Live in relationship ipc 494
Jayesh Kumar
(Querist) 13 May 2011
This query is : Resolved
A married man left his legally married wife and started living with another woman. Over the number of years they got children also. The question I post for all the legal brains and experts are can the SC's observation and judgements holding that long term live in relationship akin to marraige and marraige if nothing against to prove it exists can be used as the prosecuting and proving factor for a case of IPC 494 if the husband and the lady are proved to be in long term relationship akin to marraige living with all factors pointing towards marraige between the parties?? The legally married wife traced her husband and the proofs obtained were-- 1.) Admission form of the child of the parties with the name of father as her husband, name of mother: the second lady and the occupation of the mother(2nd lady) of the child as "Housewife" 2.) A 161 CrPC chargesheet against the relative of the wife who had gone to check, who was booked on a criminal case of beating the husband, obviously to tharft of efforts of exposure. The witnesess in the chargesheet though have claimed that the relative had done "mar-peet" with the husband they have also stated that the husband lived along with the 2nd lady as a family and they have children. What is your respected opinion on this matter? Many ladies like this suffer. They deserve justice. Regards, Jayesh Kumar
Devajyoti Barman
(Expert) 13 May 2011
Yes long co habitation like a husband and wife is indeed considered by the court as husband and wife.
But in this case the husband was co habitating even though he was not legally married.
So in this case the child may be entitled for maintenance but the lady may not.
Jayesh Kumar
(Querist) 14 May 2011
Resp Sir,
You did not answer my question.
To prove the offense of IPC 494 can you use the evidance of a man in long term live in relationship with lady complete with children and projecting to society as husband and wife enough?
If SC can observe and give benefits of wife and long term live in relationship akin to marraige why cannot the same be used when needed to prosecute for IPC 494, does it not amount to double standard of law? What should be done?
Please reply.
Adv.Shine Thomas
(Expert) 14 May 2011
In this case the first lady is his wife.The early married man can't get the benifit of the SC's observation.
Shiva Kant Dixit
(Expert) 14 May 2011
Dear All,
Section 494, IPC is ment for bigamy, living relatioship does not amount Bigamy (the second marriage), bcoz, living as husband and wife does not mean that the lady is legally wedded wife.
Arun Kumar Bhagat
(Expert) 14 May 2011
From the details provided it is apparent that the husband is having relationship with another lady and he has fathered children too. The judgement rendered by Supreme Court will not come to the rescue of the husband as in the said judgement it has been stated that the parties in live-in relationship must be eligible for contracting marriage and in the instant case the husband has not got divorced so he is not eligible for marriage and as such he will be liable for prosecuted for bigamy.
Dr V. Nageswara Rao
(Expert) 14 May 2011
The question is whether a live-relationship can be treated as marriage for the pursoe of prosecuting the man by his firat wedded wife. The answer is NO. S.50 of the Evidence Act says in its prviso: "Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act (IV of 1869), or in prosecutions under Sections 494, 495, 497 or 498 of the Indian Penal Code (XIV of 1860)." Long cohabitaion might give rise to the presunption of marriage for protecting legitimacy of kids, for maintenance, or domestic violence but bot for prosecuting for bigamy, adultery etc.
Jayesh Kumar
(Querist) 14 May 2011
Expert Arun and others,
I think expert Dr. Rao made a very strong notice factor, in fact this is the difficulty from my side, defence from the other side.
"Long cohabitaion might give rise to the presunption of marriage for protecting legitimacy of kids, for maintenance, or domestic violence but bot for prosecuting for bigamy, adultery etc"
Personally I feel that this is an exploitation of law, loophole of the law. Same standard to the benefit of woman but the same standard not for prosecution, does it not seems that our Indian courts are giving double standard of law.
Expert Mr. Rao, what should be done for such a case with the available evidances, should we hammer for with the evidance of "Housewife" in the Admission form. This woman has been badly battered by her husband and has led an extremely poor life by all standards. I feel extremely emotional for this woman and feel that she should b helped. Expert Rao, Expert Arun and other experts, please advice me further.
Arun Kumar Bhagat
(Expert) 15 May 2011
In my view the husband is liable for bigamy. he can not take the plea of `one night stand' because there are ample proof.
Jayesh Kumar
(Querist) 15 May 2011
Expert Arun Sir,
Expert Rao confronted on the stands with Sec 50 Evidance Act. Yes definately there is ample proof of relationship, strong extra marital affairs, with DNA testing it can be proved that the child is his son. But how to convert it that this is his 2nd marraige not something which can be at the best described as extra marrital or illicit affair which the husband will surely in the long term take the defense to.
M V Gupta
(Expert) 15 May 2011
Dear Mr. Jayesh,
The facts of the case do not make a case for prosecution under either Section 494 (Bigamy) or 497 (Adultery) as the factum of marriage is absent and the other woman appears to be an unmarried woman. Hence action should be considered under the Hindu marriage act for Divorce and maintenance.
Jayesh Kumar
(Querist) 15 May 2011
Sir Gupta,
For the factum of marraige, in your opinion what would be the significance of-
1. "Housewife" written as the occupation of the 2nd lady in the admission form of their child with the name of the father as the husband. The defination of Housewife as per Oxford dictionary is "a married woman whose main occupation is caring for her family, managing household affairs, and doing housework". Why else would she say so if marraige has not occured between her and the father of the child?
2. The name of the father is attached as the last name of the children in the Southern side of our country. I have got a document wherein the husband himself has signed the document nominating his son with the 2nd lady for a property transfer. Husband's name is attached as the last name of the child. In the cross examination of the husband in the pending divorce suit he has admitted that it is his name that has been used as the father's name but he is not aware why the lady and the child have used his name as the father's name. Now confronting him with the fact that it is he himself signing a property nomination to the child with his name as the surname definately showing the factum that he is accepting him as his legal son(or could it be illegal also i can't say?)
3. Finally, battling on for this point itself that both the man woman and child are living as family, projecting as husband and wife for the many 13-14 years and more than that also which is evident itself from the 161 CrpC statement of the witnessess is definately the result of marrying otherwise not possible to write housewife, give self surname to son and projecting to complete society as husband and wife.
Sir Gupta and other experts please help.
Kanhaiya Singh
(Expert) 15 May 2011
Dear Jayesh,
Live-in-relationship for long time or otherwise may be treated as a contract giving some legal rights to the respective parties and the same has also been approved by SC. However, marriage between two Hindus is not simply a contract, it is known as union of souls.
It is our Legislature which is authorised to make laws and Judiciary only inetrprets the said law. Sec.494 IPC is "Marrying again during lifetime of husband and wife". So, it is an offence against marriage. SC in a number of decisions like "Surajmani Stella Kujur v/s Durga Charan Hansda" AIR 2001 SC 938 held that if the "factum of second marriage" is not proved, the charge of bigamy fails.
Dr V. Nageswara Rao
(Expert) 16 May 2011
1. Two things must be strictly seperated. School registers, admissions by the man and DNA tests would only prove that the child was born to the man. For proving the birth of a child, marriage is not necessary.There are unwed mothers, some by choice and some by unfortunate fate.
2. S. 50 of Evidence Act says that you cannot hold a person criminally guilty of bigamy only on the basis of the fact that the people around thought that the man and woman were married couple or even if they held themselves out as couple.
3. For bigamy or for obtaining divorce etc, S. 50 says that marriage has to be proved beyond all reasonable doubt that all the rites and rituals have been gone through.Criminal liability cannot be foisted under our legal system on the basis of presumption of marriage.
4. This might look strange to some, but that is how the law is and how the Cours have interpreted it.
Jayesh Kumar
(Querist) 16 May 2011
1.)Can somebody post me some judgements where in the COurts have convicted u/s 494 on drawing definate presumption that accused has married upon the evidance of long term live in relationship. 2.)Secondly what I think can be hammered on is that unless and until the parties have not married how else can they be living together as husband and wife and projecting the same to the society and also be putting the same on the documents.What do you say?
Jayesh Kumar
(Querist) 16 May 2011
Section 3 Indian Evidance Act would rule over, I suppose??
It is like using section 112 Evidance Act to rebutt the cause and necessity for DNA sampling to determine the paternity. The Courts have overruled 112 for the very obvious reasons.
A decision I have with me give me a mixed feeling. Secondly, recent judgement of Justices Arijit Pasayat and A K Ganguly in which they brushed aside the argument of appellant Subbarao that he can not be prosecuted under 498A as he and the complainant are not married but only in a live-in relationship. The bench observed, “Can a person who enters into a marital agreement be allowed to take shelter behind a smokescreen to contend that since there was no valid marriage, the question of dowry does not arise”. The bench further elaborated on the reasoning, saying, “Such legal niceties would destroy the purpose of the provisions. Such hairsplitting legalistic approach would encourage harassment of a woman over demand of money." So as asked for satisfaction of marraige if long term live in is deemed proved in nature of marraige the criminal prosecution for husband u/s498a can be used by the 2nd lady but the helpless first legally married wife battered by husband cannot get remedy for 494. Interesting :) What makes the first legally wedded wife with no benefits of law while the 2nd with all benefits of law. Is it not constitutionally incorrect to be granting unequal status?
Jayesh Kumar
(Querist) 16 May 2011
Forgot the attachment. Here it is.
Guest
(Expert) 16 May 2011
To be brief, although paternity about the children from second lady can be proved, but bigamy cannot be proved against the husband.
The question is not that many ladies like this suffer and they deserve justice and need is to check some appropriate case law. BUT the need is for seeking proper amendment in the relevant law. Why not the experts should take up the case collectively through their respective bar councils to echo the concern for amendment in the law rather than seeking precedents?
Jayesh Kumar
(Querist) 16 May 2011
Expert Sir Dhingra, u suggesting a PIL with notice to the Centre Government?
What about the details I posted in the above2? Does it not resonate the law?
