Full Judgment Text
REPORTABLE
Civil Appeal No.@ SLP(C) No. 29319 of 2019
IN THE SUPREME COURT OF INDIA
2023INSC744
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5262 OF 2023
ARISING OUT OF
PETITION FOR SPECIAL LEAVE TO APPEAL(CIVIL) NO. 29319 OF 2019
SMT. SHIRAMABAI W/O PUNDALIK. .… APPELLANTS
BHAVE & OTHERS
Versus
THE CAPTAIN, RECORD OFFICER
FOR O.I.C. RECORDS, SENA CORPS
ABHILEKH, GAYA, BIHAR STATE
AND ANOTHER ….. RESPONDENTS
J U D G E M E N T
HIMA KOHLI, J.
1. Leave granted.
th
2. The appellants are aggrieved by the order dated 25 June, 2013, passed by
the High Court of Karnataka Circuit Bench at Dharwad whereby the Regular Second
1 th
Appeal filed by them against the judgment and decree dated 16 September, 2010,
2
passed by the Principal District and Sessions Judge, Belgaum , has been dismissed.
th
Vide judgment dated 16 September, 2010, the learned Principal District Judge
nd
reversed the judgment and decree dated 22 December, 2007, passed by the
Signature Not Verified
Digitally signed by
GEETA AHUJA
Date: 2023.08.22
13:38:20 IST
Reason:
1
Regular Second Appeal No. 6079 of 2010 (DEC)
2
Regular Appal No. 70 of 2008
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learned Civil Judge (Senior Division) Chikodi whereunder the suit instituted by the
appellants for seeking a declaration to the effect that the appellant no. 1 was the
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legally wedded wife of Late Subedar Pundalik Bhave and the appellants no. 2 and 3
are their legitimate children, was decreed in their favour and it was held that they
were entitled to the pensionary benefits payable by the respondents herein and
standing in the name of the deceased Subedar Bhave.
3. Facts necessary for the elucidation of the controversy at hand are as follows:
5 th
3.1 Late Subedar Bhave was enrolled in the Army in the year 1960 . On 17 July,
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1972, he got married to one Smt. Parvati who died in about two and a half years .
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Thereafter, the deceased got married to one Smt. Anusuya . During the subsistence
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of his marriage with Anusuya, he married the appellant no.1 herein . Appellants No.
2 and 3 are the offspring of the deceased and appellant no. 1. On 25th January,
1984, the deceased was discharged from service at his request and was granted
service pension at the rate of ₹ 376/- (Rupees three hundred seventy six only) per
th
month. On 15 November, 1990, the deceased and Anusuya were granted a decree
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of divorce by mutual consent and he paid a lumpsum amount of ₹ 15,000/- (Rupees
fifteen thousand only) to her. Thereafter, the deceased approached the respondent
No. 2 for deleting the name of Anusuya and endorsing the name of the appellant No.
3
In Original Suit No. 73/05
4
For short “Late Subedar Bhave”
5 st
On 21 July, 1960
6 th
On 26 January, 1975
7
On 17th March, 1975
8 st
On 21 February, 1981
9
M.C. No. 21/1990
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CIVIL APPEAL NO @ SLP(C) No. 29319 of 2019
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1 in the PPO. He also submitted a certificate issued by the Village Sarpanch, Gram
Panchayat Bahirewadi, certifying that he and the appellant No. 1 had got married
along with a copy of their wedding card as proof of the marriage.
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3.2. Subedar Bhave expired in the year 2001 . Thereafter, appellant No. 1
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approached the respondents for grant of family pension . The said request was,
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however, rejected by the respondents on the ground that the deceased had got
divorced in November, 1990, whereas the appellant No.1 claimed to have got
married to him in February, 1981, during the subsistence of the earlier marriage.
3.3. In 2005, the appellants instituted a civil suit for declaration praying inter alia
for issuing directions to the respondents to disburse the pensionary benefits payable
on the demise of the deceased, Subedar Bhave. As noticed above, the trial Court
decreed the said suit in favour of the appellants and held that they were entitled to
receive the terminal benefits of the deceased, particularly, since no claim was ever
laid on the said amount by his ex-wife Anusuya. Aggrieved by the said order, the
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respondents preferred an appeal , which was allowed and the judgment and decree
passed by the learned Civil Judge was set aside. The said order was assailed by the
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appellants in a Regular Second Appeal that came to be dismissed by the High
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Court. Subsequently, on the basis of the Review Application, the court clarified that
10 th
Dated 08 October, 1994
11
on 12th January, 2001
12 th
Vide application dated 09 July, 2001
13 st
Vide letter dated 01 October, 2001
14
Regular Appeal No. 70 of 2008
15
Regular Second Appeal No. 6079 of 2010
16 th
Vide order dated 16 October, 2014
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CIVIL APPEAL NO @ SLP(C) No. 29319 of 2019
the appellants No. 2 and 3 herein would be entitled to the estate of Late Subedar
Bhave which is in the custody of the respondents.
4. Mr. Rahul Joshi, learned counsel, appearing for the appellants has contended
that High Court erred in holding that the appellant No. 1 cannot be declared as the
wife of the deceased Subedar Bhave, on the ground that their marriage had taken
place during the subsistence of his marriage with Anusuya. He submitted that the
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embargo placed under Section 5(1) of the Hindu Marriage Act, 1955 that
recognizes a marriage solemnized between any two Hindus on the condition that
neither party has a spouse living at the time of marriage, would not prejudice the
case of the appellant No. 1 for being recognized as the wife of the deceased in view
of the long period of cohabitation between them, which circumstance would attract
the presumption of the marriage between the parties being legal, as contemplated
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under Section 114 of the Evidence Act, 1872 . Section 114 permits the Court to
presume the existence of certain facts which it thinks are likely to have happened in
relation to the facts of a particular case. It was contended that the said presumption
of a legitimate marriage between the deceased and the appellant No. 1 become
stronger in the instant case as during his lifetime, the deceased had approached the
respondents with an application seeking endorsement of the name of the appellant
No. 1 in his Service Book.
17
For short “HMA”
18
For short ‘Evidence Act’
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5. It was further submitted on behalf of the appellants that even if the status of
the appellant No. 1 could not be treated as that of a legally wedded wife of the
deceased till the date a decree of divorce was granted, dissolving his marriage with
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Anusuya, after the said date i.e. from 16 November, 1990, till the date of demise of
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the deceased , admittedly, he and the appellant No. 1 were cohabiting, thereby
entitling the appellants to claim the pensionary benefits of the deceased. It was also
pointed out that at no stage did the first wife, namely, Anusuya lay any claim to the
pensionary benefits of the deceased and therefore, the respondents ought not to
have turned down the legitimate claim of the appellants, more so, when the appellant
no. 1 had spent a large part of her life living with the deceased as man and woman
and any shadow cast on their relationship stood dispelled once the decree of divorce
was passed in November, 1990, dissolving the marriage of the deceased and
Anusuya. To substantiate this submission learned counsel has cited decisions in
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Indra Sarma v. V.K.V. Sarma , Dhannulal And Others v. Ganeshram And
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Another and Kattukandi Edathil Krishnan and Another v. Kattukandi Edathil
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Valsan and Others passed by this Court.
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6. On the other hand, Mr. K M Nataraj, learned Additional Solicitor General
appearing for the respondents has supported the impugned judgment and submitted
that the marriage between deceased the appellant No. 1 and the deceased is a void
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on 12th January, 2001
20
(2013) 15 SCC 755
21
(2015) 12 SCC 301
22
2022 SCC OnLine SC 737
23
For short “ASG”
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CIVIL APPEAL NO @ SLP(C) No. 29319 of 2019
marriage under Section 11 of the HMA, as the said marriage was contracted during
the subsistence of the marriage between Subedar Bhave and Anusuya. He
submitted that the said void marriage cannot be given a legal sanctity on the basis of
the subsequent dissolution of the marriage and cohabitation of the deceased and the
appellant No. 1.
7. Learned ASG also referred to Regulation 219 of the Pension Regulation for
the Army, 1961 which lays down the conditions of eligibility for grant of family
pension and submitted that Regulation 219(iii) makes it clear that a widow who has
not been married is entitled to pensionary benefits and the appellant No. 1, not being
the widow of the deceased as recognized in law, is not entitled to any relief. As for
the appellant No. 2 and 3, offspring of Late Subedar Bhave and the appellant 1, it is
submitted that they too would not be entitled to any relief under the Regulations, in
as much as, both the said appellants have crossed the age of 25 years whereas
under Regulation 219(iv), the son of an employee would be eligible for family
pension if he is below the age of 25 years. Lastly, it was submitted that the deceased
had informed the respondents about contracting a marriage with the appellant No. 1
only in the year 1990. He had suppressed the said fact till he was discharged from
service in 1984. Had this fact been brought to the notice of the authorities,
appropriate action would have been taken against the deceased for misconduct.
8. We have heard the arguments advanced by learned counsel for the parties,
perused the records and the impugned judgment. The limited issue that requires to
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be answered is whether the appellants would be entitled to claim pensionary benefits
of Late. Subedar Bhave in the facts of the instant case where he had got married to
the appellant No.1 during the subsistence of his marriage with Anusuya, but,
subsequently a decree of divorce was passed, dissolving the said marriage.
9. As has been noticed above, the first wife of Subedar Bhave had passed away
24 th
in the year 1975 . On 17 March, 1975, he had got married to Anusuya. It appears
that there was no issue from the said marriage. The deceased contracted a marriage
with the appellant No. 1 herein during the subsistence of his marriage with
25
Anusuya .Three years down the line, he was discharged from service and granted
service pension. The divorce by mutual consent between the deceased and Anusuya
materialized only in November, 1990. The said decree of divorce is not in question. It
is also not in dispute that the deceased had approached the respondents for seeking
deletion of the name of Anusuya and for endorsing the name of the appellant No. 1
in his Service Book. Pertinently, the respondent No. 2 did include the name of the
appellant No. 1 in the Service Book of the deceased, as his wife which is apparent
26
from the document filed by the respondents along with their counter affidavit. The
contents of the said document are extracted hereinbelow for ready reference:-
“ Sena Seva Corps Abhilekh
(Pashu Parivahan)
ASC Records (AT)
Paharpur, Gaya 823005
JC-85229/Doss /EFP=II 05 Jul 99
24 th
26 January, 1975
25 st
21 February, 1981
26 th
Dated 5 July, 1999
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National Ex-Servicemen Co-Ordinates Committee
380, Sonwar Peth, CHIKODI
Distt. Belgaum (Karnataka) 591201
ENDORSEMENT OF FAMILY JOINT NOTIFICATION
1. Refer to your letter No. N Ex CO/CED dated 22 May 99
2. Personal Occurrence regarding divorce of 1st wife Smt.
Anusuya has been pub vide this Office Pt II Order No. NE
nd
/021/0002/89 and further married to Smt. 'Shirmabai' (2
Wife) has also been pub vide Pt. II Order No. NE/021/
0003/99 and both case have been recorded in Service docu.
Sd/-
Capt.
Record Officer
For OIC Records”
10. On the demise of Subedar Bhave in the year 2001, when the appellant No. 1
approached the respondents claiming family pension, the said request was rejected
only on the ground that her marriage with Late Subedar Bhave had taken place in
February, 1981 whereas he and Anusuya, got divorced much later, in the year 1990.
11. It is no longer res integra that if a man and woman cohabit as husband and
wife for a long duration, one can draw a presumption in their favour that they were
living together as a consequence of a valid marriage. This presumption can be
drawn under Section 114 of the Evidence Act that states as follows:
“114. The Court may presume the existence of any fact which it thinks likely to
have happened, regard being had to the common course of natural events,
human conduct and public and private business, in their relation to the facts of
the particular case.”
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12. In this above context, we may refer to Andrahennedige Dinohamy and
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Another v. Wijetunge Liyanapatabendige Balahamy and Others , where the
Privy Council observed thus:
“…..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.
xxx xxx xxx
“The parties lived together for twenty years in the same house, and eight
children were born to them. The husband during his life recognized, by
affectionate provisions, his wife and children. The evidence of the Registrar of
the District shows that for a long course of years the parties were recognized as
married citizens, and even the family functions and ceremonies, such as, in
particular, the reception of the relations and other guests in the family house by
Don Andris and Balahamy as host and hostess—all such functions were
conducted on the footing alone that they were man and wife. No evidence
whatsoever is afforded of repudiation of this relation by husband or wife or
anybody.”
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13. In Mohabbat Ali Khan v. Muhammad Ibrahim Khan And Others , it was
again observing by the Privy council that:
“….The law presumes in favour of marriage and against concubinage when a
man and a woman have cohabited continuously for a number of years……”
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14. Similarly, in Badri Prasad v. Dy. Director of Consolidation and Others ,
this Court held as follows:
“…….A strong presumption arises in favour of wedlock where the partners have
lived together for a long spell as husband and wife. Although the presumption is
rebuttable, a heavy burden lies on him who seeks to deprive the relationship of
legal origin. Law leans in favour of legitimacy and frowns upon bastardy…..”
15. In S.P.S. Balasubramanyam v. Suruttayan alias Andali Padayachi and
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Others , this Court held as under:
27
1927 SCC OnLine PC 51
28
1929 SCC OnLine PC 21
29
(1978) 3 SCC 527
30
(1994) 1 SCC 460
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“ 4. What has been settled by this Court is that if a man and woman live together
for long years as husband and wife then a presumption arises in law of legality
of marriage existing between the two. But the presumption is rebuttable
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(see Gokal Chand v. Parvin Kumari ).
16. It is true that there would be a presumption in favour of the wedlock if the
partners lived together for a long spell as husband and wife, but, the said
presumption is rebuttable though heavy onus is placed on the one who seeks to
deprive the relationship of its legal origin to prove that no marriage had taken place
32
(refer: Tulsa and Others v. Durghatiya and Others ).
17. A similar view has been taken by this Court in Madan Mohan Singh and
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Others v. Rajni Kant and Another , Indra Sarma v. V.K.V. Sarma (supra) and
Dhannulal And Others v. Ganeshram And Another .
18. In the case of Gokal Chand v. Parvin Kumari alias Usha Rani (supra) this
Court observed thus :
“……Continuous cohabitation of man and woman as husband and wife
and their treatment as such for a number of years may raise the presumption of
marriage, but the presumption which may be drawn from long cohabitation is
rebuttable and if there are circumstances which weaken and destroy that
presumption, the court cannot ignore them.”
19. In Kattukandi Edathil Valsan’s Case (supra) , citing the abovesaid decisions
and relying on Section 114 of the Evidence Act, this Court held in the facts of the
said case that there was a presumption of the marriage between the parents of the
plaintiffs on the ground of their long cohabitation status, entitling their offspring to
claim their share in the suit schedule property.
31
(1952) 1 SCC 713
32
(2008) 4 SCC 520
33
(2010) 9 SCC 209
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20. It can be discerned from the aforesaid line of decisions that the law infers a
presumption in favour of a marriage when a man and woman have continuously
cohabitated for a long spell. No doubt, the said presumption is rebuttable and can be
rebutted by leading unimpeachable evidence. When there is any circumstance that
weakens such a presumption, courts ought not to ignore the same. The burden lies
heavily on the party who seeks to question the cohabitation and to deprive the
relationship of a legal sanctity.
21. In the instant case, if the period upto the year 1990 was to be excluded as the
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marriage between Late Subedar Bhave and Anusuya had got dissolved only on 15
November, 1990, fact remains that even thereafter, the deceased had continued to
cohabit with the appellant No. 1 for eleven long years, till his demise in the year
2001. The appellant No.1 was the mother of two children born from the relationship
with the deceased, namely, appellants Nos.2 and 3. Appellants No.2 and 3 have
been held entitled to the estate of the deceased by virtue of the order passed by the
High Court on the Review application moved by them. In the above background, a
presumption ought to have been drawn in favour of the validity of the marriage
between the deceased and the appellant No. 1, more so, when during his life time,
the deceased had approached the respondent authorities for seeking deletion of the
name of his previous wife - Anusuya from his service record and for endorsement of
the name of the appellant No. 1 therein, which was duly acted upon by the
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CIVIL APPEAL NO @ SLP(C) No. 29319 of 2019
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respondents vide letter dated 05 July, 1999. It is also not in dispute that the ex-wife
did not claim any pension from the respondents on the demise of Subedar Bhave.
22. In view of the aforesaid discussion, the impugned judgment dated 25th June,
1
2013, passed by the High Court of Karnataka Circuit Bench at Dharwad endorsing
th 2
the order dated 16 September, 2010 , passed by the First Appellate Court cannot
be sustained and are, accordingly, quashed and set aside. The judgment and decree
nd
dated 22 December, 2007, passed by the learned Civil Judge (Senior Division),
3
Chikodi is restored. The appellant No.1 is held entitled to receive the pension
payable on the demise of Late Subedar Bhave. As for the appellants No. 2 and 3,
they would be entitled to the said relief till the date they attained the age of 25 years.
23. The appeal is allowed on the above terms while leaving the parties to
bear their own costs. Pending applications, if any, stand disposed of.
……………..……J.
[ HIMA KOHLI ]
……………..……J.
[ RAJESH BINDAL ]
NEW DELHI
AUGUST 18, 2023
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