Law Presumes Marriage When Man & Woman Cohabits For Long Time : Supreme Court

In a notable judgment, the Supreme Court recently observed that when a man and a woman have continuously cohabited for a long time, there is a presumption of marriage.

A bench comprising Justices Hima Kohil and Rajesh Bindal observed :  “law infers a presumption in favour of a marriage when a man and woman have continuously cohabitated for a long spell. No doubt, the said presumption is rebuttable and can be rebutted by leading unimpeachable evidence. When there is any circumstance that weakens such a presumption, courts ought not to ignore the same. The burden lies heavily on the party who seeks to question the cohabitation and to deprive the relationship of a legal sanctity.”

 Brief Factual Background

The facts that have resulted in the present appeal as follows:

Late Subedar Bhave was enrolled in the Army in the year 1960. During the subsistence of his marriage with Anusuya, he married the appellant no.1(Smt. Shiramabai). Appellants No. 2 and 3 are the offspring of the deceased and appellant no. 1. Three years down the line, deceased was discharged from service and granted service pension. On 25th January, 1984, the deceased was discharged from service at his request and was granted service pension. On 15th November, 1990, the deceased and Anusuya were granted a decree of divorce by mutual consent. Thereafter, the deceased approached the respondent No. 2 for deleting the name of Anusuya and endorsing the name of the appellant No. 1 in the PPO. Subedar Bhave expired in the year 2001.

Subsequently, appellant No. 1 approached the respondents for grant of family pension. The said request was, however, rejected by the respondents on the ground that the deceased had got divorced in November, 1990, whereas the appellant No.1 claimed to have got married to her in February, 1981, during the subsistence of the earlier marriage.

The High Court in its impugned order refused to grant any relief to the appellant no. 1. However, it entitled appellants No. 2 and 3 to the estate of Late Subedar Bhave which was in the custody of the respondents.

Contentions of the Parties

The submissions of advocate Rahul Joshi, appearing for the appellants, were based on the principle of presumption of marriage. He assailed the High Court’s order on the ground that long period of cohabitation between appellant no.1 and deceased, would attract the presumption of the marriage between the parties being legal, as contemplated under Section 114 of the Evidence Act, 1872. Pertinently, Section 114 of the said Act permits the Court to presume the existence of certain facts which it thinks are likely to have happened in relation to the facts of a particular case. The Counsel relied upon the decisions in the cases of Indra Sarma v. V.K.V. Sarma (2013) 15 SCC 755, Dhannulal And Others v. Ganeshram And Another (2015) 12 SCC 301 and Kattukandi Edathil Krishnan and Another v. Kattukandi Edathil Valsan and Others 2022 LiveLaw (SC) 549, to bolster his submissions.

On the other hand, Mr. K M Nataraj, Additional Solicitor General (ASG), appearing for the respondents averred that the said marriage cannot be given a legal sanctity on the basis of the subsequent dissolution of the marriage and cohabitation of the deceased and the appellant No. 1 as the same is void under Section 11 of the Hindu Marriage Act, 1955 (HMA). Further, ASG also raised the issue of appellant No. 2 and 3, being entitled to the pension. He emphasised on the Regulation 219(iv) of the Pension Regulation for the Army, 1961 to argue that the son of an employee would be eligible for family pension only if he is below the age of 25 years and in the present case, both the appellants have crossed the age of 25 years.

Court’s observations

The issue for adjudication of the Court was whether the appellants would be entitled to claim pensionary benefits of Late Subedar Bhave.

The Court noted that it is no longer res integra that if a man and woman cohabit as husband and wife for a long duration, one can draw a presumption in their favour that they were living together as a consequence of a valid marriage. This presumption can be drawn under Section 114 of the Evidence Act.

To support the said observation, Court placed its reliance upon catena of judgments including in the case of Badri Prasad v. Dy. Director of Consolidation and Others, (1978) 3 SCC 527, wherein it was held:

“…..where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.”

Elucidating the same, the Court opined:

“It is true that there would be a presumption in favour of the wedlock if the partners lived together for a long spell as husband and wife, but, the said presumption is rebuttable though heavy onus is placed on the one who seeks to deprive the relationship of its legal origin to prove that no marriage had taken place (refer: Tulsa and Others v. Durghatiya and Others, (2008) 4 SCC 520”

Moreover, in Kattukandi Edathil Krishnan and Another v. Kattukandi Edathil Valsan and Others, 2022 LiveLaw (SC) 549, the Supreme Court held, in the facts of the said case, that there was a presumption of the marriage between the parents of the plaintiffs on the ground of their long cohabitation status, entitling their offspring to claim their share in the suit schedule property.

Addressing the facts of the instant case, the Court noted that if the period upto which the deceased’s marriage with Anusuya got dissolved is excluded, fact remains that even thereafter, the deceased had continued to cohabit with the appellant No. 1 for eleven long years, till his demise in the year 2001. The appellant No.1 was the mother of two children born from the relationship with the deceased, namely, appellants Nos.2 and 3.

Based on the above discussion, the Court entitled appellant No.1 to receive the pension payable on the demise of Late Subedar Bhave and held:

“a presumption ought to have been drawn in favour of the validity of the marriage between the deceased and the appellant No. 1, more so, when during his life time, the deceased had approached the respondent authorities for seeking deletion of the name of his previous wife - Anusuya from his service record and for endorsement of the name of the appellant No. 1 therein, which was duly acted upon by the respondents vide letter dated 05th July, 1999. It is also not in dispute that the ex-wife did not claim any pension from the respondents on the demise of Subedar Bhave.”

As for the appellants No. 2 and 3, the Court entitled them to the said relief till the date they attained the age of 25 years.

Case Title: SMT. SHIRAMABAI W/O PUNDALIK. BHAVE & OTHERS v. THE CAPTAIN, RECORD OFFICER FOR O.I.C. RECORDS, SENA CORPS ABHILEKH, GAYA, BIHAR STATE AND ANOTHER, CIVIL APPEAL NO. 5262 OF 2023

Citation : 2023 LiveLaw (SC) 672

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