In today’s world, there are many couples who do not marry but stay in live-in relationships. Their contention is that it is advisable to know your partner before committing to the marriage and this is only possible when you stay together. There are many couples who stay in this type of relationship for a longer time, during this period they children also. Before the live-in concept, there were many men who used to stay with the other women, although they were legally married to someone else. Here the second woman was known as keep.
The problem comes when this type of relationship breaks or the man dies, there was a big problem for children born from these types of relationships to claim the share in their father’s property as the couple is/was not married legally.
Yesterday Supreme Court (SC) gave a path-breaking judgment in this type of case.
The judge bench of SC in their order said “ It is well settled that if a man and woman live together for long years as husband and wife, there would be a presumption of wedlock. The law presumes in favour of marriage and against concubinage (cohabitation of persons not legally married) when a man and woman have cohabited continuously for a number of years”.
The verdict came on an appeal against the 2009 judgment of the High Court (HC) of Kerala at Ernakulam which set aside the trial court order granting a share in the ancestral properties to heirs of a man who was born in a long relationship between man and woman. The HC had opined that in the position of one of the first parties to be an illegitimate child, his heir would not be entitled to a share in the property of the man, who is supposed to be his father.
Setting aside the HC order, the SC said “ where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of valid marriage and not in a state of concubinage”. Such a presumption could be drawn under the Evidence Act also, it said, adding although the presumption is rebuttable and a heavy burden lies on the person who is disputing such a marriage.
In this case, SC said “ We are of the view that the defendants have failed to rebut the presumption in favour of marriage between Mr Damodaran and Ms Chiruthakutty on account of long cohabitation” The Sc restored the trial court judgment which had decreed the suit in favour of partitioning the ancestral property with appropriate share to the son of the couple. The SC said the documents produced by the so-called illegitimate son were much prior to the controversy arising between the children of the brother of the so-called illegitimate son’s father. The plaintiff, in this case, is the son of Damodaran, who had taken the steps to file a suit for partition of ancestral property in the early 1980s.
So this matter was shuttling between trial court to HC , back to trial court and HC, and finally landed in SC, and it took almost 40 years to settle this case.
While dealing with the matter, the top court also took strong exception to the delay in settling this case in various courts in the country. The SC said that in such type of partition suit, all the courts across the country should start the process of passing the final decree just after the initial ones to avoid delay in the justice delivery.
The SC further added that ‘ a lawsuit comes to an end only when a final decree is drawn. Therefore, we direct the trial courts to list the matter for taking steps under CPC (for passing the final decree) soon after passing of the preliminary decree for partition and separate procession of the property, and without requiring initiation of separate proceedings’.
The SC has directed the Registrar Generals of all HCs, who in turn are directed to circulate the directions on immediate drawing up of final decrees after passing the preliminary ones in partition cases to avoid delay.
So it is for the man to understand that when he is in a live-in relationship, or staying with a woman outside his first marriage, the children born to these types of couples will have the right to share in their supposed to be father’s property.
A welcome judgment by SC, because this issue was lingering in the society for a very long time.
Waiting for your view on this blog.
Anil Malik
Mumbai, India
14th June 2022