Supreme Court: Burden is on Party Who Questions Cohabitation

LI Network

Published on: 20 August 2023 at 12:10 IST

The Supreme Court of India has recently upheld a wife’s appeal in a case where her husband, a military personnel, married her while still legally married to another woman. After subsequently divorcing his first wife.

The court reiterates the principle that a presumption of marriage arises when a man and a woman have cohabited over an extended period of time. In such cases, anyone aiming to question the validity of this relationship bears the substantial responsibility of providing strong evidence to counter this presumption.

The bench, consisting of Justice Hima Kohli and Justice Rajesh Bindal, highlighted that the law assumes a marriage when two individuals have lived together as a couple for a considerable duration. This presumption, though rebuttable, can only be overcome with compelling evidence. If circumstances exist that challenge this presumption, courts must consider these factors.

The onus falls heavily on the party aiming to dispute the cohabitation and negate the legal sanctity of the relationship.


The case revolves around the late Subedar Bhave, who had been married three times. His first wife, Parvati, passed away after two and a half years of marriage. Subsequently, he married Anusuya, but their marriage ended in divorce in 1990.

During his marriage to Anusuya, he married the appellant and together they had two children. After leaving the army in 1984, Subedar Bhave received a service pension and requested the respondents to update his records, replacing Anusuya’s name with that of the appellant. The respondents declined, citing the divorce between Subedar Bhave and the appellant in 1990

Subedar Bhave passed away in 2001, and the appellant sought a family pension from the respondents. However, they claimed that Anusuya was the legal heir. The appellant filed a civil suit for a declaration and an order directing the disbursement of pensionary benefits.

The initial ruling favored the appellant, granting her the benefits. The respondents appealed, resulting in the reversal of the prior judgment. The appellant then filed a second appeal before the High Court, which was also dismissed. Consequently, the appellant approached the Supreme Court, challenging the High Court’s decision.

Legal Analysis:

The Supreme Court emphasized that according to Section 114 of the Evidence Act, a valid marriage can be presumed when a man and a woman cohabit as husband and wife for an extended period. However, this presumption can be challenged and overturned, but the onus of disproving the marriage rests heavily on the party contesting its legitimacy.

Referring to the case of Tulsa and Others v. Durghatiya and Others [(2008), the Court asserted that although the presumption in favor of marriage exists, the burden of proof lies with the party seeking to disprove it.


The Court concluded that the appellant is entitled to the pension following Subedar Bhave’s death. Additionally, their illegitimate children are entitled to the same benefits until they reach the age of 25. As a result, the Court allowed the appeal, overturning the previous order.

Case Title: Smt. Shiramabai W/O Pundalik Bhave & Others V. The Captain, Record Officer For O.I.C. Records, Sena Corps Abhilekh, Gaya, Bihar State And Another (2023)

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