Paragraph numbers below are the court’s original numbering, recovered from the source text.
10. On the demise of Subedar Bhave in the year 2001, when the appellant No. 1 approached the respondents claiming family pension, the said request was rejected only on the ground that her marriage with Late Subedar Bhave had taken place in February, 1981 whereas he and Anusuya, got divorced much later, in the year 1990.
11. 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 that states as follows: “114. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
12. In this above context, we may refer to Andrahennedige Dinohamy and Another v. Wijetunge Liyanapatabendige Balahamy and Others27, where the Privy Council observed thus: “…..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, 27 1927 SCC OnLine PC 51 SMT. SHIRAMABAI v. CAPTAIN, RECORD OFFICER SENA CORPS ABHILEKH, GAYA, BIHAR STATE [HIMA KOHLI, J.] that they were living together in consequence of a valid marriage and not in a state of concubinage. xxx xxx xxx “The parties lived together for twenty years in the same house, and eight children were born to them. The husband during his life recognized, by aff ectionate provisions, his wife and children. The evidence of the Registrar of the District shows that for a long course of years the parties were recognized as married citizens, and even the family functions and ceremonies, such as, in particular, the reception of the relations and other guests in the family house by Don Andris and Balahamy as host and hostess—all such functions were conducted on the footing alone that they were man and wife. No evidence whatsoever is aff orded of repudiation of this relation by husband or wife or anybody.”
13. In Mohabbat Ali Khan v. Muhammad Ibrahim Khan And Others28, it was again observing by the Privy council that: “….The law presumes in favour of marriage and against concubinage when a man and a woman have cohabited continuously for a number of years……”
14. Similarly, in Badri Prasad v. Dy. Director of Consolidation and Others29, this Court held as follows: “…….A strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. Law leans in favour of legitimacy and frowns upon bastardy…..”
15. In S.P.S. Balasubramanyam v. Suruttayan alias Andali Padayachi and Others30, this Court held as under: “4. What has been settled by this Court is that if a man and woman live together for long years as husband and wife then a presumption arises in law of legality of marriage existing between the two. But the presumption is rebuttable (see Gokal Chand v. Parvin Kumari31). 28 1929 SCC OnLine PC 21 29 (1978) 3 SCC 527 30 (1994) 1 SCC 460 31 (1952) 1 SCC 713
16. 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 Others32).
17. A similar view has been taken by this Court in Madan Mohan Singh and Others v. Rajni Kant and Another33, Indra Sarma v. V.K.V. Sarma (supra) and Dhannulal And Others v. Ganeshram And Another.
18. In the case of Gokal Chand v. Parvin Kumari alias Usha Rani (supra) this Court observed thus : “……Continuous cohabitation of man and woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage, but the presumption which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the court cannot ignore them.”
19. In Kattukandi Edathil Valsan’s Case (supra), citing the abovesaid decisions and relying on Section 114 of the Evidence Act, this Court held in the facts of the said case that there was a presumption of the marriage between the parents of the plaintiff s on the ground of their long cohabitation status, entitling their off spring to claim their share in the suit schedule property.
20. It can be discerned from the aforesaid line of decisions that the 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.
21. In the instant case, if the period upto the year 1990 was to be excluded as the marriage between Late Subedar Bhave and Anusuya had got dissolved only on 15th November, 1990, fact remains that even thereafter, the 32 (2008) 4 SCC 520 33 (2010) 9 SCC 209 SMT. SHIRAMABAI v. CAPTAIN, RECORD OFFICER SENA CORPS ABHILEKH, GAYA, BIHAR STATE [HIMA KOHLI, J.] 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. Appellants No.2 and 3 have been held entitled to the estate of the deceased by virtue of the order passed by the High Court on the Review application moved by them. In the above background, 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.
22. In view of the aforesaid discussion, the impugned judgment dated 25th June, 2013, passed by the High Court of Karnataka Circuit Bench at Dharwad endorsing the order dated 16th September, 2010, passed by the First Appellate Court cannot be sustained and are, accordingly, quashed and set aside. The judgment and decree dated 22nd December, 2007, passed by the learned Civil Judge (Senior Division), Chikodi is restored. The appellant No.1 is held entitled to receive the pension payable on the demise of Late Subedar Bhave. As for the appellants No. 2 and 3, they would be entitled to the said relief till the date they attained the age of 25 years.
23. The appeal is allowed on the above terms while leaving the parties to bear their own costs. Pending applications, if any, stand disposed of. Headnotes prepared by: Appeal allowed. Nidhi Jain