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(3) The grounds of temporary prohibitions are various. But the notion of incest certainly underlies the particular prohibition now under discussion. But the ground of the prohibition, confined to that notion, is clearly not permanent. It is incestuous to have two sisters in marriage together, but it is not incestuous to marry a wife's sister after the wife has been divorced or died. It at once becomes clear that, unlike the cases of permanent prohibition for affinity (although this too is referable to affinity for its substantial reason), the prohibition will not survive the removal of the person by death or divorce, marriage with whom has first set up the bar of affinity. No one has yet contended that a Muhammadan may not marry his wife's sister, merely because she was his wife's sister. Here then is a case of continuing condition, or obstacle, which ceasing to exist, the disability disappears. It is otherwise in all cases of permanent prohibitions for consanguinity or affinity. The distinction is quite simple and plain. On the ground of affinity a man is permanently prohibited from marrying his mother-in-law or his step-daughter. He could not marry them after the death of his wife, But a man is not permanently prohibited, on the ground of affinity or any other ground, from marrying his wife's sister. After his wife's death, he may of course marry her sister. It seemed to the learned Judges of the Calcutta High Court that no reason could be given for such a distinction, and when they looked at the matter in the light of common sense, they were equally at a lo Sections Even were that so, Courts must not be too exacting in getting at sound reasons for all the rules laid down in oriental, archaic, often very arbitrary, systems of law.

20. But we doubt whether it is. Rigorously analyzed the ground of the doctrine, that a marriage with a woman permanently prohibited is absolutely void, is simply that from the moment that prohibition takes effect, any sexual connexion with her must always be incestuous. And no issue of necessarily incestuous intercourse can ever be legitimate. But even on the confused dicta of the Muhammadan lawyers, it would not be contended that where a man simultaneously married two sisters, and had intercourse with them both, but could not remember with which first, and both had issue, such issue would be illegitimate. In such circumstances it seems to be agreed that both sisters would be entitled to dower, would both be obliged to perform iddat, and presumably, therefore, the children of both would be legitimate. Nasab would be established. Yet it is equally clear and certain that having regard to the prohibition against marrying two sisters at once, if that rests upon a basis of such marriages being incestuous, in the case supposed the children would be the children of incest, or at any rate one of them would, though it might be difficult to say which. Again if a man married first A and then while A was still alive, her sister B, and had intercourse with B and begot a child upon her, and the very same night A died, it may be doubted much whether any one would contend that the child so begotten must be illegitimate. Such an example introduces the always illusive and difficult time element. If it really would have the play above attributed to it, then it is clear that the incestuousness of the act which brought the child into being would not be the true determinant. In every case of permanently prohibited women it would. No matter when the act of procreation took place, if by reason of consanguinity or affinity the woman was permanently haram to the man, the child born of their union would be illegitimate. An examination of text-book writers, old and relatively modern, puts it beyond all doubt that in numerous instances of temporary prohibition, all the legal consequences of marriage may follow, if in fact there has been consummation. In all these cases, there is no incest, and time is always the determinant factor. In dealing critically with a topic which has been subjected to such interminable examination, and finedrawn distinction, the difference between incest and adultery must never be lost sight of. Fornication or adultery was severly punished under the Muhammadan Law, and a great part of the extracts appended to the judgment in Aizunnissa's case (1) is devoted to this question of punishment. It has little, if any, relevance to the question we have to answer. It has now been shown, we hope conclusively, that the Kuran was incorrectly interpreted by the learned Judges of the Calcutta High Court and that rightly read, it allows full play to the principles upon which we would decide this case.

42. Then follow liberal extracts from the Rudd-ul-Muhtar, and one quotation from a commentary on the Dur-ul-Mukhtar of the year 1839. We do not propose to criticize these, because we do not consider that either is comparable with the Fatawa-i-Alamgiri.

43. It may be noted, however, that in the Muhammadan Jurisprudence of Mr. Justice Abdur Rahim, page 330, it is stated that in the Egyptian edition of the Rudd-ul-Muhtar, Vol. tl, page 380, the marriage of two sisters is said to be fasid.

44. The above brief critical notice supports what we have said, that there is no sufficient ground for holding that the clear and explicit doctrine of the Fatawa-i-Alamgiri really conflicts with sound tradition or makes any innovation upon the Muhammadan Law as it had been gradually evolved up to 1660 A.D. Broadly speaking, no doubt such a marriage as that of Saidabi in this case is prohibited and would be described as void. Per se, it certainly is void, in the sense that it is expressly forbidden. But since the reason for the prohibition is to be sought in the subsistence of a relation with another, and not in the blood of the woman married, it should not, in any classification which aims at logical exactitude, be placed in the same category as those which are founded on incest. By 1660 A.D. the best Muhammadan legal opinion had expressed itself very definitely in favour of regarding such marriages, as the one we are dealing with, to be fasid only. This opinion seems to us to be founded upon the only intelligible, universal principle, upon which the Courts could deal with marriages some of which must be absolutely void, while others would only be relatively void, or invalid. That principle, as we have stated, is that the test and the only test to be applied is whether the woman in question is permanently or only temporarily haram. In every case of the kind the woman in question must be haram, and the difficulty is to decide when, although haram, she has in fact married a man and the marriage has been consummated, it is to be treated as absolutely void without any legal consequences at all, and when it is to be treated as bad indeed in inception, yet capable of having legal consequences. We see no other ground upon which such a decision can be based with the certainty that it will be uniform and consistent and applicable in every case of doubt than the permanence or otherwise of the prohibition.