Long cohabitation presumes marriage: Supreme Court

‘The law presumes in favour of marriage and not in a state of concubinage’

The law presumes a couple to be married if they have lived together for long as man and wife, the Supreme Court said in a judgment on Monday.

A Bench of Justices S. Abdul Nazeer and Vikram Nath said “the law presumes in favour of marriage and not in a state of concubinage”.

Though the presumption of marriage could be challenged, it would be a “heavy burden” for the one who seeks to deprive the relationship of a legal origin. The challenger has to prove that the couple is not married, Justice Nazeer, who authored the judgment, observed.

The judgment came in an appeal filed on a suit of partition from Kerala. Four sons and their heirs had coparcenary rights over a property. One of them had lived with a woman for years and had a son. The question before the courts was whether this son should be treated as an illegitimate child. The rival side contended that there were no documents or evidence to prove that the man and woman had tied the knot. They argued that a child from such a union had no right over a coparcenary property.

The trial court however ruled in favour of the couple’s son. It presumed that his parents were married. It passed a preliminary decree for partition giving him a share of the property. The Kerala High Court, however, reversed the decision, saying the “marriage” between his parents was not valid.

The Supreme Court set aside the High Court decision, saying it would be almost impossible to find documentary evidence of a marriage which took place 50 years before the filing of the partition suit. Besides, there was evidence that the man had made periodic payments to the woman.

“A strong presumption arises in favour of wedlock where two partners have lived together for a long spell as husband and wife,” the court quoted from its past judgments.