JUDGMENT

1. This second appeal concerns the question of a marriage: whether Rama Warrier of Thekkedethu Puthen Warriam had married the defendant Janakyamma, described in the plaint as residing in Thekkedethu Puthen Warriam. Certain facts are not in dispute. Rama Warrier inherited about 14 cents of land. Ho was employed in the Municipal service. The plaintiff (examined as P.W 1) is his sister. He had another sister, but she passed away prior to the death of Rama Warrier. Sankara Warrier, P.W 2 is the son of the deceased sister. The defendant had been staying with her sister and her sister's husband very close to Rama Warner's residence. She originally belonged to Adoor, and had, according to her, accompanied her sister and brother-in-law when they moved to Kottayam. Anandavally Amma is the daughter born to her sister. Even as early as 1124 M.E (1948), Rama Warrier and the denfedant were known to each other. The mortgage dated 11-4-1124 evidences a mortgage by Rama Warrier in favour of the dependent. The plaintiff would say that the defendant was only a dependent and a maid servant of Rama Warrier and that she had been already married to a police constable by name Ramakrishna Pillai who passed away later. The plaintiff would admit that Rama Warrier and the defendant were living together for about 10-20 years. According to the defendant, Rama Warrier's services were solicited for giving tution to the defendant's niece. The acquaintance between Rama Warrier and the defendant later developed into intimacy and ultimately they got married. The marriage was not to the liking to the families of both Rama Warrier and the defendant. The defendant would contend that after a simple ceremony relating to the marriage conducted in 1125, they continued to live together and under the same roof therafter till death did part them: Rama Warrier died on 22-6-1975.

2. The positive evidence in support of the marriage was given by D.W 1, the defendant and a close neighbour of Rama Warrier, D.W 2. Strong reliance was placed on a document Ext. B1 gift deed executed on 10-9-1968 (about 7 years prior to the demise of Rama Warrier) in favour of Anandavally Amma, the niece of the defendant. The document makes reference to the defendant as the wife, in more places than one.

3. Counter evidence was offered by the plaintiff, who examined herself as P.W 1, and the nephew of deceased Rama Warrier (P.W 2), and a watcher in a women's hostel (P.W 3). They would assert that Rama Warrier lived and died a bachelor.

4. The courts below accepted the plaintiff's claim and decreed the suit concurrently. The second appeal has arisen in the above circumstances. Khalid J. (as his Lordship then was) ordered notice on the following substantial questions of law:

“1) Can a presumption of marriage be raised from continuous cohabitation between a man and a woman for a number of years?

2) Is this a rebuttable presumption? Are there circumstance in this case which would weaken or destroy the presumption?”

5. Counsel for the appellant submitted that well-settled principles relating to the presumption in relation to marriage, and the appreciation of evidence in the background of such principles, had been totally ignored by the courts below. This fundamentally erroneous approach, according to him, had vitiated their conclusions. In addition to the usual contention that the appreciation of evidence should not be interfered with in second appeal, counsel for the respondent placed reliance on a decision of this court in Kali v. Kamalakshi Amma, 1967 K.L.T 1063.

6. Certain features of the plaintiff's evidence have to be noted in this connection. The plaintiff, has been residing far away in Chengannur for along time. She got information about the death of her brother and came to the residence of Rama Warrier. She admits that Rama Warrier and the defendant were residing in the same house for 10-20 years. To a specific question put to her, even in chief-examination, whether Rama Warrier had married the defendant, the first answer was: “I have no information.” Then she stated that he had not married. She admitted that she had talked to the defendant occasionally. She did not notice anything improper in their residing together.

7. The plaintiff admitted the execution of the gift deed Ext. B1. She was therefore prepared to exclude the property covered by that gift deed while seeking relief in the plaint. P.W 2, the nephew of Rama Warrier also admitted the execution of the gift deed and the relationship with the defendant and the donee thereunder. He also said that he had no dispute or protest against the gift deed. He would, however, say that the plaintiff had protest against that gift deed, a statement which is belied by the testimony of P.W 1. He also made a crucial admission that eversince 1125, the defendant had been residing with Rama Warrier in his house. He had no suspicion about the life of Rama Warrier and the defendant, and had not raised any query to Rama. Warrier about the same. He admits that the defendant continued to reside in the same house even after the death of Rama Warrier. He pleaded ignorance when asked whether it was because of the relationship as a wife, that the defendant was staying in that very same house of Rama Warrier even after his death. P.W 3's evidence goes counter even to the admission of the plaintiff. Admittedly he had been a watcher of an institution in a far off place. The main thrust of his evidence was to show that the defendant was married to a police constable by name Raman Pillai, about which there is no acceptable evidence whatever.

8. D.W 1, gave evidence about the formality of the presentation of the cloth conducted by Rama Warrier in his residence. The ceremony was a simple one, and consisted of the presentation of the cloth before the country lamp. She speaks about her life with Rama Warrier as wife and the husband. She repudiates the suggestion of having any connection with Raman Pillai. The circumstances under which, years back, she accompanied her sister from Adoor to Kottayam, when her sister's husband got a transfer to Kottayam are spoken to by her. Initially she was staying with her sister and the husband of her niece. The love developed between Rama Warrier and herself led to the marriage. She speaks about the affection that Rama Warrier had towards her niece Anandavally in whose favour Rama Warrier executed Ext. B1. She also refers to the release made of the mortgage deed Ext. A1 in her favour on the same date of Ext. B1. At the time of the marriage, Kunjunni residing on the west of Rama Warner's residence, one Narayanan Nair, and two or three others were present, apart from her sister and brother-in-law. Kunjunni has been examined as D.W 2. The others present at the time of marriage were no more. She speaks about the possession of a separate ration card of herself and her husband. D.W 2, who was employed as a driver, and aged 60 at the time of the examination, stated that he and Rama Warrier were friends. He spoke to the marriage ceremony in the form of presentation of cloth in Rama Warrier's residence. Those were the days when untouchability had not ceased to be practised. He therefore was in the courtyard. He was invited by Rama Warrier because of the friendship between them. He had coffee and pan after the ceremony was over. He also proved a photograph Ext. B2, wherein Rama Warrier and the defendant along with Anandavally figured. D.W 2 stated that the photograph was in such a pose as is expected normally as husband and wife. (The plaintiff's counsel had no objection in marking the same). D.W 2 was residing just two compounds away from Rama Warrier's residence. He knew that Rama Warrier and the defendant were living as husband and wife after the marriage ceremony.

9. The document Ext. B1, as noted earlier, had not been complained of by the plaintiff. Its recitals are absolutely specific and clear in their references to the defendant as the wife. Thus Rama Warrier refers to the earlier mortgage (Ext. A1) of the property in favour of his wife Janaky Amma and about its release on the date of the execution of Ext. B1 gift. He states that the donee Anandavally is the daughter of his wife's younger sister. He refers to the fact that the donee Anandavally Amma had been staying with him and his wife and had been looking after them as a daughter. One of the reasons stated for the execution of the gift deed is the care and concern shown by Anandavally Amma towards him and his wife. The document further expresses the hope that the donee would continue to maintain and look after the executant Rama Warrier and his wife.

10. Marriage has been, for long, recognised as a socially relevant and important institution. A man and woman tied together by wedlock form the least unit of our complex society. (See Parameshwari Bai v. Muthojirao Scindia, A.I.R 1981 Karnataka 40). The marriage state is referred to as the chief foundation on which the superstructure of society rests. (See Rajagopal Pillai v. Pakkiam Animal, (1968) Mad. LJ 411). It is in the above background that a strong presumption in favour of marriage is raised where there has been cohabitation of spouses, particularly for a long period. Such presumption has been so drawn irrespective of the countries or the religion of the people. Way back in 1849, the presumption was drawn in England in Piers v. Piers (1849) 2 M.L Cas. 331). Equally strong was the principle applied in the case arising from Ceylon, Sastry Velaider Avruegasy v. Sembecutty Vaigalie, (1881) 6 A.C 364. That is the position in the United States of America. (See 52 American Jurisprudence 2nd Edn. 981 and 55 Corpus Juris Secundum 888). Mayne Hindu Law, 11th Edn. pages 163 and 164 cites the proposition in clear terms. The Privy Council referred to it in Mohabbat Ali v. Md. Ibrahim Klian, A.I.R 1929 P.C 135 and affirmed a decision where the presumption had been drawn in relation to a Hindu marriage in the decision in Inder Singh v. Thaker Singh, A.I.R 1921 Lahore 20. The Supreme Court also has spoken about it on more than one occasion. In Gokal Chand v. Parvin Kumari, A.I.R 1952 SC. 231 the Supreme Court said:

“………it is well-settled that continuous cohabitation for a number of years may raise the presumption of marriage. In the present case, it seems clear that the plaintiff and Ram Piari lived and were treated as husband and wife for a number of years, and in the absence of any material pointing to the contrary conclusion, a presumption might have been drawn they were lawfully married. But the presumption which may be drawn from long cohabitation is rebuttable, and if there are circumstances which weaken or destroy that presumption, the Court cannot ignore them.”

11. There were various circumstances in that case which rebutted the presumption: such as the omission to examine close relations, the contrary evidence given by none else than the mother of the one of the parties, the unexplained conduct of indifference of one of the spouses towards the other, and rather unusual feature of a Rajput boy of high caste marrying a Gurkha girl of very poor parents, onside his tribe and belonging to a place far away from his residence.

12. And what is the nature of the rebuttal evidence? The rebuttal evidence must be ‘strong, distinct, satisfactory and conclusive’, as observed by Lord Lyndhurst. Sir Jocelyn Simon put it even higher than that, when he stated:

“………the presumption cannot be rebutted by evidence which merely goes to show on a balance of probabilities that there was no valid marriage: it must be evidence which satisfies beyond reasonable doubt that there was no valid marriage. In other words the presumption in favour of marriage in such circumstances is of the same weight as the presumption of innocence in criminal and matrimonial cases.”

13. (It is not necessary for the purpose of our case to consider whether the rebutting evidence should satisfy such a high rigour about which Cross has, commented upon in his book “Cross on Evidence”, Fifth Edn. page 136).

14. In one of the lastest decisions, a brief one, the Supreme Court sketched the legal position and the principle underlying it in the following words:

“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……the contention……that long after the alleged marriage, evidence has not been produced to sustain its ceremonial process by examining the priest or other witnesses, deserves no consideration, If man and woman who live as husband and wife in society are compelled to prove, half a century later by eye-witness evidence that they were validly married, few will succeed.”

(See Badri Prasad v. Dy. Director, Consolidation, (1978) 3 SCC 527 : A.I.R 1978 S.C 1557).

15. The above legal aspects were totally missed by the courts below when they overlooked the strong presumption available and ignored the necessity for clear and cogent rebutting evidence.

16. The acknowledgment of none other than Rama Warrier in a solemn and registered document, was also equally lightly, and equally illegally, ignored by the courts below. An omission to make a reference in a document about such status, as pointed out, by the decision of the Supreme Court in A.I.R 1952 S.C 231 supra may also be relevant. But when a statement is made in a document about the relationship, it deserves great weight and sanctity. As observed by R.N Misra, J. (as His Lordship then was) in Vaikuntam v. Puppala, A.I.R 1971 Orissa 49:

“Indisputably the statement in Ext. A is entitled to great weight. It comes from the husband and is the statement of a dead person. As such it is directly admissible under the provisions of Sec. 32 of the Evidence Act. Unless it can be held to be a document obtained by undue influence, the importance of the statement cannot be belittled.”

17. As noted earlier, Ext. Bl contains such clear acknowledgment of the status of wife as regards the defendant by none other than Rama Warrier. This document is one about which the plaintiff does not have a demur. She accepts the document. With the acceptance of that document, the relationship spoken to by Rama Warrier with the defendant, should also be taken as clearly admitted.

18. The discussion of the evidence in the case will show that there is not only a continued cohabitation of Rama Warrier and the defendant for a very long period but also an acknowledgment by Rama Warrier himself about the status of the defendant as his wife. There is also positive evidence about the marriage ceremony as having taken place. The presumption available is not weakened in any way. On the contrary, it is buttressed by the unequivocal admission of the most competent person to speak on it, as contained in a solemn registered document.

19. The courts below were acting perversely and without any justification whatever, when they criticised the defendant for not producing the voters' list and the ration card, to evidence the relationship of husband and wife. If a registered document containing recitals of the status in more places than one, would not be convincing enough, it is difficult to conceive how the voters' list and the ration card would serve that purpose. It must be remembered that she was categoric in her evidence about there being a single ration card giving the names of herself and Rama Warrier.

20. The trial court committed yet another error of law, when it held that the omission to register the marriage was fatal to the case of a marriage. For one thing, D.W 1 referred to the omission to register the marriage in the Karayogam. This is not to be confused as the registration contemplated under the Nair Act. Even the omission to register the marriage under the Act, does not render the marriage as invalid. It has been so held repeatedly, one of the recent decisions of this court being S.A No. 4 of 1979.

21. The marriage in the present case is not one unusual in the ordinary course having regard to caste differences, as was the case in 1952 S.C 231, supra or as in the situation referred to by Robert Lingat in “The Classical Law of India, 1973”. (It is stated in page 135 of the book:……a Vaisya knows that he will commit a sin if he marries a Kshatriya woman). Marriages frequently occur between members belonging to the communities of Nairs and Warriers in the State of Kerala.

22. The formality of the marriage, in the case of the parties, is not a detailed one. This aspect had been dealt with very elaborately in a Bench decision of this Court. (See Sreekumari v. Radhamany Amma, I.L.R 1976 (1) Kerala 605 at 615. The summing up of legal position by the Bench is:

“………for a valid marriage under Section 3 of the Travancore Nair Act it is sufficient if the parties intend to marry and there is open presentation of cloth by the bridegroom to the bride………Neither thalikettu nor any other than open presentation of cloth by the bridegroom to the bride is a necessary requirement of a valid marriage under Section 3 of the Travancore Nair Act.”

23. As noted earlier, there is cogent evidence about such a ceremony in the present case. There was hardly any justification in picking up stray sentences and on that basis rejecting the evidence of an old lady of 60, or that of the neighbour D.W 2 who witnessed the marriage. The inability of this old lady to give the exact date of marriage (though given in the written statement) can hardly be a ground to brush aside the massive evidence establishing her married status. The approach in the appreciation of evidence made by the courts below is also opposed to what has been indicated by the Bench decision supra Referring to the discrepancies in the evidence made much of by the courts below in the case before them, the Division Bench observed:

“But these are all very minor details about the marriage and the witnesses were speaking from memory about these matters which took place long before. These discrepancies are only discrepancies of truth. They cannot be characterised as badges of falsewood.”

24. The photograph Ext. B2, would also clearly corroborate the fact that Rama Warrier and the defendant were living as husband and wife. It is a photograph of a family group in the natural setting. Nobody could have any doubt about the possible relationship between the parties, who pose for such a photograph. It is true that in recent times, in advanced countries, people live long without being married. Griffith L.J in Bernard v. Joseph, (1982) 3 All ER 162 at 169 observed:

“There are many reasons why a man and woman may decide to live together without marrying, and one of them is that each values his independence and does not wish to make the commitment of marriage.”

25. And even recently in Burns v. Burns, (1984) 1 All ER 244 at 255 May L.J stated:

“It is becoming increasingly frequent that couples live together without being married, but just as if they were so………….”

26. Those conditions are, however, totally inapplicable to the old couple in the rural setting of Kottayam, four decades back.

27. There is no substance in the contention of the respondent based on 1967 K.L.T 1063 supra. The Division Bench there had to consider a document in which there was a specific statement that the parties were not married. In other words, the document was destructive of the existence of a marriage relationship between the parties in that case. Quite contrary is the situation in the present one. Here the document corroborates and confirms the married status. The difference is too obvious to go unnoticed. The conclusion that Rama Warrier and the dependent were married, is fully buttressed by Ext. B1 document in the present case, unlike the destructive effect in the document considered in 1967 K.L.T 1063 supra. In the light of the above discussion, the conclusions of the courts below have to be set aside. I do so. The judgment and decrees of the courts below are set aside. The suit will stand dismissed. The second appeal is allowed with costs throughout.

28. Allowed.