Law presumes in favour of marriage, against concubinage: Chhattisgarh High Court

The Chhattisgarh High Court, while denying maintenance to a wife and daughter, held that the law presumes in favour of marriage and is against concubinage [Jaanki Yadav v. Gorakhnath Yadav]..A Division Bench of Justices Goutam Bhaduri and Sanjay Agrawal noted that the presumption of marriage is to be established by way of conduct, mode of life, and predilections of other persons."The law presumes in favour of marriage and against concubinage, when a man and a woman was cohabit continuously for a number of years but the evidence would show that the applicant only remained for few months, therefore, the said presumption of marriage also cannot be drawn," the judgment said..The High Court was hearing a wife's petition seeking monthly maintenance for herself and her minor daughter from a police officer with whom she had an intimate relationship, on the promise of marriage. The couple had allegedly got married in a small ceremony held in the presence of villagers on April 11, 2005. She then went to her matrimonial house, only to discover that her husband was already married and had four children from his recently-deceased first wife.On giving birth to to their daughter, some rituals were performed after which she was sent back to her parental house with a promise that her husband would come to take her back, which never happened, she claimed. The wife claimed that the circumstances had resulted in starvation.She thus filed proceedings before the family court at Manendragarh seeking maintenance, but her plea was turned down on November 15, 2011..Contesting her plea before the High Court, the husband claimed that there was no question of marrying her, since he was already married. He claimed that the child was not a legitimate child. He argued that there cannot be any presumption of marriage as there were no independent witnesses to show that a marriage was performed.Further, the husband argued that he and the applicant wife had not lived together together for a considerable time to make out a case for maintenance.."It is not a case that parties lived together for several years in the same house and children were born out of their wedlock. There is no evidence on record that the husband, recognise, his wife and children by affectionate provisions," the Court held.Therefore, when the marriage itself has not been proved, the legitimacy and presumption for it cannot be drawn, the judgment stated.The Bench noted that the priest who performed the marriage was not examined as a witness in the case.It was further brought to light that the wife relied upon a document of the hospital and also the birth certificate that reflected the name of the husband as her daughter's father, proving paternity."The daughter though is in hold of acknowledgment of his paternity which normally in turn attaches legitimacy of marriage but in order to establish the legitimacy of child, the marriage was required to be proved," the Bench stated.The High Court upheld the orders of the family court and directed the husband to give his daughter a legitimate share in his property, since he had not challenged paternity..Advocate Shakti Raj Sinha appeared for the wife, while the husband was represented by Advocate Ashok Shukla..[Read judgment]