Law presumes marriage if man, woman lived together, property rights can’t be denied to son: SC

SC set aside a HC verdict which had held that in case of lack of evidence of marriage, the 'illegitimate' son, was not entitled to property rights

The Supreme Court Monday said the “law presumes in favour of marriage and against concubinage” if a man and woman cohabited for a long period and their son cannot be denied the shares in the ancestral properties.

The top court set aside a verdict of the Kerala High Court which had held that in case of lack of evidence of marriage, the “illegitimate” son of a man and woman, who had cohabited together, was not entitled to property rights in ancestral properties.

However, a bench of justices S Abdul Nazeer and Vikram Nath said “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,”

Referring to judgements, it said, “The law presumes in favour of marriage and against concubinage when a man and a woman have cohabited continuously for a number of years.”

The verdict came on an appeal against the 2009 judgement of the High Court 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 a man and woman.

The high court had opined that the position of one of the first parties to be of an illegitimate child, his heir would not be entitled to a share in the coparcenary property.

Setting it aside, the apex court said, “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.”

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.

While dealing with the matter, the top court also took strong exception to the delay in initiating the final decree proceedings by the trial court under the provisions of the Civil Procedure Code in deciding partition lawsuits.

The apex court said that in a 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 trial courts, while deciding the partition lawsuits, first pass the preliminary decree which declares the rights or shares of the parties to the partition.

Once the shares of the parties have been declared in the preliminary decree, the final decree is awarded for determining the actual shares and the details of the properties after holding the inquiry and this takes an unusually very long time as it is left to the litigants to initiate the process before trial courts.

“We are of the view that once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu. After passing of the preliminary decree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC.

“The courts should not adjourn the matter sine die, as has been done in the instant case. There is also no need to file a separate final decree proceeding. In the same suit, the court should allow the concerned party to file an appropriate application for drawing up the final decree,” the verdict said.

Needless to state that a lawsuit comes to an end only when a final decree is drawn, it said.

“Therefore, we direct the Trial Courts to list the matter for taking steps under ...of the CPC (for passing the final decree) soon after passing of the preliminary decree for partition and separate possession of the property, suo motu (on its own) and without requiring initiation of any separate proceedings,” it directed.

The apex court also directed its Registry to forward a copy of its judgement to the Registrar Generals of all high courts “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.