IN THE SUPREME COURT OF BANGLADESH

APPELLATE DIVISION.

PRESENT:
Mr. Justice Surendra Kumar Sinha

Madam Justice Nazmun Ara Sultana

Mr. Justice Syed Mahmud Hossain

Mr. Justice Muhammad Imman Ali

Mr. Justice Muhammad Mamtaz Uddin Ahmed

Mr. Justice Md. Shamsul Huda

CIVIL APPEAL NO.139 OF 2003.

(From the judgment and order dated 16.6.1999 passed by the High
Court Division in Civil Revision No.1984 of 1996.)

Mst. Momtaz Begum: Appellant.

=Versus=
Anowar Hossain: Respondent.

For the Appellant: Dr. Rabia Bhuiyan, Senior Advocate,

instructed by Mr. Md. Nawab Ali,
Advocate-on-Record.

For the Respondent: Mr. Abdul Wadud Bhuiyan, Senior

Advocate, instructed by Mr. A.K.M.
Shahidul Huq, Advocate-on-Record.

Date of hearing: 21st June, 2011, 19th, 26th and 31st July, 2011.

J U D G M E N T

S.K. Sinha, J: This appeal raises questions of

some importance in the field of Mohammedan Law but

they are not abstract questions which can be divorced

from the facts giving rise to them and in order to

resolve them the facts in some detail are necessary.

 2

Appellant instituted a suit against the respondent

for dower and maintenance in the Family Court. She

claimed that though their marriage was solemnized

according to Mohammedan Law, the Kabinnama was not

registered. They lived as husband and wife together

for a considerable time and the marriage was duly

consummated. With the passage of time the respondent

became more greedy and started demanding dowry from

her and at one stage the respondent drove her away

from his house. Respondent contested the suit denying

the marriage and claimed that the appellant’s brother

was an employee under him. He misappropriated a sum of

taka thirty five thousand from his shop and to divert

the said incident, the appellant instituted the suit

by making wild allegations. Besides the evidence of

the appellant, the Family Court on assessment of the

evidence of Shadrul Islam (P.W.2), Madu Mia (P.W.3),

Swapan (P.W.4) and Babul Mia (P.W.5) came to the

definite finding that the respondent married the

appellant and that they lived as husband and wife, and

 3

decreed the suit. The Court of appeal below affirmed

the judgment. A single Bench of the High Court

Division in exercise of revisional jurisdiction

reversed the judgments of the courts below and

dismissed the suit.

It has been observed by the Family Court that the

appellant examined independent witnesses who stated in

unequivocal terms that there was marriage between the

appellant and the respondent, that they lived together

as husband and wife and that the respondent examined

nearest relations who are not reliable witnesses. The

Family Court inferred adverse presumption against the

respondent on the reasonings that though the

respondent denied the marriage, he being the eldest

among seven siblings, the marriage of his two younger

brothers is not unnatural but considering the

surrounding facts coupled with the nature of the

witnesses examined by him led to the inference that

there was legal marriage between the appellant and the

respondent. The Court of appeal below also evaluated

 4

the evidence on record afresh and arrived at the

conclusion that the respondent failed to prove by

adducing reliable evidence that he did not lead

conjugal life with the appellant, that despite that

there was no kabinnama, they lived as husband and wife

which had been satisfactorily proved by the appellant

by examining independent witnesses and that the Family

Court was perfectly justified in decreeing the suit.

The High Court Division held that in the absence

of a registered kabinnama a special onus is cast upon

the appellant to prove the fact about marriage, that

there is no material to show that the marriage between

the parties was solemnized after fulfilment of

requirements laid down in paragraph 252 of the

Mohammedan Law, that the appellant having failed to

prove the marriage by examining competent witnesses

her claim of marriage falls to the ground and that

mere living together did not bring her within the

bounds of marriage.
 5

Leave was granted to consider on three points, as

to (1) whether non-registration of the marriage under

Mohammedan Law makes the marriage illegal or irregular

or non-existent, (2) whether continuous co-habitation

by the appellant and the respondent over a period of

three years as husband and wife coupled with their

conduct infer a presumption as to the legal marriage,

and (3) whether the High Court Division is justified

in interfering with the concurrent findings of fact

arrived at by the Courts below on proper assessment of

the evidence on record as to the solemnization of a

legal marriage between the appellant and the

respondent in exercise of revisional jurisdiction.

Dr. Rabia Bhuiyan, learned counsel contended that

the view of the High Court Division in drawing adverse

presumption against the appellant merely on the ground

of absence of kabinnama is based on misconception of

law. According to the learned counsel, in view of the

concurrent findings that the appellant and the

respondent had lived together as husband and wife over

 6

a period of three years which suggested the

presumption of legal marriage, the High Court Division

erred in law in interfering with the said concurrent

findings of fact.

The courts below on a thorough sifting of the

evidence on record came to a definite conclusion that

the marriage was consummated. The High Court Division

did not at all repel the findings arrived at by the

courts below on the point of consummation of marriage.

The High Court Division did not dislodge the findings

of the courts below that the appellant and the

respondent lived jointly for a considerable time as

husband and wife but dismissed the suit mainly on the

ground of the absence of registered kabinnama, and on

the face of denial by the respondent, the appellant

was required to prove solemnisation of marriage after

observance of the requirements of paragraph 252 of the

Mohammedan Law, the basic essentials of marriage,

which she failed to prove by adducing reliable

evidence. The High Court Division, however, believed

 7

the appellant’s claim that they lived together as

husband and wife but castigated such living as

unethical observing “Now-a-days the obnoxious alien

culture of living together has made its in-road into

our society and this slowly is spreading its tentacles

undermining our social value and the institution of

marriage”. It seems to me that the learned Single

Judge of the High Court Division has failed to address

the point in dispute between the parties in the light

of the evidence and the principles of law applicable

in the facts of the given case.

Let us consider the concept of marriage under

Mohammedan Law. Marriage under the Mohammedan Law is a

civil contract requiring no ceremony or special

formality. In Harvard Law Review, XXVII, 387 an

article appears on ‘Requisites and Proof of Common Law

Marriages’ explaining the concept of the common law

marriage. F.B. Tyabji in his Mohammedan Law at page

101 said, the principles stated in the article may be

 8

helpful in the decision of similar questions arising

under Mohammedan Law. The article reads thus:

“From early times, it has not always been

clear what acts were necessary to the validity

of a marriage. According to early civil law

the consent of the parties was sufficient; but

it seems doubtful, whether under the early

English common law a marriage without a

minister was valid. In this country, however,

many States have adopted the view that a

marriage may be valid even without a ceremony

before third parties. The rule is usually

stated to be that an agreement to be married

henceforth, followed by cohabitation,

constitutes the so-called common law marriage.

But both on principle and authority, it would

seem that the agreement alone is sufficient to

consummate a common law marriage, and that the

subsequent cohabitation is important only as

evidence of the agreement.”

 9

“Moreover, it is clear on the

authorities, in the States where formal

solemnization is not necessary, that although

there is no proof of an actual written or oral

contract, the agreement necessary to the

formation of a common-law marriage may be

inferred solely from the conduct of the

parties.”

The article then proceeds to refer to four

situations which are said to be rather common: “(1)

The only evidence of the agreement may be that the

parties have lived together as husband and wife: from

this a common law marriage is often inferred, even

without proof of an express agreement: an implied

agreement being sufficient. The parties may have

purported to contract a marriage and lived together,

but the agreement at the time it is entered into may

be void because of some disability unknown to both

parties. If, subsequently, the disability is removed,

a new contract is in strictness.”

 10

There is no dispute that the Mohammedan marriage

among muslims is not sacrament but purely civil

contract. Marriage brings about a relation based on

and arising from, a permanent contract for intercourse

and procreation of children between man and woman who

are referred to as ‘parties to the marriage and, who

after being married, become husband and wife. Though

generally solemnized with recitations from Koran, yet

no positive service peculiar to the occasion is

prescribed by law; writing not required; validity and

operation of whole depends upon declaration or

proposal and acceptance or consent of contracting

parties before competent witnesses; (Bail.1.4). In

Asha B.V. Kadir B., (1909) 33 Mad 22, it is stated,

“marriage is contract between parties to live as

husband and wife for term of their lives.”

In Muhammadan Law by Faiz Badruddin Tyabji, Third

Edition, marriage is defined in paragraph 17, and

after considering different authorities the essentials

of marriage are summed up as under:

 11

“Marriage arises in Muhammadan Law from a

contract-(a) Providing for intercourse and the

procreation of children; (b) commencing from the time

of contract; (c) made for effectuating a marriage

between a man and woman whose intermarriage is not

prohibited by law; (d) entered into in accordance with

the rules and forms laid down in s.17A to S.23,

inclusive, and (e) by a person who has authority to

contract in marriage the person purported to be

married.” Quoting Fatawa Alamgiri in Abdul Kaidr V.

Salina, (1886) 8 All.149(155) it is stated, “also for

the solace of life; one of the prime and original

necessities of man. Therefore lawful in extreme old

age after hope of offspring has ceased and even in the

last or death illness.”

The Mohammedan Law does not insist upon any

particular form in which the contractual performance

should be effected or that “the union should be

evidenced by any writing, nor is the presence of

witnesses essential for its validity”. In this

 12

connection Syed Ameer Ali in his Mohammedan Law, 6th

Edition, following Fatawai Alamgiri, Vol.11 page 209

and Radd-ul-Muhtar, Vol.II page 429 opined, though

among the Sunnis the presence of witnesses is

considered necessary to the validity of a marriage

their absence only renders it invalid which is ‘cured

by consummation’. A marriage contract, it is stated,

as a civil institution, rests on the same footing as

other contracts. The parties retain their personal

rights against each other as well as against

strangers; and, according to the majority of the

schools, have power to dissolve the marriage-tie,

should circumstances render this desirable.

To use the words of Baillie, marriage, like other

contracts, “is constituted by ejab wa kabul or

declaration and acceptance, but it confers no rights

on either party over the property of the other. The

legal capacity of the wife is not sunk in that of the

husband; she retains the same powers of using and

disposing of her property, of her entering into all

 13

contracts rendering it, of suing and being sued

without his consent, as if she were unmarried. On the

principle of contract of marriage, the author stated,

in the language of the law, as in the common parlance,

the formal conclusion of the contract is called ‘akd’

conveying the same meaning as the term ‘obligation’ in

the Roman Law. In fact, akd is the completion of the

contract which commences with the proposal or demand

in marriage and ends with the consent.” Radd-ul-

Muhtar, Vol.II, says “akd signified both proposal and

assent, and that the word means the contract of

marriage as well as co-habitation”.

On the capacity of the parties to marry each

other, Syed Ameer Ali says, “the validity of a

marriage under the Mohommedan Law depends primarily on

the capacity of the parties to marry each other. “The

performance of the marriage according to the form

prescribed in the place where the marriage is

celebrated, or which would impress on the woman by the

customary law of the Musalmans the status of a wife is

 14

a matter of secondary consideration”. Dicey on

Domicile stated, it is recognized principle of law

that the capacity of each of the parties to a marriage

is to be judged of by their respective Lex domicilii.

If they are each, whether belonging to the same

country or to the different countries, capable,

according to their Lex domicilii, of marriage with the

other, they have the capacity required by the rule

under consideration.

Fatawai Alamgir, Vol.I, page 377 says “Among the

conditions which are requisite for the validity of a

contract of marriage, are understanding, puberty and

freedom in the contracting parties, with this

difference that whilst the first requisite is

essentially necessary for the validity of the

marriage, as a marriage can not be contract by a

majnun (non compos mentis), or a boy without

understanding; the other two conditions are required

only to give operation to the contract, as the

marriage contracted by a (minor) boy (possessed) of

 15

understanding is dependent of its operation on the

consent of the guardian.”

The essentials of a marriage mentioned in

paragraph 252 by M. Hidayatullah on Mulla’s principles

of Mahomedan Law are based on the arguments made in

Moung Kyi V. Ma Shwe Baw (1929) 7 Rang 777, 121 I.C.

718, Gagu Bibi V. Mesal Shaikh (1936) 63 cal 415 and

164 I.C. 957. In the absence of witnesses to the

marriage, Mulla says in paragraph 254 “A marriage

contracted without witnesses as required by sec.252 is

irregular, but not void”. This rule has been upheld in

Shahzada Begum V. Abdul Hamid (1950) Lah 773. As

regards irregular marriage, Mulla following Baillie,

155 said in paragraph 264(3):

“An irregular marriage is one which is not

unlawful in itself, but unlawful ‘for something else’

as where the prohibition is temporary or relative, or

when the irregularity arises from an accidental

circumstances, such as the absence of witnesses.”

 16

It has been explained, the reason why certain

marriages though irregular but not void that a

marriage which is contracted without witnesses, the

irregularity arises from an accidental circumstance.

The effects of an irregular marriage may be terminated

by either party, either before or after consummation,

by words showing an intention to separate, as where

either party says to the other about the intention of

relinquishment. Even in respect of irregular marriage,

if consummation has taken place, Mulla says, ‘the wife

is entitled to dower, proper or specified, whichever

is less (Paragraph 267(2)). The High Court Division,

in the premises, on a superficial consideration of the

principles of a legal marriage, termed the living of

the appellant and the respondent together as husband

and wife “adulterous relations”.

Mr. Wadud Bhuiyan, learned counsel submitted that

the plaint is totally silent as to the date, place and

presence of witnesses of the marriage and the

appellant having failed to prove the essentials of a

 17

marriage under Mohammedan Law, the High Court Division

is perfectly justified in dismissing the suit. In

support of his contention the learned counsel has

referred to the cases of Khorshed Alam @ Shah Alam V.

Amir Sultan Ali Hyder and another, 38 DLR (AD) 133,

Debendra Mohan Rai V. Sona Kunwar, (1904) 36 Allahbad

295, Abdool Razack V. Aga Mahomed Jaffer Bindaneem, 21

Indian Appeal 56 and some other decisions.

Under Hanafi and the Maliki Law, a presumption of

marriage is inferred if the marriage is consummated

from the retirement of the husband and the wife into

the nuptial chamber, under circumstances which lead to

the natural inference of matrimonial intercourse.

Syed Ameer Ali stated that Muhammadan Law does not

insist upon any particular form in which the

contractual performance should be effected or that the

union should be evidenced by any writing, nor is the

presence of witnesses essential for its legality. For,

though among the Sunnis the presence of witnesses is

considered necessary to the validity of a marriage,

 18

their absence only renders it invalid which is cured

by consummation. Therefore, according to the author,

even if the person seeking a declaration of legal

marriage failed to prove it in the absence of the

witnesses, if he or she proves the consummation of

marriage, it may be treated as valid marriage. “A

marriage may be proved directly or presumptively;

directly, by means of the oral testimony of the

witnesses present at the marriage, or by documentary

evidence in the shape of a deed of marriage;

presumptively, by statement of parties or by evidence

of conduct and reputation. As in many cases invalid

marriages are rendered valid by consummations, and as

the dower does not become due in its entirety until

the marriage has been actually or constructively

consummated, the question of consummation forms often

an important element in the status of marriage”.

Section 50 of the Evidence Act declares that "when

the Court has to form an opinion as to the

relationship of one person to another, the opinion

 19

expressed by conduct as to the existence of such

relationship of any person, who as a member of family

or otherwise, has special means of knowledge on the

subject is a relevant fact". Illustration (a) to

section 50 says; “the question is, whether A and B

were married. The fact that they were usually received

and treated as husband and wife, is relevant”. This

section says when the question arises as to the

presumption of marriage, the opinion that makes

relevant is opinion expressed by conduct as to the

existence of such relationship and not merely as to

that relationship. It is for the Court to weigh such

evidence and to come to its own opinion as to the

relationship in question. When the Court has to form

an opinion as to the relationship of one person to

another, the opinion expressed by conduct, as to the

existence of such relationship, of any person who, as

a member of family or otherwise, has special means of

knowledge on the subject, is a relevant fact.

 20

To narrow the ground by limiting it to "opinion

expressed by conduct" so far an opinion expressed by

conduct, i.e. by evidence of specific facts of the

conduct mentioned in the illustration to section 50 of

the Evidence Act. When a woman lives for a number of

years in close association with a man and their

children, who are acknowledged by the man as born to

him; relations and persons of the village treated them

as such, there is a presumption of legitimacy, if the

witnesses prove the conduct of the man and the woman

by their friends and neighbours from which the Court

can draw this conclusion. It is not for the witness to

draw the conclusion himself and to express a mere

opinion about the very matter which the Court has to

decide. Taylor in his Law of Evidence says, ‘general

reputation’ is admissible to establish the fact of the

parties being married.’ "When a person" says Fatawai

Alamgiri, "has seen a man and woman living in the same

house, and behaving familiarly towards each other as

husband and wife, it is lawful to him to testify that

 21

the woman is the man's wife". Reference in this

connection is the case of Khajah Hidayatoollah V.

Raijan Khanum, (1844) 3 MIA 299 and Wise V.

Sanduloonissia Chowodanee, (1867) 11 MIA 177.

Faiz B. Tyabji in his Muhammadan Law, in Chapter

‘Proof and Presumption of Marriage’ in paragraph 81

stated:

“when the question arises whether a marriage

has been contracted in due form, the burden of

proving that the alleged wife consented to it,

is upon the person who affirms it; provided

that unless the parties were prohibited from

intermarrying it is in the following cases

presumed that they were validly married, and

the burden of proving that their cohabitation

was illegal, shifts to the person who alleges

it to be illegal; viz. where (1) it is proved

that the parties cohabited together

continuously and for a long period, as husband

and wife, and were treated as such by their

 22

friends; or (2) either party has acknowledged

that he or she was married to the other (and

the other party has been confirmed, or

acquiesced in, the acknowledgment.”

There are exceptions to the presumption of

cohabitation. It is said, co-habitation means

something more than mere residence in the same house.

Residing as a menial servant in the house of a Muslim

and bearing a child to him does not raise presumption

of marriage, or where the relation admittedly began as

concubinage, lapse of time, and propriety of conduct

and the enjoyment of confidence, with powers of

management reposed in the woman, were not held

sufficient to raise presumption of subsequent

marriage.

Mulla on the Principle of Mahomadan Law,

‘presumption of marriage’ has been stated in paragraph

268 as under:
 23

“Presumption of marriage-Marriage will be

presumed, in the absence of direct proof,

from-

(a) prolonged and continual cohabitation

as husband and wife (e); or

(b) the fact of the acknowledgment by the

man of the paternity of the child

born to the woman, provided that the

conditions of a valid acknowledgment

mentioned in section 344 below are

fulfilled (f); or,

(c) the fact of the acknowledgment by the

man of the woman as his wife (g).”

The presumption does not apply if the conduct of

the parties was inconsistent with the relation of

husband and wife nor does it apply if the woman was

admittedly a prostitute before she was brought to the

man’s house. The mere fact, however, that the woman

did not live behind the purda, as the admitted wives

 24

of the man did, is not sufficient to rebut the

presumption.

In Abdool Razack V. Aga Mahomed Jaffer Bindaneen,

21 Indian Appeal 56, Lord Macnaghten argued on the

point of presumption of marriage that if the conduct

of the parties were shown to be compatible with the

existence of the relation of husband and wife, the

conduct is a very good test, and a safer guide than

the recollection or imagination of interested or

biased witnesses. Their lordships accepted the

argument that every presumption ought to be made in

favour of marriage "when there had been a lengthened

cohabitation, especially in a case where the alleged

marriage took place so long ago that it must be

difficult if not impossible to obtain a trustworthy

account of what really occurred".

The appeal was, however, dismissed on other

grounds as to the acknowledgment of the legitimacy of

the child. It was argued that the word acknowledgment

in its legal sense under Mohammedan Law of

 25

acknowledgement of antecedent right established by the

acknowledgment on the acknowledger, that is, in the

sense of a recognition, not simply of sonship, but of

legitimacy of a son. Their lordships were of the

opinion that the term acknowledgment is used, say, a

child born out of wedlock is illegitimate; if

acknowledged, he acquires the status of legitimacy.

When, therefore, a child really illegitimate by birth

becomes legitimated, it is by force of an

acknowledgment expressed or implied, directly proved

or presumed. The facts are that Abdul Hadee left a

will bequeathing everything to his brother Hadjee

Hosain, in which he mentioned that he had offspring in

Burma. According to one witness, the offspring is

Abdool Razack and expressed a wish that his brother

should give him something. Their lordships are of the

opinion that every word in the will is said about it

to be perfectly true, the evidence falls very far

short of such an acknowledgment as would confer the

status of legitimacy upon an illegitimate child.

 26

In Ghaganfor V. Kaniz Fatima, their Lordships of

the judicial committee said:

“The learned Judges fully recognized that

prolonged cohabitation might given rise to a

presumption of marriage, but that presumption

is not necessarily a strong one, and their

lordships agree that it does not apply in the

present case, for the mother before she was

brought to the father’s house was, according

to the case on both sides, a prostitute.”

There is no evidence that the appellant was a

prostitute or woman of a bad character. Therefore, the

conduct proved by the witnesses suggested a

presumption in favour of a legal marriage.

In Ma Khatoon V. Ma Mya and others, 165 IC 232, a

Division Bench of the Rangoon High Court argued that

according to Mohammedan Law, where there had been

continual cohabitation between a man and a woman,

which is not a mere casual concubinage, but a more

permanent connection and a child has been born, and

 27

where there is no insurmountable obstacle to such a

marriage, then the presumption is in favour of such a

marriage having taken place. It is further argued that

where cohabitation between a man and a woman was

continuous from the time when they first met, either

through an elopement or in consequence of an ordinary

marriage before a moulvi, and that that cohabitation

was with repute, it must be held that a valid marriage

existed between them. These views have been taken with

the approval of the views taken in Khajah Hidayut

Oolah V. Rai Jan Khanum, 3 MIA 295.

In Bashir and others V. Ilam Din and others, PLD

1988 SC 8, Nasim Hasan Shah,J. argued “Muslim Law

presumes in favour of marriage in the absence of

direct evidence on the point provided, however,

evidence exists to show that a man and a woman have

lived together as man and wife for a long time”. The

above views were taken from a passage of Tyabjee,

Muhammadan Law, as under:

 28

“Legitimacy of a child may be presumed

where there had been continuous cohabitation

of the alleged parents, acknowledgement of the

child by the father, treatment by the father

of the mother and child, and repute and

notoriety amongst members of the family, the

community, or respectable members of the

locality.”

In Hamida Begum V. Murad Begum, PLD 1975 SC 624,

the Supreme Court of Pakistan endorsed the views taken

by the judicial committee in Syed Habibur Rehman

Chowdhury V. Syed Altaf Ali Chowdhury, AIR 1922 PC

159, and made the following observations:

“Legitimacy is a status which results

from certain facts, whereas legitimation is a

proceeding which creates a status which did

not exist before. This proceeding becomes

necessary where either the existence of a

valid marriage can not be expressly proved or

where the child is born within six months of

 29

the marriage as stated above. In such cases,

acknowledgment of legitimacy in favour of the

child may be either expressed or by necessary

implication from the course of treatment by

the man of the mother and the child, or from

the evidence of repute and notoriety amongst

the members of the family, community and

respectable members of the locality. Such an

acknowledgment raises a presumption of a valid

marriage and legitimate birth.”

In Khorshid Alam Vs. Amir Ali, 38 DLR (AD) 133,

the point in dispute was as to the legitimacy of

Khorshid Ali is the son of Amir Ali Mia. Leave was

granted to consider whether the principle of

acknowledgement of sonship under the Muslim Law has

been correctly considered by the High Court Division.

In the said case, the question of marriage between

Monwara Begum and Amir Ali Mia came under

consideration. Khorshid Alam, the defendant, pleaded

about the legal marriage. This Division though noticed

 30

that the defendant failed to prove marriage but taking

consideration of the doctrine of acknowledgment of

sonship held that there was legal marriage between

Monwara Begum and Amir Ali Mia and that once

acknowledgment of parentage is established, the

marriage will be held proved. In that case this

Division considered a decision of the Privy Council in

56 I.A.201 wherein it was argued that ‘until the

claimant establishes his acknowledgment the onus is on

him to prove marriage. Once he establishes an

acknowledgment the onus is on those who deny a

marriage to negative it in fact.’ The plaintiff denied

the existence of the marriage and this Division

shifted the onus upon the plaintiff to prove that

there was no marriage. This Division concluded its

opinion with the observation that “the person who deny

it (marriage) will have to be established. In other

words, it was for the plaintiff to prove that there

was no marriage with Monwara Begum as alleged”. I fail

to understand why Mr. Bhuiyan has referred this

 31

decision which rather supports the case of the

appellant.

In Masit-un-Nissa V. Pathani, XXVI All 295,

referred by Mr. Bhuiyan, the suit was brought to

recover joint possession of a share in the property of

a deceased Muslim, Wazir Muhammad Khan, who was

alleged by the plaintiff Pathani to have been her

husband, the father of her children, and for mesne

profits. The defendants who are wife and her son

resisted the claim. The trial Court decreed the suit.

The Allahabad High Court reversed the judgment of the

trial Court following a dictum of the Privy Council

that in the co-habitation there must be a treatment

tantamount to acknowledgment of the fact of marriage

and the legitimacy of the children and that there is

no evidence in the case upon which it can be inferred

that the fact of Pathani’s marriage or her children’s

legitimacy. Therefore, this case is quite

distinguishable.
 32

The recognized custom of all sects are that a

marriage is solemnized by a person conversant with the

requirements of the law who is designated for the

occasion, the Kazi. Two other persons, formally

appointed for the purpose, act on behalf of the

contracting parties, and the terms are usually

embodied in a deed of marriage called ‘Kabin-nama’.

Under the Sunni law what is required more is that a

declaration should precede the acceptance, in order to

demonstrate conclusively the intention of the parties.

A marriage contracted without witnesses in invalid.

But a marriage contracted at a place where compliance

with it is impracticable, the marriage would not be

void on that ground. Where it is possible to obtain

testimony, and the ceremony of marriage has gone

through without the presence of witnesses to attest

its performance, it may be declared to be invalid. The

condition of testimony, therefore, is not so essential

that it can not be dispensed with. Once the marriage

is consummated and the parties have cohabited, the

 33

contractual defect is removed; and the marriage is

declared to be legitimate.

A marriage may also be proved presumptively by

general conduct of the parties over which I have

discussed above. The sources of presumptions of fact

are, (i) the common course of natural events, (ii) the

common course of human conduct, and (iii) the common

course of public and private business. When a

presumption operates in favour of a party, the burden

of proof is on the opponent and when a burden of proof

is on a party, there is a presumption operating in

favour of the opponent. A presumption of fact is a

rule of law that a fact otherwise doubtful may be

inferred from a fact which is proved. The difference

between Hanafi and Shia School is that in Hanafi law

in regard to valid retirement has the same effect as

consummation in respect of (1) the confirmation of

Mahr; (2) the establishment of descent, or paternity;

(3) the necessity for the wife observing iddat; (4)

the wife’s right to maintenance and residence during

 34

iddat; and (5) the prohibition by conjunction against

the husband marrying the wife’s sister or other four

women with her. In respect of above five matters, the

rights of the parties would be same as though

consummation has taken place.

From the above discussions, I conclude that there

are unanimous views of the jurists and authorities

that even in the absence of formal proof of a valid

marriage, a marriage can be presumed by evidence of

conduct and reputation, and the question of

consummation forms often an important element in the

status of valid marriage. A presumption of

consummation is raised from the retirement of the

husband and wife, i.e. there should be no third person

at the place and that the place should not be a public

one, like a public bath, public road, a mosque etc.

Where there has been prolonged and continuous

cohabitation as husband and wife, in the absence of

direct proof a presumption arises that there was a

valid marriage. The law permits no specific ceremony

 35

for the contractual performance of a marriage: and no

religions rites are necessary for contracting a valid

marriage. There are even opinions that a marriage may

be constituted without any ceremonial and even in the

absence of direct proof, indirect proof might suffice.

The High Court Division, in the premises, erred in

holding that mere living together as husband and wife

did not bring it within the bound of marriage. Apart

from acknowledgment by either party, if there is

continual cohabitation between a man and woman as

husband and wife, there is presumptive marriage and

legitimacy provided that the parties were not

prohibited from intermarrying.

As regards the submission that the plaint is

silent regarding the date, the place and the presence

of witnesses of the marriage, it is too late in the

day to examine and reopen the findings of fact arrived

at by the Courts below on a fresh assessment of the

pleadings and the evidence by this Division. As the

ultimate Court in the land, this Division, as a rule,

should give due weight and consideration to the

 36

opinions of the courts below, in particular, to the

opinion of the trial Court which had the advantage of

observing the veracity of the witnesses and watching

their demeanour. We find that the High Court Division

has totally overlooked the presumption of a muslim

marriage and relying upon paragraph 252 of Mulla’s

Mohammedan Law disbelieved the appellant’s claim of

marriage. If the High Court Division had considered

paragraphs 254 and 268 of Mulla’s Mohammedan Law, its

decision would have been otherwise. The High Court

Division based its decision on piecemeal consideration

of Mulla’s Mohammedan Law and arrived at a decision

which is not supported by any of the authors of

Mohammedan Law. It has tried to apply a doctrine of

Muslim Marriage against the established schools of

Mohammedan Law. Therefore, the decision of the High

Court Division is based on a misconception of the

basic principles of Mohammedan Law and thus the

interference of the judgments of the Courts below is

an error of law apparent on the face of the record.

The evidence on record sufficiently proved that there

 37

was existence of legal marriage between the appellant

and respondent.

The High Court Division, in the premises, exceeded

its power in interfering with the concurrent findings

of fact in the absence of any misreading or non-

consideration of the evidence on record. Accordingly,

we find merit in contention of Dr. Rabia Bhuiyan.

The appeal is, therefore, allowed with costs of

Tk.10,000/-.

J.

J.

J.

J.

J.

J.

The 31st July, 2011

Mohammad Sajjad Khan

APPROVED FOR REPORTING