Prolonged Cohabitation Will Not Acquire Character Of Valid Marriage During Subsistence Of Another Marriage By Either Party: Kerala High Court

The matter came up before the division bench comprising Justice Anu Sivaraman and Justice C Pratheep Kumar. 

The issue arose when two women (1^st respondent and 1^st appellant) claimed legal heirship certificates before the Revenue Officials for family pension.

When the matter arose before the Family Court, the bench allowed the claim and stated that the 1^st respondent was the legally wedded wife. The 1^st respondent argued that the deceased married her on 27.4.1966 as per the religious rites and ceremonies, whereas the 1^st appellant claims that the deceased married her on 28.3.1970.

The counsel for the petitioner relied on the decision in Leelamma v. Radhakrishnan (2005), quoting that “in a case where the alleged second marriage is disputed, long co-habitation as man and wife, even if true, or the description of the plaintiff as the wife of Sanku Kumaran in the ration card, votes list, or by the local people cannot come to the rescue of the plaintiff to contend for the position that a valid marriage has to be presumed”.

The question before the court was whether cohabitation between a man and woman during the existence of another marriage acquires the character of a valid marriage.

For this, the court referred to the well-settled rule that continuous cohabitation for a number of years may raise the presumption of marriage, but the same was not an irrebuttable presumption.

Additionally, the court remarked that since the deceased married the 1^st appellant during the period he was already married to the 1^st respondent, the second marriage with the 1^st appellant was void in view of Section 5(i) read with Section 11 of the Hindu Marriage Act.  

Accordingly, the court stated that cohabitation between a man and woman, however long it may be, the same will not acquire the character of a valid marriage, if it is during the subsistence of another marriage.

As such, the appeal was dismissed.

Counsel for Petitioners: Advocates VR Kesava Kaimal, C Devika Rani Kaimal and CS Rajani

Counsel for Respondents: KP Hareendran

Case Title: T. Rema & Ors. v. AK Radhamani & Anr.

Case Number: Mat. Appeal No. 813 of 2017

Citation: 2024 LiveLaw (Ker) 54