Presumption of Marriage : Cohabitation for a long spell
If a woman had spent a large part of her life living with a man as "man and woman" and if any shadow is cast on their relationship than the burden lies heavily on the party who seeks to question the cohabitation and to deprive the relationship of a legal sanctity.
Smt. Shiramabai v. The Captain, Record Office for OIC Records
Civil Appeal 5262/ 2023 before Supreme Court of India
Against Order of High Court of Karnataka @ Dharwad in Regular Second Appeal
Appeal was allowed by Hon’ble Madam Justice Hima Kohli J & Hon’ble Mr. Justice Rajesh Bindal J
Order passed on 18.08.2023
Whether appellant be declared as the wife of the deceased Late Subedar Bhave, as the marriage was solemnized during the subsistence of his marriage with Anusuya?
Late Subedar Bhave was married to Parvati. After her death Subedar Bhave married to Anusuya while the marriage with Anusuya was surviving, he married the present appellant Smt.Shiramabai on Feb21, 1981 and with this marriage he has two kids one boy and one girl. However, he divorced Anusuya on Nov 15, 1990 with mutual consent and paid alimony Late Subedar also approached the respondents and sought deletion of the name of Anusuya and entering the name of Smt Shiramabai as his wife in the PPO record. No objection was raised by Anusuya.
After the death of the Subedar Bhave, Smt Shiramabai approached respondents for family pension to her.
Smt Shiramabai filed suit for declaration to the effect that she is the legally wedded wife of late Subedar Bhave and children born out of the wedlock are legitimate children. The suit was decreed in her favor.
Aggrieved by the order Respondents preferred appeal which was allowed in the favor of the Respondents and judgement and decree passed in favor of the appellant was set aside. Aggrieved by the order appellant Smt Shiramabai filed regular second appeal before the High Court of Karnataka and the High Court dismissed Regular Second Appeal.
A review application was also filed wherein it was held that the children are entitled for the estate of the late Subedar Bhave.
Submission of the counsel for the Appellant
1. The case of the appellant would not be prejudiced by Sec.5(1) of the Hindu Marriage Act in view of the long period of cohabitation between them, which circumstance would attract the presumption of the marriage between the parties being legal, as contemplated under Section 114 of the Evidence Act, 1872.
2. Presumption of a legitimate marriage between the deceased and the appellant become stronger in the instant case as during his lifetime, the deceased had approached the respondents with an application seeking endorsement of the name of the appellant Smt. Shiramabai in his Service Book.
3. Even if the status of the appellant could not be treated as that of a legally wedded wife of the deceased till the date a decree of divorce was granted, still till the date of demise of the deceased Subedar Bhave, admittedly, he and the appellant were cohabiting, thereby entitling the appellants to claim the pensionary benefits of the deceased.
4. At no stage did the first wife, namely, Anusuya laid any claim to the pensionary benefits of the deceased and therefore, the respondents ought not to have turned down the legitimate claim of the appellants, more so, when the appellant had spent a large part of her life living with the deceased as man and woman and any shadow cast on their relationship stood dispelled once the decree of divorce was passed in November, 1990, dissolving the marriage of the deceased and Anusuya.
Argument of the Additional Solicitor General of India for the Respondents
1. The marriage between deceased the appellant is a void marriage under Section 11 of the HMA, as the said marriage was contracted during the subsistence of the marriage between Subedar Bhave and Anusuya.
2. The void marriage cannot be given a legal sanctity on the basis of the subsequent dissolution of the marriage and cohabitation of the deceased and the appellant.
3. Regulation 219 of the Pension Regulation for the Army, 1961 lays down the conditions of eligibility for grant of family pension and submitted that Regulation 219(iii) makes it clear that a widow who has not been married is entitled to pensionary benefits.
4. The appellant is not the widow of the deceased as recognized in law, as such not entitled to any relief.
5. With regard to the offspring of Late Subedar Bhave and the appellant, it is submitted that they too would not be entitled to any relief under the Regulations, in as much as, both the said appellants have crossed the age of 25 years whereas under Regulation 219(iv), the son of an employee would be eligible for family pension if he is below the age of 25 years.
6. Lastly, it was submitted that the deceased had informed the respondents about contracting a marriage with the appellant only in the year 1990. He had suppressed the said fact till he was discharged from service in 1984.
7. Had the fact, that he got married to during the sustenance of the first marriage, been brought to the notice of the authorities, appropriate action would have been taken against the deceased for misconduct.
1. The law infers a presumption in favor of a marriage when a man and woman have continuously cohabitated for a long spell.
2. No doubt, the said presumption is rebuttable and can be rebutted by leading unimpeachable evidence.
3. When there is any circumstance that weakens such a presumption, courts ought not to ignore the same.
4. The burden lies heavily on the party who seeks to question the cohabitation and to deprive the relationship of a legal sanctity.
5. If the period up to 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 deceased had continued to cohabit with the appellant for eleven long years, till his demise in the year 2001.
6. The appellant was the mother of two children born from the relationship with the deceased, as such children are entitled to the estate of the deceased by virtue of the order passed by the High Court on the Review application moved by them.
7. As such the presumption ought to have been drawn in favour of the validity of the marriage between the deceased and the appellant 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 therein, which was duly acted upon by the respondents vide letter dated 05th July, 1999.
8. It is also not in dispute that the ex-wife did not claim any pension from the respondents on the demise of Subedar Bhave.
The appellant is held entitled to receive the pension payable on the demise of Late Subedar Bhave. As for the children of the appellants are concerned, they would be entitled to the said relief till the date they attained the age of 25 years.
