Paragraph numbers below are the court’s original numbering, recovered from the source text.
2. As noted above, the first appellate court allowed the "l appeal. The trial court noted that there was a presumption of valid marriage, as for decades Radhika and defendant No.1 lived together, their daughters were given in marriage by Radhika. Loli the defendant No.1 was earlier married to s Mangala Kochhi and after his death she married Radhika. It is to be noted that the stand of the plaintiffs was that Loli married Radhika during the lifetime of Mangal Katchhi. The trial court ,,,, rejected this plea. The first appellate court observed that Loli started living with Radhika during the life time of Mangal Katchhi, c so the presumption of valid marriage was not there. The judgment and decree of the first appellate court was challenged before the High Court. The High Court formulated the following questions for adjudication: "Whether in the facts and circumstances of the case, the first appellate Court erred in law in finding that Mst. Lollibai was not the legally married wife of Radhika Singh?"
3. After discussing the respective stand of the parties, the High Court came to a somewhat peculiar finding. It held that the E findings recorded by the appellate court may be erroneous, but it does not appear to be perverse.
4. It is to be noted that the first appellate court without any evidence or material came to an abrupt conclusion that the F defendant No.1 Loli started living with Radhika during the lifetime of her husband. There is no discussion with reference to any material as to the basis for such a conclusion.
5. Some of the conclusions of the trial court in this regard are relevant. In paragraph 16 of the judgment it was noted as G follows: "In the content of the aforesaid judgment, now we have to examine this that whether we have sufficient basis to make a presumption of legal marriage of Lolli and Radhika Singh. In this connection, plaintiff witness Visheshar had TULSA AND ORS. v. DURGHATIYA AND ORS. [PASAYAT, J.] r admitted in para 9 of his statement that there were four A daughters and one son born of Lolli and Radhika Singh. The eldest daughter of Lolli is Tulsi. Rani was born to Lolli after 2-3 years of her arriving in the village. Three of the daughters of Lolli was married off by Radhika Singh and she had also contributed." i'
6. Again at para 18 it was observed as follows: ….,._ "Witness Devdhari has also admitted in his statement that after2-3 years of the birth of first born Bhaiyalal Mangal Kachhi had died. Lolli used to work as a labourer. She c also used to be labourer with Radhika Singh. Radhika Singh had retained Lolli as his wife. The daughters of Lolli were married off by Radhika Singh. Ram Milan Singh had admitted in his statement that all these four daughters were alive. They were born of Radhika and Lolli. The D daughters which were born of Radhika Singh, their Kanyadan was also performed by Radhika Singh. He has also admitted this in his statement that Radhika Singh had married off his daughters as Vaishyas and Thakurs married off their daughters. He had attended the marriage."
7. In para 24 it was observed as follows: "This has also been argued by learned counsel of the plaintiff that even if this is accepted that Lolli and Radhika Singh stayed as husband and wife for many days and they F were blessed with children even then it cannot be presumed that Lolli is legitimate wife of Radhika Singh. Because Lolli moved in with Radhika Singh then her husband had been alive. His former husband Mangal Kachhi had been alive, till she got divorce by Mangal G ~ >;-· Kachhi till then Lolli could not have entered in second marriage with Radhika-Singh. I am no in agreement with this argument of the learned counsel of the plaintiff because the evidence, which has been adduced from the side of the plaintiff and defendants, from that it becomes clear, [2008) 1 S.C.R. that after Bhaiyalal was born to Lolli from mangal, mangal had thrown Lolli out of the house. Then Lolli worked as a casual labourer for some time and meanwhile Mangal had died. Thereafter Radhika Singh adopted her as his wife. This fact has been admitted by Devdhari in para 4 of his statement that Lolli used to frequent village Bointa from Bandhi to work as a labourer, thereafter she was adopted."
8. In contrast, the first appellate court held that Bhaiyalal (DW2) who was born to Lolli and Mangal, had stated that he C was very young when his father died and when he was young his mother had left. From that it was inferred that during the lifetime of Mangal Katchhi, Lolli left the Mangal and was living with Radhika. This conclusion is clearly contrary to the evidence on record. A bare reading of the evidence of OW 2 shows that D he had clearly stated that Mangal was not alive when Lolli came and stayed with Radhika.
9. At this juncture reference may be made to the Section 114 of the Indian Evidence Act, 1872 (in short the 'Evidence Act'). The provision refers to common course of natural events, E human conduct and private business. The court may presume the existence of any fact which it thinks likely to have occurred. Reading the provisions of Sections 50 and 114 of the Evidence Act together, it is clear that the act of marriage can be presumed from the common course of natural events and F the conduct of parties as they are borne out by the facts of a particular case.
10. A number of judicial pronouncements have been made on this aspect of the matter. The Privy Council, on two occasions, G considered the scope of the presumption that could be drawn as to the relationship of marriage between two persons living ~ ·~ together. In first of them i.e. A. Dinohamyv. WL. B/ahamy [AIR 1927 P.C. 185) their Lordships of the Privy Council laid down the general proposition that: "Where a man and woman are proved to have lived TULSA AND ORS. v. DURGHATIYA AND ORS. [PASAYAT, J.] together as man and wife, the law will presume, unless, A the contrary be clearly proved that they were living together in consequence of a valid marriage, and not in a state of concubinage."
11. In Mohabhat Ali v. Md. Ibrahim Khan [AIR 1929 PC B 135] their Lordships of the Privy Council once again laid down that: i- "The law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years." c
12. It was held that such a presumption could be drawn under Section 114 of the Evidence Act.
13. Where the partners lived together for long spell as husband and wife there would be presumption in favour of D wedlock. The presumption was rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place. Law leans in favour of legitimacy and frowns upon bastardy. (See: Badri Prasad v. Dy. Director of Consolidation and Ors. [AIR 1978 E SC 1557].
14. This court in Gokal Chand v. Parvin Kumari [AIR 1952 SC 231] observed that continuous co-habitation of woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage, F but the presumption which maybe drawn from long co- habitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them.
15. As noted above, the continuous living together of Lolli G and Radhika has been established. In fact the evidence of the witnesses examined by the plaintiff also established this fact. The conclusion of the first appellate court that they were living together when Mangal was alive has not been established. The A evidence on record clearly shows that Lolli and Radhika were ·..- living together after the death of Mangal.
16. Above being the position, the appeal deserves to be allowed which we direct. The judgment and decree of the first 8 appellate court and the High Court are set aside and those of . the trial court stand restored. t
17. Appeal is allowed but with no order as to costs. B.B.B. Appeal allowed.