Madras High Court
Shakila Begum @ Shakila Banu vs Rahima Bi (Died) on 26 October, 2021
1 A.S.(MD)NO.269 OF 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.10.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
A.S.(MD)No.269 of 2009 and
M.P.(MD)No.1 of 2009 & C.M.P.(MD)No.4261 of 2019
1. Shakila Begum @ Shakila Banu
2. Jakir Useen
3. Minor Jameela Banu @ Jameela Bi
(Rep. through mother, guardian &
first appellant herein)
... Appellants / Plaintiffs
Vs.
1. Rahima Bi (Died)
2. Imthias Begam
3. Sardarj Ali
4. Aarif Ali
5. Ansar Ali
6. Anwar Ali
7. Amjath Ali ... Respondents / Respondents
8. Rahamathunissha
9. Malika Begum
(R-8 & R-9 are brought on record as LRs. of the
deceased R-1 vide Order dated 21.10.2019 made
in C.M.P.(MD)Nos.3176 & 3178 of 2019)
... Respondents
Prayer: Appeal suit filed under Section 96 of C.P.C.,
to set aside the Decree and Judgment passed by the Additional
District and Sessions Judge/ Fast Track Court No.I,
Thiruchirappalli, in O.S.No.6 of 2002, dated 27.11.2007 by
decreeing the suit claim and allot 141 /624 shares in favour of
the appellants / plaintiffs and allow this appeal accordingly.
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2 A.S.(MD)NO.269 OF 2009
For Appellants : N.R.Murugesan
For R-2 to R-7 : Mr.Raguvaran Gopalan
***
JUDGMENT
The plaintiffs in O.S.No.6 of 2002 on the file of the
Additional District and Sessions Judge / Fast Track Court No.I,
Thiruchirappalli, are the appellants in this appeal.
2. The case of the plaintiffs was that the first plaintiff
is the wife of Late Mohammed Aabid Ali and that plaintiffs 2
and 3 were born through the said wedlock. The said
Mohammed Aabid Ali passed away on 30.06.1991. The second
defendant is the first wife of the said Late Mohammed Aabid
Ali. The first defendant is the mother of Late Mohammed
Aabid Ali. Mohammed Aabid Ali died intestate leaving behind
the suit schedule properties. The case of the plaintiffs is that
they are entitled to share therein. Since the defendants are
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3 A.S.(MD)NO.269 OF 2009
declining to partition the suit properties and allot the share to
which the plaintiffs are entitled to, the said suit came to be
instituted.
3. The defendants filed written statement
controverting the plaint averments. The stand of the
defendants was that there was no marriage between the first
plaintiff and Mohammed Aabid Ali. The parentage of plaintiffs
2 and 3 was also questioned. Based on the divergent
pleadings, the trial Court framed the necessary issues. The
first plaintiff examined herself as P.W.1 and five other
witnesses were also examined. Ex.A.1 to Ex.A.10 were
marked. The second defendant examined herself as D.W.1 and
Ex.B.1 to Ex.B.19 were marked. After a consideration of the
evidence on record, the trial Court by the impugned judgment
and decree dated 27.11.2007 dismissed the suit. Aggrieved by
the same, this appeal came to be filed.
4. The learned counsel appearing for the appellants
reiterated all the contentions set out in the memorandum of
grounds. His core contention is that the marriage between the
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4 A.S.(MD)NO.269 OF 2009
first plaintiff and Mohammed Aabid Ali can be proved either
directly or indirectly. In the case on hand, the first plaintiff
and Late Mohammed Aabid Ali had lived as husband and wife
in the premises bearing door No.5, Ahamed Store, Jalal
Pakkiri Street, Madurai Road, Trichy – 8, for more than ten
years. That plaintiffs 2 and 3 were born to them is amply
proved by their birth certificates which were marked as Ex.A.3
and Ex.A.4. In Ex.A.3 and Ex.A.4, Mohammed Aabid Ali has
been shown as their father. P.W.2 is the elder brother of
P.W.1. P.W.3 to P.W.5 had also deposed about the factum of
marriage. The learned counsel took me through their
testimonies. He would also point out that in Ex.A.9, the
residential address of Mohammed Aabid Ali has been
mentioned and that is where the plaintiff is residing even now.
P.W.6 had testified regarding the authenticity of Ex.A.9 and
Ex.A.10. These documents are very much public documents
and no objection was raised when they were marked or
admitted in evidence. The learned counsel placed considerable
reliance on the decision reported in (2015) 8 MLJ 450 (Hawva
Nachiyar and Another V. Balkish Beevi Ammal and Others) in
support of his contention. He called upon this Court to reverse
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5 A.S.(MD)NO.269 OF 2009
the decision of the trial Court and allow this appeal and
decree the suit as prayed for.
5. Per contra, the learned counsel appearing for the
contesting respondents submitted that the impugned
judgment and decree do not warrant any interference.
6. I carefully considered the rival contentions and
went through the entire evidence on record.
7. The point that arises for determination is whether
the plaintiffs have proved that marriage took place between
the first plaintiff and Late Mohammed Aabid Ali. There can be
no dispute regarding the proposition that a Muslim marriage
can be proved either directly or indirectly. But the appellants
who are the plaintiffs in the suit have the burden to prove that
such a marriage had actually taken place. In paragraph No.3
of the plaint, the first plaintiff had pleaded that she is the
second wife of Late Mohammed Aabid Ali, S/o.Sheik Ahamed
Sahib. She has not stated as to when the marriage took place.
The venue of the marriage has also not been set out in the
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6 A.S.(MD)NO.269 OF 2009
plaint. In the proof affidavit, the first plaintiff who examined
herself as P.W.1 asserted that Mohammed Aabid Ali married
her as his second wife as per Mahomedan Law. In the proof
affidavit also, the date of marriage and the venue of marriage
have not been mentioned. In the cross examination also, P.W.1
had not stated as to when or where she got married to
Mohammed Aabid Ali. She however claimed that she was in
possession of record to prove her marriage and that one
Nabvujohn took it away. If really, such a record was forcibly
taken away from her house, a police complaint would have
definitely been lodged. But P.W.1 conceded that she did not
give any such police complaint and that she did not make any
effort to retrieve them.
8. Contrary to what P.W.1 deposed, P.W.2 who is her
elder brother stated that he was very much having the record
to prove the marriage. He stated that the marriage details
were entered in a Nikah register and that he was in
possession of a copy. But no such extract was ever filed. Only
before this Court, a typed set had been filed as if on
11.08.1982 the marriage was performed at Nagore. The
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7 A.S.(MD)NO.269 OF 2009
appellants have not filed any petition under Order 41 Rule 27
of C.P.C., for adducing additional evidence. When the
appellants have not filed any petition for adducing additional
evidence, I decline to take note of the contents of the typed set
filed by the appellants. In Mulla's Principles of Mahomedan
Law 21st Edition, the essentials of a valid Mahomedan
marriage have been set out in Section 252 reads as follows:-
“ 252. Essentials of a marriage- It is
essential to the validity of a marriage that there
should be a proposal made by or on behalf of
one of the parties to the marriage, and an
acceptance of the proposal by or on behalf of the
other, in the presence and hearing of two male
or one male and two female witnesses, who must
be sane and adult Mahomedans. The proposal
and acceptance must both be expressed at one
meeting; a proposal made at one meeting and an
acceptance made at another meeting do not
constitute a valid marriage. Neither writing nor
any religious ceremony is essential. ...”
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8 A.S.(MD)NO.269 OF 2009
9. P.W.3 and P.W.4 do not claim that they attended
the marriage. However, P.W.5 deposed that he attended the
marriage. But even though the cross examination of P.W.5
cannot be said to be satisfactory, his testimony does not
inspire my confidence. P.W.5 again does not say as to when
and where the marriage took place. When the marriage should
have been solemnized in the presence of two male or one male
and two female witnesses, the plaintiff could not produce any
female witness. Their presence is necessary to constitute a
valid marriage. Therefore, I have no hesitation to come to the
conclusion that the plaintiffs had miserably failed to adduce
any direct proof of marriage.
10. The next question that arises is whether the first
plaintiff had proved it through indirect mode. Of course, the
learned author does state that the marriage will be presumed
in the absence of direct proof from prolonged and continual
cohabitation as husband and wife. The learned counsel
appearing for the appellants wants me to come to the
conclusion that there has been continual cohabitation between
the first plaintiff and Late Mohammed Aabid Ali in view of the
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9 A.S.(MD)NO.269 OF 2009
birth certificates and voters list as marked by the plaintiffs. I
am afraid that I cannot accede to the said contention. This is
for more than one reason. The details found in the birth
certificate as well as in the voters' list come from the person
who furnishes the information. In the case on hand, there is
nothing on record to show that Late Mohammed Aabid Ali
furnished the said information. There is no evidence to show
that Late Mohammed Aabid Ali acknowledged the paternity of
plaintiffs 2 and 3. Therefore, the trial Court rightly came to
the conclusion that the first plaintiff has miserably failed to
establish the factum of marriage. After a careful
reconsideration of the entire evidence on record, I am not
persuaded to take a contrary view. There is no merit in this
appeal.
11. This appeal suit is dismissed. No costs.
Consequently, connected miscellaneous petitions are closed.
26.10.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the copy
of the order that is presented is the correct copy, shall be
the responsibility of the advocate/litigant concerned.
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10 A.S.(MD)NO.269 OF 2009
G.R.SWAMINATHAN,J.
PMU
To:
1. The Additional District and Sessions Judge/
Fast Track Court No.I, Thiruchirappalli.
2. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
A.S.(MD)No.269 of 2009
26.10.2021
https://www.mhc.tn.gov.in/judis
