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--------------- Print Magazine --------------
  May 2016
  April 2016

Live in Relationship: Legitimacy of Child

S.P.S. Balasubramanyam v. Suruttayan alias Andali Padayachiand, AIR 1992 SC 756

Facts: One Manthi alias Thambiran Padayachi had three sons one of whom was called Chinnathambi. The admitted wife of Chinnathambi was called Pavayee, who is referred hereafter as Pavayee No.1. Chinnathambi was living with another woman having the same name who is hereinafter referred to as Pavayee No. 2. Two sons and one daughter were born to Chinnathambi with Pavayee No.2. Ramaswamy was one of the sons. Manthi executed a will dated 17th March, 1930 bequeathing his properties to his children and grandchildren. Chinnathambi filed a suit against his brothers claiming a share in the properties bequeathed under the will and also in respect of other family properties. The suit was terminated by a compromise dated March 18, 1952. Chinnathambi was given a share in the suit property. In respect of that share of property, he executed a settlement deed dated 4th April, 1968 by which he gave the property to his wife and his children. Ramaswamy got 1/3rd of the property including the property sold to the plaintiff.
The defendants contended that Ramaswamy was not the legitimate son of Chinnathambi and in any event Chinnathambi could not get absolute right in respect of his share of property given to him. The trial Court accepting the case of the defendants dismissed the suit. It was held that there was no evidence about the marriage of Chinnathambi with Pavayee No.2. The appellate Court however, held to the contrary. It held that since Chinnathambi and Pavayee No.2 continuously lived under the same roof and cohabited for a number of years the law would raise presumption that they lived as husband and wife. There was no other evidence to destroy that presumption. So stating the plaintiff’s suit was decreed. In the second appeal the High Court took a different view. It was held that presumption available in favour of Pavayee No. 2 by her continuous living with Chinnathambi had been destroyed by other circumstances in the case. The High Court relied upon three circumstances to rebut the presumption (i) Non-mentioning the name of Pavayee No.2 in the will; (ii) Not referring the names of Pavayee No.2 and her children by Chinnathambi in the compromise; and (iii) The evidence of witnesses. The Court did not accept the fact that the circumstances relied upon by the High Court were not relevant to destroy the presumption which was otherwise available to recognise Pavayee No.2 as the wife of Chinnathambi. The first two circumstances relied upon by the High Court were indeed neutral. The absence of any reference to Pavayee No.2 in the will or in the compromise could not be held against the legitimacy of the children of Pavayee No.2 born to Chinnathambi. Equally, the court could not find anything from the evidence of witnesses. Both these witnesses did not deny that Chinnathambi and Pavayee No. 2 were living together. It was not in dispute that children including Ramaswami were born to Chinnathambi. In court’s opinion, the circumstances and the evidence relied upon by the High Court were not relevant to destroy the presumption that Chinnathambi and Pavayee No.2 lived together as husband and wife.

Issue: Whether the child born out of live-in relationship has right to property and is to be treated as legitimate one?

Judgment: In the result the appeal was allowed, the judgment and decree of the High Court were set aside and that of the first Appellate Court were restored. Finally Ramaswamy was treated as a legitimate son and got property right by court.

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