In the absence of proof refuting the assumption of marriage, the child of a long-term cohabiting spouse cannot be denied access to family property: Supreme Court

In the absence of proof refuting the assumption of marriage, the child of a long-term cohabiting spouse cannot be denied access to family property, is upheld by the Supreme Court through the learned Judge JUSTICE SA NAZEER and VIKRAM NATH, in the case of Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan, (CIVIL APPEAL NO(S). 6406-6407 OF 2010).

Brief facts of the case:

The suit property in this instance belonged to a family regulated by the Mitakshara Law of Inheritance. The aforementioned land was formerly owned by Kattukandi Edathil Kanaran Vaidyar, who had four sons: Damodaran, Achuthan, Sekharan, and Narayanan. Achuthan was a father. Sekharan and Narayanan did not marry. Damodaran wed Chiruthakutty, and the couple had a son named Krishnan. However, the defendants argued that Damodaran never wed Chiruthakutty and that, as a result of his illegitimacy, Krishnan, the first plaintiff, is not entitled to a portion of the property.

On the basis of an examination of the evidence on file, the trial court determined that Damodaran had a long cohabitation with Chiruthakutty and that, as a result of such cohabitation, it was reasonable to conclude that Damodaran had married Chiruthakutty, and that the first plaintiff was the son born in said marriage. As a result, the Trial Court issued a preliminary decision dividing the subject property into two portions, one of which was allocated to the plaintiffs.

However, the Kerala High Court determined that the first petitioner was not a legal son of Damodaran and Chiruthakutty.

Since their marriage occurred more than 50 years prior to the filing of the lawsuit (now 90 years), the plaintiff contended before the Supreme Court that there is no chance of obtaining documentary evidence of their marriage. Nonetheless, he showed evidence of recurring payments from the husband’s residence to Chiruthakutty. On behalf of the plaintiffs, he also questioned witnesses in support of his position. Consequently, it was argued that the records would indisputably demonstrate that the first plaintiff was the son of Damodaran and Chiruthakutty, and that the defendants’ claim that Damodaran died a bachelor or without a legal son cannot be trusted.



The Court stated at the start that if a man and a woman live together as husband and wife for many years, there is a presumption that they are married. Such a presumption is permissible under Evidence Act section 114. Although the assumption is rebuttable, anyone who seeks to deprive the connection of legal origin has a great burden to demonstrate that no marriage actually transpired.

Coming to the facts of the case, the court took note of the plaintiffs’ argument that Damodaran and Chiruthakutty’s marriage took place in 1940. There was substantial proof that the first plaintiff was born on May 12, 1942. The records supplied by the plaintiffs existed much before the dispute between the parties occurred. Thus, these records, along with the testimony of witnesses, demonstrated that Damodaran and Chiruthakutty had lived together as husband and wife for an extended period of time.

The court ruled that the defendants failed to refute the inference that Damodaran and Chiruthakutty were married due to their lengthy cohabitation. Thus, the contested judgment of the High Court was reversed, and the judgment and decree of the Trial Court were reinstated.



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