D. H. SHUKLA, J. ( 1 ) THE appellant Shantaben Tulsidas Sharma claiming to be a wife of the respondent Tulsidas Madhavdas Sharma filed Civil Suit No. 1173 of 1977 in the City Civil Court at Ahmedabad alleging that the respondent had treated her with cruelty and further that the respondent had deserted her and consequently she prayed that the respondent be ordered to pay a monthly amount of maintenance at the rate of Rs. 1500/to her from the date of the suit and that a charge for the same be created on the properties of the respondent. ( 2 ) THE respondent contested the appellants suit by filing a written statement at Exh. 9. The main contention which the respondent raised in his defence was that the plaintiff was not his lawfully wedded wife and that she was not legally entitled to claim any maintenance from him. He denied that he was guilty of any cruelty towards her and he also denied that he had deserted her. He alleged that in fact it was the appellant herself who was guilty of an erratic and harassing conduct towards him. It must be noticed however that the respondent did not deny cohabitation with her and he also did not deny that four children were borne by her to him out of a prolonged period of cohabitation. ( 3 ) THE learned trial Judge framed issues at Exh. 12. He raised issues concerning the allegation of cruelty and desertion and he decided both of them against the appellant. He also raised an issue about the legality of the appellants marriage with the respondent and in deciding the issue he upheld the validity of the marriage. ( 4 ) BEING aggrieved by the judgment and order of the learned City Court Judge the original plaintiff has filed the present appeal challenging the final order in the suit by which her suit was dismissed. The respondent (original defendant) was also aggrieved by the finding of the learned trial Judge that the appellant was the lawfully wedded wife of the respondent and being so aggrieved he has filed the Cross Objections challenging the same finding. ( 5 ) THE appeal was keenly contested between the parties in general and it was all the more keenly contested so far as the dispute raised by the Cross Objections was concerned. ( 5 ) THE appeal was keenly contested between the parties in general and it was all the more keenly contested so far as the dispute raised by the Cross Objections was concerned. The challenge to the finding of the learned trial Judge about the validity of marriage was indeed a serious one as its impact not only on the appellant and the respondent but on their children also would necessarily be of grave and far reaching consequences. In order therefore fully to appreciate the circumstances in which the appellant and the respondent married and ultimately developed ill-feelings the important facts may be stated. ( 6 ) THE appellant Shantaben was married to one Gordhandas Sitaram in the year 1943 at Lahore. In about 1946 she along with her husband Gordhandas came to Ahmedabad and started residing in a Chawl belonging to the respondent which was situated below Kalupur Bridge Ahmedabad. Gordhandas and the appellant both originally belonged to Punjab. During their residence in the Chawl of the respondent the appellant came in contact with the respondent and after some time the contact became intimate. In May 1947 she deserted the house of Gordhandas and in the month of August 1947 a divorce deed was executed between Gordhandas and the appellant. The divorce deed is at Exh. 30. Ever since thereafter the appellant resided as the wife of the respondent and even when the suit in question was filed by her she continued to occupy room/ rooms in the very house of the respondent. The appellant had admittedly two issues out of her former wedlock with Gordhandas. Those issues are Satish and Chandrakala aged at present about 34 and 32 respectively. It is also an admitted position that she bore four issues to the respondent. They are Yogendra (aged 27) Rajendra (aged 18) Sunita (aged 20) and Anita (aged 12 ). She has one more son Narendra by name (aged about 30) who was borne during her wedlock with Gordhandas but who is alleged to be the son of the respondent. It is necessary to note that after her marriage with the respondent the respondent is maintaining not only Narendra but Satish and Chandrakala also. It appears that besides the four children there were two more children borne to her of the respondent but they have expired. It is necessary to note that after her marriage with the respondent the respondent is maintaining not only Narendra but Satish and Chandrakala also. It appears that besides the four children there were two more children borne to her of the respondent but they have expired. ( 7 ) ACCORDING to the appellants evidence she was marked with the respondent in September 1948 after the birth of Narendra. The respondent at that time was a bachelor. ( 8 ) THE respondent has four brothers. The respondents chawl situated at Saraspur was about to be acquired by the Municipal Corporation and so the respondent submitted an application to the Income-tax Department to the effect that his brothers also were co-owners of the same property. The appellant protested on the ground that the respondent should have moved for entering her name and the names of her children as his co-owners rather than joining his brothers as the co-owners of the said property. She further alleges that whenever the respondent wanted the signatures of his brothers on papers relating to Income-Tax his brothers extorted different sums from him. She has averred that this is the main cause of the rift between them. She avers that whenever she protested on this Count she used to be beaten by him. At one point of time the respondent asked her to leave the house and told her that she had no legal right to stay there. As she had nowhere else to go to the respondent had asked her to stay in one room only of the house. She is since then required to cook her food separately and she slept also separately. This state of affairs continued for a period of about two years after which she filed the present suit. She alleges that although she was asked to stay separately by the husband he did not pay her any amount after 1971 although he has valuable immovable properties and large income. According to her before she started living separately the household expenditure was about Rs. 4 0 per month. The respondent is maintaining a car since 1947 is having telephone and is enjoying the services of two domestic servants;. . . . . . . . . . . . . . According to her before she started living separately the household expenditure was about Rs. 4 0 per month. The respondent is maintaining a car since 1947 is having telephone and is enjoying the services of two domestic servants;. . . . . . . . . . . . . . [his Lordship after discussing the evidence made following observations:-] ( 9 ) WE uphold therefore both the findings of the learned trial Judge that is to say both as regards cruelty and desertion. Since we agree with the finding of the learned trial Judge on the issues relating to desertion and cruelty we do not find any reason to disagree with his final order by which he dismissed the appellants suit. ( 10 ) THE learned trial Judge framed an issue being issue No. 1 whether the plaintiff is the legally married wife of the defendant. The issue was obviously based on account of the rival positions taken by the parties in their respective pleadings. The learned trial Judge after carefully considering the evidence on the record of the case as well as the legal position has decided this issue in the affirmative. In fact the decision on issue No. 1 loses its importance once the learned trial Judge came to the conclusion that the appellant had failed to prove cruelty and desertion on which ground she had claimed separate residence and maintenance. We have felt that this issue is not required to be decided in the aforesaid circumstances. The respondent could also have fairly not pressed the same issue. He would not fail to realise that if the issue about the legality of marriage is decided in his favour it would not only adversely effect the appellant but it would operate as a permanent stigma on his children also whom he has so affectionately maintained althrough out despite his unhappy relations with the appellant. We had indicated also to the learned advocate Mr. S. B. Vakil the adverse impact which the decision of this issue would have in case it was decided in his favour. The respondent however thought it fit to pursue his prayer for decision on that issue. We must therefore now proceed to decide this question as it arises out of the Cross Objections filed by the respondent. . . . . . . . . . . . . . . . The respondent however thought it fit to pursue his prayer for decision on that issue. We must therefore now proceed to decide this question as it arises out of the Cross Objections filed by the respondent. . . . . . . . . . . . . . . . ( 11 ) AFTER having thus considered the rival positions as they emerge out of their pleadings and depositions we shall now consider the marital status of the appellant as it emerges out of the circumstances on the record of the case. It is important to note that the respondent himself recognised the appellant as his wife in the application (Exh. 38) which is submitted in a Sessions Case to obtain his release on bail. The learned trial Judge has rightly emphasised his conduct in regard to the appellant in expressly accepting her as his wife. Not only that there is a history of unbroken cohabitation as husband and wife for 30 long years but as seen above there is also an admission on the part of the respondent recognising her as his wife. Besides this there is evidence on record to suggest that she was even domestically and socially recognised as his wife. We may refer to a letter written by Narendra to her from Canada. It is dated 3-8-1977 and is at Exh. 48. It appears from that letter that the respondent had intended to take his family inclusive of the appellant to Canada and was to proceed there as the dependent of Narendra and the other members as his own dependents. The perusal of this letter indicates how the appellant and the respondent were taken by him and for that matter by other children. There are other letters also to the same effect. Exh. 61 is a notice dated 1-1-1967 addressed by Kamladevi Co-operative Housing Society Ltd. to the appellant in which she is described as the wife of the present respondent. This is an instance how she was treated by the strangers to the family. Similarly Exh. 68 dated 1-4-1977 is a letter written by the Councilor (Manpower and Immigration) to the present respondent by which the respondent was invited for a personal interview in connection with his application for migration to Canada. It is stated in the letter inter alia At that time you should be accompanied by the persons if any listed below. Similarly Exh. 68 dated 1-4-1977 is a letter written by the Councilor (Manpower and Immigration) to the present respondent by which the respondent was invited for a personal interview in connection with his application for migration to Canada. It is stated in the letter inter alia At that time you should be accompanied by the persons if any listed below. Mrs. Wife Mrs. Shantaben Sharma. Exh. 69 is a certificate in respect of her passage issued by Air India. It also refers to the present appellant as Mrs. S. T. Sharma. A further reference may also be made to letters (Exhs. 66 and 67) written by Mr. Puran who is the nephew of the respondent in which two letters the appellant is referred to as Mammi and the respondent as Pappa. There is therefore abundant evidence on the record of the case to show that the appellant was althrough out treated not only by herself and the respondent but by the members of the family as well as by the strangers to the family as a wife of the respondent. ( 12 ) IN this connection one further incident is also relevant and is required to be taken into account while considering the question of the factum and the validity of marriage. Gordhandas had filed an application being Misc. Application No. 19/61 in the Court of the City Civil Judge at Ahmedabad to obtain the custody of his two children. At paragraph 5 of the application Gordhandas has averred that he is the father of the two children and that the opponent therein namely the present appellant had obtained a divorce from him in 1947. For the reasons stated in the oral order his application was dismissed. But thats a different matter. Now this application was contested by the appellant wherein she was assisted by the present respondent. Respondent has admitted that he had engaged an advocate for the appellant to contest those proceedings. It appears that the respondent has also paid the fee of the advocate and had also borne the expenses regarding the said proceedings. The respondent was therefore well aware of those proceedings wherein the divorce of the appellant with her previous husband was an accepted position. It appears that the respondent has also paid the fee of the advocate and had also borne the expenses regarding the said proceedings. The respondent was therefore well aware of those proceedings wherein the divorce of the appellant with her previous husband was an accepted position. ( 13 ) TAKING all these circumstances and evidence on record into account the learned trial Judge upheld the factum and the validity of the marriage of the appellant with the respondent. During the course of the judgment the learned trial Judge relied upon a ruling in the case of Bhadursing Dilipsingh and Others Appellants 1. Kartarsingh Dilipsingh Respondent (A. I. R. 1950 Madhya Bharat page 1 ). The learned trial Judge has relied upon the observations in that case in the following words:-"it has been observed that since the time of Guru Govindsingh Sikhism has been a proselytising religion:- and Sikhs are disposed to extend recognition to all permanent unions between a member of their community and a woman of another caste and so it is not proper to apply general principles of Hindu Law of marriage to the parties who are Sikhs. Furthermore it has been pointed out that the rules of marriage amongst Sikhs are notoriously lax and marriages with other caste including with those whose touch is pollution to orthodox Hindus are generally recognised. It has also been observed in this case that it becomes very difficult to prove the factum of marriage or divorce after a pretty long period of 16 years and consi dering this aspect help is generally taken from legal presumption. It has also been observed in this case that presumption of marriage in such cases can be repelled only by the evidence of clearest character for the presumption of law is not to be shaken of by mere balance of probability and that evidence for the purpose of repelling it must be strong distinct satisfactory and conclusive". The learned trial Judge further observed Keeping the aforesaid principles in mind it appears both from the conduct of the said Gordhandas as well as from the divorce deed (Exh. 30) that he had renounced his right as a husband thus entitling the plaintiff to remarry if she was so inclined. The said Gordhandas would not have filed the aforesaid Miscellaneous Application if he had not divorced the plaintiff as stated in Exh. 30. 30) that he had renounced his right as a husband thus entitling the plaintiff to remarry if she was so inclined. The said Gordhandas would not have filed the aforesaid Miscellaneous Application if he had not divorced the plaintiff as stated in Exh. 30. He has also later on in his judgment observed that it was very difficult to prove the factum of marriage after a long period of 28 years as in the present case. He has also relied upon the respondents utter omission to lead any evidence to rebut the presumption of marriage. In order to further substantiate his finding he relied upon the case of Bai Appibai v. Khimji Cooverji (38 B. L R. page 77):- Raghuvir Kumar (minor by next friend and mother Shri D. P. Kamalkumari and another Appellant v. Smt. Shanmughavadiavu and others Respondents (A. I. R. 1971 Madras page 330) and Vaikuntam Mamikyamma Appellant v. Puppalla Respondent (A. I. R. 1971 Orissa page 49 ). All these cases relate to a proposition that a long uninterrupted cohabitation raises a presumption of lawful marriage. He has also appropriately quoted a passage from the case of Linga Mallik Appellant v. Aiodya Mallikani and another Respondent (A. I. R. 1974 Orissa 107 which runs thus:-"it is well established that where a marriage in fact has been performed it will be presumed that necessary ceremonies have also been duly performed and it is incumbent on him who challenges the legality of the marriage to rebut the presumption and to establish by evidence that the form of marriage is invalid in some respect or the other. It is not necessary that the witness to the marriage should prove all the details which taken together constitute a valid marriage under the Hindu Law. This position of law has been established since a very long time and the Privy Council in Mouji Lal v. Chandrabati Kumar (1911) ILR-38 Ca. 700 (PC) has held that there a ceremony of marriage undoubtedly took place a strong presumption in favour of the marriage applies to the forms and the ceremonies necessary to constitute it a valid marriage". ( 14 ) THE learned trial Judge took into account the evidence of Ambalal Dave and Bai Sanku and considered them as reliable witnesses with regard to the performance of marriage between the appellant and the respondent. ( 14 ) THE learned trial Judge took into account the evidence of Ambalal Dave and Bai Sanku and considered them as reliable witnesses with regard to the performance of marriage between the appellant and the respondent. The factum of marriage is therefore deemed to have been proved by the deposition of the appellant and by the depositions of the two witness and we feel justified in coming to the conclusion that once the factum of marriage is proved there is a presumption of its legality. The position which is so brought about is that a long uninterrupted cohabitation raises a presumption of marriage and further from such cohabitation with an evidence of the performance of the marriage though such evidence may not be as complete as one may wish for there arises a presumption of validity of marriage. After considering all the relevant factors with the seriousness that the occasion requires we have reached the conclusion that the learned trial Judge was perfectly justified in reaching the conclusion which he did. ( 15 ) IT is against this conclusion that the Cross Objections are addressed and Mr. S. B. Vakil strenuously argued before us to persuade us to reach to a conclusion that the appellant had miserably failed to prove the factum of marriage as well as the factum of divorce according to custom in her community on the basis of which the legality of the second marriage is founded. . . . . . . . . . . . ( 16 ) WE now proceed to discuss the second aspect of this question. Mr. Vakil submitted that assuming that the factum of marriage is proved it must further be proved that it was a valid marriage. He further submitted that it was an admitted position that the appellant was previously the wife of Gordhandas and that the same marriage was supposed to have come to an end by the deed of divorce (Exh 10 ). He therefore further submitted that unless and until the legality of the divorce is established the marriage tie with Gordhandas cannot be deemed to have been terminated by the same divorce deed. He referred us to the contention raised by the respondent in his written statement paragraph 6 that the appellant is the wife of one Gordhandas Sitaram. Mr. He therefore further submitted that unless and until the legality of the divorce is established the marriage tie with Gordhandas cannot be deemed to have been terminated by the same divorce deed. He referred us to the contention raised by the respondent in his written statement paragraph 6 that the appellant is the wife of one Gordhandas Sitaram. Mr. Vakils argument was that although there is such a contention as it is raised in the written statement and although the appellant was challenged in cross-examination that there was no custom of divorce as alleged by her the appellant has not led any reliable evidence to prove her assertion regarding the prevalence of custom in the community to which she belonged whereby a divorce by execution of a divorce deed was permitted. ( 17 ) WE have referred above to several cases wherein a strong presumption is said to arise on account of along cohabitation. We need not refer to these authorities again. Mr. Vakharia. however cited a recent authority of the Supreme Court in the case of Badri Prasad Petitioner v. Dy. Director of Consolidation and others Respondents reported in AIR 1978 Supreme Court page 1557 in which the principle of raising a strong presumption in favour of the wedlock is expressed in equally strong language. For around 50 years a man and a woman as the facts in this case unfold lived as husband and wife. An adventurist challenge to the factum of marriage between the two by the petitioner in this Special leave Petition has been negatived by the High Court and in this connection the Supreme (Court observed in the following terms A strong presumption arises in Favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable a heavy burden lies on him who seeks to deprive the relationship of legal origin. Law leans in favour of legitimacy and frowns upon bastard. In this view the contention of Shri Garg for the petitioner that long after the alleged marriage evidence has not been produced to sustain its ceremonial process by examining the priest or other witnesses deserves no consideration. If man and woman who live as husband and wife in society are compelled to prove half a century later by eyewitness evidence that they were validly married few will succeed. If man and woman who live as husband and wife in society are compelled to prove half a century later by eyewitness evidence that they were validly married few will succeed. The contention deserves to be negatived and we do so without hesitation. The contention of Mr. Vakil required by us to be considered in the light of the emphatic approach of the Supreme Court in the matter. ( 18 ) THE first marriage of the appellant is said to have terminated by a deed of divorce (Exh. 30 ). She has claimed in the suit that she is a lawfully wedded wife of the respondent. She claimed maintenance from the respondent her husband on the ground of cruelty and desertion. She filed a suit roughly about 30 years after her marriage. She therefore naturally proceeded in the suit claiming to be the wife of the respondent. It is pertinent to note at this stage once more that at no point of time prior to the filing of the written statement had the respondent ever denied the marital status of the appellant. The appellant was therefore quite justified in straightway claiming to be a lawfully wedded wife of the respondent and she could not be expected to aver in the plaint about the grounds on which the validity of the divorce was founded. However when the validity of the divorce was challenged by the respondent in his written statement the stated in her deposition that the validity of the divorce depended upon the custom of the community to which she belonged. We have referred to that part of her deposition above To reaper the same it is no paragraph of not deposition. she has an very clear terms stated about the custom of divorce in her community. She has also stated in her evidence specifically that there is a custom in her community to dissolve a marriage by execution of a divorce deed. As against such clear statement on oath made by her there is absolutely no evidence led by the respondent to disprove her statement. He has not even stated on oath that there is no such custom in the community to which the appellant belongs. ( 19 ) THERE are indeed therefore circumstances on the record of the case from which a strong presumption of a lawful marriage of the appellant with the respondent can be drawn. He has not even stated on oath that there is no such custom in the community to which the appellant belongs. ( 19 ) THERE are indeed therefore circumstances on the record of the case from which a strong presumption of a lawful marriage of the appellant with the respondent can be drawn. ( 20 ) MR. Vakil however submitted that cohabitation does not necessarily imply marriage but marriage must be proved. The above-stated argument of Mr. Vakil cannot have any effect since there is a number of authorities some of which we have referred to above laying down that a presumption and in some cases a strong presumption arises from a long and uninterrupted cohabitation between a man and a woman. . ( 21 ) MR. Vakils next argument was that it was true that there was a line of cases in which presumption is said to arise from cohabitation of a woman who claims to be the wife of another. However such a presumption would not arise in the present case as the relationship between them had been initiated on illegal terms. This argument must be considered in the light of the background of the circumstances of the case. Factually speaking it must be statute that there is no evidence to convincingly show that the appellant had started living with the respondent prior to her marriage with the respondent. The birth of the child viz. Narendra which is alleged to be on account of illegitimate intimacy with the respondents is required to be presumed to be legitimate as that birth was during the subsisting of marriage with her previous husband. The circumstances of the case give rise to a conclusive presumption of legitimacy under sec. 112 of the Indian Evidence Act. Further there is no evidence that during her first wedlock she resided with the respondent as his permanent concubine. Even at best the allegation is that she had an amorous adventure with him. Further she has succeeded in proving her divorce and not only that but it also transpires that divorce was brought about at his instance and therefore within his knowledge. She has also succeeded in proving her marriage with him. The presumption in our opinion therefore does arise not only about factual of marriage but about its validity also. Further she has succeeded in proving her divorce and not only that but it also transpires that divorce was brought about at his instance and therefore within his knowledge. She has also succeeded in proving her marriage with him. The presumption in our opinion therefore does arise not only about factual of marriage but about its validity also. We do not think that her alleged prior intimacy with the respondent would come as a bar preventing us from raising such a presumption. Mr. Vakil cited and emphasised upon a ruling reported in 11 M. I. A. page 194 (Mussumt Jariut011 Butool alies Husein Buksh appellant and Mussumat Huseinee Begum Respondent.) He referred to us the following observations reported at page 209 of that ruling If it were once conceded that a woman once a concubine could be converted by judicial presumptions into a wife merely by lapse of time and propriety of conduct and the enjoyment of confidence with powers of management reposed in her when and after what period of time should such presumption arise? The ordinary legal presumption is that things remain in their original state. Were then the Courts below well founded in treating the original connection by the appellant with the deceased Abdoola as an illicit connection ? The evidence was conflicting. She herself admits that she was once a prostitute. It is true that she alleges penitence and a change of life and some of her witnesses say that she had relinquished the life of a prostitute before her inter house with Abdoola began and one witness says that she had discontinued it five years before she came to live with Abdoola. It was further observed The court had to determine amidst conflicting evidence whether it was more likely that he should make a woman of that class his wife and settle on her a very large dower or that he should induce her to live with him as his mistress displacing the former favourite ?. . . . . . If then the Courts below were justified in finding that the original connection was illicit where is the evidence of any change in its character ? We have cited these observations as they bring forth some important facts of that case. One who was claiming to be a wife was once a prostitute and that was admitted by herself. . If then the Courts below were justified in finding that the original connection was illicit where is the evidence of any change in its character ? We have cited these observations as they bring forth some important facts of that case. One who was claiming to be a wife was once a prostitute and that was admitted by herself. Obviously therefore the facts of the case de not warrant any justification to apply the ratio of that case to the facts of the present one. The appellant before us was admittedly married to Gordhandas but from him she had taken a divorce by execution of a divorce deed. It is also necessary to remember that not only the respondent knew about the divorce but he had acted upon it. Not only that but even Gordhandas himself had accepted the divorce deed as having a legal effect. Under these circumstances we do not think that the facts of the case with which the Privy Council was dealing are in any way analogous to the facts of the present case. ( 22 ) MR. Vakil cited several other rulings in support of the same proposition. However his submissions cannot be accepted as basically the facts of the present case are different. The relations of the appellant with the respondent cannot be said to have been based upon an illegitimate intimacy once we have come to the conclusion that she has succeeded in proving her marriage with him. It is not only in the long and uninterrupted cohabitation which we are considering in the present case but we are considering that fact along with the other evidence on record namely her statement on oath that she was divorced from her previous husband by a deed of divorce which is again on the record of this case and further the fact that she has succeeded in proving her marriage with the respondent. An allegation therefore that she had illegitimate intimacy prior to her marriage would not serve to support an argument that the relations of the appellant with the respondent are based upon concubinage. ( 23 ) MR. Vakil referred to us a ruling reported in AIR 1927 Lahore page 48 wherein it is observed that A presumption of marriage may arise from long cohabitation but if it is known that the contention started in mere concubinage this presumption cannot arise. ( 23 ) MR. Vakil referred to us a ruling reported in AIR 1927 Lahore page 48 wherein it is observed that A presumption of marriage may arise from long cohabitation but if it is known that the contention started in mere concubinage this presumption cannot arise. R elations or conditions of persons or things once shown to exist are Presumed to continue until the contrary is proved. If it is proved that a certain woman was unmarried at a certain date the presumption is that she continues so until proved to have married and therefore when there is no proof of any marriage but there is a judicial decision that she was not married but was living as a concubine there can be no presumption of marriage. Obviously the facts of the present case are different. Even if it is assumed for an arguments sake that the appellant had illegitimate relations with the respondent they cannot be deemed to have continued all along as they were interrupted by a marriage. Since the appellant has succeeded in proving her marriage the contrary is without doubt proved and then after she has continued to live with him as his wife for about 30 years. It is from her cohabitation after her marriage that we are drawing the presumption of wedlock and we do not think that the facts of the case cited before us would in any way dissuade us from doing so. ( 24 ) WE do not think it is necessary for us to consider other rulings cited by Mr. Vakil to support the same proposition. ( 25 ) MR. Vakils second argument against the raising of the presumption was that it cannot arise when the parties are incapable of entering into a lawful wedlock. In support of that second proposition of his he cited a ruling reported in 14 BLR page 547 (Bai Kashi v. Jamnadas Mansukh Baichand ). The facts of that case briefly stated are as under :-"bai Kashi (the plaintiff) was originally an Audich Brahmin. She had married in her caste but was a widow at fourteen years of age. While she was sixteen she contracted a nature marriage with Mansukh Raichand (the defendant) a Ghanchi by caste (i. e. a Shudra ). The facts of that case briefly stated are as under :-"bai Kashi (the plaintiff) was originally an Audich Brahmin. She had married in her caste but was a widow at fourteen years of age. While she was sixteen she contracted a nature marriage with Mansukh Raichand (the defendant) a Ghanchi by caste (i. e. a Shudra ). She lived with him as his wife for twentyfive years during which period she bore eight children by Mansukh; of these only three survived. IN about the year 1901 Mansukh made the plaintiff live separate from him; and since then the parties never lived together as husband and wife. On the 10th August 1978 the plaintiff filed a suit against the defendant to recover her maintenance from him". THE Subordinate judge held that no valid marriage between the parties could take place under Hindu Law that the plaintiff could not claim maintenance even as a kept mistress for she was not living with the defendant for over ten years before the suit He therefore dismissed the suit. 49a The headnotes of that case run as under"under Hindu Law as recognised in the Bombay Presidency a Brahmin woman cannot contract a valid marriage with a Shudra. A Brahmin woman marrying a Shudra cannot claim maintenance from the latter as a kept mistress unless the connection is of a continuous character. AN estoppel is a substantial plea which must be set up and proved by unambiguous evidence by the party relying upon it. WHEN two persons not eligible for marriage go through the Hindu ceremony of marriage and live thereafter for several years as husband and wife the factum of marriage not valid in law cannot be supported by estoppel. ( 26 ) WE have cited the facts as well as the headnotes of the case completely as this was a case on which Mr. Vakil had laid a great stress. However there is no analogy between the facts of the decision with the facts of the appellants case before us. Appellant has stated on oath that she got a divorce from her previous husband and has produced the deed of divorce which was executed to the knowledge of the respondent. Prima facie therefore there is nothing which would make her and the respondent incompetent persons to contract marriage. Appellant has stated on oath that she got a divorce from her previous husband and has produced the deed of divorce which was executed to the knowledge of the respondent. Prima facie therefore there is nothing which would make her and the respondent incompetent persons to contract marriage. Incidentally we may observe that the legality of the appellants marriage is challenged only on one ground that she had not obtained a lawful divorce and that the second marriage was not permissible to her so long as the earlier marriage had of legally terminated. In the reported case it was an admitted position that the plaintiff was a Brahmin woman and she had claimed to have married the dependent who was a Shudra. The judgment therefore had proceeded on the basis of an admitted position in which under Hindu Law a legal marriage could not be contracted. Such are not the facts of our case. Mr. Vakil further cited a ruling reported in A. I. R. 1929 Nagpur page 343 which needs no further discussion as it is on similar lines. The observations in the reported ruling are that a presumption of a valid marriage from two persons living together as man and woman cannot be drawn where the union is between a man who is an Ahir and a Brahmin widow who cannot prima facie contract a valid marriage. ( 27 ) SIMILARLY another citation of his namely a ruling reported in AIR 1942 Allahabad page 175 also needs no further consideration. It reiterates the same proposition that a presumption of a legal marriage cannot be drawn where it is not possible to have a legal marriage between the parties. ( 28 ) OTHER two rulings cited by Mr. Vakil and which propound the same proposition are A. I. R. 1944 Madras 362 and A. I. R. 1962 Andhra Pradesh 360 For the reasons stated above we do not accept the argument of Mr. Vakil based on these rulings. Appellant and respondent were not such persons at the time of their marriage who were under law incapable to enter into marriage once we consider the circumstances in which she look divorce from her first husband. She avers that divorce was permitted by custom she has produced the divorce deed and divorce was brought about at the instance of the respondent and was acted upon by her first husband. She avers that divorce was permitted by custom she has produced the divorce deed and divorce was brought about at the instance of the respondent and was acted upon by her first husband. For the reasons stated hereinafter the onus lies heavily on the respondent to prove the invalidity of divorce. Till the respondent discharges the onus we do not find from the record any material to reach a conclusion that the appellant and the respondent were incapable of entering into bond of marriage. ( 29 ) AS seen above Mr. Vakils first argument was that no presumption could be drawn in favour of a marriage firsts because their relations had allegedly started on the basis of concubinage and secondly because the parties were incompetent to contract marriage. We have discussed both the prongs of his arguments above and for the reasons stated above we reject it. ( 30 ) THE next argument advanced by Mr. Vakil was that even if a presumption of lawful wedlock is drawn in favour of the appellant it is at best a rebuttable presumption. He cited a ruling reported in A. I. R. 1952 Supreme Court page 231 (Gokal Chand v. Pravin Kumari ). Head note (a) runs as under :-"continuous cohabitation of a man and a woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage. But the presumption which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken or destroy that presumption the Court cannot ignore them". ( 31 ) HE cited the same authority for the discussion of the principles which must be kept in view in dealing with questions of the customary law. Mr. Vakil was quite right in his proposition that the presumption which may be drawn is a rebuttable presumption and in fact that legal position was at no point of time questioned by Mr. Vakharia. In fact Mr. Vakharia had also cited the same authority for a proposition that a rebuttable presumption arises from a long cohabitation 56 Mr. Vakil submitted that so far as rebutting of the presumption is concerned the respondent has discharged his part of the duties when he challenged the marriage in the written statement and the custom in the cross-examination of the Appellant. Mr. Vakil submitted that so far as rebutting of the presumption is concerned the respondent has discharged his part of the duties when he challenged the marriage in the written statement and the custom in the cross-examination of the Appellant. Mr. Vakils argument was that that all was that a respondent could be expected to do. Otherwise how was the respondent expected to prove negative. In his submission it was the appellant who had come forth with a case that after obtaining a valid divorce based on custom she had married the respondent. Mr. Vakil therefore asserted that it is for the appellant to prove the custom of divorce in her community on the basis of which she claims to have contracted a second lawful marriage with the respondent. Mr. Vakil argued that even if there was a presumption of marriage the presumption was about the fact of marriage but it could not be about the legality of the marriage. He further submitted that even if her marriage with the respondent is presumed to have taken place in 1948 it cannot further be presumed that she was divorced and validly divorced on an earlier date. He further submitted that once it is admitted that she was the wife of Gordhandas the presumption is that the marriage continued and if the appellant claimed that that marriage was terminated by a valid divorce the validity must be proved by her and not by the respondent. We have given a careful thought to these arguments advanced before us by Mr. Vakil as they go to the very root of the matter and as they concerned the question of raising a presumption and the scope of such a presumption. We are unable to accept any of the aforesaid arguments of Mr. Vakil. Under the circumstances which we have narrated in detail above the presumption can be drawn not only of the factum of the marriage but of its validity also. As a matter of fact the term marriage inherently implies that it is a valid marriage. If it is not a valid marriage it is no marriage at all. Therefore when marriage is required to be presumed from a set of facts what is presumed is not only the factum of marriage but its legality also. As a matter of fact the term marriage inherently implies that it is a valid marriage. If it is not a valid marriage it is no marriage at all. Therefore when marriage is required to be presumed from a set of facts what is presumed is not only the factum of marriage but its legality also. The following passage in Sarkaria on Evidence at page 1021 (12th Edition) is apposite:- There is a general presumption of marriage from cohabitation with habit and repute. The habit and repute which alone is effective is habit and repute of that particular status which in the country in question is lawful marriage. 57 We are further fortified by the observations in a Privy Council Case reported in A. I. R. 1927 Privy Council 185 (Andrahennedige Dinohamy and another Appellants v. Wijetunge Liyanapatabendige Balahamy and others Respondents ). In that case an appeal was filed raising the question of the validity of a Singhalese marriage. A petition was presented for letters of administration of the estate of one Andris de Silva whose family history was that he had been regularly married in 1885 having as issue the daughter who through her husband claimed his estate. The first wife had died earlier. Don Andris married one Balahamy with the procession the giving of gifts and other ceremonials familiar to the law of Ceylon. There was however one omission namely that the marriage was not registered and in that sense the marriage was irregular. But registration however important was not by law essential. Two questions arose namely whether Balahmay married Don Andris according to law of Ceylon and whether her or her childrens rights were affected by the deed of agreement. In the context of these facts it was observed It is not disputed that according to the Raman Dutch law there is a presumption in favour of marriage rather than of concubinage; that according to the law of Ceylon where a man and woman are proved to have lived together as man and wife the law will presume unless the contrary be clearly proved that they were living together in consequence of a valid marriage and not in a state of concubinage. ( 32 ) MR. Vakharia cited another authority the facts of which are very similar to the case before us. ( 32 ) MR. Vakharia cited another authority the facts of which are very similar to the case before us. It is a ruling reported in A. I. R. 1963 Madhya Pradesh page 169 (Rewaram Balwanta Khati and another-Appellants v. Ramrattan Balwant Khatai and others-Respondents ). Plaintiffs Rewaram and Moolchand brought the present suit for a declaration that the defendants Ramratan Jagannath and Bapu are not the legitimate sons of their father Balwant. The defendants denied the plaintiffs assertion and contended that they are the legitimate sons of Balwant. The controversy arose when on Balwants death the question of mutation of the lands standing in his name arose. Rewaram and Moolchand submitted a petition before the Revenue Court alleging that they alone are the legitimate sons of Balwant and that their names should be mutated in place of deceased Balwant. This petition of Rewaram and Moolchand was opposed by Ramratan Jagannath and Bapu claiming themselves to be the legitimate sons of Balwant The revenue courts upheld the contention of the latter three and directed the names of all the five to be mutated. Rewaram and Moolchand feeling aggrieved by this decision of the Revenue Courts filed the present suit for declaration as indicated above. "the two courts below on evidence found that Ramratan Jagannath and Bapu were born of one Kunwarbai who was living with Balwant for over 33 years as his wife and that the three defendants were born of the connexion of Balwant and Kunwarbai. It is not disputed on either side that Rewaram and Moolchand are the sons of legally married wife of Balwant namely Sonibai. The Courts below also have found that when Kunwarbai came to reside with Balwant her former husband was alive and that he rated no protest and is said to have taken no proceedings of the cohabitation of Balwant and Kunwarbai. It was also found by the Courts below that amongst the Khatis to which community the parties belong Natra form of marriage is possible even where the former husband is alive The dissolution takes place in different shapes. Either the former husband is paid some Zagada money or he does not care to ask for any. It was also found that the plaintiff Rewaram him. self had contracted a marriage of that sort. Either the former husband is paid some Zagada money or he does not care to ask for any. It was also found that the plaintiff Rewaram him. self had contracted a marriage of that sort. On the basis of long cohabitation of Balwant and Kunvarbai as husband and wife and by reason of the Presumption arising due to possibility of a valid Natra form of marriage the two courts below drew a presumption that Kunwarbai was a legally married wife of Balwant and consequently treated Ramratan Jagannath and Hapu as the legal heirs of Balwant. In this second appeal the propriety of the presumption thus drawn is challenged. V. R. Newaskar J. while considering the contention raised before him on the basis of the aforesaid facts as to the propriety of drawing the presumption referred to Mullas Hindu Law where the following observations occur :-SIMILARLY the fact that a woman was living under the control and protection of main who generally lived with her and acknowledged her children raises a strong presumption that she is the wife of that man. But the presumption may be rebutted by proof of facts showing that no marriage could have taken place. ( 33 ) HE also referred to a ruling reported in A. 1. R. 1950 Madhya Bharat page 1 which we have refered to above and made the following observations:-"it is clear from these observations that long cohabitation between a man and a woman raises a clear presumption of marriage particularly where they lived as husband and wife and the children were born and where these children were treated as the children of the man by the community. The presumption no doubt is rebuttable one but the evidence of rebutting that presumption must be clear and specific and ought to indicate that no valid marriage could have taken place between them". ( 34 ) WE have referred to the ruling reported in A. I. R. 1940 Madras page 198 in the course of dealing with Mr. Vakils argument that no presumption arises where the relations have a root in concubinage. We therefore do not intend to refer to this authority again excepting for emphasising that herein also we find approval for drawing a presumption about the factum and validity of marriage in an appropriate case. Vakils argument that no presumption arises where the relations have a root in concubinage. We therefore do not intend to refer to this authority again excepting for emphasising that herein also we find approval for drawing a presumption about the factum and validity of marriage in an appropriate case. To be precise the following observation may be noted:-"but where it is established by evidence that a man and woman were not merely living together but professed themselves in be husband and wife and were treated as such by the society in which they moved and this conduct and recognition extended over a sufficiently long period of time a presumption can as well be drawn in favour of marriage". ( 35 ) MR. Vakharia cited a ruling in support of the same proposition. It is Tindall v. Tindall reported in 1953 All England law Reports Vol. I page 139. The parties were married in 1946. On Sept. 13 1947 the wifes solicitor action on her instructions wrote to the husband:- If my instructions are correct it is clear to me that you are incapable of consummating the marriage and I am instructed to commence proceedings for nullity of the marriage forthwith. On Oct. 9 1947 the wife issued a summons in a court of summary jurisdiction against the husband charging him with desertion and persistent cruelty. On July 14 1950 the Summons was dismissed. On July 26 1950 the wife gave notice of appeal to the Divisional Court and on Aug 15 1950 the husband was ordered to pay security for her costs. On Jan 11 1951 the Divisional Court dismissed the appeal. On Aug. 15 1951 the husband filed a petition for divorce on the ground of the wifes desertion. On Nov. 1 1951 the wife filed an answer denying desertion and cross praying for a decree of nullity on the ground of nonconsummation of the marriage owing to the husbands capacity"held:- it was apparent from the letter of Sept. On Aug. 15 1951 the husband filed a petition for divorce on the ground of the wifes desertion. On Nov. 1 1951 the wife filed an answer denying desertion and cross praying for a decree of nullity on the ground of nonconsummation of the marriage owing to the husbands capacity"held:- it was apparent from the letter of Sept. 13 1947 that the wife then had a full knowledge of the facts and also of the law relating to nullity; the subsequent proceedings instituted by her before the justices and the Divisional Court were based on the existence and validity of the marriage; and therefore she had with a knowledge of the facts and of the law approbated the marriage and it was inequitable and contrary to public policy to allow her to assert its invalidity and obtain a decree of nullity". ( 36 ) WE will not enter into the facts which we have already stated above but we will only point out those which go to show the above stated ruling is applicable to the present case. In the appellants case also there is a long uninterrupted cohabitation for a period of over 30 years. There are children born of these relationships who are now grown up and who are now settling down in life. These children have althroughout acknowledged the appellant and the respondent as their mother and father respectively. The respondent himself has not only married the appellant with full knowledge of the existence of her previous marriage but in fact the facts go to show that an inference can reasonably be drawn that he was himself instrumental in bringing about a divorce of the appellant from her previous husband. Then after he has married the appellant and for a long period of 31) years has accepted her as his wife and we have discussed the evidence above that he has treated and recognised her and addressed her as his wife. The presumption of the factum and the validity of the marriage is clearly therefore justified from the facts of the case and is based upon the settled law. These authorities therefore clearly justify the drawing of the presumption of the factum and the validity of the marriage. The presumption of the factum and the validity of the marriage is clearly therefore justified from the facts of the case and is based upon the settled law. These authorities therefore clearly justify the drawing of the presumption of the factum and the validity of the marriage. In this case also the respondent has with knowledge of the facts approbated the marriage and it was inequitable and contrary to public policy to permit him to assert the invalidity of his marriage with the appellant. ( 37 ) TO Mr. Vakils argument that even when the factum of the marriage is presumed there could be no presumption about its validity there is an unequivocal answer found in a ruling reported in A. I. R. 1947 Privy Council 168 (Kashi Nath Appellant v. Bhagvan Das and another Respondent ). The parties to the appeal were these. Bawan Das had a first wife by whom he had no children. He had a second wife Mr. Bita Kuer by whom he had one son Kashi Nath. He then married his third wife Lachmi Kuer by whom he had two sons Bhagwan Das and Bishwa Nath Prasad who were the respondents. Bawan Das died and after his death the suit was instituted by the respondents the sons of the third marriage claiming against the son of his second marriage a share in the fathers estate. The question was that whether that marriage between Bawan Das and Lachmi Kuer which was admitted to have been duly solemnized was valid. It was conceded that the marriage was valid if the Golwaras the caste to which the third wife belonged was a sub caste of the Vaishya caste of which the Agarwalas were a subcaste. Their Lordships expessed the opinion that it was necessary to eater into a difficult question which would arise if it were found that the Golwaras were not a sub-case but were Shudras. The single question upon which they pronounced was whether upon the evidence adduced in That case it had been established that the Golwaras were a sub-caste of the Vaishya caste. In approaching the question. The single question upon which they pronounced was whether upon the evidence adduced in That case it had been established that the Golwaras were a sub-caste of the Vaishya caste. In approaching the question. Their Lordships bore in mind what was observed long ago in 1869 in 13 M. I. A. 141 at page 158 where the Board found that there was a marriage in fact and proceeded to observe further thus:-"then if there was a marriage in fact was there a marriage in law ? When once you get to this namely that there was a marriage in fact there would be a presumption in favour of there being a marriage in law". THE validity of this marriage duly solemnized being in question that presumption attaches. Here also the factum of marriage is proved and therefore the presumption of its validity must attach and Mr. Vakils argument can hold no water. ( 38 ) WE have also referred to Mr. Vakils argument that the respondent could not be expected to prove a negative proposition It may be observed that when the respondent is called upon to prove the validity of marriage on the ground that there was no custom enabling the appellant and her husband to take divorce or for that matter on any other grounds we do not call upon him to prove the negative. ( 39 ) IN determining who alleges the affirmative the substance of the allegation in the pleading should be looked at and not the form. Lord ABINGER stated in Soward v. Leggat 7 and p 613:-". . . We should consider what is the substantive facts to be made out and on whom it lies to make it out. It is not so much the form of the issue which ought to be considered as the substance and effect of it" ( 40 ) THE following observation from Jones (quoted by Sarkar in his Law of Evidence Twelfth Edition Page. 870) is also to the same effect:-"in some of the cases the allegation. negative in form was made by the plaintiff in others by way of defence; they all illustrate the rule that where a claim or defence rests upon a negative allegation the one asserting such claim or defence is not relieved of the onus probandi by reason of the form of the allegation or the inconvenience of proving a negative. negative in form was made by the plaintiff in others by way of defence; they all illustrate the rule that where a claim or defence rests upon a negative allegation the one asserting such claim or defence is not relieved of the onus probandi by reason of the form of the allegation or the inconvenience of proving a negative. But in such cases a less amount of proof than is usually required may avail. Such evidence as renders the existence of negative probable may change the burden to the other party". . ( 41 ) THE substance of the respondents case is that the appell and had not obtained a valid divorce and in our opinion under the circumstances of the case it is he who must make good that argument. When a rebuttable presumption exists in favour of a party the onus is on the other side to rebut it even if such an onus may appear to be negative in form. More so in a case such as the one before us wherein the parties continuously and openly lived and cohabited and had several children and were regarded and recognised as man and wife by their relatives and friends these facts in the absence of conter-railing circumstances afford clear and conclusive evidence of marriage. ( 42 ) WE now proceed to discuss Mr. Vakils further arguments that even if it is assumed that there is a presumption of marriage and even if we assume that presumption attaches both to factum and validity that was discharged by the respondent when he raised a contention in the written statement that the appellant was the lawfully married wife of Gordhandas and that his so called marriage was an invalid marriage as the appellant had already a spouse alive at that time. The first point which we must observe here is that Mr. Vakil sadly makes a mistake when he submits that the respondent has discharged the onus by raising a contention in his written statement and for that matter by challenging the appellant in cross-examination. The raising of a contention in the written statement and/or challenging a say of the deponent in cross-examination is not equivalent of discharging the onus. Vakil sadly makes a mistake when he submits that the respondent has discharged the onus by raising a contention in his written statement and for that matter by challenging the appellant in cross-examination. The raising of a contention in the written statement and/or challenging a say of the deponent in cross-examination is not equivalent of discharging the onus. It is pertinent to note that the respondent has not denied in his evidence on record the assertion of the appellant about the existence of the community custom permitting her and her spouse to obtain a divorce by execution of the divorce deed. Even such an assertion on the part of the respondent had it been there would not have been sufficient to discharge the onus. We have seen that the presumption which has arisen in the appellants favour is an extremely strong presumption which cannot be displaced merely by raising contentions in the written statement. The respondent was faced with the claim of the appellant to be his lawfully wedded wife and if the respondent had meant to discharge the onus he himself should have led cogent and unmistakable evidence to show that there was no marriage with him as well as that the appellant was incapable of entering into marriage with her as there was no such custom in her community permitting a divorce as alleged by her. ( 43 ) WE do not accept Mr. Vakils argument that once the respondent raised a contention in his written statement about the status of the appellant the onus had shifted and it was then for the appellant further to show that she had obtained a valid divorce on the basis of which she had contracted marriage with the respondent. She had already come out with her case that she was validly divorced and had contracted a lawful marriage with the respondent and her position was fortified by the presumption in her favour. In our opinion after such a presumption exists she could not be expected or cannot be called upon to prove the validity of divorce which took place more than 30 years back but it could only be for the respondent to show in every possible way that the divorce was invalid and consequently her marriage with him. In our opinion after such a presumption exists she could not be expected or cannot be called upon to prove the validity of divorce which took place more than 30 years back but it could only be for the respondent to show in every possible way that the divorce was invalid and consequently her marriage with him. The position is all the more so in view of the fact that the respondent was aware of all facts which terminated into a divorce of the appellant with her previous such and and therefore the respondent cannot exonerate himself from the onerous duty of rebutting the presumption merely by holding up his hands by raising a contention about the validity of the marriage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In a ruling reported in A. I. R. 1970 Supreme Court page 1286 ( L. Debi Prasad (dead) by L. Rs. Appellants a. Smt. Tribeni Devi and others-Respondents) the facts related to the dispute about adoption but we take opportunity to cite those observations which have operation more wide. In the case of all ancient transactions it is but natural that positive oral evidence will be lacking. In the case of an adoption said to have taken place years before the same is questioned the most important evidence is likely to be that the alleged adoptive father held out the person claiming to have been adopted as his son; the latter treated the former as his father and their relations and friends treated them as father and son. There is no pedetermined way of proving any fact. If after taking an overall view of the evidence adduced in the case the Court is satisfied that the adoption pleaded is true it must necessarily proceed on the basis in the absence of any evidence to the contrary that it is a valid adoption as well. (Emphasis supplied ). Therefore the discharging of onus in each case depends upon its own peculiar facts and there cannot be any predetermined notions as to which party has to discharge onus in particular manner or at particular point of time or at which stage of the proceedings in a particular case. (Emphasis supplied ). Therefore the discharging of onus in each case depends upon its own peculiar facts and there cannot be any predetermined notions as to which party has to discharge onus in particular manner or at particular point of time or at which stage of the proceedings in a particular case. It is for the Courts to consider when can the onus be considered as shifted and the Courts will decide the question after taking into consideration the facts pleaded before it and the evidence adduced before it. In our case therefore we do not concur with Mr. Vakil that the onus of proving the legality of the marriage was shifted to the shoulders of the appellant when the respondent once raised a contention in his written statement even though he took no further pains about it. Mr. Vakil was at pains to argue before us that the law expects one who bases his right on a custom to plead it specifically and to prove it beyond a reasonable doubt. He cited several authorities in support of his contention that the appellant must have pleaded the custom specifically and she must have led cogent evidence to prove it. Mr. Vakil contended that barring her own say in her evidence she has not done anything to prove the custom permitting her to take divorce from her husband. Mr. Vakil pointed out that in fact she has led no evidence to prove that she was a Sikh and not a Hindu which ought to have been proved considering the discrepancy between the contents of the divorcedeed and the averment of her in the plaint. Mr. Vakil relied upon a ruling reported in A. I. R. 1911 Supreme Court page 1398 ( Kochan Kani Kunjuraman Kani etc. Appellants v. Mathavan Kani Sankaran Kani and others etc. Respondents. He relied upon both the headnotes (a) and (b) and pointedly drew our attention to the following observations:-" Therefore when a person claiming to inherit a deceased fails to prove the family custom under which he claims that right the son of the deceased would inherit the property of his deceased father under the general law of inheritance". Respondents. He relied upon both the headnotes (a) and (b) and pointedly drew our attention to the following observations:-" Therefore when a person claiming to inherit a deceased fails to prove the family custom under which he claims that right the son of the deceased would inherit the property of his deceased father under the general law of inheritance". It was pointed out to us from the contents of paragraph 6 of that judgment as to what is expected of a person who claims under a custom and he submitted that in our case the appellant has done nothing of the sort. He also relied upon a ruling reported in A. I. R. 1953 Supreme Court page 201 ( T. Saraswathi Ammal-Appellant v. Jagadambal and another-Respondents) Head-note (a) therein runs as under:-"oral evidence as to instances which can be proved by documentary evidence cannot safely be relied upon to establish custom when no satisfactory explanation for withholding the best kind of evidence is given". MR. Vakil submitted that the appellant had deposed in her deposition that the custom in her community was that divorce was permissible by executing a deed. Mr. Vakil submitted that therefore in order to prove this proposition she should not only have proved the custom but she could not have relied upon the oral testimony of witnesses She is expected in his submission to prove the documents of divorce in other cases which must have been executed in innumerable cases by this time. He also relied upon a ruling reported in 9 G. L. 1t. page 609 ( D. S. Meramwala Bhayawala v. BA Shri Amarba Jethsurbhai ) and drew our attention to the observation at page 626. It is observed Not it is well settled that in order that custom should have the force of law it". . . . . . 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 memory of man runneth not to the contrary should not be strictly applied to Indian conditions. . . . 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 memory of man runneth not to the contrary should not be strictly applied to Indian conditions. 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". ( 44 ) WE have referred to these rulings cited by Mr. Vakil as he heavily leaned on his argument that the burden of proving custom was on the Appellant and that she has utterly failed to prove it. We do not enter into the detailed discussion of these authorities as in our view Mr. Vakits approach is patently incorrect. We have shown above how in a case such as the present there is a strong presumption in favour of the appellant and that the entire onus then is on the respondent to rebut and displace the onus. It is for the respondent as pointed out above to show that the appellant has falsely relied upon a custom which in fact does not exist. Prima face it may appear that the respondent cannot be called upon to prove a negative proposition on which the appellant has relied and since that prima facie view appears to be a reasonable view we have considered it seriously and anxiously and as a result of it we have come to the conclusion that apart from the question whether the respondent would be under an estoppel from raising a plea that his marriage with the appellant is invalid there is a strong presumption which it must be for the respondent to rebut. In this connection we may make a reference to Ballock v. Ballock reported in 1969 All England Reports Vol. II. page 307. The observations made in this ruling clearly support us in our approach in dealing with the question of presumption and estoppel. In order to appreciate the observations made by their Lordsips therein it is essential to have the perspective of facts of that case. II. page 307. The observations made in this ruling clearly support us in our approach in dealing with the question of presumption and estoppel. In order to appreciate the observations made by their Lordsips therein it is essential to have the perspective of facts of that case. In 1921 the wife married one K. There were two children and in 1926 K. deserted the wife. In 1929 the wife obtained an order in the Magistrates court for the payment by K. of maintenance for herself and the children on the ground of Ks desertion. In 1930 K being in arrears under the order a committal order was made. A warrant was issued against K to the police but was not executed by them as K. could not be found. The wife made no further inquiries about K. and never heard of him again. In 1944 the wife describing herself as the widow of K went through a ceremony of marriage with the husband. At the date of the marriage the husband knew all the circumstances concerning the wifes earlier marriage with K. In 1959 the wife applied by way of a complaint in the Magiistrtes court for an order for the payment by the husband of maintenance for herself on the ground of his desertion The husband contended that there was no jurisdiction to make any order since his marriage to the wife in 1944 was bigamous and void ab initio. As the lapse of time since K. was last heard of was now thi rty years and in 1944 had been fourteen years the Magistrates inferred that K. died before the wifes remarriage in 1944 and made an order in the wifes favour. The husband appealed on the ground that as the wife had made no inquiries about K. his death before her remarriage should not be inferred. The husband appealed on the ground that as the wife had made no inquiries about K. his death before her remarriage should not be inferred. "held:- the inference that K. had died before the remarriage in 1944 was rightly drawn because (i) of the lapse of time between the date when K. was last heard of and the dates of the remarriage (a period of fourteen years) and of the present proceedings (a period of thirty years) and (ii) of the fact that the police was unable in 1930 to execute the warrant against K. issued to them which met the objection that the wife had herself made no inquiries concerning K. SEMBLE:- there can be estoppel in paid preventing a party relying on a plea that a marriage was void on the ground of bigamy". Lord MERRIMAN P. referred to the observations in an earlier ruling namely. . . I think I can perceive that the real basis of reasoning which underlies that phraseology is this and nothing more than this that there may be conduct on the part of the person seeking this remedy which ought to estop that person from having it; as for instance any act from which the inference ought to be drawn that during the antecedent time the party has with a knowledge of the facts and of the law approbated the marriage which he or she afterwards seeks to get rid of or has taken advantages and derived benefits from the matrimonial relation which it would be unfair and inequitable to permit him or her after having received them to treat as if no such relation had ever existed. LORD MERRIMAN on the basis of these observations proceeded to make further observations of his as under :-"that explanation by LORD SELBORNE can be referred to known principles of equity and I may say of general jurisprudence. Then he went on to describe the sort of circumstances which would raise that kind of estoppel and was careful to say that this catalogue was by no means exhaustive but only illustrative. He further stated The principle is well known. LORD MERRIMANS further observations are well apposite. Then he went on to describe the sort of circumstances which would raise that kind of estoppel and was careful to say that this catalogue was by no means exhaustive but only illustrative. He further stated The principle is well known. LORD MERRIMANS further observations are well apposite. Now it is said that there is a vital distinction between what is technically known as estoppel in paid of the kind which might be said to result from this case and an estoppel by record or estoppel per rem judicatam. Of course the two are different but I am not convinced in my own mind that if the facts are strong enough to warrant an estoppel in paid not less strong or cogent than is imported by a description of two parties in a restitution suit as husband and wife and allowing that to go by default it is impossible for an estoppel in paid to operate merely because what is being dealt with is a void marriage However beyond saying that I am not convinced that this is not a case in which what LORD SELBORNE said in G. V. M. could very probably be applied I do not pursue the inquiry because I think that there is another very cogent reason for upholding the decision of the Magistrates in the present case. That case was of course decided on the basis that the lady who had not heard of her husband for a long period of 14 years was justified in drawing a presumption of his death. With those facts we are not concerned. But what we are utmost concerned with is the approach of the learned Judges in that case whereby they deprecated the defence based upon an invalidity of marriage the fruits of which had been enjoyed for over a long period. Mr. Vakil argued at length to convince us that there can be no question of estoppel in the present case. He submitted that once it is shown that the marriage is invalid there can be no estoppel against law. Mr. Vakil argued at length to convince us that there can be no question of estoppel in the present case. He submitted that once it is shown that the marriage is invalid there can be no estoppel against law. Secondly he submitted that the question of estoppel cannot be considered at this stage when there is no pleadings to that effect and when there is no issue raised to cover such a contention To this our only answer is that we are not considering this question from the point of view as to whether the question of estoppel falls within the strict four corners of sec. 115 of the Indian Evidence Act. As a matter of fact and to be more precise we are not here deciding whether the respondent is estopped from questioning the validity of his marriage. But what we mean and desire to emphatically state is that the onus which is cast on the respondent is not so light that he can cast it off like a snails skin by raising a plea in his written statement. Mr. Vakil cited several authorities before us on the question of shifting of onus and as to when does it shift and how is the question to be considered. These authorities are A. I. R. 1964 Supreme Court 136 (A. Reghavamma and another v. A. Chenchamma and Anr.) A. I. R. 1968 Supreme Court 1018 (Puttrangamma and others v. M. S. Ranganna and others); AIR 1969 Supreme Court 204 (Ram Kristo Mandal and Another v. Dhankisto Mandal); AIR 1970 Supreme Court 1286 (Supra) and A. I. R. 1976 S. C. 588 (Rattan Lal v. Vardesh Chander and Others ). We do not intend to consider these authorities in detail as we feel ourselves bound by the proposition stated in a ruling reported in A. I. R. 1968 Supreme Court page 647 (State of Orissa v. Sudhansu Sedhar Misra and others that a case is an authority on the basis of the facts involved therein. It is no use therefore referring to the ratio of one case which must necessarily be confined to those facts or to similar facts. It is no use therefore referring to the ratio of one case which must necessarily be confined to those facts or to similar facts. So far as the present case is concerned in our opinion the presumption raised in favour of the appellants lawful marriage with the respondent is so strong that the respondent has got to rebut it both regarding factum and validity and that onus is of necessity continuous till the end. In our opinion the respondent has totally failed to discharge the onus so placed on him by the facts of the case by rebutting the presumption of lawful wedlock. ( 45 ) MR. Vakil then argued that apart from the question of onus at the stage at which we were deciding the appeal we must consider the case of the rival sides on the facts and evidence which are on the record before us and in this connection he cited the rulings reported in A. I. R. 1961 Supreme Court 1474 (K. S. Nanji and Co. v. Jatashankar Dossa and others) A. I. R. 1964 Supreme Court 136 (A. Raghavamma and another v. A. Chenchamma and another and AIR 1975 Orissa 184 (Ajit Prasad Narayan Singh v. Smt. Nandini Satpathy ). The burden of these authorities is that under the Evidence Act there is an essential distinction between the phrase burden of proof as a matter of law and pleading and as a matter of adducing evidence. Under sec. 101 of the Evidence Act the burden in the former sense is upon the party who comes to Court to get a decision on the existence of certain facts which he asserts. That burden is constant throughout the trial; but the burden to prove in the sense of adducing evidence shifts from time to time having regard to the evidence adduced by one party or the other or the presumption of fact or law raised in favour of or the other. "the burden of proof is on a plaintiff who asserts a right and it may be having regard to the circumstances of each case that the onus of proof may shift to the defendant. "the burden of proof is on a plaintiff who asserts a right and it may be having regard to the circumstances of each case that the onus of proof may shift to the defendant. But to say that no duty is cast upon the plaintiff even to allege the date when he had knowledge of the defendants possession of the converted property and that the entire burden is on the defendant is contrary to the tenor of the article in the Limitation Act and also to the rules of evidence". IF this proposition is clearly analysed so far as the present case is concerned it would be found that these observations help the appellant more than the respondent. In this connection we may quote an observation from Sarkar on Evidence (12th Edition) page 872 The terms burden of proof and onus probandi are sometimes confused. Where issues have been framed and the preliminary examination of the parties has taken place the case rests at a certain point at which if no further evidence is led one party has to lose. On that party is the onus probandi sometimes called right to begin. Where however all evidence on both sides have been recorded a second state is reached and this is where the point of view of the Judge comes in and it is necessary to find where is the burden of proof. To determine this it is necessary to ascertain with precision upon that proposition of fact or law the parties were at variance. Now if the problem involved in our case is analysed and examined in the light of the aforesaid proposition the picture emerges thus:- The appellant has relied upon her cohabitation with the respondent the factum of marriage birth of children her status in society and the consequent strong presumption of marriage in her favour. This is one side of the picture. The other side of the picture is that the respondent at has no point of time. till filing his written statement disclaimed the appellant to be his wife. On the contrary he is found to have acknowledged trial as his wife although. Out the long period of cohabitation and he raises a plea of the invalidity of the marriage for the first time in his written statement. till filing his written statement disclaimed the appellant to be his wife. On the contrary he is found to have acknowledged trial as his wife although. Out the long period of cohabitation and he raises a plea of the invalidity of the marriage for the first time in his written statement. Such is the position before us and such are the facts on our record and we have to decide the question as to where does the onus lie. We must be frank to state that we have not examined the question only from the technical rules of the raising of presumption its rebuttal and the question of estoppel but we have looked at the question from the principles of equity conscience and justice. The problem is necessarily required to be examined on a more basic footing and on a proper canvas of home life. The question is not only of the spouses before us but there looms large on the face of the grownup children the consequences of the decision on this issue. We have therefore considered the question with the anxiety which the gravity of the problem requires and we have reached a deliberate conclusion that the onus must be held to lie on the respondent if he wants to disown the bonds of marriage and if he wants to exonerate himself from the responsibilities and liabilities to a woman whom he has called and treated as his wife for over 30 years. Merriman P. at the conclusion of his judgment in BULLOCK v. BULLOCK referred to by us earlier observed thus:- whatever one may feel about a husband being bound not to take what I may call this indecent point against his wife in order to escape liability for the consequences of having deserted her on this ground alone the lapse of time and the lapse of time after the latest time at which she is shown to have known anything about him or been party to any proceedings in connexion with her order I think that this decision of the Magistrates can and should be upheld and the appeal dismissed. (Emphasis supplied ). It is in this spirit that we have rejected several contentions raised before us by Mr. (Emphasis supplied ). It is in this spirit that we have rejected several contentions raised before us by Mr. Vakil and we have decided to uphold the finding of the learned trial Judge on the question of marriage and in doing so we think we are fortified by the rulings reported in 1960 (2) The All England Law Reports p. 307 (Supra); AIR 1963 Madhya Pradesh 160 (supra) AIR 1970 Supreme Court 1286 (Supra) and AIR 1978 Supreme Court 1557 (Supra ). ( 46 ) BEFORE concluding his argument Mr. Vakil submitted that there is paucity of evidence on the record of the case to decide whether there is a custom in the community of the appellant which permits her to take divorce from her husband by executing a deed of divorce and in view of such a paucity of evidence the matter must be remanded after framing proper issues to take further evidence in the matter. He based his submission on the provisions of Order 41 Rule 25 of the Civil Procedure Code. ( 47 ) AS against that the submission for remand was resisted by Mr. Vakharia who cited the rulings reported in A. I. R. 1956 Bombay page 246 (Narayan Vishwanath v. Malappa Kasappa) and A. I. R. 1974 Gujarat page 54 (XIV G. L. R. 761) (The State of Gujarat and Another v. lbrahim Akabarali and Others ). ( 48 ) THE question of remand must be decided on the facts of each case and it is not useful to refer to the observations made in the light of particular facts in a given case. Considering all the material on record before us we do not think it is necessary or essential for the right decision of the suit upon the merits to remand the case for taking further evidence in the matter and therefore we have rejected Mr. Vakils submission for remanding the case. ( 49 ) IN the result we uphold the judgment and final order of the learned trial Judge and dismiss the appeal. As stated earlier we confirm his affirmative finding on issue No. 1 and consequently we dismiss the Cross Objections of the respondent. Appeal and cross-objections dismissed. .