Illegitimate child : Child born out of long co-habitation is entitled to share in coparcenary property.

 

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 - Supreme Court

The Supreme Court allowed the appeal of the appellant in the year 2010, by restoring the judgment and decree of the Trial Court and setting aside the judgment of High Court of Kerala at Ernakulam.

    The trial had rightly observed that on examination of the evidence on record that the father of the first plaintiff/appellant, Damodaran had a long co-habitation with the mother, Chiruthakutty and it could be concluded they were married and that the first plaintiff was the son born in the said wedlock and accordingly passed a preliminary decree for partition of the suit property into two shares and one share was allotted to the plaintiffs, son and grandson of Damodaran and Chiruthakutty.

    Aggrieved by the judgment and decree, the first defendant, the only son of Achuthan, brother of Damodaran, filed an appeal  before the High Court arguing that the first plaintiff was illegitimate child of Damodaran and Chiruthakutty because the marriage between them is not proved. As long as the marriage is not proved, the plaintiff cannot claim the right over the copercenary property.

    Against the said judgment  and decree of the Trial Court, being aggrieved, the  defendants filed an appeal. In the High Court defendants made another new contention that first plaintiff could only be an illegitimate child because marriage between Damodaran and Chiruthakutty is not proved.  On the failure to produce documents to prove that marriage did subsist between the plaintiff’s parents, the High Court viewed that no presumption if a pre-existing valid marriage could arise.

    The Court also opined that the first plaintiff is an illegitimate child in the absence of any documents to prove valid marriage.

    Because of this reason the High remitted the matter to Trial Court for consideration and the same was permitted the party to produce additional evidence so as to consider the factum of marriage.

    Therefore the plaintiffs challenged before the Supreme Court by way of appeal for setting aside the order of remand of the High Court and the Hon’ble Supreme Court allowed the appeal with a direction to the High Court to decide the appeals on the basis of the evidence on record. Thereafter the High Court allowed the appeal of the defendants by denying the partition of the property  holding that there was no evidence to prove the long co-habitation between the father and the mother of the first plaintiff. The document only prove that the first plaintiff is the son of the Damodaran but not a legitimate son.

    The above  judgment of the High Court came under challenge in the Supreme Court.

    The learned senior counsel of the if the appellants submitted that since the marriage between father and mother of first appellant took more than 90 years ago, there is no possibility of having any documentary evidence in their marriage.

    The law is in favour of declaring legitimacy, as against bastardy – learned senior  counsel submits.

    The learned counsel also submitted that Long course of living together between a male and female will raise a presumption of marriage between them and the children born in such relationship are considered to be legitimate children. It is further argued that while such presumption, made under Section 114 of the Indian Evidence Act, 1872, is a rebuttable one, as rightly held by the Trial Court that the defendants have not produced any worthwhile evidence to rebut this presumption in the present case.

 

On the other hand learned senior counsel of the defendants/respondents submit that Damodaran had not married Chiruthakutty and that the first plaintiff was not the legitimate son of Damodaran. The suit was deliberately filed at a belated stage when production of conclusive evidence as to this issue was no longer a possibility. No claim for partition whatsoever was made during the lifetime of Chiruthakutty. It was argued that there is no proof whatsoever either of the marriage or of the long cohabitation and that all the documents relied upon by the plaintiffs are documents that came into existence after the death of Damodaran.

It was argued that even document  does not prove the marriage/long cohabitation between Damodaran and Chiruthakutty. The defendants also contended that the plaintiffs have not come to Court with clean hand and therefore Court should not allow appeal  in their favour.

After hearing the parties, the Apex Court was pleased to allow appeal in favour of plaintiffs observing that the defendants have failed to rebut the presumption in favour of marriage between Damodaran and Chiruthakutty on account of their long co-habitation.

 

The Court viewed:

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.

 

In deciding the case, the Court  referred to  the following cases:

 

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.”

 

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.”

 

 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.

 

 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 – AIR1952 231 : 1952 SCR 825]”

 

 Similar view has been taken by this Court in Tulsa and Others v. Durghatiya and Others( (2008) SCC 520

Ø Long live in relationships is as good as marriage

 

Challamma v. Tilaga and Others (2009) 9 SCC 299

Ø It is beyond any cavil of doubt that in determining the question of valid marriage, the conduct of the deceased in a case of this nature would be os some relevance.

 

 Madan Mohan Singh and Others v. Rajni Kant and Another ( (2010) 9 SCC 209

Ø Long live in relationships as good as marriage and the children born in such relationship will not be illegitimate.

 

Indra Sarma v. V.K.V. Sarma (2013) 15 SCC 755

Ø  All live in relationships are not relationships like marriage.

 

    The  Hon’ble Supreme Court directed the Trial Court to list for taking steps under XX Rule 18 of the CPC soon after passing of the preliminary decree for partition and separate possession of the property, suo motu without requiring initiating of any separate proceedings.

Before parting, the Apex Court initiated a issue suo motu  that deal with initiation of final decree under Order XX of Rule 18 of CPC in suits for partition or separate possession.

    The Court also observed that the practice of applying  for final decree should be discouraged because the litigants tend to take their own sweet time for initiating final decree proceedings. This will only delay the realization of the fruits of the decree.  Instead the Trial Court should  proceed with the case of drawing up the final decree suo motu,  once a preliminary decree is passed by the Trial Court. After passing of the preliminary decree the Trial Court has to list the matter for taking steps under Order XX Rule of CPC, the Supreme Court said

    The Apex Court thereafter directed the Registry of the same Court to forward a copy of  judgment of the present case to the Registrar Generals of all the High Courts who in turn shall circulate the directions of the above observations  to the concerned Trial Courts in their respective States.

 

 

Coram:

 

 S. Abdul Nazeer, Justice and Vikram Nath, Justice

 

Case:

Kattukandi Edathil Krishnan & Anr. Versus Kattukandi Edathil Valsan & Ors. (Civil Appeal No(S). 6406 - 6407 Of 2010)

 

DOJ: 1306.2022

JUDGMENT IN PDF