Author : Neha Singh
Citation: AIR 1977 Mad 182, (1977) 1 MLJ 482
Bench: Justice Ramanujam
This case is a face off of provisions of legitimacy of a child in Muslim Personal law and section 112 of Indian Evidence Act. In this case it was held that the Evidence Act is a very general act and is applicable on all religions including Muslim law. By going through the provisions, it can be concluded that both the laws are in contradiction to each other. And therefore, in a situation of contradictory laws, The Evidence Act shall supersede the rules of pure Muslim law. Great thinkers like Mullah and Ameer Ali have even stated this in their books that the Evidence Act supersedes the Muslim substantive law.
An appeal filed by defendants against the order of remand made by the lower appellate court, the Plaintiff stated that she is the daughter of Mohammad hussain and his second wife and has inheritance right to his property to which the defendants claimed that she is an illegitimate child as the date of birth of the child and the date of marriage are exactly 3 months apart and under mohamedan law a child born within six months of marriage is an illegitimate child but in the view of presumption contained in section 112 of the Evidence Act the child must be taken as legitimate child.
- Whether S. 112 of the Evidence Act supersedes the rules of Mohamedan Law as to legitimacy was left open in Md. Allahad Khan v. Md. Ismail Khan, (1888) ILR 10 All 289?
The order of remand made by the lower appellate court was held to be valid and held that Evidence Act overrides the Mohamedan Law. The appeal therefore fails and its appeal was dismissed.