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4. Doubt has been thrown upon the authority of the Fatawa-i-Alamgiri by later Muhammadan lawyers such as the author of the Rudd-ul-Muhtar. And

5. The text directly in point professes to be based upon the authority of the Muhit of Sarakhshi (1096), the original of which was not before the Court.

8. The learned Judges of the Calcutta Court recognized and accepted the classification of marriages with prohibited women in two categories: (1) Those which were "batil" or absolutely void, and (2) those which were "fasid" or only invalid (or irregular). Also they recognized and accepted the general rule regulating the resultant legal consequences of marriages falling within the one or the other category. Void marriages could have no legal effects, invalid marriages, if consummated, could. Last, they also appear to have accepted the criterion in general use for determining whether a marriage with a prohibited woman should be classed in the category of void or of invalid marriages. This criterion is to be sought in the nature of the prohibition; if that be permanent, then the marriage is void, if temporary, then the marriage is invalid. Adopting the classification, its legal consequences and the test, the Judges held that a marriage with a sister during the subsistence of a prior marriage with her sister was void, and, whether consummated or not, had no legal consequences, and that this was so because the prohibition against marrying two sisters together was a permanent prohibition, and brought a wife's sister within the moharram or (in effect) the pale of incestuous adultery. It will thus be seen that the true foundation of the judgment was the very strong opinion the learned Judges held upon the true and intended meaning of the passage in the Kuran. There is now a general consensus among the best modern text-book writers on Muhammadan Law, the case of Aizunnissa Khatoon v. Karimunnissa Khatoon 23 C. 130 ; 12 Ind. Dec. (N.S.) 87 was wrongly decided. Whether Ameer Ali was clear upon the point in his book then before the Court or not, he has made his own view, unmistakeably clear in later editions.

13. Before considering the text in the Kuran, these propositions may be stated. We do not think any one of them will be seriously disputed:

(1) The prohibited women fall into three Classes: (a) those who are prohibited for consanguinity; (b) for affinity; (c) for unlawful conjunction.

(2) The ground of permanent prohibition is that marriage with a woman so permanently prohibited would be incestuous at any time by reason of consanguinity, or at any time after the bar had been established by affinity.

(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.