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SC: Illegitimate Child of Cohabiting Couple Entitled to get Share in Property

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Supreme Court Law Insider

Paridhi Arya

Published on June 14, 2022 at 17:46 IST

The Bench of Justice S Abdul Nazeer and Justice Vikram Nath reversed the order passed by Kerala High Court. The Bench ordered that illegitimate son has a right of share in the father’s property.

The Court observed that it is well established in the Court that the couple is not married but cohabiting since very long. The presumption of marriage cannot be opposed by the respondent.

Kerala High Court ordered that due to the illegitimacy son cannot be entitled to the share in the property. This matter is since 40 years hanging between Trial Court, High Court and Supreme Court.

The trial court firstly decided the matter in favour of the illegitimate child but the High Court found that documents do not create presumption of subsisting valid between Damodaran and Chiruthakutty and so the son born to them is illegitimate and not entitle for property.

The matter again passed to Trial Court for fresh consideration. Petitioner asked for Remand Order from Supreme Court. Supreme Court asked High Court to decide the matter and High Court gave the same decision as given earlier.

So, the Bench of Supreme Court observed “These documents, coupled with the evidence of a witness, would show the long duration of cohabitation between Damodaran and Chiruthakutty as husband and wife. The first plaintiff joined military service in 1963 and retired in 1979. Thereafter he has taken the steps to file a suit for partition of the suit schedule property.”

Hence, the Supreme Court reversed the decision given by High Court.