Supreme Court: An appeal was filed against the decree passed by the Allahabad High Court (‘High Court’) reversing the decree of the Court of the Civil Judge of Mirzapur (‘Trial Court’) dismissing respondent’s suit. The 3-Judges Bench of M.C. Mahajan, S.R. Das, and N.H. Bhagwati*, JJ., opined that the probabilities of the present case were against appellant having contracted the marriage with Jadunath on 16-1-1939. The Supreme Court held that the conclusion reached by the Trial Court that respondent had failed to prove appellant’s marriage with Jadunath on 16-1-1939 at Benares was correct and the High Court was in error in reversing the decree of the Trial Court. The Supreme Court thus allowed the appeal and dismissed respondent’s suit with costs throughout.
Background
Kanhiya Lal died on 28-10-1933 leaving behind his widow-appellant and his sister-respondent. He left behind him considerable movable and immovable property worth Rs 1 lakh. After his death, appellant conceived the idea of contracting a remarriage and entered into correspondence with one Jadunath of Benares. She decided to marry Jadunath but encountered the opposition of her husband’s relatives and therefore applied to the Collector of Mirzapur on 1-7-1935 asking for his protection. Some of the ornaments and jewellery which she had removed to her mother’s place were stolen and on 25-8-1935, respondent filed a suit in the Trial Court seeking to restrain appellant from committing waste and for an injunction restraining her from withdrawing the principal sums invested by the deceased with some Sharaffi firms. Appellant claimed to be the absolute owner of the properties left by the deceased under the terms of his will dated 28-9-1933.
The suit out of which this appeal arose was commenced by respondent before the Trial Court seeking a declaration that appellant had by her marriage with Jadunath forfeited all her rights and interest as the widow of the deceased and that respondent as the reversionary heir of the deceased had become entitled to all the property, movable and immovable, left by the deceased and for possession of the same. The Trial Court dismissed respondent’s suit with costs and held that the issue regarding the execution of the will by the deceased was barred by res judicata. Respondent filed an appeal before the High Court. The High Court concluded that respondent had succeeded in proving appellant’s marriage with Jadunath and decreed respondent’s suit. The present appeal was filed by appellant after obtaining the necessary leave from the High Court.
Analysis, Law, and Decision
The issue for consideration was “whether appellant married Jadunath at Benares on 16-1-1939?”.
The Supreme Court opined that appellant appeared to have abandoned the idea of marrying Jadunath after 6-11-1936, when the Trial Court delivered its judgment decreeing the suit in respondent’s favour. The Supreme Court noted respondent’s allegation that appellant had married Jadunath, and they were living publicly as husband and wife and were giving themselves out openly as such. The Supreme Court opined that this was the marriage which was sought to be proved by the respondent by leading direct evidence of witnesses who were alleged to be present at the marriage. The Supreme Court further noted that the evidence of five witnesses who were present at the marriage was led by respondent for proving appellant’s marriage with Jadunath. This evidence was however disbelieved and rightly so by the Trial Court.
The Supreme Court noted that the High Court considered this evidence enough to support a presumption of marriage and thus opined that the High Court was not justified in accepting the evidence of these witnesses and holding appellant’s marriage with Jadunath proved. The Supreme Court further opined that the High Court was also in error when it brought to the aid of respondent the presumption in favour of marriage.
The Supreme Court opined that “the presumption of marriage moreover could not arise because on the facts found by both the courts below, the connection between appellant and Jadunath had been illicit in its origin. There was a concurrent finding of both the courts that there had been intimacy between appellant and Jadunath ever since 1935 up to the filing of the suit and that a child had been born of this connection towards the end of July 1939. Having regard to the ordinary period of gestation, the child could not have been conceived on and after 16-1-1939, which was the date of the alleged marriage. The child must have been conceived at least in November-December 1938 and must have been begotten upon appellant by Jadunath as a result of an illicit union”. Thus, the Supreme Court observed that no presumption of marriage could arise, and the High Court was certainly in error in raising the same.
The Supreme Court opined that without reliable direct evidence, respondent had to fall back on circumstantial evidence of the alleged marriage. The Supreme Court noted that for the circumstantial evidence, respondent relied on the letter written by appellant to Jadunath. The Supreme Court opined that respondent appeared to have pounced upon this letter and put forward the year 1938 as the year in which this letter was written in order to support her story that the alleged marriage took place on 16-1-1939. There was no justification, however, for putting 1938 as the year in which this letter was written by the appellant to Jadunath.
The Supreme Court opined that if this letter was taken as having been written by appellant to Jadunath on 9-12-1935 there was absolutely nothing on the record to show what happened between 9-12-1935 and 16-1-1939 and if appellant was so keen to marry Jadunath towards the end of 1935, there was no record as to what happened after 1935 which necessitated her waiting up to 16-1-1939 before putting her intention in execution. The Supreme Court opined that there was nothing suggested by respondent which explains this delay on her part.
The Supreme Court opined that the explanation given by appellant that her lawyers advised her that she would forfeit all her right to the property of the deceased if she contracted the marriage with Jadunath and that she therefore dropped the idea, was quite reasonable. There was nothing in the subsequent events which made her change her mind and marry Jadunath even though she knew fully well that by contracting the marriage with him she would forfeit all her right to the property left by the deceased.
The Supreme Court opined that the probabilities of the present case were against appellant having contracted the marriage with Jadunath on 16-1-1939. The Supreme Court further opined that appellant changed her mind after 1935 and preferred to live with Jadunath and carry on an illicit connection with him retaining whatever interest she had in the property movable and immovable left by her deceased husband.
The Supreme Court held that the conclusion reached by the Trial Court that respondent had failed to prove appellant’s marriage with Jadunath on 16-1-1939 at Benares was correct and the High Court was in error in reversing the decree of the Trial Court. The Supreme Court thus allowed the appeal and dismissed respondent’s suit with costs throughout. Further, the Supreme Court set aside the decree of the High Court and restored the decree passed by the Trial Court.
[Nanhi Bibi v. Bachchi Bibi, (1952) 2 SCC 720, decided on 10-12-1952]
Note: Presumption of Marriage
In Shiramabai v. Record Officer for O.I.C. Records, Sena Corps Abhilekh, 2023 SCC OnLine SC 1026, the Supreme Court held that if a man and woman cohabit as husband and wife for a long duration, one could draw a presumption in their favour that they were living together as a consequence of a valid marriage. This presumption could be drawn under Section 114 of the Evidence Act, 1872 which stated that “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”.
*Judgment authored by: Justice N.H. Bhagwati
Advocates who appeared in this case :
For the Appellant: C.K. Daphtary, Solicitor General of India (Ambika Prasad and K.B. Asthana, Advocates, with him)
For the Respondent: M.C. Setalvad, Attorney General of India and S.K. Dar, Senior Advocate (G.C. Mathur and Kailash Prasad Gupta, Advocates, with them)
