Saji Koduvath Advocate, Kottayam

In Badri Prasad v. Dy. Director of Consolidation, V.R. Krishnaiyer, D.A. Desai, O. Chinnappa Reddy, (JJ), AIR 1978 SC 1557, 1978 SCC  (3) 527, it is held as under:

• “A strong presumption arises in favour of wed-lock 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.”

Presumption as to Valid Marriage

In the recent decision, Shiramabai v. The Captain, Record Officer,Hima Kohil and Rajesh Bindal JJ. (August 18, 2023), 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.”

To put stress on the above  presumption as to ‘valid marriage’ the Apex Court referred the following decisions:

• Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy, 1927 SCC OnLine PC 51 (Privy Council), AIR 1927 PC 185,
• Mohabbat Ali Khan v. Muhammad Ibrahim Khan, 1929 SCC OnLine PC 21, AIR 1929 PC 135
• Badri Prasad v. Dy. Director of Consolidation (1978) 3 SCC 527,
• S.P.S. Balasubramanyam v. Suruttayan (1994) 1 SCC 460,
• Gokal Chand v. Parvin Kumari (1952) 1 SCC 713).
• Tulsa v. Durghatiya, (2008) 4 SCC 520,
• Madan Mohan Singh v. Rajni Kant,  (2010) 9 SCC 209,
• Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755,
• Dhannulal v. Ganeshram, (2015) 12 SCC 301,
• Kattukandi Edathil Krishnan Vs. Kattukandi Edathil Valsan,  (2022) 6 JT 195: (2022) 9 Scale 305.

Law will Presume Valid Marriage if Lived as MAN AND WIFE

In Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy 1927 SCC OnLine PC 51 the Privy Council observed as under:

• “…..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. 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 affectionate 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 afforded of repudiation of this relation by husband or wife or anybody.”

The privy Council held in Mohabbat Ali Khan v. Muhammad Ibrahim Khan 1929 SCC OnLine PC 21 , as under:

• “….The law presumes in favour of marriage and against concubinage when a man and a woman have cohabited continuously for a number of years……”

Gokal Chand v. Parvin Kumari (1952) 1 SCC 713) is another decision to point out the presumption of marriage. It reads as under:

• “……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.”

In Tulsa v. Durghatiya,  [(2008) 4 SCC 520], Dr. Arijit Pasayat, P. Sathasivam,JJ. our Apex Court held:

• “11. At this juncture reference may be made to Section 114 of the Evidence Act, 1872. The provision refers to common course of natural events, 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 the conduct of parties as they are borne out by the facts of a particular case.
• 12. A number of judicial pronouncements have been made on this aspect of the matter. The Privy Council, on two occasions, 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. Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy. Their Lordships of the Privy Council laid down the general proposition that: (AIR p. 187)
• “… 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.”
• 13. In Mohabbat Ali Khan v. Mohd. Ibrahim Khan Their Lordships of the Privy Council once again laid down that: (AIR p. 138)
• “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. It was held that such a presumption could be drawn under Section 114 of the Evidence Act.”

Section 50 of the Indian Evidence Act

• 50. Opinion on relationship, when relevant.—When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, or any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:
• Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecutions under section 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860). Illustrations
• (a) The question is, whether A and B were married. The fact that they were usually received and treated by their friends as husband and wife, is relevant.
• (b) The question is, whether A was the legitimate son of B. The fact that A was always treated as such by members of the family, is relevant.

In Challamma vs Tilaga (S.B. Sinha, Cyriac Joseph) (2009) 9 SCC 299, the Supreme Court, relying on  Tulsa Tulsa v. Durghatiya, (2008) 4 SCC 520, held that Such a presumption can be validly raised having regard to Section 50 of the Indian Evidence Act; and a heavy burden, thus, lies on the person who seeks to prove that no marriage has taken place. Section 50 of the Indian Evidence Act reads as under:

In Kattukandi Edathil Krishnan Vs. Kattukandi Edathil Valsan,  (2022) 6 JT 195: (2022) 9 Scale 305, our apex Court held as under:

• “15. It is well settled that if a man and a woman live together for long years as husband and wife, there would be a presumption in favour of wedlock. Such a presumption could be drawn under Section 114 of the Evidence Act. Although, the presumption is rebuttable, a heavy burden lies on him who seek to deprive the relationship of legal origin to prove that no marriage took place.
• 16. In Andrahennedige Dinohamy and Anr. v. Wijetunge Liyanapatabendige Balahamy and Ors. AIR 1927 PC 185, the Privy Council laid down the general proposition as under:
• “…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.”
• 17. In Mohabbat Ali Khan v. Mohd. Ibrahim Khan AIR 1929 PC 135, once again it was laid down by the Privy Council as under:
• “The law presumes in favour of marriage and against concubinage, when a man and a woman have cohabited continuously for a number of years.”
• 18. In Badri Prasad v. Dy. Director of Consolidation and Others (1978) 3 SCC 527, it was held by this Court that a strong presumption arises in favour of wedlock where two partners have lived together for long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seek to deprive the relationship of legal origin. Law leans in favour of legitimacy and frowns upon the bastardy.
• 19. In S.P.S. Balasubramanyam v. Suruttayan alias Andali Padayachi and Others (1994) 1 SCC 460, 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: Gokul Chand v. Parvin Kumari – AIR 1952 231 : 1952 SCR 825]”
• 20. Similar view has been taken by this Court in
  • Tulsa v. Durghatiya (2008) 4 SCC 520;
  • Challamma v. Tilaga and Others (2009) 9 SCC 299;
  • Madan Mohan Singh v. Rajni Kant (2010) 9 SCC 209 and
  • Indra Sarma v. V.K.V. Sarma (2013) 15 SCC 755.”

Madan Mohan Singh & Ors vs Rajni Kant AIR 2010 SC 2933,  (2010) 9 SCC 209, is another case that considered this matter it is held as under:

• “19. In S. Khushboo Vs. Kanniammal & Anr. (2010) 5 SCC 600, this Court, placing reliance upon its earlier decision in Lata Singh Vs. State of U.P. & Anr. AIR 2006 SC 2522, held that live-in-relationship is permissible only in unmarried major persons of heterogeneous sex.
• 20. In S.P.S. Balasubramanyam Vs. Suruttayan @ Andali Padayachi & Ors. AIR 1992 SC 756, this Court held that if man and woman are living under the same roof and cohabiting for a number of years, there will be a presumption under Section 114 of the Evidence Act, that they live as husband and wife and the children born to them will not be illegitimate.
• 21. The courts have consistently held that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a number of years. However, such presumption can be rebutted by leading unimpeachable evidence.
  • (Vide: Mohabbat Ali Khan Vs. Mohd. Ibrahim Khan, AIR 1929 PC 135;
  • Gokalchand Vs.. Parvin Kumar, AIR 1952 SC 231;
  • S.P.S. Balasubramanyam Vs. Suruttayan, (1994) 1 SCC 460;
  • Ranganath Parmeshwar Vs. Eknath Gajanan Kulkarni, (1996) 7 SCC 681; and
  • Sobha Hymavathi Devi Vs. Setti Gangadhara Swamy (2005) 2 SCC 244).
• 22. In view of the above, the kind of material placed by the appellants on record cannot be termed enough to disbelieve the claim of the respondents. ….. The live-in- relationship if continued for such a long time, cannot be termed in as “walk in and walk out” relationship and there is a presumption of marriage between them which the appellants failed to rebut.”