Himachal Pradesh High Court: In a second appeal on the limits of customary marriage and the presumption arising from cohabitation, a Single Judge Bench of Rakesh Kainthla, J., held that neither an unproven local custom nor brief cohabitation could confer the status of a valid marriage. The Court set aside the concurrent findings of the courts below which had presumed a lawful marriage between the parties and observed that in the absence of proof of an ancient and binding custom and long cohabitation, Defendant 1 had no legal right to project herself as the plaintiff’s wife. The Court consequently granted a declaration negating the alleged marriage and restrained the defendants from making false claims of marital status or entering in the plaintiff’s house.
Background
The plaintiff alleged that the defendants asked him and his parents to solemnise a marriage between him and Defendant 1, and when the proposal was rejected, Defendant 1 started proclaiming herself as the plaintiff’s wife and produced an undertaking showing that a marriage was solemnised between them. A suit was instituted by the plaintiff seeking a declaration that no such marriage was solemnised as per the local customs and that Defendant 1 had no right to project herself as the legally wedded wife, along with a consequential injunction restraining her from claiming to be his wife and the interference of the defendants in his house.
The defendants took preliminary objections as to the lack of maintainability, the suit having not been properly valued for court fees, and the plaintiff having concealed the material facts from the Court. They asserted that the parties were governed by the local agricultural custom of District Kullu and that a marriage had been solemnised which was later affirmed by performance of customary rites on 4 May 2005, including putting a Thipu (Dupatta) on Defendant 1’s head before their deity and organising a feast for villagers. It was alleged that Defendant 1 had started living in the plaintiff’s house. However, the plaintiff maltreated Defendant 1 and threw her out of the house in January 2006, but the matter was compromised, and the plaintiff undertook to keep Defendant 1 in his house.
The trial court held that though the defendants had failed to prove that the marriage was solemnised as per the custom of the area, the plaintiff and Defendant 1 resided together, which made it probable that they were married to each other and dismissed the suit filed by the plaintiff. Aggrieved by the judgment, the plaintiff filed an appeal before the Additional District Judge, Fast Track Court, Kullu (appellate court) who affirmed the trial court’s ruling and observed that cohabitation between a man and a woman openly leads to an inference of a valid marriage, and the burden is upon the person denying the marriage to rebut this presumption. Hence, the present appeal was filed by the plaintiff.
The plaintiff’s counsel argued that the custom under which the marriage was claimed to be solemnised was not proved, that the marriage could not be done by executing a document, and that cohabitation for a few months could not raise a legal presumption of marriage. On the other hand, defendant’s counsel submitted that the courts below had recorded concurrent findings of fact and that no interference was warranted with a pure finding of fact while deciding a regular second appeal.
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Analysis and Decision
The Court relied on Sardar Mohammad v. Hosyara1, wherein it was observed that:
“Now, it is settled law that a custom, to have the force of law, must be ancient, certain, reasonable, continual, peaceable, consistent, legal, moral and not opposed to public policy. So far as custom as a rule of law applicable to a particular or defined locality, that is, local custom, is concerned, it must be shown also that it is compulsory in the sense that it is a customary right vested in the inhabitants of a particular locality and that it is not optional to every person to follow it or not.”
The Court also referred to Shakuntala v. Surinder Chand, 2006 SCC OnLine HP 8, and Laxmibai v. Bhagwantbuva, (2013) 4 SCC 97, which reiterated the above finding.
The Court noted that although the defendants claimed that the marriage was solemnised in accordance with the local custom known as Riwaj-e-Aam, no instances of such custom were cited, nor did their witness depose that any such custom was prevalent in the area. The Court observed that the reliance placed by the appellate court on Question 16 of the Tribal Custom of Kullu was misplaced, as the alleged ceremonies, including Ganesh Puja, were neither pleaded nor proved.
On the issue of presumption of marriage, the Court noted that cohabitation for a short duration of 7-8 months could not justify a presumption of a valid marriage. The Court relied on Chowdamma v. Venkatappa, 2025 SCC OnLine SC 1814, wherein it was observed that a presumption arises regarding the legality of the marriage between a man and a woman when they have lived together for long years as husband and wife. The Court noted that in the present case, there was no evidence of cohabitation between the plaintiff and Defendant 1, and the plaintiff denied in his cross-examination that he and Defendant 1 had resided together as husband and wife.
Regarding the undertaking relied upon by the courts below, the Court observed that the document was not an agreement of marriage but merely an undertaking, and there was no material on record to corroborate its contents, and there were many inconsistencies with the pleaded version. The Court observed that the marriage can only be solemnised as per the custom and not by the acknowledgement. Therefore, even if the plaintiff had admitted that Defendant 1 was his wife, it was not sufficient to prove that they were legally married, especially when the custom pleaded had not been proved.
The Court opined that the trial court held that the custom was not proved but relied upon the presumption of marriage, which was not attracted to the present case because of the absence of proof of long cohabitation. The appellate court held that the custom was proved, but the custom held to be proved by the appellate court was never pleaded. Consequently, the Court observed that both the courts below misappreciated the evidence on record, and the findings recorded by them were not sustainable.
Accordingly, the Court allowed the appeal and set aside the judgment passed by the trial court and affirmed by the appellate court. The Court passed a decree granting declaration that Defendant 1 was not the legally wedded wife of the plaintiff and also granted permanent prohibitory injunction, restraining Defendant 1 from proclaiming herself to be the plaintiff’s wife and the defendants from entering his house.
[Kailash Chand v. Deepa Devi, RSA No. 173 of 2008, decided on 9-4-2026]
Advocates who appeared in this case :
For the Plaintiff: Raman Jamalta, Advocate.
For the Defendants: Vivek Singh Thakur, Advocate.
1. ILR 1988 HP 226
