Case at a Glance
Sons born to a man and his second partner, whom he had taken as wife under the ‘Kari’ custom, sued for a share in his land and house. The son from his first marriage resisted, saying the Kari marriage was not proved and the plaintiffs were illegitimate. The MP High Court accepted that the Kari marriage was not proved, but held that long cohabitation as husband and wife for about 26 years raised a strong presumption of marriage under Section 114 of the Evidence Act, which the appellant failed to rebut. It dismissed a second appeal pending since 1999 and affirmed the plaintiffs’ 2/5 share.
Dhunna’s first wife, Nimiya, died; the appellant (defendant no. 2) was born of that marriage. Dhunna later took Rajiyabai (defendant no. 3) as his wife under the Kari system, and the plaintiffs were born of that union. Dhunna had received 3.79 acres in a partition with his brothers and built a house. The appellant had earlier sued for a half share, and that suit ended in a compromise to which the plaintiffs were not parties. On learning of the compromise in July 1991, the plaintiffs sued for a declaration of their share and symbolic possession.
The father and Rajiyabai admitted the claim; only the appellant contested, asserting that Rajiyabai was not a lawfully wedded wife and the plaintiffs were illegitimate, and that the compromise bound them. The trial court partly decreed the suit in 1997. The first appellate court at Sagar (Camp Khurai) on 6 July 1999 held the plaintiffs entitled to a 2/5 share in the lands and the house with symbolic possession. The appellant filed a second appeal under Section 100 CPC.
The Key Question Before the Court
If a customary marriage is not proved, can a presumption of marriage still be drawn from long cohabitation as husband and wife, so as to give the children a share in the father’s property?
The Law Leans in Favour of Legitimacy
Justice Pranay Verma accepted that the Kari marriage was not proved, but held that the real question was whether long cohabitation supported a presumption of marriage. The father stated that Rajiyabai had lived with him as his wife for 26 years; two witnesses gave consistent evidence; and the appellant himself acknowledged that his father had kept her as his wife. In the earlier suit, the appellant had described her as the “illegal wife” of his father, yet he led no evidence that she was not his wife. Nothing showed she was a mere concubine or that any legal impediment existed, and the presumption favours legitimacy over illegitimacy.
The Court distinguished Raja Gounder v. M. Sengodan, (2024) 01 SC CK 0039, (2024) 12 SCC 350, as a case about children of an invalid marriage rather than the validity of a marriage itself. It relied on Chowdamma (Dead) v. Venkatappa, (2025) 08 SC CK 0185, 2025 SCC OnLine SC 1814, which quoted Badri Prasad v. Dy. Director of Consolidation, (1978) 08 SC CK 0005: “A strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife.” On the compromise, the Court held it did not bind the plaintiffs, who were not parties to it, and no plea had been raised that the property was joint family property managed by the father as karta.
What the Court Actually Held
- Even where a customary (Kari) marriage is not proved, long cohabitation as husband and wife raises a strong presumption of marriage under Section 114 of the Evidence Act.
- The burden to rebut the presumption lay on the person challenging it, and the appellant led no evidence to do so.
- The earlier compromise decree did not bind the plaintiffs, who were not parties to it.
- All three substantial questions of law were answered against the appellant; the first appellate decree giving the plaintiffs a 2/5 share was affirmed and the appeal dismissed without costs.
Why This Judgment Matters
- Disputes over the legitimacy of children from second or customary unions are common in inheritance litigation.
- The ruling confirms that failure to prove the ceremony is not fatal if long cohabitation is established.
- It shows that a compromise between some heirs cannot defeat the rights of heirs who were not parties.
What Should Advocates Take Away From the Judgment?
For Families
- Children born of a long-standing relationship accepted as marriage can claim a share in their father’s property even if the ceremony cannot be proved.
- Evidence of how the couple lived and were treated by family and society is crucial.
For Counsel
- Plead Section 114 presumption in the alternative when a customary marriage may be hard to prove.
- Rely on Chowdamma v. Venkatappa and Badri Prasad; distinguish Raja Gounder v. Sengodan where validity of marriage itself is in issue.
Key Takeaways
- Long cohabitation as husband and wife raises a strong presumption of marriage.
- Failure to prove customary rites does not by itself defeat the presumption.
- The challenger must rebut the presumption with evidence.
- A compromise decree does not bind heirs who were not parties to it.
Frequently Asked Questions
What if a marriage ceremony cannot be proved?
According to this judgment, long cohabitation as husband and wife can still raise a strong presumption of a valid marriage under Section 114 of the Evidence Act, which the challenger must rebut.
What is a Kari marriage?
The judgment refers to the Kari system as a customary form under which the father took his second partner as wife. In this case, the Court found that this customary marriage itself was not proved, but presumed marriage from 26 years of cohabitation.
Did the earlier compromise among the family bind the plaintiffs?
No. The plaintiffs were not parties to the compromise, so the Court held it had no effect on their claim.
Conclusion
After more than three decades of litigation, the High Court has reaffirmed a simple principle of family law: where a man and woman have lived together for decades as husband and wife, the law presumes they were married, and anyone alleging otherwise must prove it.
Practical takeaway: In inheritance disputes over children of customary or second unions, lead strong evidence of long cohabitation and social recognition; it can carry the case even if the ceremony is not proved.
For more judgments, legal opinions and case analysis, visit courtkutchehry.com