Parentage of

der what cir

cumstances established without acknowledg

ment.

*

his slave girl, and not to have performed the cere mony of numukchushee, have B and C a legal right to inherit the property left by the deceased A, notwith standing the omission?

R. Although it does not appear that A made any children, un- direct acknowledgment of parentage, yet B and C have a legal right to inherit the property left by him, because it has been established by witnesses, that they are the sons of a woman (called a slave) who was living in a state of cohabitation with A. From these and other circumstances of the case, such as outward appearances and notoriety, it is established, that B and C were the sons of A, and that their mother was married to him. The witnesses, who negatived the marriage, obviously intended to assert, that they had no ocular knowledge of the fact, not an absolute denial of its having occurred, to assert which, would be a palpable and malicious falsehood. Besides it is not allowable to impute fornication to a Moosulmaun. The absence of ocular knowledge is not detrimental, in the case of evidence founded on notoriety. Had the witnesses possessed ocular knowledge, they would not have deposed to the notoriety of the fact. In the evidence there is no direct proof that the deceased did not acknowledge the parentage, and admitting that there was evidence to that effect, it would not be prejudicial, because the popular meaning of the term "slave," as used in India, is a nominal slave, that is to say, a person really free, who is hired or purchased, and is therefore designated a male or female slave; and to establish the parentage of the offspring of such slave girl, claim and acknowledgment are not ne

This is an usual ceremony performed by Moohummudans, consisting, as the name imports, in causing the children to taste salt. It seems to be a superstitious practice, and is apparently borrowed from the annaprasuna of the Hindoos.

66

of marriage

instances.

cessary. It is admitted, that to establish the parentage of the offspring of legal slave girls, claim and acknowledgment are necessary, but, in legal strictness, slavery has been almost extinct in this country, for a séries of generations. The expression " unmarried,” (used by some of the witnesses) affords presumption, that the woman was the nominal slave of the deceased, because legal slave girls cannot be married by their masters. The ceremony of numukchushee is not legally insisted on, so as that by its omission, the parentage would be set aside. The authority for the above opinion is an extract from the Kholasut-ool Mooftieen,-" Gene- Authorities rally speaking, hearsay evidence is not admissible, for the admissibility of except in four cases. Regarding death, or descent, or hearsay evimarriage, or with respect to a Kazee. To instance dence in cases this in a case of descent, when a person hears from and other others, that such a one is the son of such a one, it is competent to him to give his evidence to that effect, although he may not have witnessed the birth in that person's family; in the same manner as we at this day testify, that Aboo Bucr (on whom be the mercy of God) was the son of Quhafa, although we never saw Quhafa. To instance marriage, when a man sees another living in a state of cohabitation with a woman, and it is rumoured that she is his wife, it is competent to him to give evidence, that the woman is the wife of that person, although he may not have been present when the marriage was contracted. And when persons give evidence, under such circumstances, declaring that they are not eye witnesses to the fact, but that it is notorious, their testimony will be received as valid." Such also is the doctrine contained in the Hidaya,—“ It is not allowable for witnesses to depose to any thing, which they have not seen, except in cases of descent, marriage, death, jurisdiction of a Kazee, and sexual intercourse. It is competent to a person to depose

to a fact, which may have been communicated to him by another, in whom he has confidence. This proceeds upon a favorable construction. Thus for instance, a person sees a man and woman living in the same house, and cohabiting with each other after the manner of husband and wife. In such case he may depose to the marriage." The same doctrine is maintained in the Moheet-oo Surukhsee, Munnih-ool Ghuffar, Buhroorayiq and other standard authorities.*

CASE XLVIII.

Q. A person disinherited his son, and afterwards being on his death-bed, repudiated his wife, the mother

The above opinion was delivered by the Kuzee-ool Koozat; but the first Mooftee, Moohummud Rashid, disagreed with him in opinion, maintaining, that the parentage was not established, and that B and C had no right of inheritance to the property left by A. His argument was, that there are two descriptions of slaves, the one nominal and the other legal, and that supposing the mother of B and C to have been of the former description, that is to say, a nominal slave or really free, in order to establish the parentage, it was necessary to prove a marriage. If on the other hand, they were legal slaves, the acknowledgment of parentage by A was necessary to prove their descent. On further reference to other Moosulmaun doctors, the opinions were nearly equally divided; but after all, the difference of opinion merely originated in a different estimate of the evidence, and not on a point of Law. There can be no doubt of the accuracy of Moohummud Rashid's opinion, supposing the evidence not to amount to proof of marriage; but it is equally certain, that the other was the correct opinion, supposing the evidence to have afforded such proof. Cohabitation and notoriety afford sufficient presumption, and hearsay evidence is admissible in such cases. Vide the Chapter on Evidence, Hamilton's Translation of the Hidaya, vol. I page 677. The Court therefore decided in favor of the sons, the nature of the evidence being deemed sufficient to establish their descent. But three points of Law were settled in this case. First,―That a marriage may be proved by something short of ocular proof, such as continual cohabitation, notoriety, hearsay or circumstantial evidence. Secondly,-That where a woman is really and legally the slave of a man (that is to say, has been captured in an infidel country, or is a descendant of such captive), her master cannot marry her; and to establish his parentage to the children begotten on such woman, he must claim and acknowledge them. Thirdly,―That where a woman is merely the nominal slave of a man (that is to say, has been sold, or hired to the person with whom she resides, which condition is not recognized by law as slavery), her master can marry her; and where there is circumstantial evidence to presume matrimony, the offspring will be legitimate, without claim or acknowledgment on the part of the father.

of the son, by divorce. Are the disinheriting and divorce in such case legal, and has the divorced widow any right to inherit the estate of the deceased?

rentage when

R. If a person deny the parentage of a child at the Denial of patime of its birth, and when he receives the congratula- available. tions usual on the occasion, such denial, according to the Moohummudan Law, is available, and if he disown him after the time already specified, his disowning is of no effect in Law; as is laid down in the Viqaya,—“ If a man deny the parentage of a son at the time of his birth, or at the ceremony usual at the nativity, his denial is effectual, otherwise not; and in such cases the husband and wife should both be subjected to laân or imprecation."* If a man divorce his wife, being in health at the time, divorce is legal and valid, and the divorced wife has no right to inherit the property of her husband; but if the husband, being on his death-bed, of death-bed repudiate his wife by an irreversible divorce, and he die divorce. before the expiration of the period of her edit or term of probation,+ the divorce is good, but she has a right to inherit: if on the other hand, he survive her term of probation, she is excluded from the inheritance. It is declared in the Futawa Nukshbundee,-" If a person, being on his death-bed, repudiate his wife by an irreversible divorce, and he die before the expiration of the term of probation, she will inherit from him, but if he die after the conclusion of the term, she will be excluded from the heritage."

Laân, in the language of the Law, signifies testimony confirmed by oath, on the part of the husband and wife (where the testimony is strengthened by an imprecation of the curse of God on the part of the husband, and of the wrath of God on the part of the wife), in case of the former accusing the latter of adultery. See Hidaya, vol. I, page 344.

+ The time of probation which a divorced woman is to wait before she can engage in a second marriage, in order to determine whether or not she be pregnant by the former. See Hidaya, vol. I, page 83.

Guardians for

of minors.

CHAPTER VII.

PRECEDENTS OF GUARDIANS AND MINORITY.

CASE I.

Q. A person transfers by gift the whole of his property to his wife and minor children. On the death of the wife, her brother lays claim to the charge of the persons and property of the minors, in virtue of a nomination to that effect in the will of the original proprietor, and likewise by the appointment of his sister. The brother of the original proprietor also puts in the same claim, in virtue of his being next of kin. In this case, to which of the two persons above-specified does the right of guardianship legally attach?

R. In Law, guardianship over minors is of two desthe marriage criptions: the one is for the purpose of matrimony, the other for the care of the property. The right of guardianship, for the purpose of matrimony, attaches to the paternal kindred; according to the Viqaya,-" The paternal relation is the guardian, according to his And for their proximity in point of inheritance." The care of the property. property legally devolves, first on the father and his executor, next on the paternal grandfather and his executor, next the right of nomination rests in the ruling power and its administrator: that is to say, any person whom the government may please to appoint to the custody of the infant's property is a legal guardian; according to the authority above quoted,-" First, his father, or the executor of the father, is his guardian, then the paternal grand-father or his executor, then the magistrate or his executor." The mother, and the paternal uncle, and the maternal uncle, have no legal title to the guardianship of the property of the minors, as