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Mohammad Jan Khan Vs. Mt. Sundar and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1934All884; 153Ind.Cas.855
AppellantMohammad Jan Khan
RespondentMt. Sundar and anr.
Excerpt:
- - the judge in the lower appellate court assents to the position that long cohabitation with one woman raises a strong presumption of legal marriage. 3. in any event, there is the strong presumption of continuous living as man and [wife in this case. i am satisfied that on the facts found by the lower appellate court the legal marriage of itwari and sundaria must be presumed......sundaria was not cross-examined by the other side either as to whether there was a custom of widow remarriage in her caste or as to what ceremonies, if any, were prescribed. the custom seems to have been accepted by the other side. i have been referred to gour's hindu code, 3rd ed., p. 302, article 528, and it is there stated that long before the hindu remarriage act among sudras widow remarriage was customary. so there is no reason to disbelieve this woman when she says that dharauna, or widow remarriage, was customary. i can find no authority, and i have been referred to none, which prescribes any particular form of ceremony for remarriages of this class among low class people. very little ceremony, if any is apparently required. the giving of the woman to the future husband, his.....
Judgment:

Young, J.

1. This is a second appeal from the decision of the learned Additional Subordinate Judge of Bareilly. The plaintiff took a transfer of a house by a sale from a sweeper woman. The only question in this case is whether that sweeper woman was the wife of the man she lived with and so could transfer legal titlo to the plaintiff or whether she was the kept woman or concubine of the man she lived with and title of the house would remain with the man's daughters by his first wife. The lower Court decided that there was no marriage. The plaintiff appeals.

2. The facts are that Itwari, a sweeper, was married and had two children. His wife died or left him. He wished some one to look after his children. About 13 years before the suit a sweeper friend of his - Nanha - suggested that he should take this woman as his wife. Apparently, Nanha was acting as her guardian. She was a widow. Itwari took this woman, lived with her for 13 years and registered her as his wife when he gave notice in the Municipal Register of the birth of his children. The Judge in the lower appellate Court assents to the position that long cohabitation with one woman raises a strong presumption of legal marriage. Ii apparently seems that if the case had been left there, he would have held that there was a legal marriage, there being no evidence to the contrary to rebut the presumption. The plaintiff however called the woman herself and she said that Nanha invited Itwari to his house and Nanha and Itwari agreed that Itwari should take the woman. They feasted two of their caste-follows and Nanha gave her to Itwari. She further says that Itwari took her into his house and that there was a custom of Dharauna in their caste and further that she lived with Itwari as his wife. The learned Judge thought that this woman meant that she was living as his concubine, and on this dismissed the suit, Sundaria was not cross-examined by the other side either as to whether there was a custom of widow remarriage in her caste or as to what ceremonies, if any, were prescribed. The custom seems to have been accepted by the other side. I have been referred to Gour's Hindu Code, 3rd Ed., p. 302, Article 528, and it is there stated that long before the Hindu Remarriage Act among Sudras widow remarriage was customary. So there is no reason to disbelieve this woman when she says that Dharauna, or widow remarriage, was customary. I can find no authority, and I have been referred to none, which prescribes any particular form of ceremony for remarriages of this class among low class people. Very little ceremony, if any is apparently required. The giving of the woman to the future husband, his taking her and living with her as his wife after feasting some of the biradri appears to be ample ceremony to effect a marriage.

3. In any event, there is the strong presumption of continuous living as man and [wife in this case. This presumption is [greatly strengthened by the description of Itwari and Sundaria as man and wife in the Municipal papers. There has been nothing in my opinion in the evidence called for the plaintiff to displace this presumption. Equally the defendant's have in no way displaced this presumption. The presumption of a legal marriage must therefore prevail over a suggestion of concubinage. This has been the only point argued. I am satisfied that on the facts found by the lower Appellate Court the legal marriage of Itwari and Sundaria must be presumed. The appeal therefore must be allowed with costs. Leave to appeal in Letters Patent is refused. Respondent 1 is dead and it was unnecessary to take steps.


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