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RIGHTS WATCH

An Incentive to promote Women's rights

Presumption of Marriage

Mohammad Syeed Abrar
PRESUMPTION of marriage is a nascent addition to the rules of Family law in Bangladesh, though it is a widely recognised concept in the complex and highly mobile societies of India and Pakistan, for instance, scores of judgments are passed by the Superior Courts. It is a useful and effective device to ensure women’s rights. While virtually every South Asian writer such as Fyzee, Mulla, Tyabji included it in their textbook, the western writers like David Pearl and Warner Menski refrained from doing so. Of late, there is a landmark judgment from the Appellate Division of the Supreme Court of Bangladesh in the case of Mst. Momtaz Begum v Anowar Hossain 17 BLC (AD) (2012); 2012 BLD (AD) 32, which paves the way for changes in legal and familial rights of women. Mr. Justice Surendra Kumar Sinha clarified explicitly the doctrine of presumption of marriage, a device to uphold juribus mulieribus.
Presumption is an evidential device that permits a court to conclude the existence of a fact ('the presumed fact') on the proof of a preliminary fact ('the basic fact'). For example, where it is proved that a man and a woman lived and cohabited over a period of time ('the basic fact'), the court may presume that the persons went through a marriage ceremony with the intention to marry and all the formalities required for a valid marriage were complied with ('the presumed fact').
A Muslim marriage is in essence a solemn civil contract between a man and a woman [El Alami (1992)]. It is distinguished from the sacramental concept of Christian marriage, while South Asian authors almost always contrast the Muslim contract of nikah with Hindu concept of marriage as an indissoluble sacrament or samskara. "Marriage", as defined in the case of Abdul KadirvSalima (1886), “is not a sacrament but a civil contract." Justice Tyabji, Barrister-at-Law also maintained the same view in his book.
For a contract to be valid, it must be written, signed and witnessed with formal offer and acceptance. In terms of formal requirements, the nikah is affected quite simply by the three essential elements offer, acceptance and the presence of witnesses, for a Muslim marriage is a civil contract, additionally, the offer or and the offeree have to possess legal capacity to make an offer or to respond to an offer. There are other two terms we come across; one is Kazi (Muslim Marriage Registrar) and the other is Kabin-nama or Nikah-nama, while dealing with a Muslim marriage. Baillie stated that the formal conclusion ofthe contract is called 'akd'.
Complications arise when any essential element is missing from the contract of marriage that has been consummated for a definite period of time by the parties, one of whom later tries to deny it. In this situation the notion presumption of marriage has a great role to play.
The phrase 'presumption of marriage', in Mulla's Principles of Mohammedan law, has been discussed clearly and exactly. Marriage will be presumed, in the absence of direct proof, from the
following situations:
1 .If there is a prolonged and continual cohabitation between a man and a woman as husband and wife (Abdul Halim v Saadat Ali ('29) A.0.126,112,1.C. 596]
2.If the man acknowledges the fact of the paternity of the child born to the woman (Immabandiv Mutsadi (1918) 45 LA. 73,81-82]
3.When the man acknowledges the woman as his wife (Mahomed Amin v Vakil Ahmed ('52) A.S.C. 358]
However, residing as a menial servant in the house of a Muslim and bearing a child to him does not raise presumption of marriage. Even when 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. The case of Mohabat Ali v Mohamad Ibrahim (1929) 56 LA. 210,209 informs us of the mere fact that, the woman did not live behind the purda, as the admitted wives of the man did, is not sufficient to rebut the presumption.
Our legal system is based on common law and the doctrine of precedent and the aforementioned cases are persuasive precedent in our jurisdiction. We cannot use above mentioned cases as the basis of our claim rather we can use these cases to deal with the interventions from the bench. But the judgment pronounced by Mr. Justice S K Sinha, sitting as a presiding judge in Momtaz Begum v Anwer Hossain, after considering all the cases mentioned above, has wiped out all complications and promulgated laws regarding presumption of marriage.
The law now, concerning presumption of marriage, is "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." Justice Sinha went on to say that “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 for the contractual performance of a marriage. No religious means 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 mightsuffice."
As a consequence of this newly introduced and established doctrine the underprivileged women of our country will have access to the rights like, the confirmation of Mahr, the establishment of descent or paternity, the necessity for the wife observing iddat, the wife's right to maintenance and residence during iddat, the prohibition by conjunction against the husband marrying the wife's sister or other four women with her and the ownership of property.
THE WRITER IS STUDENT OF LAW, UNIVERSITY OF LONDON
INTERNATIONAL PROGRAMME