When can a presumption of marriage raised between parties who are not married to each other

In the case of A. Dinohamy vs. W.L. Balahamy (AIR 1927 PC 185), the privy council had held that where a man and woman are proved to have lived together as husband and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.

Supreme Court in the matter namely Thakur Gokalchand vs. Parvin Kumari (MANU/SC/0077/1952 = AIR 1952 SC 231), decided on 16.05.1952 that the continuous cohabitation of man and woman as husband and wife may raise the presumption of marriage, but the presumption which may be drawn from long cohabitation is a rebuttable one and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them.

Polygamy, that is a relationship or practice of having more than one wife or husband at the same time, or a relationship by way of a bigamous marriage that is marrying someone while already married to another and/or maintaining an adulterous relationship that is having voluntary sexual intercourse between a married person who is not one’s husband or wife, cannot be said to be a relationship in the nature of marriage. The Court in this matter while dealing with issue relating to applicability of customary law further laid down general principles to be kept in view in dealing with questions of customary law, as under:

(1)    It should be recognized that many of the agricultural tribes in the Punjab are governed by a variety of customs, which depart from the ordinary rules of Hindu and Muhammadan law, in regard to inheritance and other matters mentioned in section 5 of the Punjab Laws Act, 1872.
(2)    In spite of the above fact, there is no presumption that a particular person or class of persons is governed by custom, and a party who is alleged to be governed by customary law must prove that he is so governed and must also prove the existence of the custom set up by him. (Refer Daya Ram v. Sohel Singh and Others P.R. (1906) 390 and Abdul Hussein Khan v. Bibi Sona Dero. L.R. 45 I.A, 10)
(3)    A custom, in order to be binding, must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that “a custom, in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary” should not be strictly applied to Indian condition. All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality. (Mt. Subhani v. Nawab. MANU/PR/0005/1940)
(4)    A custom may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognizant of its existence and it is exercise without controversy, and such evidence may be safely acted on when it is supported by a public record of custom such as the Riwaj-i-am or Manual of Customary Law. (Ahmad Khan v. Mt. Channi Bibi MANU/PR/0044/1925)
(5)    No statutory presumption attaches to the contents of a Riwaj-i-am or similar compilation, but being a public record prepared by a public officer in the discharge of his duties under Government rules, the statements to be found therein support of custom are admissible to prove facts recited therein and will generally be regarded as a strong piece of evidence of the custom. The entries in the Riwaj-i-am may however be proved to be incorrect, and the quantum of evidence required for the purpose of rebutting them will vary with the circumstances of each case. The presumption of correctness attaching to a Riwaj-i-am may be rebutted, if it is shown that if affect adversely the rights of females or any other class of persons who had no opportunity of appearing before the revenue authorities. (Beg v. Allah Ditta A.I.R. 1916 P.C. 129; Saleh Mohammed v. Zawar Hussain, MANU/PR/0034/1943; Mt. Subhani v. Nawab MANU/PR/0005/1940)
(6)    When the question of custom applicable to an agriculturist is raised, it is open to a party who denies the application of custom to show that the person who claims to be governed by it has completely and permanently drifted away from agriculture and agricultural associations and settled for good in urban life and adopted trade, service, etc., as his principle occupation and means and source of livelihood, and does not follow other customs applicable to agriculturists (Muhammad Hayat Khan v. Sandhe Khan and Others (1906) 55 P.R. 270; Muzaffar Muhammad v. Imam Din, I.L.R. (1928) Lah. 120)
(7)    The opinions expressed by the compiler of a Riwaj-i-am or Settlement Officer as a result of his intimate knowledge and investigation of the subject, are entitled to weight which will vary with the circumstances of each case. The only safe rule to be laid down with regard to the weight to be attached to the compiler’ remarks is that if they represent his personal opinion or bias and detract from the record of long-standing custom, they will not be sufficient to displace the custom, but if they are the result of his inquiry and investigation as to the scope of the applicability of the custom and any special sense in which the exponents of the custom expressed themselves in regard to it, such remarks should be given due weight (Narain Singh v. Mt. Basant Kaur A.I.R. 1935 Lah. 419; Mt. Chinto v. Theiur A.I.R. 1985 Lah. 985; Khedam Hussain v. Mohammed Hussain A.I.R. 1941 Lah. 73)