Merely Residing Together For Few Months & Having A Child Does Not Raise Presumption Of Marriage, Conduct Of Parties Relevant: Chhattisgarh High Court

A division bench of Justice Goutam Bhaduri and Justice Sanjay S. Agrawal observed:

"The law presumes in favour of marriage and against concubinage, when a man and a woman was cohabitate continuously for a number of years but the evidence would show that the appellant No.1 Smt. Jaanki Yadav only remained for few months, therefore, the said presumption of marriage also cannot be drawn.

It is not a case that parties live together for several years in the same house and children were born out of their wedlock. There is no evidence on record that the respondent/ husband, recognize, his wife and children by affectionate provisions. The presumption of marriage is to be established by way of conduct; mode of life; and predilections of other persons. Therefore, when marriage itself has not been proved, the legitimacy and presumption cannot be drawn."

The Court was hearing an appeal against the judgment and decree passed by the Family Court, whereby the declaratory suit filed by the appellants/plaintiffs seeking that appellant no. 1 Janki Yadav be declared as legally wedded first wife and the appellant No.2 Priya be declared as legitimate child of Respondent-Defendant, Gorakhnath Yadav, was dismissed.

The declaratory suit was filed by the appellants against the Respondent. It was stated that while the defendant was posted in the Police Station to the post of Nagar Sanik, he used to visit the house of plaintiff-Janki and expressed his desire to marry. During such period, the Respondent had developed physical relations with the plaintiff Janki Yadav and thereafter, she became pregnant. Consequently, as she became pregnant, in the presence of few of the villagers, marriage was performed between the plaintiff and the defendant according to Hindu rituals.

It was pleaded that after the marriage, when the appellant no.1 went to the village of the respondent-defendant, she saw four children there and having enquired, it was disclosed that four children belonged to his first wife and it was told that first wife died five years back. Thereafter, having believed such statement, the appellant No.1 continued to stay there with the respondent-defendant.

The appellant no. 1 delivered her first baby i.e. the appellant 2. Ceremony of "Anna Prasan" was also performed and subsequent thereof, appellant No.1 was left again at her parental home with the promise that the respondent-defendant will come back and would take her to his matrimonial home, but, it never happened.

She has stated that the circumstances resulted into starvation and as such, application for maintenance was filed before the Court of Judicial Magistrate First Class, Manendragarh. The Judicial Magistrate First Class, on 15-11-2010 dismissed the application, against which, criminal revision was preferred before the High Court and the High Court has also dismissed the revision petition reserving liberty to file a declaratory suit, as such, the suit was filed claiming declaratory relief.

The respondent denied the averments stated in the plaint and stated that the plaintiff No.1-Janki Yadav was married to one Lachhandhari and the plaintiff No.2 is the daughter of the said person. The averments of physical relations or ever married to her was also denied. It was stated that the respondent is already a married person and having four children, as such, the question of marriage does not arise at all. The reference to dismissal of application under Section 125 of the Cr.P.C. was also made.

Family court dismissed her petition hence she moved in appeal.

Before the High Court, appellant submitted that family court has failed to appreciate the circumstances, in which, marriage took place, because, according to appellant No.1-plaintiff, the respondent husband was visiting the house of plaintiff No.1-Janki and as such, he had developed physical relations with her and resultantly, she became pregnant. Therefore, in a hurry, the marriage was performed.

He further submitted that the statement of the plaintiff No.1-wife shows that after marriage, she was taken to her matrimonial house and was introduced four children of the respondent-husband at her matrimonial house at Village-Tenduwa, it was informed that they were born from the first wife, who had died five years ago.

He further submitted that the documents show that the name of the child i.e. Plaintiff No.2 is shown that she was born in the hospital and in place of name of father, name of respondent was recorded.

Referring to statement of Durga Prasad Sahu, PW-3, learned counsel for the appellant would submit that this witness attended the marriage, which was performed, presumption of marriage is required to be drawn. Apart from the evidence, which has been adduced and the judgment and decree passed by the learned Family Court is liable to be set aside.

Defendant argued that there is no evidence on record to draw presumption that the appellant No.1 is the wife and they have lived together for considerable time. He further submitedt that the Pandit, who performed the alleged marriage, was not examined and even the mother of the appellant-wife is not been able to establish as to how the marriage took place. He submitted that it is not a case that the appellant-wife was in long company of the respondent- husband. Therefore, the presumption of marriage cannot be drawn and consequently, the birth of a child (appellant No.2), born out of the alleged physical relations, cannot be termed to be a legitimate child. Hence, the finding recorded by the learned Family Court is well merited and does not call for any interference.

Court after examination of evidence noted that the evidence would show to prove the marriage, at least the evidence of Naresh Pandit, who performed the marriage was necessary but he was not examined.

The Court observed that law presumes in favour of marriage and against concubinage, when a man and a woman was cohabitate continuously for a number of years but the evidence shows that the appellant No.1 Smt. Jaanki Yadav only remained for few months, therefore, the said presumption of marriage also cannot be drawn.

The petition was accordingly dismissed.

"In the result, the appeal is dismissed. As it is observed by learned trial Court, the appellant no.2 is daughter of respondent and no challenge is made to it, therefore, she would be entitled for legitimate part of her share to the limited extent of right in the property of respondent Gorakhnath Yadav"

Case Title: Smt. Jaanki Yadav and Anr. v. Shri Gorakhnath Yadav

Citation: 2022 LiveLaw (Chh) 39