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128. It is argued for the appellant that, in deciding the issue of marriage, we must not take into consideration probabilities; but Section 3 of the Evidence Act which defines 'proved' and 'disproved' expressly deals with probabilities. Using the language of that section, I do not believe that any marriage between Abdus Sobhan and Mozelle Cohen ever took place, in other words, I find the marriage "disproved." In this view of the facts the law appears to me to be well-settled. I consider that we are bound by the various decisions of this Court and the Judicial Committee of the Privy Council which meet the case. It was, however, argued by Mr. Hyam that even without actual marriage there might be a semblance of marriage, which would amount to the same thing, and which would imply the legitimacy of the issue. He quoted the opening words of Baillie's Digest of Muhammadan Law on the subject of marriage. The intercourse of a roan with a woman who is neither his wife nor his slave, is unlawful, and prohibited absolutely. When there is neither the reality nor the semblance of either of these relations between the parties, their intercourse is termed zina and subjects them both to hudd, or a specific punishment for vindicating the rights of Almighty God. He argued that concubinage was a semblance of marriage. In that I do not agree with him ; nor do I think that that is the result of the authorities. A walad-ul-zina is the offspring of adultery, incest or fornication and fornication is the intercourse of a man with an unmarried woman. The three relationships are put on the same footing and included in the word zina. I do not find that concubinage is ever regarded in Muhammadan Law as equivalent to marriage for purposes of legitimation. This argument appears to be an afterthought of the appellant, whose case has continually been changing from the time when the plaint was filed. Holding, as I do, that the marriage is disproved, it follows that Habib has been proved to be illegitimate, and could not be rendered legitimate by any acknowledgment or recognition of legitimacy on the part of his father, Abdus Sobhan. Greaves, J., appears to have thought that there was some conflict between the law as laid down in the case of Ashrufood Dowlah Ahmed Hossein Khan Bahadoor v. Hyder Hossein Khan 11 M.I.A. 94 : 7 W.R.P.C. 1 : 1 Suth. P.C.J. 223 : 20 E.E.R. 37 and the more recent oases. I think that if that decision be read in the light of the facts of that particular case, it and the oases which immediately follow it will not be found to conflict with the more recent decisions. The question was very fully discussed by a Full Bench of the Allahabad High Court in Muhammad Allahdad Khan v. Muhammad Ismail Khan 10 A. 289 : 6 Ind. Dec. (N.S.) 193 and it was explained that their Lordships of the Privy Council in Ashrufood Dowlah Ahmad Hossein Khan Bahadoor v. Hyder Hossein Khan 11 M.I.A. 94 : 7 W.R.P.C. 1 : 1 Suth. P.C.J. 223 : 20 E.E.R. 37 and one or two subsequent decisions were referring to cases where the marriage, or at any rate, the date of the marriage, was left in uncertainty, that is to say, not proved. No doubt, if the words at page 113 of 11 Moore's Indian Appeals, Ashrafood Dowlah Ahmad Hussein Khan v. Hyder Huseein Khan 11 M.I.A. 94 : 7 W.R.P.C. 1 : 1 Suth. P.C.J. 223 : 20 E.E.R. 37 "a child born out of wedlock is illegitimate; if acknowledged he acquires the status of legitimacy", be read apart from the context, they might appear to support the contention that any illegitimate child, if acknowledged, becomes legitimated; but if the paragraph in which these words occur be read as a whole it will be clear that this is not so. Their Lordships were not there dealing with a case where the child was proved to be illegitimate. The distinction pointed out by the Full Bench of the Allahabad Court in the case just cited has been accepted in this Court in the case of Dhan Bibi v. Lalon Bibi 27 C. 801 : 14 Ind. Dec. (N.S.) 525 and in the case of Musammat Bibee Fazilntunnessa v. Musammat Bibee Kamarunnessa 9 C.W.N. 352. The idea is not a new one. It appears in a judgment of this Court delivered in 1863 in the case of Musim-mat Nawabunnissa v. Musammat Fuzooloonissa Marshal's Rep. 428 : 2 Hay 479. At page 431 Page of 1 Marshal's Rep.--Ed. the Judges say: it is not enough to show that it is impossible that any marriage should have taken place, but the person on whom, by the establishment of the presumption. the obligation devolves of showing that the cohabitation was without marriage, must show either that marriage was impossible between the parties, or, which comes very much to the same thing, that no marriage took place. In short, the party imputing illegitimacy and consequent fornication of the father, must bring such proof of the absence of marriage as is practicable, except in cases of such circumstances as would render the marriage illegal." The matter, in my opinion, has been set at rest by the decision of the Privy Council in the case of Mirzi Sadik Husain Khan v. Nawab Saiyed Hashim AH Khan 36 Ind. Cas. 104 (P.C.) : 21 C.W.N. 130 : 48 I.A. 242 : 31 M.L.J. 607 : 19 O.C. 192 : 18 Bom. L.R. 1037 : (1916) 2 M.W.N. 577 : 14 A.L.J. 1248 : 21 M.L.T. 40 : 38 A. 627 : 1 P.L.W. 157 ; 4 O.L.J. 22 : 25 C.L.J. 363 : 6 L.W. 378 : 10 Bur. L.T. 140. There Lord Atkinson said: 'The rule of Muhammadan Law is well-established: No statement made by one man that another (proved to be illegitimate) is his son can make that other legitimate, but where no proof of that kind has been given, such a statement or acknowledgment is substantive evidence that the person so acknowledged is the legitimate son of the parson who makes the statement, provided his legitimacy be possible." He then cited, clearly with approval, Allahadad Khan's case 10 A. 289 : 6 Ind. Dec. (N.S.) 193, above referred to, and also Mohammad Ahmat Ali Khan v. Lalli Begum 9 I.A. 8 : 8 C. 422 : 4 Sar. P.C.J. 510 : 6 Ind. Jur. 201 : 17 P.R. 1882 : 4 Ind. Dec.(N.S.) 269 (P.C.).