October 4, 2022

Does Section 112 supersede the Muslim law on parentage and illegitimacy?

Under Muslim Law

Under the Mohamadan Law, a child born within less than six months after the marriage is illegitimate.

Under Civil Law

According to Section 112 of Indian Evidence Ac, 1872, any person born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

Which law of illegitimacy applied on Muslim Law?

Section 2 of Muslim personal law (Shariat) application act, 1937, provides that in case of marriage, guardianship and maintenance, person law of muslims will apply to them notwithstanding any usage to the contrary.

But, the question arises whether section 112 of Indian evidence act, supersedes the personal law of muslim in terms of parentage?

The question whether S. 112 of the Evidence Act supersedes the rules of Mohamadan Law as to legitimacy was left open in Md. Allahad Khan v. Md. Ismail Khan, (1888) ILR 10 All 289, with the following observations;

“The peculiarity of the English law has no doubt been imported into India by S. 112 of the Indian Evidence Act, and it may someday be a question of great difficulty to determine how far the provisions of that section are to be taken as trenching upon the Mohamadan Law of marriage, parentage, legitimacy and inheritance, with departments of law under other statutory provisions are to be adopted as the rule of decision by the courts in British India……”

But later the same court in Sibt Mohd. v. Md. Hameed, ILR 48 All 625: (AIR 1926 All 589) has held that S. 112 supersedes Mohamedan Law and that it applies to Mohamedans as well.

There a Division Bench has expressed;

“S. 112 of Evidence Act applies by its terms to all classes of persons in British India and no exception is made in favour of Mohamedans. If it had been intended that the provisions of S. 112 should not apply to Mohamedans, we should certainly expect to find a clear proviso to this effect. This course has been followed in other enactments, when general provisions of law were not intended to affect the rules of Mohamedan Law.

For instance, Chap, VII of the Transfer of Property Act, 1882 lays down the general rules relating to gifts, but S. 129, at the end of the chapter, expressly states that “nothing in this chapter shall be deemed to affect any rule of Mohamedan law”.

So, if the legislature had intended that the provisions of S. 112 of the Evidence Act should not apply to Mohamedans Law, this intention should have been clearly expressed. S. 112 is perfectly clear in its terms and we are not entitled to refuse to give effect to its provisions merely on the ground that such provisions are out of place in the Evidence Act and should have been included in the department of family law, or on the ground that the effect of these provisions in their application to Mohamedan Law was unforeseen, or would be undesirable. In our view, we are bound to give effect to the clear provisions of S. 112 although they conflict with the rules of Mohamedan Law.”

The learned Judge have taken the above view after considering two conflicting views taken by the commentators on Mohamedan Law.

Sir Roland Wilson in his treatise on Anglo-Mohammadan Law, 5th Edn., at p. 161 had opined that S. 112 of the Indian Evidence Act is really, notwithstanding its place in the statute book a rule of substantive marriage law rather than of evidence, and as such has no application to Mohamedans, so far as it conflicts with the Mohamedan rule that a child born within six months after the marriage of its parents is not legitimate.

This opinion has been dissented from by two other learned commentators in Mohamedan Law, namely, Mr. Mullah and Mr. Tyabji. Their conclusion was-

“It is difficult to resist the conclusion that the Indian Evidence Act S, 112, was drafted without giving a thought to the framework in which it would have to be set, if it is to displace the Mohamedan Law on the same point. But this oversight can hardly be a ground for disregarding its provisions.”

In Mt. Sampatia Bibi v. Mir. Mahboob Ali, AIR 1936 All 528, the earlier decision in Sibt Mohd. v. Md.. Hameed, 48 All 625: (AIR 1926 All 589) was followed, and it was held that the question of legitimacy must be decided in accordance with S. 112 of the Evidence Act, although its provision conflicts with the provisions of Mohamedan Law and that S. 112 applies by its terms to all classes of persons in British India and no exception is made in favour of Mohamedans.

In A.G. Ramachandran And Anr. vs Shamsunnissa Bivi AIR 1977 Mad 182, (1977) 1 MLJ 482, madras high court also affirmed the view taken by courts in above cases.