated this verse as under :‑
"And if ye fear that ye will not deal fairly by the orphans, marry of the women, who seemed good to you two or three or four ; and if ye fear that ye cannot do justice (to so many) then one (only) or (the captives) that your right hand possess. Thus it is more likely that ye will not do injustice."
With this revelation, Islam expressed its very strong preference for monogamy and tolerated polygamy subject only to the extremely rigorous condition that all the wives, up to the maximum of four must be treated equally and with justice, without any favours to one or disregard towards the others in all matters and in all respects.
16. In the course of the arguments, addressed to us, attempts were made to suggest that in Islam, under normal circumstances, polygamy is absolutely prohibited. The argument as far as I could understand, was that the opening verses of Sura An Nisa were meant to meet an emergency. Immediately after the battle of Ohad the Muslims were faced with the task to rehabilitate them. A com paratively large number of Muslim families were left destitutes as a result of the losses suffered in the battle. According to one estimate, out of a handful of 150 Muslim families living at the time about 70 of them had lost their bread‑winners. They fell as martyres fighting for the glory of God. In this manner by far a large section of the Muslim Society was rendered destitute, married women had lost their husbands and children were left without their fathers to look after them. This, so far as it goes Is beyond any dispute. But the suggestion that the holy verse is 'P acceptable in times of emergency, alone, is hardly tenable. It was suggested that in this connection the law applicable under normal conditions is contained in Part 22, Chapter 30 (Sura Al Ahzab), Verse 50. This last verse is devoted to the privileges of the Holy Prophet and his wives (Umma Hat‑ul‑Moemineen) and cannot be stretched to mean that as for "the rest of the believers'". it has imposed on them absolute monogamy.
To the other extreme, is the view to the effect that the words "Marry women of your choice, two, or three or four" in the verse under discussion, do not contain in them any injunction against marrying more than four wives. This contention is equally untenable, In the face of the text and is against all accepted interpretations. In the translation of the Holy Quran by Rev. E. M. Wherry, M. A. (Chiefly based on the translation by Mr. Sale), this is translation as under :---
"And if ye fear that ye shall not act with equity towards orphans of the female sex, take in marriage of such other women as please you two, or three or four and not more. But if ye fear that ye cannot act equitably towards so many, marry one only, or the slaves which ye shall have acquired. This will be easier, that ye swerve not from righteousness."
Imam Razi in his 'Tafsir‑i‑Kabir' (Vol. III, page 137) has discussed the different view points in this connection and as to the number of wives "two or three or four" mentioned in the holy verse, his conclusion is that : "All Jurists are agreed that this verse does not make it lawful to increase the number four." It is not lawful for a Muslim to have more than four wives at one time. Similarly, according to Tafsir Ibne Kasir' (Urdu Edition, published by Kharkhana Tajarat‑i‑Kutab, Karachi, Volume, 1, page 74), it is not lawful for a Muslim to have more than four wives at a time and on this interpretation in the consensus of opinion among the learned (except for a different view held by soma belonging to the Shia Sect). "Hedaya" (Translation by Charles Himalton, Groove Grady, Edition, on page 31) says :‑
"It is lawful for a man to marry four wives whether free or slaves ; but it is not lawful for him to marry more than four because God has commanded in the Koran, saying : 'Ye may marry whatever women are agreeable to you, two, three or four' and the numbers being thus expressly mentioned, and beyond what is there specified would be unlawful."
Kifaya, a commentary on Hidaya, in this connection says:‑--
"And it is not lawful (or permissible) that one marries more than this (number) on account of the command of God Marry such women as are agreeable to you, two, three or four'. The intention is that the number should be one of these, and there is a consensus of opinion on this point."
Fatawa‑i‑Qazi Khan (page 168) says :‑--
"If a free person marries five women, one after the other, the marriages of the first four are valid, and the marriage of the fifth is unlawful; if he marries all the five simultaneously, then all the five marriages are invalid."
Fatawa‑i‑Alamgiri (Volume If, pages 5‑12) in Chapter III, has discussed the different classes of women prohibited in marriage under Islam. Concerning women who are prohibited on ground of unlawful collection it says :‑--
"Firstly, as regards the unlawful collection of strangers. It is not lawful for a Muslim to marry together more than four women. It is so stated in Mohit. It is lawful for a free man to marry four free women or slave girls. It is so stated in Hedaya. If a free Muslim marries five women, one after the other, the first four marriages will be valid, and the fifth one will be invalid. If he marries all the five by one Aqd (i. e. he marries them all together), the marriages with all the women will become unlawful."
Similarly, Baillie in his "Digest of Moohummadan Law" (pages 30 and 31) has said that : "It is not lawful for any man to have more than four wives at the same time . . . . . when a free man has married five wives, in succession, the marriages of the first four are lawful, but the marriage of the fifth is unlawful, and if he marry five in one contract, the marriage of the whole is vitiated" According to Wilson's Anglo‑Muhammadan Law, on page 109 "It is lawful for a man to have as many as four wives at the same time, but not more".
17. This interpretation is in accord with the traditions. At 400Om Hazrat Ghelan‑bin‑Slama Saqfi embraced Islam he had ten wives. The Holy Prophet told him to retain any four and release the rest of them from the marriage bond. The second case is about Hazrat Umera Asdi, when he accepted Islam be had eight wives. He enquired about it from the Holy Prophet who told him to retain only four. The third case was about Naofil Bin Moavia. He embraced Islam and had five wives at the time. The Holy Prophet told him to retain four and release the fifth.
From the above discussion, it follows that subject to the conditions expressly stipulated in the Holy verse under discussion a man may lawfully have four wives at a time. His marriage with the fifth wife in the presence of the four is not permitted I It is not valid in Islam and must be treated as unlawful.
18. But the controversy does not end there, and the answer to the further question as to the legal incidents and effects of such a marriage with a fifth wife in addition to the four wives, is not free from difficulty. According to Mulla,‑(section 255, page 232), "A Mahomedan may have as many as four wives at the same time, but not more. If he marries a fifth wife when he has already four, the marriage is not void, but merely irregular."
Syed Amir Ali, in his Mohammedan Law, Volume 11, on page 293 has rightly pointed out that: "no part of Musulman Law is perhaps more difficult to apprehend than the rules that relate to connections which, although not regarded as quite valid (saheeh), give rise on consummation, to some of the con sequences resulting from a valid marriage." The task of a student of his branch of the Islamic Law becomes all the more difficult when he finds that even among the learned there is no unanimity of opinion on this larger question which faces us and it is by no means easy to reconcile all the divergent views on the subject.
19. Before proceeding further in this case, it is necessary now to discuss some of the relevant rules of Islamic Jurisprudence (Oosool‑i‑fika) in the succeeding paragraphs.
In the fundamental law of Islam, in the Holy Book, there are the injunctions against marriages with certain women. The Quran ordains : "Do not marry (La‑tan‑kehoo) women who are idolatress (Mushraqat) until they believe." (Part 2, Chapter 2, Verse 221). The Quran has enjoined : "And the divorced women should keep themselves in waiting for three courses .. . . (Part 2 : Chapter 2, Verse 228). About the thrice divorced wife (Maottada), the Quran has declared : "But if the husband divorced her a third time, she shall not be lawful (Fala‑Tahella Lahoo) for him again . . . . . (Part 2, Chapter 2, Verse 230). The Holy Book has also forbidden : "Marry not (Wale‑Tankehoo) women whom your father's have had to wive" (Part 4, Chapter 4, Verse 22). In the next following verse it is ordained: "Ye are forbidden (Hurremat aley‑kum) to marry your mothers, and your daughters, and your sisters and your aunts both on the father's and mother's side, and your brothers' daughters, and your sisters' daughters, and your mothers who have given his (foster‑mother) such and your foster‑sisters, and your wives' mothers, and your daughters‑in‑law who are under your tuition, born of your wives under whom ye have gone in (but if ye have not gone in unto them, it shall be no sin in you to marry them). And the wives of your sons who proceed out of your loins; and ye are also forbidden to take to wive two sisters" (Part 4, Chapter 4, Verse 23). The Holy Quran has further declared : "Ye are also forbidden to take to wive free women who are married (Mohsinat)" (Part 5, Chapter 5, Verse 1). As discussed above the Quran also contains the injunction against more than four wives at a time (Part IV, Verse 3).
By contrast the text of this last verse under discussion is materially different from the remaining verses. At least, on the face of it, the inhibition against more than four wives is not express. As compared to this the language used in the other verses shows that the prohibitions against marriage in those cases are express and the tone peremptory in nature.
There are in all 19 classes of women who are prohibited t a man and a marriage with them is unlawful. They are a under :‑
(i) Mothers ; (ii) Daughters ; (W) Sisters ; (iv) Father's sister ; (v) Mother's sister ; (vi) Brother's daughter ; (vii) Sister's daughter ; (viii) Foster‑mother ; (ix) Foster‑sister; (x) Mother‑in -law ; (xi) Wives' daughters (step‑daughters); (xii) Son's wives; (xiii) Father's rife (step‑mother) ; (xiv) Two sister in conjunc tion ; (xv) married women; (xvi) Idolatress (Mushrikat); (xvii) One's thrice divorced wife ; (xviii) a woman in iddat (probation) 1 (xix) more than four wives. In legal terminology they are generally called "Moharramat" (women forbidden in marriage). These prohibitions in the Nikah are of two kinds, perpetual and temporary. Broadly speaking the perpetual prohi bition against the marriage arises on account of consanguinity (Nasab or Karabat), fosterage (reza) and affinity (Musahrat). In these cases the prohibition is absolute and eternal. But the temporary or relative prohibition arises from some impediment h in the way of the marriage which is not permanent in its nature and the obstacle is liable to be removed. Fatawa‑e‑Knzi Khan (Pages 167‑169), in the "Chapter on Muharramat" (women forbidden to be married), has dilated upon this broad divisior3 into the two classes of women; mo‑abbada (permanently prohibited) and gbair‑mo‑abbada (temporarily prohibited) women in marriages.
In all there are the seven classes of women falling in this last category, "Ghair mo‑abbada" (temporarily prohibited women). The interdict against the marriage with them is not perpetual. These temporary prohibitions are against (i) exceeding the number of wives allowed by law (ii) conjunction of two sisters ; (iii) con‑y junction of a free woman and a slave girl ; (iv) marriage with an idolatress ; (v) marriage with another's wife ; (vi) marriage with another's moattada (in the iddat of another) ; (via) conjunction of two such females as could not have intermarried, if one of them was a male.
20. I shall revert to the importance of this distinction a little later. But before proceeding further it is necessary here to bear in mind another principle of Islamic Jurisprudence. Accor ding to the Muslim Jurists a thing is unlawful (haram) in itself on because of something else. Khizri in his authoritative work, "Oossool‑ul‑Fikha", pages 92 to 94, in an illuminating discussion, has generally explained the meanings of the two Arabic words "Sehat" (validity) and "Butt in" (illegality). According to him like the word "Sehat", the word "Butlan" has a twofold meanings. In expanding on these meanings, the learned author observed that by saying that a particular abadat (prayer) or act is "batil" what is meant is that it is illegal , thereby the duty was not performed and the obligation is not discharged. The "Butlan" (illegality) has occurred because there is the infringement of the injunction and some rookn (pillar) or condition, on which the act is dependent, was ignored. In case the violation appertains to the nafas (essence) of the abadat, then, without any doubt, the act would be held to be void. If, however, the infringement, not being with reference to the essence, is concerning the quality (wusf) of the thing, then the illegality shall not affect the validity (Sehat). The learned author has illustrated his meanings by quoting an example, it is not lawful for a Muslim to say his namaz in the house under his trespass. In spite of this interdict, his prayer said in the house in his illegal possession, if otherwise performed in‑accordance with the injunctions is not null and void on account of this defect. The illegality in it was not concerning the essence but was due to something else.
Though comparisons are aften odious; yet it will be helpful to refer to a somewhat similar principle of the interpretation of the enabling statutes under the English Common Law. Craies on Statute Law (Sixth Edition, pages 263‑264), has discussed this subject under the heading "Inferences to be drawn from negative language".
He says :‑
". . . . . , if the statute enacts that it shall be done in such a manner and in no other manner, it has been laid down that those requirements are in all cases absolute, and that neglect to attend to them will invalidate the whole proceeding . . . . . . . . . . . At all events, it has been held on several occasions that enactments prescribing the formalities which are to be observed in solemnising a marriage are not absolute, although expresses in negative and prohibitory language, and that neglect of these formalities does not invalidate the marriage. Thus in Catterall v. Sweetmah (1845) 9 Jar. 951, 954 it appeared that it was enacted by a colonial Act that no marriage between Presbyterians and Catholics should be had and solemnised "until one or both of such persons, as the case may be, shall have signed a declaration in writing," and the question. was whether a marriage solemnised without the declaration in writing signed was valid or not. "The words in this section," said Dr. Lushington, "are negative words, and are clearly prohibi tory of the marriage being had without the prescribed requisites, but whether the marriage itself is void . . . . . is a question of very great difficulty. It is to be recollected that there are no words in the Act rendering the marriage void, and I have sought in vain for any case in which a marriage has been declared null and void unless there were words in the statute expressly so declaring it." After discussing the various English Acts on the subject of marring, i,e continued as follows : "From this examination of these Acts I draw two conclusions. First, that there never appears to have been a decision where words in a statute relating to marriage, though prohibitory and negative, have been held to infer a nullity, unless such nullity was declared in the Act. Secondly, that viewing the successive marriage Acts, it appears that prohibitory words, without a declaration of nullity, were not considered by the Legislature to create a nullity." On these grounds, therefore, he held the marriage to be valid."
Lest I may not be misunderstood, by citing this passage from Craies, I do not at all mean to suggest that the principle enunciat ed there for the interpretation of statutes should be in any way borrowed for the interpretation of our Holy Book. Far from it, the early Muslim Jurists have already left for us a rich heritage in this field by laying down their own rules of interpretation to be followed in these matters. But the passage from Craies has not been cited by me without its purpose to assist a sophisticated mind in understanding ibis problem which is entirely our own.
21. The Hanafi Jurists have divided the marriages into three classes‑"Saheeh" (valid), "fasid" (irregular or vicious) and "batil" (void)‑depending upon their validity and effect. In case the marriage is free from all sorts of defects and infirmities, perfect in every respect and absolutely valid, it is called "Saheeh". It conforms with all the requirements laid down by the Shara for the marriage, e. g. the existence of the proposal and acceptance, presence of the witnesses, a competency to contract, fitnesses of the subject of marriage (mahal) and so forth. But a marriage in which there is a diviation, howsoever, trivial or slight, from the rules of Shara is not altogether nugatory. These defective marriages are classified into the two categories. In case the defect is of a redical and vital nature the marriage may be nugatory and void ab initio. So to say in the eye of law it is no marriage at all. It produces no results and in it the words of the proposal and acceptance were uttered in vain. Such a marriage is called "batil" (void). However, in between the two, is a third class of marriage, it is neither perfectly valid (Saheeh) nor altogether void (batil). In such a case the irregularity or defect in the marriage is not fatal to its existence and some of the consequences of a Saheeh marriage will be found to flow from it. A marriage of this kind is called "fasid" (invalid, vicious and defective).
The "Saheeh" marriage shows that the quality of goodness (hoosan) or excellence exists in it, and not only the essence (ayne) is good, but its quality (wasf) is also good. However, in a batil or void marriage the essence (ayne) and the quality (wusf) are both bad. But in a fasid marriage although the essence (ayne) is good, the defect lies in its quality (wusf). A batil marriage is unlawful in itself but in a fasid marriage the unlawfulness consists in something else.
These classifications, appearing as they do, are simple to define, but not so easy in their application to each case. Indeed some of the Hanafi Jurists have lost sight of this distinction and have applied the terms "fasid" and "batil" to defective marriage indiscriminately (see Lubab, Volume II, page 355 ; Majmua‑ul‑Anhar, Volume 11, page 355). Somo Hanafis have gone to tile length of saying that there is no distinction between batil and fasid marriages (Fateli‑ul‑Qadir, Volume ill, page 147 ; Asbak, page 256). But this is not the correct valid. Marriage under Hanafr Law is a civil contract and as such is necessarily divisible into valid (Saheeh), and defective (Ghair Saheeh) which again is subdivided into void (batil) and invalid (fasid). It appears that, more recent authors have kept this discrimination in view and used the terms "fasid" and "batil" in their technical sense.
Dwelling upon this distinction, according to Inayah (Cal. Ed., Volume II, page 496), a foremost commentary on Hedaya, there are two kinds of unlawful intercourses between the sexes -one that is unlawful in itself. In such a case the man has no right in the woman like a complete stranger or she is perpetually prohibited to him on account of the relationship by blood, foste rage or affinity. The other is unlawful for something else, on account of an extraneous and accidental cause. In this connection Inayah says :‑--
"Know thou that unlawful (haram) intercourse according to the first classification are of two kinds one of them is unlawful in itself ; and the other unlawful for something else. As regards the first the reason of its unlawfulness consists in two things, one being the absence of right in its entirety as co‑habiting with a strange woman, or of the absence of right in "a restricted manner", as co‑habiting with a bondswoman when he owns in partnership with another. The other is co‑habiting with a woman who is prohibited to the man by perpetual unlawfulness, as for instance, co‑habiting with a bondswoman who is his foster‑sister.
All connections other than those belong to the second class (viz., being unlawful for something else), as for instance, co‑habiting with one's bondswoman who is a Magian or with two bondswomen who are sisters to each other."
According to Chelpi, page 297 : "Just as there is a distinction between a void and invalid sale, so there is a distinction between a void and invalid marriage. Similarly, Kashf (Volume I, pages 358‑59) says : "According to our doctors, fasid is a third class marriage distinct from void (batil) as well as from valid (Saheeh) and means that it is lawful in essence and unlawful as to its quality".
Rudd‑ul‑Muhtar, (Volume II, chapter on dower, page 574), has reproduced the following passage from Durr‑ul‑Mukhtar:---
"And the proper dower becomes obligatory in an invalid marriage, which is a marriage in which any of the conditions for the validity of the marriage is wanting, e.g., witnesses Durr‑ul‑Mukhcar."
and in commenting on this passage, has added :‑
"The expression, "e.g., witnesses" and similar to it, is the marrying two sister at once and marrying a sister during the iddat of another sister, and marrying a woman who is observing her iddat, and (marrying) a 501 wife during the iddat of the fourth wife, and (marrying) a female slave upon a free woman. And the Muhit (giving an instance of an invalid marriage) says : "A zimmi marries a Muslima woman ; separation shall be effected between them, because the marriage is an invalid (or fasid) marriage."
Similarly Tahtawi which, like the Radd‑ul‑Muhtar, is a commentary on the Durr‑ul‑Mukhtar, in commenting on the same passage (Tahtawi, Volume II, page 59), has said :‑
"The expression such as witnesses' includes a marriage with two sisters together or with one sister during the iddat' of another sister (whom the man has married before), with a woman who is a muataddah (one observing the iddat' of death or divorce for another man), with a fifth during the 'iddat' of the fourth wife, with a bondswoman upon a free woman, of a Kafir (an infidel or non‑Moslem) with a Mosleman. So no hadd will he inflicted on them (if they cohabit) and the nasab will be established and iddat' will be obligatory."
According to these two high authorities in the Hanafi world, a nikah‑ul fasdi (or irregular marriage) is one in which a condition necessary to constitute a valid marriage is a wanting.
In the latest boor; "Majmooa‑i‑Qawaneen‑i‑Islam" (Volume 1, page 147), its author, Mr. 'Tanzil‑ur‑Rehman, Hon'rary Professor of Law, Islamic Research Institute Pakistan, Karachi, has also made the same distinction between fasid and batil marriage. According to him, in a fasid nikah some of the conditions of a Saheeh marriage are missing. A batil nikah, on the other hand is void in its very essence‑its existence and non‑existence is alike.
A renowned jurist of modern times, Allama Abdur Rehman Algaziri, in his authoritative work "AI‑fikha Alai Mazahib‑ul Arba' " (Volume IV, Book on Nikah, pages 116‑117), has divided the fasid marriages into two categories. One in which although the dower is obligatory but the Nasab (paternity) is not established and iddat does not become obligatory. The learned author has called this as a batil marriage. In the other, some of the conditions necessary for a saheeh marriage are missing, the nasab (paternity) is established, dower is payable and the iddat becomes. obligatory. According to the learned author, among the Hanafs a Ntkah with five wives by a single contract is fasid and not batil and after cohabitation the dower and iddat are obligatory and the Nasab is also established. Perhaps this classification is more rational and logical from the point of view of the effects and consequences following from these marriages.
23. Sexual intercourse by a man with a woman without any actual or supposed right in her, either by marriage or bondage, amounts to fornication (zina), which is looked down as one of the greatest sin against society under the Muslim Law. Islam has shown no compassion towards those guilty of adultery and deterent punishment technically called the hadd is prescribed for it. The Holy Quran (Part 18, Chapter 24, Verse 2), says:‑--
"The woman and the man guilty of adultery or, fornication, flog each of them with a hundred stripes ; let not compassion move you in their case, in a matter prescribed by God, if ye believe in God and the last day : and let a party of believers witness their punishment."
and in case the adulteror is married, the punishment (hadd) for him is rajm (stoning to death). There is no mitigation for the guilty. This extreme severity in the punishment, made it all the more necessary to exercise great care and caution in dealing with cases involving these offences. In this connection according to an accepted tradition, the Holy Prophet said : "Drop punish ment from doubt." Around this saying, the doctrine, of "Shubh" (semblance, doubt, error, or mistake) in the carnal connection has evolved. The subject though intricate, in nonetheless highly fascinating. It at once reveals the great insight and crudite learnings possessed by the early Muslim Jurists and Kazis entrusted with the task of the administration of justice. This doctrine in certain respects resembles the principles under which "the benefit of doubt" is now‑a‑days allowed to the accused and to which Viscount Sankey, L. C., in his oft‑quoted decision in Woolmington v. Director of Public Prosecution (1935 A C 462) had proudly referred as the "one golden thread" always to be seen throughout the web of the English Criminal Law and emphasised that "no attempt to whittle it down can be entertained". The doctrine of "Shubh" has got its own peculiar features in the fikah (Islamic Jurisprudence).
24. According to Hedaya (Translation by Charles Hamilton, Grove Grady Edition, Volume II, Chapter 11, page 182), "Zina", adulterous connection which‑gives rise to the specific punishment (hadd):‑--
" . . . . . both in its privitive sense, and also in its legal acceptance, signifies the carnal conjunction of a man with a woman, who is not his property, either by right of marriage or of bondage, and in whom he has no erroneous property, because Zina is denomination of an unlawful conjunction of the sexes, and this illegality is universally understood where such conjunction takes place devoid of property, either actual or erroneously supposed."
According to this definition, therefore, a carnal connection made under an error about the property in the woman or under an erroneously supposed right does not tantamount to Zina (fornication). There is no hadd for it. Therefore the doctrine of "Shubh" (doubt or error) occupies an important place in the development of the Islamic Law concerning carnal connections which are for some reason unlawful. The Sunni Jurists have generally divided "Shubh" into two classes and the Hedaya on page 182 says :‑--
"Error in carnal conjunction is of two Kinds: the first, error in respect to the act, which is termed Shoobha‑Istibab, or error of misconception : the second, error in respect to the subject, which is termed Shoobha‑Hookmee (error by effect), or Shaba‑Nlilk (erroneous property)‑The, first of these distinc tions of error is not established, nor understood, but with respect to a man who mistakes an illegal carnal conjunction for legal, because Ishtihah signifies the man having carnal intercourse with a woman, under the supposition of the same being lawful to him ; in consequence of us supposing something other than that which is necessary to constitute legality as affording an argument of such legality; it is therefore necessary that this mistake should have operated in his mind in order to establish Ishtibah, or misconception ; and hence this species of error is not understood, except in the case of a person who is under such misapprehension.‑The second species of error is established, where the argument of the legality of carnal con junction exists in itself, but yet practice cannot take place upon it, because of some obstacle; and this does not depend upon the apprehension or belief of the person who commits the unlawful act ; whence this species of error is regarded in respect to all men, that is to say, men who so conceive, and also those who do not.‑And punishment drops in consequence of the existence of either of these two species of error, on account of a well known tradition."
This doctrine of "Shubh" is not confined in its application to the Criminal Law alone and has been invoked in disputes of civil p nature to establish Nasab (paternity) as well. In this respect Hedaya has added the following, at page 182:‑--
"In a case of error of the second species, the parentage of the child is established in the man who has had such connection, if he claims, such child; but in a case of error of the first species, the parentage of the child is not to be established in the man, notwithstanding his claim,‑because, in a case where the error is of the first species, the act of generation is positive whoredom, although punishment be not incurred, on account of a circumstance which has reference to the man committing such act, (namely, that of the illegality of the act being misconceived by him, according to his apprehension of it) : but the act of generation, in a case of error of the second species, is not positive whoredom."
Therefore, in disputes concerning paternity the distinction between the doubt in the act (Shubh Ishtibah) and the doubt in the women (Shubh‑i‑Milk) assumes considerable importance. According to Imam .boo Hanifa (peace be on him) there is the t third category of "Shubh" as well. This is known as "Shubh‑filakd" (error or doubt in the marriage contract). In this connec tion Hedaya page 184, says:----
"If a man marry, a woman whom it is not lawful for him to marry, and afterwards have carnal connection with her, he does not incur punishment, according to Haneefa but it he be at the time aware of illegality he is to be corrected by a Tazeer, or discretionary correction. The two, disciples and Shafei have said the it he is liable to punishment, when he marries, the woman, being aware of the illegality because as the contract has not been executed In regard to Its proper subject, it is of course void; for here the woman is not a proper subject of r marriage, because the proper subject of marriage, or of any v other deed, is a thing which is a proper subject of the effects of such deed now one of the effects of marriage is the legalizing of generation ; but as the woman is among those woo are prohibited to the man, the contract of marriage with her is consequently nugatory, in the same manner as a contract of marriage between man and man. The argument of Haneefa is that the contract has takers place in regard to its proper subject as the wound is a proper subject of marriage, because the proper subject of any deed is a thing which admits of the ends intended being obtained from it; now the end of marriage is the procreation of children, and to this every daughter of Adam is competent; the case therefore admits of the contract t being engaged in with respect to all its effects, acid of all its effects being obtained from it; taut on account of the prohibition in the sacred text; the legalization of generation is not obtained; and such being the case error is occasioned, as error is a thing which is the appearance of a proof, and not the substance of one; and as, in the present case, the man has perpetrated an offence for which the stated punishment, or Hadd, is not appointed, Tazeer or discretionary correction, must be inflicted."
According to Hedaya (Volume II, Book VII, on punishments, Chapter V, page 201), accusation against a person who has unlawful commerce with a woman is not slander. In that context the learned author in further elaborating on this doctrine has observed :‑-
"The connexion of a man with a woman who is not his property in any shape whatever (such as a strange woman), or with one in whom he has no property in some one shape (as in a partnership slave, for instance), is unlawful in its own nature; so also is his connexion with a woman who is his slave, but who is one with whom cohabitation is unlawful to him by a perpetual illegality (such as his foster‑sister); but his connexion with a slave with whom cohabitation is unlawful to him by such an illegality as is not of a perpetual nature (as in the case of one with whose sister he cohabits, either as his wife, or as his slave), is unlawful, on another account. Aboo Haneefa (in the case of illegal cohabitation under a perpetual illegality) makes it a condition that the perpetual illegality be universally admitted and established upon the authority of the most generally accepted traditions, so as to be determined and known beyond all doubt or dispute; for example, if a man were to accuse another, who had carnal connexion with a partnership female slave, in this case punishment for slander is not to be inflicted upon the accuser, because the accused appears to have committed the act with one who is his property in one shape, but not in another. But if a man were to accuse a person who has cohabited with his female slave, being a Pagan, or with his own wife during her courses, or with his Mokatiba, punishment for slander is incurred by the accuser, because here the illegality (supposing the existence of the right of property) is merely of a temporary nature, continuing only until the removal of those obstacles (namely, Paganism, or the courses. or the contract of Kitabut); this illegality, therefore, is illegality on another account, and hence the act is not whoredom."
The above passage in the Hedaya, has brought out the basic distinction between the matrimonial connections which are unlawful in their own nature (batil and void) from those unlawful on another account (fasid or vicious). A carnal connection between man and woman when there is no right (milk) in any shape or form in the woman either by marriage or bondage is unlawful in itself and, therefore, batil. The same is the case according to Imam Ahoo Haneefa, when a man marriage a woman who is prohibited to him in perpetuity under the Shara by the consensus of opinion among the learned without any controversy, beyond any shadow of doubt (Shubh) and there is no uncertainty about the prohibition.
Similarly Durr‑ul‑Mukhtar, in the chapter on the sexual intercourse, has held that the liability for hadd is not established on account of the presence of the "Shubh" in the carnal connections. In this connection Rudd‑ul‑Muhtar (Volume III, Chapter on Punishments. page 231) has reproduced the following from Durr‑ul‑Mukhtar:‑--
"Doubt is that which resembles a thing, but which is not really in existence. Doubt is of three kinds: Shubha‑i‑hukmea, and this appertains to the subject, i.e. the mahal. The second class is Shubha‑i‑ishtibah. The third class is called Shubha‑i‑akd. But, correctly speaking, the third class is included in the first two classes. and I will soon enter into a discussion relating to the same."
"Punishment is not established in case of doubt in the mahal or subject that is in the ownership or milk, and this doubt is called Shubha‑i‑hukmea, that is to say, a doubt in which it is a matter of doubt whether, according to the Sharah, the subject or mahal is lawful; there is no punishment (in this case of doubt), even though he suspected the unlawfulness of the subject.
"And there is no hadd also by doubt in the act, and this doubt is called Shubha‑i‑ishtibah, that is to say, there is doubt in the mind of the man who nets the doubt in his mind. And there is no hadd by reason of this doubt if the man entertained doubt as regards the lawfulness of the act
If the man who has had sexual intercourse claims the nasab, then the nasab shall be established in the first class. i.e., in the case of doubt in the mahal or subject, and the nasab shall not be established in the second class, i.e., in he case of doubt in the act, in consequence of the latter being purely zinc,
And then follows the important passage from Durr‑ul‑Mukbtar itbout the discussion on Shubha‑i‑akd, in. case a man has sexual intercourse with a maharim (prohibited woman) married to him. It says :‑
"And there is no punishment also in the case of Shubha‑ul akd (doubt arising from the contract of marriage) according to imam Abu Hanifa. As for instance, when a man has sexual intercourse with a maharim, whom he has married. But Abu Yusuf and Mohammad have held that if the man was aware of the unlawfulness, he shall be subjected to hadd, and upon this fatawa is given‑Khulasa."
But preference is given by all the commentators to the view of Imam Abu Hanifa, and therefore it is preferable to give fatawa according to this view: so it has been said by Kasim in his work called the Tusheeh.
But it has been laid down in the Kohistani (i.e., Jamai‑ur- Rumuz) from the Muzmirat that fatawa is given according to the view of Abu Yusuf and Mohamed. And it is laid down in the Fath‑nl‑Qadir that the same (that is the class called Shnbha‑i‑akd) belongs to the (class called) Shubha‑i‑mahal; and in the Shubha‑i‑mahal nasab is established, as has been already discussed. Or, as for instance, sexual intercourse in a marriage without witnesses; in this case there is no punishment in consequence of doubt of marriage."
Continuing the discussion, Dur‑ul‑Mukhtar further says :‑‑--
"And it is laid down in the Mujtuba, that if a man marries his maharim or the munkuha of another man or the mutadda of another man, and has sexual intercourse with her, knowing that it is lawful for him to have sexual intercourse with her, he shall not be subjected to hadd, but shall be subjected to tazir; and if he has sexual intercourse knowing or suspecting or having reason to believe that the intercourse is unlawful, then the same rule holds according to Abu Hanifa, but the contrary rule has been laid down by Abu Yusuf and Mohamed."
The learned author of Rudd‑ul‑Muhtar has commented on the passage, underlined by me above from Dur‑ul‑Mukhtar: "When a man has sexual intercourse with a maharim, whom he has married". In expanding on this he says :‑--
"The author of the Tanwir‑ul‑Absar has used the word maharim' generally (without any qualification), and therefore the word maharim' includes those women who are prohibited on account of nasab, or of reza, or of sahriat, and the author of the Tanwir‑ul‑Absar suggests or implies that if the man marries the munkuha of another, or marries the mutadda of another, or marries his (own) thrice divorced wife, or marries a slave girl upon a free wife, or marries a majusi woman or marries a slave girl without the permission of her owner, or if a male slave marries without the permission of his owner, or if a man marries five women by one (and the same) contract and has intercourse, or if a man joins two sisters in a contract of marriage and has sexual intercourse with both of 'them, or if he has sexual intercourse after marriage with the sister whom he married subsequently if the marriages have been one after the other; then in these cases there is no hadd. And this is by concurrence (of all three Imams) according to the most approved report. The reason for the absence of hadd according to Abu Hanifa is clear; the reason for the absence of hadd according to Abu Yusuf and Mahommed is this; that, according to them, the doubt is removed only when the maharim is one regarding whose unlawfulness there is concur rence and who is permanently unlawful‑Bahur."
"I say that the above is what is stated in the Fath‑ul‑Qadir, which goes on to say that lawyers, whose traditions and whose writings are reliable, as, for instance, Ibn‑i‑Manzar, have said that the man shall be subjected to hadd according to the two disciples only in case of those who are maharim and not in the case of others than these; as, for instance, a majusi woman and a fifth wife and the mutadda (of another); and (fath‑ul‑Qadir) goes on to say that the book called the Kafi written by Kakim lays down the same thing
The instances relating to the marriage of fifth wife are directly in point for the present case. From this discussion it follows that marriages with women who are permanently prohibited on account of nasab (consanguinity), reza (fostervge) and sabriat (affinity) stand on a different footing. The term "maharim" (women prohibited in marriage) has a narrower connotation in this context. As stated to Rudd‑ul‑Muhtar, according to the most approved report, the three Imams are agreed that there is no hadd in case the man has established carnal connections after marriage with a woman prohibited to him, provided the prohibition was not perpetual but temporary and there is no consensus of opinion among the learned about its unlawfulness. This is because the doubt is removed only when the maharim (prohibited woman) is one regarding whose unlawful ness there is concurrence among the learned, as in the case of a woman who is prohibited in perpetuity. This is also the view taken in Hedaya as discussed above. It follows that it is permis sible to allow the benefit of doubt in a case where the prohibition to the marriage is temporary or relative and the learned are divided in their opinion about its validity and legal effects. By consensus, under no circumstances, the parties contracting such a marriage are liable to hadd. Such a marriage is considered as neither saheeh (valid), nor batil (void) by the consensus of opinion and is deemed to be fasid (invalid and irregular). It is treated as not unlawful in its own nature but invalid for a different reason and on another account.
Here I should acknowledge with gratitude that the English translation of the above texts from Rudd‑ul‑Muhtar was borrowed by me from the Appendix with the judgment in Aizunnissa Khatoon v. Karimunnissa Khatoon (I L R 23 Cal. 130).
25. According to Baillie's "Digest of Moohummudan Law", Chapter VIII, on "invalid marriages and their effects", section first, pages 150‑153, the word "maharim" in this context is used in the restricted and not general sense. They "are women whom a man is perpetually interdicted from marrying, by reason of consanguinity, affinity, or fosterage . . . . .", and marriage contract with them would be void in the opinion of Aboo Yoosuf and Muhammad. There is no hadd according to Imam Aboo Haneefa if the man cohabits with the wom.3n in such a marriage, though he is liable for a discretionary punishment (tazir). But according to Aboo Yoosuf, Muhammad and Shafie, the hadd (specific punishment), is to be inflicted if he were aware of the illegality because the contract does not meet with a fitting subject because of the prohibition. On the other hand Imam Aboo Haneefa was of the opinion that the contract does meet with a fitting subject because all the daughters of Adam being qualified for procreation, which is the primary object of marriage, are fit subjects for contracts. Continuing this discussion on invalid marriages Baillie says :‑
"There are two kinds of unlawful intercourse between the exec‑one that is unlawful in itself, the other that is unlawful or something else. The former is zina the latter is not zina. When the man has no right in the woman, or having such right, she is perpetually prohibited to him, the intercourse is unlawful on itself; when the prohibition is temporary, the intercourse is unlawful for something else. And Aboo Haneefa made it a Qonndition of a perpetual illegality that should either be generally allowed, or founded on some well authenticated tradition to ‑remove all doubt on the subject; that is, of course, in the absence of any positive precept of the Kooran. With regard to women who cannot be lawfully joined together, connection with them is not unlawful in itself, but only for a temporary r)r incidental cause, that is, the man's having a right over both. of them at the same time, which may be removed by his repudiating or disposing of one of them, and therefore the connection is not zinc. Much less should it be so in the case of a marriage with one sister daring the iddat of another, or of a fifth wife during the iddat of a fourth."
This opinion by Baillie is based on the authority of Hedaya.
Similarly Syed Ameer Ali in his treatise on "Mohammedan Law", (Volume II, 1965 Edition, pages 299‑300) has summed up the position as under:‑--
"When a man marries a woman who is perpetually or absolutely prohibited to him, either he is aware of the illegality or he is not, with regard to the latter position there is con sensus, viz., that if he cohabits with her not knowing that she was unlawful (haram) to him, it is not zina and he is not liable to the punishment of fornication. But where the co habitation has taken place with the knowledge on the part of the man of the illegality of the connection, there is a difference of opinion between Abu Hanifa and his two disciples. Abu Hanifa holds that the connection is not zina and the man is not liable to the hadd although he may receive some lighter punishment (t azir) at the discretion of the Kazi. Abu Yusuf and Mohammad‑on the other hand, declared that the connection is nothing less than zina and the than ought to receive the specific punishment for zina. As already pointed out the Fatwa, according to the Khulasa, is given, i. e., decrees made according to their views."
"In the case of a marriage contracted with a maharam (a person within the prohibited degrees) with a knowledge of its illegality on the part of the man only or on the part of both man and woman, if there is consummation the woman is not entitled to any slower nor is she bound to observe the probation; but where it is otherwise, viz., without knowledge of the illegality tire observance of iddat becomes obligatory on her and she becomes entitled to some dower."
"But where the prohibition is relative or temporary (muwakkat) or the illegality wings from an accidental circumstance such as the absence of witnesses, the position is quite different. Although the doctrine of shubh was some times brought to bear on these unions as they were not inherently or redically the question of knowledge of their relative illegality did not enter into consideration‑fox under no circumstances, by consensus the parties contracting such marriages were liable to hadd."
Dr. N. U. A. Siddiqui has written a book, as the very title suggests, on the "Studies in Muslim Law", on "Bath and Fasid Marriages" He has openly dissented from both Baillie and Syed Ameer Ali in their views expressed above and devoted two separate chapters to them in his book. His criticism of Baillie in this respect is particularly severe and, if I may say so, uncharitable. Dr. Siddiqui is agreed that prohibitions in Nikah are of two kinds, perpetual (mo-abbada) and temporary (ghair- mo‑abbada). But according its him that does not mean that there is any distinction in the nature of the hurmat (prohibition) involv ed in the marriages with the women who are prohibited in perpetuity or otherwise. In his opinion basically the injunction against marriages with prohibited woman in both Z1w cases is absolute and peremptory long as the obstacle, in the way of the marriage lasts, the prohibition is fully effective, complete and cannot be by‑passed. According to him there is no authority for the view that the expression "Mooharamat" (prohibited women) should be given a restricted interpretation to include only the woman who are perpetually interdicted against marriage by reason of consanguinity, affinity or fosterage. Shubh, in the opinion of Dr. Siddiqui, is of two kinds only and he has refused to recognise its division into Shubh‑fil‑akd (doubt of error in the contract) made and propounded by Imam Aboo Haneefa. In his opinion it is not permissible to make any invidious distinction in the case of marriages with temporarily prohibited women as merely invalid (fasid) and not batil (void). This, according to him is against the express injunctions in the Holy Quran. He is of the considered opinion that the marriage with the fifth wife, in the. existence of four wives, is prohibited and void (batil), not merely fasid. So that it produces no legal results.
In the course of this judgment it is neither possible nor desirable to refute all the arguments mustered by Dr. Siddique in support of the views advanced by him. But it appears to me that on the limited question before us, in this appeal, his criticism of the opinion expressed in the two invaluable treatise compiled by Baillic and Syed Ameer Ali on the Islamic Law is not tenable on the whole. The research made by him though commendable, is neither full nor comprehensive. It appears that in the studies made by him, the learned author was mostly concerned with the difficult and highly controversial case of the validity of the marriage with two sisters (Jama‑ul‑ukhtain), a subject with which I am not directly concerned in this appeal and on which I have expressed no opinion of my own.
As mentioned in Rudd‑ul‑Muhtar (discussed above), all the three Imams, according to the most approved report, are unanimous in that "the doubt is removed only when maharim is one regarding whose unlawfulness there is concurrence and who Is permanently unlawful." This on the authority of Buhur, Hedaya (Volume II, page 201, discussed above) says, Imam Aboo Haneefa (in the case of illegal cohabitation under a perpetual illegality has made "it a condition that the perpetual illegality be universally admitted and established upon the authority of the most generally accepted traditions, so as to be determined and known beyond all doubt or dispute." As discussed above the connection of a man with a woman who is not his property at all, is unlawful in its own nature. The same is the case when a man has sexual intercourse with his moharim, whom he has married. Here the term maharim is used in a restricted sense so as to include those women who are prohibited on account of nasab reza and sahriat. The division between the two categories of women assumes importance because of the prevailing difference of opinion among the learned about the legal effects and conse quences of a marriage by a man with a woman under a temporary prohibition. It is here that the doctrine of shubh comes into play. According to the three Imams the doubt is removed only when the rnaharint is one regarding whose unlawfulness there is U concurrence and who is permanently unlawful. As discussed above, according to Baillie (Digest of Muhammadan Law page 150‑151 "Mooharim" among the Han ifite Sect, are women perpetually interdicted from marriage, by reasons of consanguin ity, affinity or fosterage. He has used this term in the stricter sense and not generally. For this view Baiilie has relied on the authority of A1 Ashbahowa al‑Nazir, page 588." This view is also shared by the learned author of Rudd‑ul‑Muhtar in his commentar yon Dorr‑ul-Mukhtar (Volume II, page 231, reproduced above) on the high authority of Tanwir‑ul‑Absar. This was never the innovation made in Islamic Law by Baillie himself. These high authorities have escaped the notice of Dr. Siddiqui in Iris "Studi"s in Muslim Law." Moreover, in the application of the doctrine of Shubh, the learned author appears to have curtailed its scope, He has refused to recognise its classification into "Shubh‑fil‑akd" made by Imam Aboo Haneefa. But there is hardly anything in this name and as pointed out by Rudd‑ul- Muhtar (Volume 111, page 231), correctly speaking this class of Shubh is included in the other two classes, Shubha‑i‑Hukmea and Shubha-I-Ishtibah. It cannot be said that the view adopted by me, or for the matter of that by Baillie and Syed Ameer All, is against the injunction in the Holy Quran. It is agreed that the marriage with the fifth wife, in the presence of four, is unlawful. But does that illegality render the marriage bard (void) or fasid (invalid‑vicious) Quran is silent about it. On the other hand, t the application of the doctrine of Shubh has the sanction of the Holy Prophet behind it. For he said "drop the punishment from doubt." Dr. Siddiqui in his book has failed to fully appreciate that in Islamic Law a marriage may be illegal and invalid and yet the children may unquestionably be legitimate.
26. Having considered the distinction between batil (void) and fasid (invalid) marriage, let us now examine the legal effects and consequences of a fasid marriage. From one point of view before consummation the fasid marriage, like a batil marriage, is' nugatory and has no effect. There is no iddat and dower in al fasid marriage before consummation. But consummation in anal invalid marriage does produce some results of a limited character. So that it becomes obligatory on the woman to observe iddat. She is entitled to the customary or the specified dower whichever is less and nasab (paternity) is established in case a child is born to them. There is no hadd (the specific punishment for zina) in an invalid marriage but the parties to it do not go unpunished for the offence committed by them. They are liable to be corrected by tazir (a discretionary punishment) which may be extremely severe depending upon the circumstances of each case. The parties to an invalid marriage are under a liability to separate a soon as the fasad (illegality) appears or becomes known t them. In case they do not do so, the responsibility devolve upon the Kazi to separate them and dissolve their marriage immediately.
The Fatawa‑i‑Alamgiri (Urdu translation published by Nawalkishore Press, Lucknow, (Volume 11, Chapter VIII, page 241), has devoted a separate chapter to "Invalid marriages and the rules relating thereto."
It says:---
"When a marriage is found to be invalid, the Kazi "should effect separation between the husband and the wife. In case there has been no cohabitation the wife shall not be entitled to a dower nor will she be required to serve out the period of probation (Iddat). But is case there has been copulation between the husband and the wife the latter shall get the dower specified for her, or the one customary in her family (mater‑ul- misl), whichever is the lesser one. The mater will be allowed only in case it has been tired, she will get mahr‑ul‑misl, no matter whatever it may be in amount. in this case the woman shall have to undergo the period of probation and only the sexual intercourse shall be allowed that has been made and the man has fully enjoyed the object of his contract. The period of Iddat shall be computed from the time the cancellation of nikah has been made between the pair. This is the opinion held by the three Imams, vide the Mohit."
Similarly Hedaya (translation by Charles Hamilton, Standish Grove Grady Edition, Volume 1, Book No. 11, Chapter III, page 52‑53) contains a very comprehensive statement of the law, on the consequences of an invalid marriage, as under:‑--
"A woman is not entitled to any dower under an invalid marriage dissolved before consummation : If the Kazee separates a man from his wife, before cohabitation, on account of their marriage being invalid, the women ii not entitled to any part of her dower, because, where the marriage is invalid, no obligation with respect to dower is involved in the contract, as that, in such a case, is also null; nor is the dower held to be due on any other ground that the fruition of the connubial enjoyment, which is not found in the present instance.‑In the same manner no dower is due after Khalwat Saheeh, or complete retirement, because on account of the invalidity of the marriage, the law does not consider retirement as indicating the commission of the carnal act, and consequently it does not stand as such‑
But in case of consummation, she is entitled to her proper dower, not exceeding what is specified in the contract:‑ If a man engage with a woman in an invalid marriage, and have carnal connexion with her, she is in this case entitled to her proper dower: but she is not entitled to more than the specified dower, according to our doctors. This is contrary to the opinion of Ziffer, who conceives an analogy between this and an invalid sale ; that is to say, in an invalid sale, if the stipulated price of the thing sold be short of its actual value, the latter is due to whatever amount ; and so also in the present case. The argument of our doctors, in this case, is that the thing which the husband has received (namely, the possession of the woman's person) is not property, and therefore is not appreciable in any other way than by the assignment of a dower; now if a dower assigned should exceed the proper dower, the excess is not incumbent, because of the invalidity of the assign ment, for that is a part of the contract, which being invalid, the assignment is so likewise; and, on the other hand, if the dower assigned be short of the proper dower, the diference is not incumbent because, with respect to that assignment has not been made; contrary to an invalid sale because there the thing sold is appreciable, and consequently the amount of the return will be adjusted by its value.
And she must observe an Edit after separation.‑‑The observance of an Edit, after separation, is incumbent upon a woman with whom a man has had carnal connexion in an invalid marriage. And here the Edit is to commence as from the date of separation, and not from that of the last carnal connexion.
A child bora in an illegal marriage is of established descent.---The descent of a child born of a woman enjoyed in an illegal marriage is established (in the reputed father), because in this regard is had to the child's preservation, since if the descent were not to be established, the child might perish for want of care..‑‑‑Mohammad holds (and decrees are passed agreeable to this doctrine) that, in the establishment of genealogy under an invalid marriage, the time is calculated from the first carnal connexion, not from the date of the marriage, because one which is invalid does not give a claim to the carnal act, so as to stand as such, whereas the reverse is the case in a valid marriage, as that establishes such claim; and hence, in the establishment of genealogy, the time is calculated from the date of the marriage."
In the same connection the Fatawa-e-Kazi Khan, paged 421 says:-
"If a man marries a woman by an invalid marriage and cohabits with her and gets a child by her the nasab (parentage) will be established from him if the child is born six months thereafter (i.e., after copula)."
The Kanz-ud-Dakaik (Lucknow Edition, page 102), lays down the rule as under :-
"In a nikah-ul fasid the customary dower becomes obligatory upon copula. But the customary dower should not exceed the mussama (specified dower); and nasab will be established and also "iddat". On this the comment is "and nasab is established in a valid marriage because the child must be taken care of. The same reason applies to the case of an invalid marriage. And nasab is reckoned in an invalid marriage from dukbul (copula) according to Mohammad . . . . . . . and on this is the fatwa."
The broad principle laid down in the Sharh-i-Vikaya (Volume II, page 128), is no different. It says :-
"In the case of an invalid marriage nothing will be obligatory unless there be cohabitation, even if there be valid retirement. (But) if he were to cohabit he will have to pay the customary dower if it does not exceed the dower fixed. If the customary dower be equal to or less than the fixed dower, than the customary dower will have to be paid. But if the customary dower is greater than the fixed one, the excess will not be obligatory to Mohammed (may peace be on him) and on this is the fatwa.".
Similarly according to the Digest of Mohammedan Law by Baillie (Book 1, Chapter VIII, page 150), in the case of an invalid marriage, it is the duty of the Judge to separate the parties; and if the wife be un-enjoyed she has no claim to dower, but otherwise she is entitled to whichever may be less of her proper dower, and the dower specified, when any has been named. It is incumbent on her to observe the iddat. The nasab or paternal descent of a child born of an invalid marriage, is established in the husband, without any claim on his part. An invalid marriage produces no legal effect before consummation. It is perhaps for that reason that some of the early jurists have failed to distinguish it from a batil marriage. According to Fath-ul-Qadir (Egyptian Edition, Volume 2, page 300), Al-mabsoot by Sarkasy (Egyptian Edition, Volume 17, page 15) and Bedaya-wee-Senaya (Egyptian Edition, Volume 2, page 331), in a Nikah-ul-Fasid the nasab is established and the children born of the marriage are legitimate. Indeed as far as I could see there is a complete unanimity of opinion of this among the learned.
27. This conclusion can be justified from another angle as well. According to an accepted tradition (Bokhari and Muslim), the Prophet said: "that the "wulud", or child, is for the Firash (that is, for the owner of the Firash or bed), and for the adulterer there is prohibition." The child belongs to the owner of the bed (firash) and there is nothing for the adulterer. The ownership (milk) in the bed is acquired by marriage or bondage whenever permissible. According to the learned, the "Firash" is established constructively in an invalid marriage as well.
28. To wind up this discussion, it follows that there is no doubt that the marriage with the fifth wife, in the presence of the four wives, is prohibited in Islam. But the prohibition is relative and temporary (muwakkat). It springs from an accidental circumstance, the presence of the four wives. It is unlawful for Y this reason and is not radically or inherently unlawful. Such a marriage with the fifth wife is technically speaking, fasid (invalid) and not basil. As mentioned above, Rudd-ul-Mubtar (Volume III, page 331), on the authority of Fath-ul-Qadir supported by the views entertained by the lawyers whose traditions and writings are reliable as, for instance, Ibn-i-manzar has observed that the marriage with the fifth wife is merely fasid. This is also the view written by Kakim in his book called Kafi. Jamai-ur-Rumuz otherwise known as Kashistani (Volume IV, page 464) is of the same opinion. Similarly according to Bahr-ur-Raik (Volume II, page 171), the marriage with the fifth wife, In the presence of the four, is fasid and so nasab will be established from such a marriage. This is also the view taken by Allama Abdur Rahman Algezaries in his authoritative and well known work of modern times, "Al-Fikha-alal-Mazehib-ii-Arba " (Volume IV, pages 116-117). According to him in case a man marries five wives by one contract, the Nikah is fasid and not baril, among the Hanafi Jurists. After consummation in such a case, the dower and iddat are both obligatory and nasab is established. Bailie in his Digest of Muhammadan Law (pages 30 and 154) considers the marriage with the fifth wife when he has already four, as invalid (fasid). Similarly according to Muhammadan Law by Syed Ameer Ali, paged 251, such a marriage with the fifth wife is invalid. According to Article 255 Mulla's Principles of Muhammadan Law (15th Edition) if a Muslaman marries a fifth wife when he has already four, the marriage is not void but merely irregular. Similarly according to Muslim Law by Saxena, page 161 such a marriage with the fifth wife is invalid (fasid) and the issues of a fasid marriage are legitimate (page 194).
The "Institutes of Mussalaman Law by Nawab Abdur Rahman is based on the "Droit Musulman" prepared by a council of the leading Ulmas of the University Mosque of Al-Azhar, a great seat of Islamic learnings. Article 21 of this treatise lays down that prohibitions in the marriages are either perpetual or temporary. Among the causes that create temporary prohibitions is inter alia the union with more than four women at one time. According to Article 134, the marriage with a fifth woman, before the fourth has been repudiated and period of her Iddat expires, is "absolutely void." At the same time in Article 341 of the same treatise, it is laid down that when a wife, whose marriage is redicaliy void, bears a child, paternity is established from the husband even without his formal acknowledgment. In the latest book in Pakistan‑the Majmooa‑i‑Qawaneen‑i‑Islam by the Tanzil‑ur‑Rehman, published by the Central Institute of Islamic Research, Karachi, a similar view has been adopted. In this book the discussion on pages 144 to 148 and under Article 35 shows that the nikah with the fifth wife in tire presence of the four is void but on consummation it gives rise to some of the consequences flowing from a fasid marriage. There is no hadd in such a case. The dower and iddat becomes obligatory. The nasab is also established in such a case. In reality this is no departure from what has been said earlier. From one point of view before consummation a fasid marriage, like batil marriage is nugatory and produces no results. It is only after consummation that such a marriage gives rise to these consequences of a limited character. Irrespective of the fact whether the marriage with the Z fifth wife in the presence of four is treated as fasid (invalid) or batil (void), it is agreed that the children born of such marriage are deemed to be legitimate. So far as this is concerned there appears to be a consensus of opinion among the learned. As far as I could see the only opinion to the contrary is expressed by Dr. Siddiqui in his "Studies in Mulim Law," Chapter IV. But, as already discussed, his view in this respect cannot be accepted.
29. But the wife in the case of a fasid (invalid) marriage6 is under no circumstances entitled to succeed to the estate of A her deceased husband. Baillie in his Digest of Mohammadan Law, page 694, says that there are no mutual rights of inheritance by a marriage that, is invalid or void, according to all. In this connection there is no difference of opinion between Imam Abu Hanifa and his two disciples (Dun‑ul‑Mukhtar, p. 852). Similarly according to Shami (Volume 1, p. 197) the wife does not succeed to the inheritance in such a case. Also Muila in his Principles of Mohmmadan Law, Para. 267 (2) (iii) (15th Edition) says that the issue of the marriage is legitimate but an irregular marriage, though consummated, does not create mutual rights of inherit ance between the husband and wife.
30. So far as I have been able to discover there is only one reported case of Khurshid and another v. Abdul Handd Khan and others (1) directly in point. A Division Bench of the Chief Court of the Punjab held that according to Mohammadan Law the marriage with a fifth wife in presence of four living wives is invalid, but not void, and consequently the children of a such marriage are legitimate and entitled to succeed as lawful heirs of their fattier. The relevant verse in the Holy Quran (Part 4, Chapter 4, Verse 3) was correctly interpreted as limiting the numbar of wives to four and not more; and the learned judges at the same time, remarked:--
"This interpretation given by various commentators must, therefore, be accepted as a true interpretation. But it may be permissible, however, to remark that the text on the face of it is not so prohibitory in its terms as is the text forbidding marriage with certain female relations, etc."
According to the learned Judges the subject of marriage of fifth wife is treated in a different place and a different verse and language used is not, at least, on the face of it so mandatory and prohibitory as in the case of a marriage with two sisters.
31. To wind up the above discussion it follows that Ghulam Kibria, defendant No. 1 and Ahmad Mukhtar defendant No. 2 born to Raja Ghulam Rasul, of Mst. Rufia Begum deceased and Mst. Mehrun Nisa defendant No. 9 are entitled to share in the estate left by him as his legitimate sons along with the other heirs. As such the plaintiffs and defendants 1 to 7 are entitled to succeed to him under the share. But neither Mst. Rafia Begum who was the fifth wife of the deceased had been divorced by him in his life‑time nor Mst. Mehrun Nisa defendant. No. 9 who was thereafter married to Raja Ghulam Rasul, in the presence of his four wives, are entitled to share in the inheritance under the Islamic Law. Khurshid Begum defendant No. 8 is not proved to be the lawfully wedded wife of the deceased. At any rate even in her capacity as the fifth wife, she would stand excluded from the inheritance.
32. Sh. Bashir Ahmad, Advocate, the learned counsel for the plaintiffs‑appellants made bold to say that this case has got to be deceased in accordance with the Holy Quran and Sunnah alone. In support of this contention he referred us to the Principle of Policy No. 1, laid down in the Constitution of the Islamic Republic of Pakistan, to the effects that "no law shall be repugnant to the teachings and requirements of Islam as set out in Holy Quran and Sunnah and all existing laws shall be brought in conformity with the Holy Quran and Sunnah." But the explanation added to it is important. It says that "in the applica tion of this principle to the personal law of any Muslim Sect, the expression 'Quran and Sunnah' shall mean the Quran and Sunnah as interpreted by that sect." The principal sects among the Muslims, have always professed to follow the Quran and Sunnah in the application of the different principles of jurispru dence evolved by them. The Muslim legists trace almost all the principles to the Quran.
Among the Sunnis, the fountain‑head and the source of all laws is the Holy Quran. It contains the fundamental prescriptions to regulate the various relations of life. But it is silent on many points and is supplemented by, the precepts delivered by the Prophet from time to time, the Sunnah. These are the two fundamental basis of jurisprudence. The other sources of Islamic Law in order of precedence, recognized by the Sunni Sect, are the Ijama's‑ul‑Ummat (concordance among the followers) and Kiyas (the exercise of private judgment based on analog). All these go to constitute the basis upon which Sunni Jurisprudence is founded. Therefore, even after the promulgation of the present constitution, these sources of the Muslim Law in their application to the Sunni Sect are kept in tact and in no way been modified or; annulled. In the absence of any indication on the record to they contrary, I presume that the parties to this case are governed by the Sunni Law. The parties in the course of their arguments addressed before us did not even suggest that the deceased was not a Sunni Muslim.
33. Before parting with the case, I have also to examine the effect of the judgment dated 10th October 1953 (Exh. D. 17) passed by the Senior Civil Judge, Lyallpur, in the suit brought by Ahmad Mukhtar against Muhammad Ismail and others, to which all the remaining heirs of the deceased were parties. Ahmad Mukhtar brought the suit on 26th august 1959 for his 7/60th share of the rent due from October 1948 to October 1949 in respect of certain land given on lease by Raja Ghulam Rasul in his life‑time. Some of the other heirs denied his relationship with Raja Ghulam Rasul deceased and contested the suit. The Court, therefore, framed the issue as to whether Ahmad Mukhtar, the plaintiff in that suit, was the heir of Raja Ghulam Rasul deceased and entitled to succeed to the estate to the extent of his 7/60th share. Ultimately the Court found that Mst. Mehrun Nisa was married with Ghulam Rasul at Multan in March 1941 and that Ahmad Mukhtar was his son born of this marriage.
In the present case the lower Court found in favour of defendant No. 2 on issue No. 5 and held that the judgment in Exh. D. 17 is res judicata between the parties. Under section 11 of the C. P. C. it is not possible to lay down any hard and fast rule as to whether a previous decision in a suit for rent will operate as res judicata in a subsequent suit on title. All that can be said is that if in the former suit for rent the question of title was directly and substantially in issue between the parties, the finding on it would operate as res judicata between the parties in the subsequent suit. In case, however, the matter was only C collaterally and incidentally in issue, then the decision shall not operate as res judicata in the subsequent suit. In the present case I have no hesitation, in agreement with the trial Court on this issue, to hold that the decision in the previous judgment between the parties to the effect that Ahmad Mukhtar defendant No. 2 was the legitimate son of Raja Ghulam Rasul entitled to succeed to the estate left by him to the extent of his 7/60 share, is res judicata. 'I his matter was directly and substantially in issue it) the previous suit as well as in the present suit.
34. As a result of the above discussion, I would dismiss both the appeals. But there shall be no order as to costs under he circumstances of the case.
I have nothing to add to the very elaborate and painstaking judgment of my learned brother, Muhammad Akram, J., except a word or two in full accord with us view:.
2. To my mind, Islam enjoins monogamy as the normal rule of marriage, the choice to marry more than one wife up to the limit of four (accepting the most liberal interpretation of the relevant Quranic text) being subject to the very rigorous condition of absolutely equal and impartial treatment between them all n point of physical and mental relationship, the fulfilment of which is not easy, not to say that, it is almost impossible polygamy is permissible within its own limits to the extent of having four wives at the same time, marrying them one after the other, but that is the maximum. The non‑fulfilment of the condition of equal treatment to any of them may furnish a ground for dissolution of her marriage, but the marriage in such cases is not inherently fasid or batil. However, a marriage in excess of the limit of four in the presence of the four living wives is fasid and not batil, the result being that such wives who are thus tied in fasid marriages would have no title to the inheritance of their deceased husbands. But no stigma will attach to the issues from such wives to exclude them from inheritance as the legitimate children of their fathers. On this principle, which is well recongized in Islamic Jurisprudence, I agree with my learned brother that Mst. Khurshid Begum, defendant No. 8, the fifth wife of Ghulam Rasul, assuming that she was so, which is doubtful according to evidence, cannot have any claim to his inheritance. Similarly, Mst. Rafia Begum and Mst. Mehran Nisa, whom the deceased, late Ghulam Rasul, had taken in marriage during his subsisting marriages with the previous four wives do not have any share in the inheritance of Ghulam Rasul under the Islamic Law, although Mst. Rafia Begum had been subsequently divorced by him and had died in his life‑time. Ghulam Kibriya, defendant No. 1, the son of Ghulam Rasul from Mst. Rafia Begum, and Ahmad Mukhtar, defendant No. 2, his son from Mst. Mehrun Nisa, have, however, to be treated as the lawful heirs of Ghulam Rasul with a right to inheritance along with the other heirs.
3. I would dismiss both the appeals, leaving the parties to bear their own costs.
S.A.H. Appeals dismissed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer