1981 Supreme(MP) 216

C. P. Sen, J.
Bhukhiyabai v. Phoolbai.
S. A. No. 794 of 1972 (J); Decided on 24-3-1981.

Headnote:(1) Civil P. C., 1908- S. 100-appreciation of evidence patently erroneous--finding recorded also grossly erroneous - even such findings cannot he challenged in second appeal.

        (2) Evidence Act, 1872- Ss. 101 & 102-burden of proof-when looses importance-both parties leading evidence-burden of proof becomes academic.

        (3) Evidence Act, 1872- S. 114-marriage-presumprion on cohabitation-when may be raised--cohabitation not for long period--woman claiming to he wife found of loose character-no presumption of marriage can be raised.

        The only question for consideration is whether the defendant No.1 Mst. Bhukhiyabai is legally married wife of Gajadhar Prasad. It is not in dispute that Mst. Bhukhiyabai was the legally married wife of Gajadhar Prasad but according to the defendant No. I, he had taken her as his second wife. It is contended here that the question of validity of marriage being a mixed question of law and fact, it can be re-examined in second appeal. Besides, the Courts below have wrongly placed burden on the defendant No.1 to prove her marriage in Churi form, when the burden was on the plaintiff to show that she was not the legally married wife of Gajadhar Prasad. The Court below ought to have drawn a presumption that the defendant No. 1 was the married wife even if she failed to prove the formalities of the marriage.

        Held: In Mohd. Ali v. Mohd. Ibrahim Khan (AIR 1929 PC 195) it has been held 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. Here in the present case the allegd marriage of defendant No.1 Mst. Bhukhiyabai with Gajadhar Prasad took place in March or April 1955 and Gajadhar Prasad died in the year 1960. So there was no long cohabitation between them and no such presumption can be drawn. It has also not been proved that they haw cohabited as husband and wife during this period.

        In the present case it is the defendant No.1s own case that she was married wife of one Ramlal. During her marriage, she developed illicit relationship with Kishan and ultimately she deserted Ramlal and started Li"Ving with Kishan. She conceived through Kishan when she was taken by Gajadhar Prasad as his wife. It is clear that the defendant No.1 was of loose character and presumption, if any, which could have been drawn because of her cohabitation with Gajadhar Prasad was destroyed because of her own pleadings. The Supreme Court in Ramchandra v. Ramalingam AIR 1963 SC 302 has held that even if the appreciation of evidence made by the lower appellate Court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure. On the other hand, if in dealing with a question of fact, the lower appellate Court has placed the onus on a wrong party and its finding of fact is the result substantially, of this wrong approach, that may be regarded as a defect in procedure. In the present case, the finding that the defendant No.1 is not legally married wife of Gajadhar Prasad is not based substantially on placing wrong burden. It is true that initial burden was on the plaintiffs to show that the defendant No. 1was not the married wife and this onus has been discharged by giving negative evidence that she was never married to Gajadhar Prasad nor Li"Ved with him as his wife, The defendant No. 1 on the other hand asserted that she was married in Churi form and rightly the burden was placed on her to prove this fact. This apart, the question of burden of proof loses its importance because parties have led evidence to prove this fact and question of burden of proof is merely academic except in rare cases where considerations are evenly balanced, it would be little significant (Abdul Shukoor v. Arjit Papa Rao. AIR 1963 SC 1150). So I am of the opinion that there is no error committed by the Courts below in arriving at the finding that the defendant No.1 is not the married wife of Gajadhar Prasad and there is no wrong placing of burden of proof nor such wrong placing has any effect on the finding, AIR 1929 PC 195 distinguished, AIR 1952 SC. 231, AIR 1963 SC 302 and AIR 1963 SC 1150, relied on. Appeal dismissed,