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Colonial Cases

Naswar Mulka Jehan Sahiba v. Mahomed Ushkeree Khan, 1873


Naswar Mulka Jehan Sahiba v. Mahomed Ushkeree Khan

Judicial Committee of the Privy Council
20 March 1873
Source: The Times, 21 March, 1873

(Present - Sir J. Colville, Sir B. Peacock, Sir M. Smith, and Sir R. Collier.)
  Judgment was given in this case, which raised several peculiar questions under the Mahomedan law.  It was an ex parte appeal from Oude on a decree pf the Judicial Commissioner, affirming a decision of the Civil Court of Lucknow, made in a suit instituted by the appellants for the purpose of establishing their right to inherit the estate of a child named Sooltan Ara Begum, deceased.
  Mr. Kay, Q.C., and Mr. Cave were for the appellants.
  The two questions discussed on the appeal was whether the marriage of the deceased child, when between 8 and 9 years old, with Mahomed Ushkerree, one of the appellants, when he was a minor, had been ratified by her when she attained puberty and the years of discretion. She died in Arabia when between 11 and 12 years old, whither she had gone to visit the holy place. The first-named appellant was her paternal grandmother, and the parties were related to the Royal Family of Oude.
  The marriage was contracted by the grandmother, and a relation on the part of the husband, with great pomp and ceremony, as befitting the near relationship to the ex-King of Oude. The mother of the child, the respondent Pearee Khaum, it was alleged, was a slave when Sooltan Ara Begum was born, and a question was raised whether she could inherit. The two respondents were the husband of the deceased child and her mother, and the appellants were her grandmother and her half brothers and sisters claiming the property.
  Her father was related to the King of Oude, and by the Mahomedan law the child was entitled to the same privileges as the other children, although the mother at the time of her birth was a slave. The mother had at first disclaim med by petition to share in the property, but in a second petition she asserted her right, and it was held that from the annexation of Oude she could not be considered as a slave.
  The solicitor for the appellants, Messrs. Watkins and Lattey, had cited the respondents, but they did not appear.
  Sir Montagu Smith delivered the judgment of the Committee.  His Lordship, in the course of a learned exposition of the law, referred to the works of MacNaughten and also to Baillie on the Mahomedan law as to the marriage of children, and the necessity of assent on the part of the females when they attained to puberty and years of discretion. He cited the evidence of the high priest as to the Sheah school of assent, and after discussing the subject at length, and applying the facts of the case to the questions raised, said their Lordships had arrived at the conclusion that the marriage had not been perfected as necessary by the Sheah school, and therefore the husband of the deceased was not entitled to share in the estate. It had not been proved that the mother of the deceased was a slave at the time of the birth of the deceased, and she was entitled to a third of the property, and the half-brothers and sisters of the deceased would take the remainder of the property.
  Their Lordships would advise Her Majesty that such should be the order to be made in the case as to the division of the property of the child Sooltan Ara Begum.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School