SMT. SHIRAMABAI W/O PUNDALIK BHAVE AND OTHERSversusTHE CAPTAIN, RECORD OFFICER FOR O.I.C. RECORDS, SENA CORPS ABHILEKH, GAYA, BIHAR STATE AND ANR.

130              [2023]COURT
             SUPREME    11 S.C.R. 130 : 2023 INSC 744
                               REPORTS             [2023] 11 S.C.R.



                             CASE DETAILS

  SMT. SHIRAMABAI W/O PUNDALIK BHAVE AND OTHERS
                                      v.
   THE CAPTAIN, RECORD OFFICER FOR O.I.C. RECORDS,
  SENA CORPS ABHILEKH, GAYA, BIHAR STATE AND ANR.
                      (Civil Appeal No. 5262 of 2023)
                            AUGUST 18, 2023
            [HIMA KOHLI AND RAJESH BINDAL, JJ.]

                              HEADNOTES

       Issue for consideration : Whether the order passed by the High Court
denying the appellants-mother and her children, the entitlement to receive
the pension payable on the demise of her husband-military personnel is
sustainable, where the military personnel contracted a marriage with the
appellant and two children born from their relationship, during subsistence
of his marriage with the legally wedded wife but, subsequently a decree
of divorce was passed, dissolving the said marriage and meanwhile, the
military personnel was discharged from service and granted service pension.
      Service law : Pensionary benefits – Family pension – Claim of,
by woman cohabiting as wife with a government personnel – Denial of
claim of family pension to the applicant and her children by the High
Court – Sustainability of:
       Held : Not sustainable – Presumption ought to have been drawn
in favour of the validity of the marriage between the deceased and the
applicant – More so, when during his life time, the military personnel
sought deletion of the name of his previous wife from his service record
and endorsement of the name of the applicant, which was duly acted upon
by the authorities – Also the ex-wife did not claim any family pension from
the authorities – Furthermore, two children born to the applicant, have been
held entitled to the estate of the military personnel by the High Court – Thus,
the applicant entitled to receive the pension payable on the demise of the
military personnel – Children entitled to the said relief till the age of 25
                                          130
      SMT. SHIRAMABAI v. CAPTAIN, RECORD OFFICER SENA 131
             CORPS ABHILEKH, GAYA, BIHAR STATE

years – Order passed by the High Court set aside – Pension Regulation for
the Army, 1961 – reg 219(iii). [Paras 11, 16, 20 and 21, 22]
      Service law: Pensionary benefits – Family pension – Claim of, by
the woman cohabiting as wife with a government personnel:
       Held : If a man and woman cohabit as husband and wife for a long
duration, there is a presumption in their favour that they were living together
as a consequence of a valid marriage and claimant would be entitled to
family pension. [Paras 11 and 21]
      Evidence Act, 1872 – s. 114 – Court may presume existence of
certain facts – Man and woman cohabiting as husband and wife for a
long duration – Presumption u/s. 114:
       Held : There would be a presumption in favour of a marriage when
man and woman have continuously cohabited for a long spell – However,
the 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 – Burden lies heavily on the party who
seeks to question the cohabitation and to deprive the relationship of a legal
sanctity. [Para 20]

       LIST OF CITATIONS AND OTHER REFERENCES

       Indra Sarma v. V.K.V. Sarma (2013) 15 SCC 755 : [2013] 14 SCR
1019; Dhannulal And Others v. Ganeshram And Another (2015) 12 SCC 301
: [2015] 4 SCR 199; KattukandiEdathil Krishnan and Another v. Kattukandi
Edathil Valsan and Others 2022 SCC OnLine SC 737; Andrahennedige
Dinohamy and Another v. Wijetunge Liyanapatabendige Balahamy and
Others 1927 SCC OnLine PC 51; Mohabbat Ali Khan v. Muhammad Ibrahim
Khan And Others 1929 SCC OnLine PC 21; Badri Prasad v. Dy. Director
of Consolidation and Others (1978) 3 SCC 527 : [1979] 1 SCR 1; S.P.S.
Balasubramanyam v. Suruttayan alias Andali Padayachi and Others (1994)
1 SCC 460; Gokal Chand v. Parvin Kumari alias Usha Rani (1952) 1 SCC
713; Tulsa and Others v. Durghatiya and Others (2008) 4 SCC 520 : [2008]
1 SCR 709; Madan Mohan Singh and Others v. Rajni Kant and Another
(2010) 9 SCC 209 : [2010] 10 SCR 30 – referred to.
132           SUPREME COURT REPORTS                       [2023] 11 S.C.R.



        OTHER CASE DETAILS INCLUDING IMPUGNED
               ORDER AND APPEARANCES

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5262 of
2023.
      From the Judgment and Order dated 25.06.2013 of the High Court of
Karnataka Circuit Bench at Dharwad in RSA No.6079 of 2010.
        Appearances:
        Rahul Joshi, Adv. for the Appellant.
      K M Nataraj, ASG, R Bala, Sr. Adv., A K Kaul, Sharath Nambiar,
Sautam Bhardwaj, Ms. Indira Bhakar, Arvind Kumar Sharma, Advs. for
the Respondents.

         JUDGMENT/ORDER OF THE SUPREME COURT

                                 JUDGMENT
        HIMA KOHLI, J.
        1. Leave granted.
       2. The appellants are aggrieved by the order dated 25th June, 2013,
passed by the High Court of Karnataka Circuit Bench at Dharwad whereby
the Regular Second Appeal1 filed by them against the judgment and decree
dated 16th September, 2010, passed by the Principal District and Sessions
Judge, Belgaum2, has been dismissed. Vide judgment dated 16th September,
2010, the learned Principal District Judge reversed the judgment and decree
dated 22nd December, 2007, passed by the learned Civil Judge (Senior
Division) Chikodi3 whereunder the suit instituted by the appellants for
seeking a declaration to the effect that the appellant no. 1 was the legally
wedded wife of Late Subedar Pundalik Bhave4 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.

1   Regular Second Appeal No. 6079 of 2010 (DEC)
2   Regular Appal No. 70 of 2008
3   In Original Suit No. 73/05
4   For short “Late Subedar Bhave”
       SMT. SHIRAMABAI v. CAPTAIN, RECORD OFFICER SENA 133
       CORPS ABHILEKH, GAYA, BIHAR STATE [HIMA KOHLI, J.]

       3. Facts necessary for the elucidation of the controversy at hand are
as follows:
       3.1 Late Subedar Bhave was enrolled in the Army in the year 19605.
On 17th July, 1972, he got married to one Smt. Parvati who died in about two
and a half years6. Thereafter, the deceased got married to one Smt. Anusuya7.
During the subsistence of his marriage with Anusuya, he married the appellant
no.1 herein8. 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 month. On 15th November,
1990, the deceased and Anusuya were granted a decree of divorce by mutual
consent9 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. 1
in the PPO. He also submitted a certificate10 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.
       3.2. Subedar Bhave expired in the year 200111. Thereafter, appellant
No. 1 approached the respondents for grant of family pension12. The said
request was, however, rejected by the respondents13 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,
5    On 21st July, 1960
6    On 26th January, 1975
7    On 17th March, 1975
8    On 21st February, 1981
9    M.C. No. 21/1990
10   Dated 08th October, 1994
11   on 12th January, 2001
12   Vide application dated 09th July, 2001
13   Vide letter dated 01st October, 2001
134            SUPREME COURT REPORTS                         [2023] 11 S.C.R.


particularly, since no claim was ever laid on the said amount by his ex-wife
Anusuya. Aggrieved by the said order, the respondents preferred an appeal14,
which was allowed and the judgment and decree passed by the learned Civil
Judge was set aside. The said order was assailed by the appellants in a Regular
Second Appeal15 that came to be dismissed by the High Court. Subsequently,
on the basis of the Review Application, the court clarified16 that 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 embargo placed under Section 5(1)
of the Hindu Marriage Act, 195517 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
under Section 114 of the Evidence Act, 187218. 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.
       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 Anusuya, after the said date i.e. from 16th
November, 1990, till the date of demise of the deceased19, admittedly, he and
14   Regular Appeal No. 70 of 2008
15   Regular Second Appeal No. 6079 of 2010
16   Vide order dated 16th October, 2014
17   For short “HMA”
18   For short ‘Evidence Act’
19   on 12th January, 2001
       SMT. SHIRAMABAI v. CAPTAIN, RECORD OFFICER SENA 135
       CORPS ABHILEKH, GAYA, BIHAR STATE [HIMA KOHLI, J.]

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 Indra Sarma
v. V.K.V. Sarma20, Dhannulal And Others v. Ganeshram And Another21 and
Kattukandi Edathil Krishnan and Another v. Kattukandi Edathil Valsan and
Others22 passed by this Court.
       6. On the other hand, Mr. K M Nataraj, learned Additional Solicitor
General23 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 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

20   (2013) 15 SCC 755
21   (2015) 12 SCC 301
22   2022 SCC OnLine SC 737
23   For short “ASG”
136            SUPREME COURT REPORTS                      [2023] 11 S.C.R.


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 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 in the year 197524. On 17th 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 Anusuya25.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 from the document26 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 26th January, 1975
25 21st February, 1981
26 Dated 5th July, 1999
     SMT. SHIRAMABAI v. CAPTAIN, RECORD OFFICER SENA 137
     CORPS ABHILEKH, GAYA, BIHAR STATE [HIMA KOHLI, J.]

      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 /021/0002/89 and further
married to Smt. ‘Shirmabai’ (2nd 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.”
      12. In this above context, we may refer to Andrahennedige Dinohamy
and Another v. Wijetunge Liyanapatabendige Balahamy and Others27,
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,

27 1927 SCC OnLine PC 51
138           SUPREME COURT REPORTS                       [2023] 11 S.C.R.


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.”
     13. In Mohabbat Ali Khan v. Muhammad Ibrahim Khan And
Others28, 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……”
     14. Similarly, in Badri Prasad v. Dy. Director of Consolidation and
Others29, 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 Others30, this Court held as under:
       “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 (see Gokal
       Chand v. Parvin Kumari 31).

28   1929 SCC OnLine PC 21
29   (1978) 3 SCC 527
30   (1994) 1 SCC 460
31   (1952) 1 SCC 713
     SMT. SHIRAMABAI v. CAPTAIN, RECORD OFFICER SENA 139
     CORPS ABHILEKH, GAYA, BIHAR STATE [HIMA KOHLI, J.]

       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 (refer: Tulsa and Others v. Durghatiya and
Others32).
     17. A similar view has been taken by this Court in Madan Mohan
Singh and Others v. Rajni Kant and Another33, 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.
       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 marriage between Late Subedar Bhave and Anusuya had got
dissolved only on 15th November, 1990, fact remains that even thereafter, the
32 (2008) 4 SCC 520
33 (2010) 9 SCC 209
140            SUPREME COURT REPORTS                        [2023] 11 S.C.R.


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 respondents vide letter dated 05th 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, 2013, passed by the High Court of Karnataka Circuit Bench at
Dharwad endorsing the order dated 16th September, 2010, passed by the
First Appellate Court cannot be sustained and are, accordingly, quashed and
set aside. The judgment and decree dated 22nd December, 2007, passed by
the learned Civil Judge (Senior Division), 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.

Headnotes prepared by:                                           Appeal allowed.
Nidhi Jain