Long cohabitation of couple does not become marriage when one of them is in a subsisting marriage: Kerala High Court

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Even if a man and a woman have been cohabiting for a long time, their relationship cannot be considered a valid marriage when one of them is in a subsisting marriage with some other person, the Kerala High Court held on Thursday.

A bench of Justices Anu Sivaraman and C Pratheep Kumar said that while continuous cohabitation for a number of years may raise the presumption of marriage, the said presumption is not an irrebuttable one. One of the factors that rebuts the presumption is the subsistence of another marriage.

“We are of the considered view that cohabitation between a man and woman, however long it may be, the same will not acquire the character of a valid marriage, if it is during the subsistence of another marriage,” the Court held.

Justice Anu Sivaraman and Justice C Pratheep Kumar
The Court rendered the judgment while considering a dispute between two women both of whom claimed to be the legally wedded wife of one man who is now deceased.

Woman A claimed that she married the man in 1966 and that they had one son together.

Woman B claimed she married the man in 1970 and that two children were born out of the relationship.

When woman A and her son applied for legal heirship certificate before the revenue officials claiming family pension, woman B and her children raised objection.

Following this, woman A and her son moved the family court to declare her to be the legally wedded wife. The family court allowed the claim.

Woman B approached the High Court challenging the family court’s decision.

Her primary ground to challenge the decision of the family court was that she had been living with the man for over 40 years and that for a majority of the time between 1970 up until his death, he lived with her. A valid marriage can be presumed from his conduct, it was argued.

However, the High Court noted that woman B had never been accepted as the wife by the man’s family members and that she had not gone to his ancestral house even once. It also noted that woman B’s name was absent in all of the man’s service records.

Considering the testimonies of several witnesses as well as the material on record, the High Court agreed with the family court’s finding that the marriage with woman B was void in view of Section 5(i) r/w Section 11 of the Hindu Marriage Act.

Therefore, it upheld the family court’s judgment and dismissed woman B’s appeal.

Woman A her son were represented by advocate KP Hareendran.

Woman B and her children were represented by advocates VR Kesava Kaimal C Devika Rani Kaimal, and CS Ranjani.

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