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Can a daughter be deprived of the share in property in absence of evidence of parents’ marriage?

Shivendra Pratap Singh

Advocate (Lucknow)

Online advising since Oct. 2014

Civil Law

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Question: I am the daughter of my parents’ second marriage. The son of the first marriage is trying to mutate all properties of my father in his name only. Can a daughter be deprived of the share in property in absence of evidence of parents’ marriage? I have no evidence to prove the marriage because my parents had no marriage certificate. My stepbrother takes a plea in the civil suit that I’m an illegitimate child. He said that my father had only one marriage and he was born out of wedlock. Can I claim a share in my father’s property even if I have no evidence of marriage?

Asked from: Uttar Pradesh

According to Section 8 of the Hindu Marriage Act, the marriage between Hindu should be registered. But registration is not mandatory. Moreover, it is not mandatory that a marriage must be proved by the marriage certificate only. If two persons have been living together as husband and wife the law presumes in favour of marriage instead of concubinage. 

So, you can prove the marriage of your parents by placing evidence other than marriage certificate. You can prove yourself as a legitimate child by producing school certificate, bank documents, government identity proof and any other document which tends to prove that you are the daughter of your parents. 

In Badri Prasad v. Dy. Director of Consolidation and Others [AIR 1978 SC 1557] it was held by the Supreme Court that a strong presumption arises in favour of wedlock where two partners have lived together for long spells as husband and wife.

In S. P. S. Balasubramanyam v. Suruttayan alias Andali Padayachiand others [AIR 1994 SC 133] the Supreme Court has held that:

What has been settled by this Court is that if a man and woman live together for long years as husband and wife then a presumption arises in law of legality of marriage existing between the two.

Thus, you should produce evidence like voter card, bank passbook, aadhar card, service book to prove that your parents are husband and wife. You can also produce your birth certificate, school leaving certificate, educational records which are bearing your parents name.

The court shall admit these documents in order to prove that you are a legitimate child. Oral evidence of your father’s friends, relatives and other persons who have known to your parents that you are a legitimate child, is also a relevant and admissible evidence under Section 114 of the Indian Evidence Act. 

Therefore, it is not necessary to rely only on the marriage certificate to prove the valid marriage. Other documentary and circumstantial evidence can prove the marriage. So, you should consult with your advocate and produce some documents which tend to prove that you are a legitimate child.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate (Lucknow)

Consult on Criminal, Civil, Writ, Matrimonial, Service matters, Property, Revenue, SARFAESI related cases

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