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The Supreme Court has said that a presumption can be drawn in favour of a marriage when a man and a woman have continuously cohabited for a long spell, unless it is rebutted by unimpeachable evidence.

A bench of Justices Hima Kohli and Rajesh Bindal allowed an appeal filed by Shiramabai and two others against a Karnataka High Court's judgement of June 25, 2013, stating that the woman who was cohabiting with him and claimed to be married to him, entitled to receive family pension of Subedar Pundalik Bhave.

Referring to a line of previous decisions, the court said that the 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," the bench said.

Bhave, who got enrolled in Army in 1960, expired in the year 2001. Thereafter, the woman approached the authorities for grant of family pension but the request by her and two children was rejected on the ground that the deceased had got divorced from his first wife in November, 1990, whereas she claimed to have got married to him in February, 1981, during the subsistence of the earlier marriage.

She and her children approached the trial court, which decreed the suit in their favour by holding that they were entitled to receive the terminal benefits of the deceased, particularly, since no claim was ever laid on the said amount by Bhave's ex-wife Anusuya.

The Army authorities challenged the order before the High Court which set aside the decree granting the woman and her children with the pensionary benefits. The appellants assailed the order in regular second appeal which was dismissed, forcing them to approach the apex court.

The appellant woman had contended the embargo placed under Section 5(1) of the Hindu Marriage Act, 1955 (HMA), that only recognises a marriage solemnized between any two Hindus on the condition that neither party has a spouse living at the time of marriage, would not prejudice the case of the appellant No. 1 for being recognised as the wife of the deceased in view of the long period of cohabitation between them. This circumstance would attract the presumption of the marriage between the parties being legal, as contemplated under Section 114 of the Evidence Act, 1872.

It also contended that at no stage did the first wife, namely, Anusuya lay any claim to the pensionary benefits of the deceased. Therefore, the respondents ought not to have turned down the legitimate claim of the appellants, more so, when she 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.

Additional Solicitor General K M Nataraj for the respondents submitted that marriage between the appellant and the deceased is void under Section 11 of the HMA, as it was contracted during the subsistence of the marriage between Subedar Bhave and Anusuya. He submitted that the said 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 woman.

The bench, however, pointed out it is no longer res integra that if a man and woman cohabit as husband and wife for a long duration, one can draw a presumption in their favour that they were living together as a consequence of a valid marriage. This presumption can be drawn under Section 114 of the Evidence Act.

The court also pointed out that the deceased had continued to cohabit with the appellant woman  for eleven long years, till his demise in the year 2001.

"In this background, a presumption ought to have been drawn in favour of the validity of the marriage between the deceased and the appellant No. 1, 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," it said.

The court also noted ex-wife did not claim any pension from the respondents on the demise of Bhave.

The bench thus held that the woman would be entitled to receive the pension payable on the demise of the Subedar, Bhave. It also declared her two children would also be entitled to the said relief till the date they attained the age of 25 years.


Case Title:  SMT. SHIRAMABAI W:O PUNDALIK Vs. THE CAPTAIN, RECORD OFFICER FOR O.I.C. RECORDS, SENA CORPS ABHILEKH, GAYA, BIHAR STATE AND ANOTHER

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