1. It is urged for the appellant that the learned Subordinate Judge went wrong in deciding points 1 and 2 in favour of the legal representatives of the plaintiff and against the fourth defendant. The finding of the Subordinate Judge is to the deflect that though Venkatarattamma and Durgiah were living together and passing themselves off as husband and wife", before society, there was no presumption that they were legally married. It is, of course, true that the presumption to be drawn in favour of marriage from cohabitation will have to vary from country to country or society to society, as pointed out by the Privy Council in Ma Wun Di. v. Ma Kin (1907) 18 M.L.J. 3 : L.R. 35 I.A. 41 : I.L.R. 35 Cal. 232 (P.C.). Where concubinage is permitted or recognised or where even if it is not expressly permitted it is winked at or condoned by the Society to which the parties belong, the presumption in favour of marriage becomes weak. But where it is established by evidence that a man and woman were not merely living together but professed themselves to be husband and wife and were treated as such by the society in which they moved and this conduct and recognition extended over a sufficiently long period of time, a presumption can well be drawn in favour of marriage.
2. It is contended for the appellant that in the present case there is evidence on record to show that Venkatarattamma and Durgiah whom it is alleged, she married after first husband's death lived together as husband and wife and were treated so by the members of the community in whose midst they were living and that this evidence has not been considered by the learned Subordinate Judge adequately. The appellant is therefore entitled to ask for a revised finding on the point which is whether Venkatarattamma married Durgiah after the death of her husband Nagayya, and whether in the absence of any direct proof of such marriage, it can be presumed that they were married. The finding will be submitted on the evidence on record within six weeks after the receipt of this order by the lower Court, the parties being given ten days for objections thereafter.
3. On receipt of the finding the Court delivered the following.
JUDGMENT
4. The finding sent up by the Subordinate Judge is to the effect that the evidence warrants the presumption of marriage between Durgiah and Venkatarattamma. The finding is in favour of the appellant and against the respondents ; for if it is accepted, the appeal has to be allowed and the plaintiff's suit has to be dismissed.
5. This finding is challenged on two grounds : firstly, that in the Kamsali community to which the parties belong there is no custom for sanctioning re-marriage of widows and secondly that the evidence placed before the Court does not warrant the presumption drawn. So far as the question of custom is concerned, we steer clear of it for the simple reason that under the law, after the enactment of the Hindu Widows' Remarriage Act, Venkatarattamma could have married Durgiah and the marriage would be a lawful one. If the association of two persons living together as man and wife could not result in a legal marriage between them, it may be that the presumption of marriage could not be raised in such a case ; but where they could have married each other and law permits such a marriage notwithstanding any custom, it is difficult to see why the presumption should not come into play.
6. The evidence on which the lower Court relied justifies the drawing of the presumption. All that is wanted is the conduct of the parties concerned as well as the repute in the locality in which they were living, and it is pointed out by the Subordinate Judge at the end of paragraph (4) that not only Venkatarattamma and Durgiah put themselves forward as husband and wife claiming to have been married under a regular ceremony at Rajahmundry but that they were also treated by the society as husband and wife for over 20 years. More than this is not required for enabling the presumption to be drawn.
7. The finding is accepted, and the result is that the decree of the lower Court is set aside and the plaintiff's suit dismissed with costs here and in the Court below, the plaintiff being liable to pay Court-fee due to Government.
8. Leave refused.