@ 4 Generic discussion
Off late my inbox is receiving forward looking social query mails and I thought to seek discussion across cutting difference of opinion from qualified fellow ld. brothers including Saurabh V. on subject matter law in perspective on provision of paying Maintenance to Live – in partners.
I feel that law shall follow society and why not it shall follow in light of the constant change in social attitudes and values society marches ahead hence my understanding as of date is that “maintenance provision extension to live-in partner is on hold as no decision cometh from Hon’ble CJI till date” where the last case law was referred to for constituting larger Bench to set out Ruling on below three major social issues in hand;
1. Whether the living together of a man and woman as husband and wife for a considerable period of time would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under S. 125 Cr.P.C?
2. Whether strict proof of marriage is essential for a claim of maintenance under S. 125 Cr.P.C. having regard to the provisions of Domestic Violence Act, 2005?
3. Whether a marriage performed according to customary rites and ceremonies, without strictly fulfilling the requisites of S. 7 (1) of the Hindu Marriage Act, 1955 or any other personal law would entitle the woman to maintenance under S. 125 Cr.P.C.?
Notable chronological observations made by Hon’ble SC down my memory recall lane;
In Adan Mohan Singh Vs Rajni Kant, the Supreme Court observed “The courts have consistently held that the law presumes in favor of marriage and against concubinage, when a man and woman have cohabited continuously for a number of years. However, such presumption can be rebutted by leading unimpeachable evidence.
Vide -
Mohabbat Ali Khan Vs. Mohd. Ibrahim Khan, AIR 1929 PC 135
Gokalchand Vs. Parvin Kumar, AIR 1952 SC 231
S.P.S Balasubramanyam Vs. Suruttayan (1994) 1 SCC 460
Ranganath Parmeshwar Panditrao
Sobha Hymavathi Devi Vs. Setti Gangadhara Swamy and Ors. (2005) 2 SCC 244).
In S.P.S Balasubramanyam Vs Suruthaya @ Andali Padayachi and Ors. AIR 1992 SC 756, the Supreme court held that if man and woman are living under the same roof and cohabiting for a number of years, there will be a presumption under section 114 of the Evidence Act, that they Live as husband and wife and the children born to them will not be illegitimate.
S.Khushboo Vs. Kanniammal
Crl. Appeal No. 913 of 2010
[Arising out of SLP (Crl.) No. 4010 of 2008]
Date of decision: 28th. April 2010
In appeal filed by the well know actress, Khushboo seeking quashing of criminal proceedings filed against her mostly in the state of Tamil Nadu, for the remarks made by her in an interview to a leading new magazine. The Hon’ble Supreme court opined that a man and woman living together without marriage cannot be construed as an offence.
The Apex court said there was no law which prohibits Live-in relationship or pre-marital s*x.
The Supreme court, held that Live-in relationship is permissible only in unmarried major persons of heterogeneous s*x. In case, one of the said persons is married, man may be guilty of offence of adultery and it would amount to an offence under section 497 IPC.
Chanmuniya Vs Virendra Kumar Singh Kushwaha (2011) 2 SCC (Cri) 666
Facts: The Appellant, Chanmuniya was married to Ram Saran and had 2 daughters. Ram Saran died on 07.03.1992. Chanmuniya married Virendra Kumar Singh Kushwaha, the younger brother of her deceased husband, in accordance with the local custom of Katha and Sindur. They were living as husband and wife together, Virendra Kumar Singh Kushwaha started harassing and torturing Chanmuniya, she asked for maintenance but Kushwaha refused saying that she wasn’t his legally wedded wife.
The Uttar Pradesh High Court also dismissed her petition on the ground that 125 Cr.P.C is available only to the legally wedded wife; thereafter she approached the apex court to seek justice.
Decision: Women in Live-in relationships are also entitled to all the reliefs given in the said Act (The Protection of Women from Domestic Violence Act, 2005).
Important observations: The courts should enforce express contracts between non-marital partners except to the extent that the contract is explicitly founded on the consideration of meretricious s*xual services. In the absence of express contracts, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties.
The Protection of Women from Domestic Violence Act, 2005 assigns a very broad and expansive definition to the term ‘domestic abuse’ to include within its purview even ‘economic abuse’. Economic abuse includes deprivation of financial and economic resources. Section 20 of the Act allows the Magistrate to direct the respondent to pay monetary relief to the aggrieved person, who is the harassed woman, for expenses incurred and losses suffered by her, which may include, but is not limited to, maintenance under section 125 Cr.P.C.
The Protection of Women from Domestic Violence Act, 2005 gives a very wide interpretation to the term ‘domestic relationship’ as to take it outside the confines of a marital relationship, and even includes Live-in relationships in the nature of marriage within the definition of ‘domestic relationship’. Therefore, women in Live-in relationship are also entitled to all the reliefs given in the said Act, they should also be allowed in proceedings under section 125 of Cr.P.C.
Velusamy Vs. D Patchaiammal (2011) 1 SCC 141
The Hon’ble Supreme court in the above case observed that a woman in a live-in relationship is not entitled to maintenance unless she fulfills certain parameters, the Supreme court had observed that merely spending weekends together or a one night would not make it a domestic relationship.
A bench comprising Justices Markandey Katju and T S Thakur said that in order to get maintenance, a women, even if not married, has to fulfill the following four requirements:
1. The couple must hold themselves out to society as being akin to spouses.
2. They must be of legal age to marry.
3. They must be otherwise qualified to enter into a legal marriage.
4. They must be voluntarily cohabited and held themselves out to the world as
being akin to spouses for a significant period of time.
The Supreme court observed, in our opinion not all Live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the Protection of Women from Domestic Violence Act, 2005. To get such benefit the conditions mentioned above must be satisfied, and this has to be proved by evidence. If a man has a ‘keep’ whom he maintains financially and uses mainly for s*xual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage.
The Apex court passed the judgment while setting aside the concurrent orders passed by a matrimonial court and the Madras High Court awarding Rs 500 maintenance to Patchaiammal who claimed to have married the appellant D Velusamy.
Velusamy had challenged the two courts order on the ground that he was already married to one Laxmi and Patchiammal was not married to him though he lived with her for some time.
The Apex court also observed, "No doubt the view we are taking would exclude many women who have had a Live-in relationship from the benefit of the 2005 Act (Protection of Women from Domestic Violence Act), but then it is not for this court to legislate or amend the law. Parliament has used the expression 'relationship in the nature of marriage' and not 'Live-in relationship'. The court in the garb of interpretation cannot change the language of the statute," the bench observed.
