Budansa Rowther and Another vs Fatma Bi and Others

Spencer, J.—The plaintiff, who died during the pendency of the suit, was one of the daughters of Jaila Rowther by his first wife Fatma Bi,

and the 7th defendant who was the principal of those who contested the claim is a daughter by a later marriage. The suit was brought for the

recovery of the plaintiff''s share of her father Jaila Rowther''s share in the estate of the plaintiffs grandfather, Ahamsa. It was resisted on the ground

that the plaintiff''s mother having been married to a Hindu husband, named Maniya Gounder, her subsequent marriage to Jaila Rowther, while the

first marriage was subsisting, was not legal, and, therefore, the plaintiff and the defendants Nos. 2, 4 and 5 were illegitimate and as such debarred

by the form of Mahomedan law in force among Sunnis from inheriting as sharers. The suit failed in both the Lower Courts and the plaintiff''s legal

representatives appeal by their next friend.

Five contentions based on questions of law have been put forward at the hearing of this second appeal, namely:

(1) By conversion to Islam the 1st Defendant became a good Mahomedan and the tie of her marriage with a Hindu became thereby dissolved and

her subsequent marriage to a Mahomedan was valid.

(2) a marriage of this kind, though irregular, would be regarded by the Mahomedans as not invalid, and by the principle of factum valet the

irregularity would be condoned by the couple living together as husband and wife;

(3) in considering whether the marriage is valid, it is necessary to apply the law prevailing in the French possessions in India. Hindus and

Mahomedans living in French India are not necessarily governed by the Law recognised in British India, and it is incumbent on the defendants to

show that the French Courts have adopted the same principles as the courts in British India.

(4) by the custom and usages of persons belonging to the Palli caste, Marriage with a second husband during the life time of the first husband is

permissible; and the onus lies on them, who assert that such a custom is not applicable in a particular case to prove it; and

(5) the finding of fact by the Lower Courts amount to the establishment of the fact that there was an acknowledgment on the part of Jaila Rowther

of the legitimacy of his children by the first defendant. It is conceded that if the Marriage was invalid and the parties knew it, no acknowledgment

could make legitimate the offspring of a union which has its inception in illegitimacy, but it is contended that it has not been proved that the parties

to the marriage knew it to be an invalid one.

We may briefly dispose of the last of these contentions by observing first that the Mahomedan and Hindu laws being personal laws are attached

to the followers of each religion where ever they may be living, and that the facts found by the lower Courts are that the plaintiff''s mother, Fatima

alias Unnarhalai was Married to Maniya Gounden at Kariam Puthur in Pondicherry, but her marriage to Jaila Rowther was performed at Sholavalli

in the South Arcot District which is Brritish territory, and therefore as the marriage to Jaila Rowther has come before the British Courts, the law we

must administer is that prevailing in British India; Secondly, that, assuming that there is a custom among Pallis or Vanniyans of allowing a woman to

marry again during the life time of her first husband, such a custom is contrary to public policy and to morality and appears to be condemned by the

community (seep. 103, Gazetteer of the South Arcot District), and, therefore, the courts will refuse to recognise it; and thirdly that a mere

recognition of paternity is not equivalent to a recognition of legitimacy (vide Abdul Razak v. Agd Mahammed Jajar Bindami ILR (1894) . C. 666

and that acknowledgment cannot make legitimate the offspring of Zina (Fornication or adultery) (vide Mardan saheb v. Rajak Saheb ILR (1909)

B. 111.

The question of law arising out of the first two contentions, which may be taken together, are more difficult of solution, but we feel no doubt of

the answer which must be given to them.

The District Munsif found that the first defendant''s Hindu marriage with Mania Goundan took place forty years ago. In paragraph 38 of his

judgment he stated that her marriage with Jaila Rowther might be presumed to have taken place more than thirty four years ago, though in the last

paragraph of his judgment he gave no definite finding as to the date of this marriage, and the District Judge has left it open. Assuming that the 1st

Defendant''s conversion and marriage took place before the conception of the children who were born of this union, the point to be decided is

whether they may be treated as legitimate ""offspring. In a Mahomedan country the law is, that, when a woman is converted to the faith of Islam,

she must apply to the Kazi or magistrate, who will call upon the husband to embrace the faith also, and, if he refuses, the Kazi will dissolve the

marriage. In a foreign country, if the wife becomes a moslem and her husband is an infidel, separation takes place after the lapse of three monthly

courses (see pages 176 to 179 of Hedaya Vol. I, and pages 426 and 427 of Amir Ali''s Mahomedan Law Vol. II). Certain observations which

occur at p.12 of Norton''s Leading cases Vol. 1 and the remarks of Mr. Justice Kernan in Sinammal v. The Administrator General of Madras ILR

(1883) M. 169 are quoted in support of the theory that, when a Hindu married woman who deserts her husband becomes a convert to

Mahomedanism and adopts the habits of, and lives as the wife of, a Mahomedan, she is altogether out of the pale of the Hindu law and ceases to

have any recognised legal status she has according to that law, that she becomes civilly dead and that the marriage and the relation of husband and

wife become thereby absolutely dissolved. The view taken by Mr. Justice Kernan was not completely followed by Mr. Justice Parker when the

question of the same marriage between Sinammal and Krishna a native convert to Christianity came up for his consideration. He pointed out that,

although Krishnan''s conversion to Christianity rendered him an outcaste, according to the Hindu Law he might have been readmitted to the status

as a Brahmin and his degradation might have been atoned for by renouncing Christianity and performing the rights of expiation enjoined by his

caste. He therefore held that apostacy does not itself dissolve the marriage tie. (Administrator General of Madras v. Anandachari ILR (1886) M.

460.

This question has now been settled beyond all reasonable doubt by the decisions in In the matter of Ram Kumari ILR (1891) C. 264 which was

followed in Emperor v. Lazar ILR (1906) M. 550 also by Sundari Letain v. Pitambari Letain ILR (1905) C. 871 by the Government of Bombay

v. Ganga ILR (1880) B. 380 and by Jamna Devi v. Mul Raj 42 P.R. Judl. Part I 198 where the questions arising for determination were similar to

those in the present suit.

Where a conflict occurs between persons belonging to different religions, the courts must apply the rules of Justice, Equity and Good

conscience. Vide Subbaraya Pillai v. Ramasami Pillai ILR (1899) M. 171.

In considering whether the 1st defendant''s first marriage was subsisting or not at the time of her second marriage with Jaila Rowther, the

principles of Hindu Law must be applied ; but in testing the validity of her second marriage with Jaila Rowther the principles of Mahomedan Law

must be applied. According to Hindu Law, her Hindu marriage was not dissolved by her apostacy. According to Mahomedan Law, the marriage

of a man with the wife of another man is not permitted so long as the first marriage is subsisting. Such a union will not be merely invalid (fasid) but

altogether void (batil) and illegal. (Vide Liaqat Ali v. Karimannissa ILR (1893) A. 396; and p. 322 and page 332 Clause (c.) of Amir Ali''s

Mahomedan Law Vol. II). The dictum in I Norton''s Leading cases page 12 must be considered to have been over-ruled by subsequent decisions

and to be no longer good law.

It is argued that, because the conversion of a non-moslem wife to Mahomedanism in a foreign country dissolves the wife''s marriage with her

non-moslem husband after the completion of three of her periods, the marriage in the present case would be perfectly valid, supposing that the

moslem husband waited for three months after the woman''s conversion before he married her; and that even if the marriage had been performed

during those three months, the marriage would be merely irregular (see Mr. Justice Tyabji''s Principles of Mahomedan Law pages 102 and 103 for

the principle that a marriage during the iddat or three moths'' period which must elapse between the termination of one marriage and that into which

a woman may subsequently enter, is only irregular). As it must be held on the authority of the decisions to which I have referred that the 1st

defendant''s marriage with her Hindu husband was still subsisting in spite of her conversion her marriage to another man of a different religion was

not merely irregular in the eye of Mahomedan Law, but absolutely illegal and prohibited. The plaintiff must then be regarded as an illegitimate child

of Jaila Rowther, even adopting the facts most favorable to her contention. The second appeal fails and is dismissed with costs of the 6th, 7th, 9th,

11th and 12th respondents (one set).

Sadasiva Aiyar, J.

I entirely agree with the judgment just now pronounced by my learned brother, and I do not think that I can usefully add anything in my own

words. I might, however, emphatically endorse his view that, if there is a custom among any community of allowing a woman to marry again during

the lifetime of her first husband without any defined rules by which the marriage with her first husband is dissolved before the second marriage is

contracted such a custom is contrary to public policy and morality, and cannot be recognized by the courts. The sentence quoted, however, by the

learned Vakil for the appellants from the South Arcot District Gazetteer (page 103) does not, in my opinion; speak to the existence of the large ill-

defined custom relied upon by the appellants. As regards the doctrine of Factum valet, neither in the Hindu nor the Mahomedan law, does it ever

excuse the violation of a legal rule so as to make acts performed in such violation legally valid. That doctrine only means that a precept which

merely belongs to the domain of ecclesiastical admonitary precept has not "" in the domain of Vyavahara "" or secular law the same force as a

positive and clear rule of the Vyavahara law has. As Sirkar says, in his book on Hindu Law III Edn. pages 16 and 17 the texts of Vyasa which

prohibit one to alienate one''s own share in a joint family property or one''s own self acquired property are moral precepts and cannot weigh

against the man''s legal rights to exercise the right of alienation which the positive Civil Law gives, as "" it is an axiomatic principle of the Vyavahara

Law that a co-sharer can dispose of his share and that one can dispose of his self acquired property.

On the question of conversion to Islam of a Hindu wife and her marriage thereafter to a Mussalman husband during the lifetime of her first

husband I shall merely quote a few passages from Ameer Ali''s Mahomedan Law, Vol. II. ""The Native converts, Marriage Dissolution Act (XXI

of 1866) was specially designed to meet the case of converts to Christianity from Hinduism and other cognate systems which do not recognize the

dissolution of a marriage once contracted ""Christianity and Islam are the only two proselytizing religions in India, and conversions to Islam are

frequently as sincere as conversions to Christianity."" But no "" native husband"" or "" native wife"" adopting Islam is entitled to come to the court to

obtain the relief provided in the Act. Their status is not allowed to be governed by the laws of the new Faith, but continues to be subject to the law

and custom to which they were subject before."" See page 425.

If the conversion to Islam takes place in an Islamic country, the Kazi must be moved to summon the other party to adopt the moslem faith. In case

of compliance, the marriage remains in tact and valid ab initio, and there is no need for renewing the contract, though in practice it is sometimes

done. Until the Judge has made his decree separating the parties, the connection remains invalid and has all the consequence following from an

invalid connection. See pages. 426 & 427.

The Calcutta High Court has held that India is not a non-Islamic country, and that consequently when a married non-Moslem woman adopts the

mahomedan faith, and, thereafter, contracts a fresh marriage without applying to a Judge or a Magistrate to call upon the husband to adopt Islam

she is guilty of bigamy. See page. 427.

In the result, I agree with my learned brother that this second appeal should be dismissed with costs of the respondents Nos. 6, 7, 9, 11, and

12.