1983 Supreme(MP) 704

IN THE HIGH COURT OF MADHYA PRADESH
Faizan Uddin, J.
Ramkali - Appellant
Vs.
Nathoosingh - Respondent
S.A. No. 90 of 1973 (G)
Decided On : 16-04-1983

Headnote:(1) Hindu Law – marriage – presumption of – long cohabitation as husband and wife – gives rise in favour of valid marriage.

       (2) Evidence Act, 1872 – S.114 – valid marriage – when may be presumed – long co – habitation as husband and wife – valid marriage may be presumed.

       (3) Evidence Act, 1872 – S. 101, 102 and 114 – law presumes in favour of marriage – presumption is rebuttable – burden to disprove lies on him who challenges the marriage.

        Short Note

       During the course of the arguments before the lower appellate Court, it was conceded by the learned counsel for the defendant/respondent that the suit house belonged to Ganeshram. In these circumstances, the only question which needs consideration is whether on consideration of the evidence on record, a presumption as to the valid marriage of plaintiff No.1 Mst. Ramkali with the deceased Ganeshram may be inferred or not.

       2. Held : In Gokal Chand v. Parvin Kumari (AIR 1952 SC 231), it was held that the continuous cohabitation of a man and a woman as husband and wife and their treatment as such for a number of years may arise the presumption of lawful marriage. It has been further observed that this presumption which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken or destroy that presumption, the Court can not ignore them. The same view was reiterated by this Court in Shivajirao v. Bapurao (1957 JLJ 444) and in Rewaram v. Ramratan (1961 JLJ 1126). In Shivajirao's case (supra) it was held that the law presumes in favour of marriage and against concubinage and the burden of proving otherwise must be thrown on him who challenges the legitimacy. In the case of Rewaram (supra) also, this Court took the view that the long cohabitation between a man and a woman raises a clear presumption of marriage, particularly where they lived as husband and wife and the children were born and treated as the children of the man by the community. Relying on a Privy Council decision, the Rajasthan High Court took the view 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 (see Anandilal v. Onkar, AIR 1960 Raj. 251). Again Orissa High Court, relying on the Supreme Court decision in Gokal Chand's case (supra), in Bira Jina v. Tauli Dei and another (AIR 1972 Orissa 143) reiterated the same view.

       3. Now, reverting to the evidence, I find that it is true that some witnesses stated that the marriage of plaintiff No. 1 Mst. Ramkali with deceased Ganeshram was performed according to the Hindu rites while some of them deposed that it was in the Natra form. But, the evidence adduced by the plaintiffs is consistent on the point that the plaintiff No.1 Mst. Ramkali and the deceased Ganeshram lived together as husband and wife for a period of about 6 years and out of their union two sons and one daughter were born. The sons are dead and the plaintiff No.2 Sukkobai is the surviving daughter. The evidence goes to show that in the community also, both of them were recognized as husband and wife and the plaintiff No. 2 Sukkobai was recongnized as their daughter, born from Ganeshram. Even Mst. Ballobai (D.W.1) who is the mother of the defendant, admitted in the last but one line of her deposition that Mst. Ramkali was wedded with Ganeshram in the Bagiya of Jagat. Not only this, but the defendant Nathoosingh (D.W.2) admitted in the last fine of his deposition that the deceased Ganeshram was keeping Mst. Ramkali as his wife. Almost similar is the statement of Balamdas (D.W.4). These facts clearly establish that there was continuous cohabitation between Mst. Ramkali and the deceased Ganeshrum as husband and wife and that out of their union as husband and wife, children were born to them. The evidence also goes to show that they were recognized by the community as husband and wife and the children born to them were treated as the children out of their union.

       4. In the aforesaid facts and circumstances, the presumption has to be in favour of marriage. It is true that the presumption of lawful marriage is a rebuttable presumption and if there are circumstances which weaken or destroy that presumption, then no such presumption can be drawn. But the fact remains that the burden of proving otherwise was on the defendant which he failed to establish. Not only this, the defendant failed to bring about any facts and circumstances by which is could be said that the presumption was weakened or destroyed. On the contrary, as pointed out above, the defendant and the evidence adduced by him supported the case of the plaintiffs in drawing the presumption of a lawful marriage. AIR 1942 SC 231, 1957 JLJ 444, 1963 JLJ 1126, AIR 1960 Raj 251 and AIR 1972 Orissa 143 relied on. Appeal allowed.