BACHUBHAI ALIAS KIRITKUMAR GOPALDAS Vs. DHANLAXMI
LAWS(GJH)-1960-12-10
HIGH COURT OF GUJARAT
Decided on December 12,1960

BACHUBHAI ALIAS KIRITKUMAR GOPALDAS Appellant
VERSUS
DHANLAXMI,D/O : GANGARAM BOGHABHAI Respondents


Referred Judgements :-

RAHI V. GOVINDA [REFERRED]
RAMACHANDRA NAIK V. HANAMNAIK PATIL [REFERRED]
UDERAM V. THAGGU [REFERRED]
CHANDULAL AGARWALA V. KHALILAR RAHMAN [REFERRED]
GOKAL CHAND VS. PARVIN KUMARI [REFERRED]


JUDGEMENT

J.M.SHELAT - (1.)[ His Lordship after discussing the evidence upheld the decision of the learned trial judge who held that the entire burden of proof to establish the factum of marriage rested on the plaintiffs and that they failed to discharge that onus of proof. His Lordship further observed: ]
(2.)The learned Advocate General however argued that even if the plaintiffs have not been able to satisfactorily establish the factum of marriage the fact of Gopaldas and Ratan having lived together as husband and wife and having cohabited would raise a presumption of marriage. He relied upon the decision in Chandulal Agarwala v. Khalilar Rahman I.L.R. 1942 Cal. 299 where it has been observed that where parties constantly openly and continuously lived and cohabited together for several years and had several children and were regarded and recognised as husband and wife by relations and friends these facts in the absence of contrary circumstances afford clear and conclusive evidence of marriage and that presumption would arise under sec. 114 of the Indian Evidence Act that a marriage had taken place between such persons living and cohabiting together. It should be remembered that the conditions laid down in this decision for such presumption to arise was that the parties should constantly openly and continuously live and cohabit together for a number of years and should be regarded and recognised as husband and wife by relations and friends. Except for the evidence of three witnesses Prabha Shanker Ratilal and Chimanlal Modi the plaintiffs did not lead any evidence of the relations and friends of Gopaldas or the plaintiffs to establish that such relations and friends had recognised Bai Ratan and Gopaldas as husband and wife. Various decisions can be multiplied to show that in given circumstances the Court would be entitled to raise such a presumption grounded as it is on the general abhorrence of law against immorality and illegitimacy. But even where such presumption can be and is raised it is always rebuttable as can be seen from Thakur Gokalchand v. Pravin Kumari 1952 S. C. R. 825. The plaintiff a Rajput belonging to the Tehsil of Garshanker in the District of Hoshiarpur (Punjab) instituted a suit against the defendant for recovery of properties which belonged to a deceased Gurkha woman Rampyari and which she had acquired by way of gift from a stranger. He alleged that he was the lawfully wedded husband of Rampyari and that according to custom which applied to parties with regard to succession he was entitled to succeed to the properties of Rampyari in preference to the defendant who was his daughter by Rampyari. Though the main question in that decision was whether succession to properties which Rampyari had received as gift from a stranger and which she owned in her own right was governed by the custom governing her husbands family and not her own their Lordships of the Supreme Court observed that continuous cohabitation for a number of years may raise a presumption for marriage. They also observed that it was clear that the plaintiff and Rampyari lived and were treated as husband and wife for a number of years and that in the absence of evidence pointing to the contrary presumption might be drawn that they were lawfully married. It would appear from the facts of that case that Rampyari and the plaintiff had lived and cohabited together for a period of about 12 years. Inspite of that fact their Lordships held that the presumption as to marriage was rebuttable and there were circumstances in that case which weakened or destroyed the presumption and held that the cumulative effect to those circumstances warranted a conclusion that the plaintiff had failed to prove his marriage with Rampyari. Amongst those circumstances there was the circumstance that the plaintiff had not examined any of his near relations such as his brother or any of his co-villagers whose presence at the marriage would have been more probable than the presence of the persons examined by him. There was also the circumstance that the plaintiff had failed to examine any of the witnesses residing in or round about Holta estate though his case was that his marriage was celebrated with great pomp and show. There was also the further circumstances that Rampyaris own mother Ganga had deposed that her daughter was never married to the plaintiff. There was finally the statement to Rampyari herself in her own will which their Lordships considered a very valuable piece of evidence to the effect that she was never married to the plaintiff.
(3.)Even according to the learned Advocate General though Ratan has deposed that marriage took place in March 1937 it could not have taken place until March 1938. The evidence shows that a son was born to her in 1939 and immediately thereafter she had gone away from Gopaldas and lived with her father. Cohabitation of Gopaldas with Bai Ratan thus appears to have lasted for less than two years. In the maintenance proceedings under section 488 of the Code of Criminal Procedure Gopaldas had repudiated the allegation of marriage by him with Ratan. The period of living together and their cohabitation with each other thus does not appear to be long as was the case in I.L.R. 1942 Cal. 299 or 1952 S C. R. 825 Besides there are circumstances which would rebut such a presumption even if it be raised Gopaldas being a potter it seems to us somewhat improbable that he would agree to marry a girl from a family of brahmins hailing from the North. If he married Ratan as alleged because his wife Narmada had not given birth to a son it is extremely unlikely that Gopaldas would ill-treat Bai Ratan soon after she gave birth to a son an event which according to Ratan he desired most. Then again if he desired to marry because his wife Narmada had not given birth to a son it seems to us more probable that he would marry in his own caste especially when there was no legal objection at that time to a second marriage by him. As we have already pointed out neither of the two plaintiffs cared to examine any relations either of Gopaldas or of Ratan to show that after 1937 or 1938 as the case may be Gopaldas and Ratan were treated or recognised by them as husband and wife. The commissioner appointed by the Court witness Shantilal has said that when an inventory of the articles lying in Gopaldass house was made he had found photographs of several women in the house of Gopaldas both singly and with him. These photographs would seem to indicate that Gopaldas had lived an immoral life having been in connection with several other women. The circumstances above recited would indicate that it was more probable that Gopaldas would live with Ratan as his concubine rather than contract a marriage with her. These circumstances in our view rebut the presumption and show that there was greater probability of Gopaldas having lived with Ratan as his mistress and that it was while he was so living possibly in the house of witness Chimanlal that Bai Ratan conceived and ultimately gave birth to a son the plaintiff in suit No. 188 of 1953. For the reasons aforesaid we agree with the learned trial Judge that the plaintiffs have failed to establish the factum of marriage between Gopaldas and Ratan.
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