REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO._____ OF 2010
(Arising out of SLP (Civil) No.15071 of 2009)
Chanmuniya ..Appellant(s)
Versus
Virendra Kumar Singh Kushwaha & Anr. ..Respondent(s)
J U D G M E N T
GANGULY, J.
1. Leave granted.
2. One Sarju Singh Kushwaha had two sons, Ram Saran
(elder son) and Virendra Kumar Singh Kushwaha
(younger son and the first respondent). The
appellant, Chanmuniya, was married to Ram Saran and
had 2 daughters-Asha, the first one, was born in
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1988 and Usha, the second daughter, was born in
1990. Ram Saran died on 7.03.1992.
3. Thereafter, the appellant contended that she was
married off to the first respondent as per the
customs and usages prevalent in the Kushwaha
community in 1996. The custom allegedly was that
after the death of the husband, the widow was
married off to the younger brother of the husband.
The appellant was married off in accordance with the
local custom of Katha and Sindur. The appellant
contended that she and the first respondent were
living together as husband and wife and had
discharged all marital obligations towards each
other. The appellant further contended that after
some time the first respondent started harassing and
torturing the appellant, stopped her maintenance and
also refused to discharge his marital obligations
towards her.
4. As a result, she initiated proceedings under Section
125 of the Cr.P.C. for maintenance (No.20/1997)
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before the 1st Additional Civil Judge, Mohamadabad,
Ghazipur. This proceeding is pending.
5. She also filed a suit (No.42/1998) for the
restitution of conjugal rights under Section 9 of
the Hindu Marriage Act, 1955 in the Court of 1st
Additional District Judge, Ghazipur.
6. The Trial Court decreed the suit for restitution of
conjugal rights in favour of the appellant on
3.1.2004 as it was of the opinion that the appellant
had remarried the first respondent after the death
of Ram Saran, and the first respondent had deserted
the appellant thereafter. Thus, it directed the
first respondent to live with the appellant and
perform his marital duties.
7. Hence, the first respondent preferred a first appeal
(No.110/2004) under Section 28 of the Hindu Marriage
Act. The main issue in appeal was whether there was
any evidence on record to prove that the appellant
was the legally wedded wife of the first respondent.
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The High Court in its judgment dated 28.11.2007 was
of the opinion that the essentials of a valid Hindu
marriage, as required under Section 7 of the Hindu
Marriage Act, had not been performed between the
first respondent and the appellant and held that the
first respondent was not the husband of the
appellant and thus reversed the findings of the
Trial Court.
8. Aggrieved by the aforesaid judgment of the High
Court, the appellant sought a review of the order
dated 28.11.2007. The review petition was dismissed
on 23.01.2009 on the ground that there was no error
apparent on the face of the record of the judgment
dated 28.11.2007.
9. Hence, the appellant approached this Court by way of
a special leave petition against the impugned orders
dated 28.11.2007 and 23.01.2009.
10.One of the major issues which cropped up in the
present case is whether or not presumption of a
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marriage arises when parties live together for a
long time, thus giving rise to a claim of
maintenance under Section 125 Cr.P.C. In other
words, the question is what is meant by `wife' under
Section 125 of Criminal Procedure Code especially
having regard to explanation under clause (b) of the
Section.
11.Thus, the question that arises is whether a man and
woman living together for a long time, even without
a valid marriage, would raise as in the present
case, a presumption of a valid marriage entitling
such a woman to maintenance.
12.On the question of presumption of marriage, we may
usefully refer to a decision of the House of Lords
rendered in the case of Lousia Adelaide Piers &
Florence A.M. De Kerriguen v. Sir Henry Samuel Piers
[(1849) II HLC 331], in which their Lordships
observed that the question of validity of a marriage
cannot be tried like any other issue of fact
independent of presumption. The Court held that law
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will presume in favour of marriage and such
presumption could only be rebutted by strong and
satisfactory evidence.
13.In Lieutenant C.W. Campbell v. John A.G. Campbell
[(1867) Law Rep. 2 HL 269], also known as the
Breadalbane case, the House of Lords held that
cohabitation, with the required repute, as husband
and wife, was proof that the parties between
themselves had mutually contracted the matrimonial
relation. A relationship which may be adulterous at
the beginning may become matrimonial by consent.
This may be evidenced by habit and repute. In the
instant case both the appellant and the first
respondent were related and lived in the same house
and by a social custom were treated as husband and
wife. Their marriage was solemnized with Katha and
Sindur. Therefore, following the ratio of the
decisions of the House of Lords, this Court thinks
there is a very strong presumption in favour of
marriage. The House of Lords again observed in
Captain De Thoren v. The Attorney-General [(1876) 1
AC 686], that the presumption of marriage is much
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stronger than a presumption in regard to other
facts.
14.Again in Sastry Velaider Aronegary & his wife v.
Sembecutty Viagalie & Ors. [(1881) 6 AC 364], it was
held that where a man and woman are proved to have
lived together as man and wife, the law will
presume, unless the contrary is clearly proved, that
they were living together in consequence of a valid
marriage, and not in a state of concubinage.
15.In India, the same principles have been followed in
the case of A. Dinohamy v. W.L. Balahamy [AIR 1927
P.C. 185], in which the Privy Council laid down the
general proposition that where a man and woman are
proved to have lived together as man and wife, the
law will presume, unless, the contrary is clearly
proved, that they were living together in
consequence of a valid marriage, and not in a state
of concubinage.
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16.In Mohabbat Ali Khan v. Muhammad Ibrahim Khan and
Ors. [AIR 1929 PC 135], the Privy Council has laid
down that the law presumes in favour of marriage and
against concubinage when a man and woman have
cohabited continuously for number of years.
17.In the case of Gokal Chand v. Parvin Kumari [AIR
1952 SC 231], this Court held that continuous co-
habitation of man and woman as husband and wife may
raise the presumption of marriage, but the
presumption which may be drawn from long co-
habitation is rebuttable and if there are
circumstances which weaken and destroy that
presumption, the Court cannot ignore them.
18.Further, in the case of Badri Prasad v. Dy. Director
of Consolidation & Ors. [(1978) 3 SCC 527], the
Supreme Court held that 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
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burden lies on him who seeks to deprive the
relationship of legal origin.
19.Again, in Tulsa and Ors. v. Durghatiya & Ors. [2008
(4) SCC 520], this Court held that where the
partners lived together for a long spell as husband
and wife, a presumption would arise in favour of a
valid wedlock.
20.Sir James Fitz Stephen, who piloted the Criminal
Procedure Code of 1872, a legal member of Viceroy's
Council, described the object of Section 125 of the
Code (it was Section 536 in 1872 Code) as a mode of
preventing vagrancy or at least preventing its
consequences.
21.Then came the 1898 Code in which the same provision
was in Chapter XXXVI Section 488 of the Code. The
exact provision of Section 488(1) of the 1898 Code
runs as follows:
"488. (1) If any person having sufficient
means neglects or refuses to maintain his
wife or his legitimate or illegitimate
child unable to maintain itself, the
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District Magistrate, a Presidency
Magistrate, a Sub-divisional Magistrate or
a Magistrate of the first class may, upon
proof of such neglect or refusal, order
such person to make a monthly allowance
for the maintenance of his wife or such
child, at such monthly rate, not exceeding
five hundred rupees in the whole as such
Magistrate thinks fit, and to pay the same
to such person as the Magistrate from time
to time directs."
22.In Jagir Kaur & Anr. v. Jaswant Singh [AIR 1963 SC
1521], the Supreme Court observed with respect to
Chapter XXXVI of Cr.P.C. of 1898 that provisions for
maintenance of wives and children intend to serve a
social purpose. Section 488 prescribes forums for a
proceeding to enable a deserted wife or a helpless
child, legitimate or illegitimate, to get urgent
relief.
23.In Nanak Chand v. Chandra Kishore Aggarwal & Ors.
[1969 (3) SCC 802], the Supreme Court, discussing
Section 488 of the older Cr.P.C, virtually came to
the same conclusion that Section 488 provides a
summary remedy and is applicable to all persons
belonging to any religion and has no relationship
with the personal law of the parties.
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24.In Captain
Ramesh
Chander Kaushal v. Veena Kaushal
and Ors. [AIR 1978 SC 1807], this Court held that
Section 125 is a reincarnation of Section 488 of the
Cr.P.C. of 1898 except for the fact that parents
have also been brought into the category of persons
entitled for maintenance. It observed that this
provision is a measure of social justice specially
enacted to protect, and inhibit neglect of women,
children, old and infirm and falls within the
constitutional sweep of Article 15(3) reinforced by
Article 39. Speaking for the Bench Justice Krishna
Iyer observed that- "We have no doubt that sections
of statutes calling for construction by courts are
not petrified print but vibrant words with social
functions to fulfill. The brooding presence of the
constitutional empathy for the weaker sections like
women and children must inform interpretation if it
is to have social relevance. So viewed, it is
possible to be selective in picking out that
interpretation out of two alternatives which advance
the cause- the cause of the derelicts." (Para 9 on
pages 1809-10)
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25.Again in Vimala (K) v. Veeraswamy (K) [(1991) 2 SCC
375], a three-Judge Bench of this Court held that
Section 125 of the Code of 1973 is meant to achieve
a social purpose and the object is to prevent
vagrancy and destitution. Explaining the meaning of
the word `wife' the Court held:
"...The object is to prevent vagrancy and
destitution. It provides a speedy remedy
for the supply of food, clothing and
shelter to the deserted wife. When an
attempt is made by the husband to negative
the claim of the neglected wife depicting
her as a kept-mistress on the specious
plea that he was already married, the
court would insist on strict proof of the
earlier marriage. The term `wife' in
Section 125 of the Code of Criminal
Procedure, includes a woman who has been
divorced by a husband or who has obtained
a divorce from her husband and has not
remarried. The woman not having the legal
status of a wife is thus brought within
the inclusive definition of the term
`wife' consistent with the objective... "
26.Thus, in those cases where a man, who lived with a
woman for a long time and even though they may not
have undergone legal necessities of a valid
marriage, should be made liable to pay the woman
maintenance if he deserts her. The man should not be
allowed to benefit from the legal loopholes by
enjoying the advantages of a de facto marriage
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without undertaking the duties and obligations. Any
other interpretation would lead the woman to
vagrancy and destitution, which the provision of
maintenance in Section 125 is meant to prevent.
27.The Committee on Reforms of Criminal Justice System,
headed by Dr. Justice V.S. Malimath, in its report
of 2003 opined that evidence regarding a man and
woman living together for a reasonably long period
should be sufficient to draw the presumption that
the marriage was performed according to the
customary rites of the parties. Thus, it recommended
that the word `wife' in Section 125 Cr.P.C. should
be amended to include a woman who was living with
the man like his wife for a reasonably long period.
28.The Constitution Bench of this Court in Mohammad
Ahmed Khan v. Shah Bano Begum & Ors. reported in
[(1985) 2 SCC 556], considering the provision of
Section 125 of the 1973 Code, opined that the said
provision is truly secular in character and is
different from the personal law of the parties. The
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Court further held that such provisions are
essentially of a prophylactic character and cut
across the barriers of religion. The Court further
held that the liability imposed by Section 125 to
maintain close relatives, who are indigent, is
founded upon the individual's obligation to the
society to prevent vagrancy and destitution.
29.In a subsequent decision, in Dwarika Prasad Satpathy
v. Bidyut Prava Dixit & Anr. [(1999) 7 SCC 675],
this Court held that the standard of proof of
marriage in a Section 125 proceeding is not as
strict as is required in a trial for an offence
under Section 494 of IPC. The learned Judges
explained the reason for the aforesaid finding by
holding that an order passed in an application under
Section 125 does not really determine the rights and
obligations of parties as the section is enacted
with a view to provide a summary remedy to neglected
wives to obtain maintenance. The learned Judges held
that maintenance cannot be denied where there was
some evidence on which conclusions of living
together could be reached. (See para 9)
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30.However, striking a different note, in Yamunabai
Anantrao Adhav v. Anantrao Shivram Adhav and
another, reported in AIR 1988 SC 644, a two-Judge
Bench of this Court held that an attempt to exclude
altogether personal law of the parties in
proceedings under Section 125 is improper. (See para
6). The learned Judges also held (paras 4 & 8) that
the expression `wife' in Section 125 of the Code
should be interpreted to mean only a legally wedded
wife.
31.Again in a subsequent decision of this Court in
Savitaben Somabhat Bhatiya v. State of Gujarat and
others, reported in AIR 2005 SC 1809, this Court
held however desirable it may be to take note of
plight of an unfortunate woman, who unwittingly
enters into wedlock with a married man, there is no
scope to include a woman not lawfully married within
the expression of `wife'. The Bench held that this
inadequacy in law can be amended only by the
Legislature. While coming to the aforesaid finding,
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the learned Judges relied on the decision in the
Yamunabai case (supra).
32.It is, therefore, clear from what has been discussed
above that there is a divergence of judicial opinion
on the interpretation of the word `wife' in Section
125.
33.We are inclined to take a broad view of the
definition of `wife' having regard to the social
object of Section 125 in the Code of 1973. However,
sitting in a two-Judge Bench, we cannot, we are
afraid, take a view contrary to the views expressed
in the abovementioned two cases.
34.However, law in America has proceeded on a slightly
different basis. The social obligation of a man
entering into a live-in relationship with another
woman, without the formalities of a marriage, came
up for consideration in the American courts in the
leading case of Marvin v. Marvin [(1976) 18 Cal.3d
660]. In that context, a new expression of
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`palimony' has been coined, which is a combination
of `pal' and `alimony', by the famous divorce lawyer
in the said case, Mr. Marvin Mitchelson.
35.In the Marvin case (supra), the plaintiff, Michelle
Marvin, alleged that she and Lee Marvin entered into
an oral agreement which provided that while "the
parties lived together they would combine their
efforts and earnings and would share equally any and
all property accumulated as a result of their
efforts whether individual or combined." The parties
allegedly further agreed that Michelle would "render
her services as a companion, homemaker, housekeeper
and cook." Michelle sought a judicial declaration of
her contract and property rights, and sought to
impose a constructive trust upon one half of the
property acquired during the course of the
relationship. The Supreme Court of California held
as follows:
(1) The provisions of the Family Law Act do not
govern the distribution of property acquired
during a non-marital relationship; such a
relationship remains subject solely to judicial
decision.
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(2) 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 sexual services.
(3) In the absence of an express contract, 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 courts may
also employ the doctrine of quantum meruit, or
equitable remedies such as constructive or
resulting trusts, when warranted by the facts of
the case.
36.Though in our country, law has not developed on the
lines of the Marvin case (supra), but our social
context also is fast changing, of which cognizance
has to be taken by Courts in interpreting a
statutory provision which has a pronounced social
content like Section 125 of the Code of 1973.
37.We think the larger Bench may consider also the
provisions of the Protection of Women from Domestic
Violence Act, 2005. This Act assigns a very broad
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and expansive definition to the term `domestic
abuse' to include within its purview even economic
abuse. `Economic abuse' has been defined very
broadly in sub-explanation (iv) to explanation I of
Section 3 of the said Act to include deprivation of
financial and economic resources.
38.Further, 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. [Section 20(1)(d)].
39.Section 22 of the Act confers upon the Magistrate,
the power to award compensation to the aggrieved
person, in addition to other reliefs granted under
the Act.
40.In terms of Section 26 of the Act, these reliefs
mentioned above can be sought in any legal
proceeding, before a civil court, family court or a
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criminal court, affecting the aggrieved person and
the respondent.
41.Most significantly, the Act 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' under Section
2(f) of the Act.
42.Therefore, women in live-in relationships are also
entitled to all the reliefs given in the said Act.
43.We are thus of the opinion that if the
abovementioned monetary relief and compensation can
be awarded in cases of live-in relationships under
the Act of 2005, they should also be allowed in a
proceedings under Section 125 of Cr.P.C. It seems to
us that the same view is confirmed by Section 26 of
the said Act of 2005.
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44.We believe that in light of the constant change in
social attitudes and values, which have been
incorporated into the forward-looking Act of 2005,
the same needs to be considered with respect to
Section 125 of Cr.P.C. and accordingly, a broad
interpretation of the same should be taken.
45.We, therefore, request the Hon'ble Chief Justice to
refer the following, amongst other, questions to be
decided by a larger Bench. According to us, the
questions are:
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 Section 125 Cr.P.C?
2. Whether strict proof of marriage is essential
for a claim of maintenance under Section 125
Cr.P.C. having regard to the provisions of
Domestic Violence Act, 2005?
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3. Whether a marriage performed according to
customary rites and ceremonies, without
strictly fulfilling the requisites of Section
7(1) of the Hindu Marriage Act, 1955, or any
other personal law would entitle the woman to
maintenance under Section 125 Cr.P.C.?
46.We are of the opinion that a broad and expansive
interpretation should be given to the term `wife' to
include even those cases where a man and woman have
been living together as husband and wife for a
reasonably long period of time, and strict proof of
marriage should not be a pre-condition for
maintenance under Section 125 of the Cr.P.C, so as
to fulfil the true spirit and essence of the
beneficial provision of maintenance under Section
125.
47.We also believe that such an interpretation would be
a just application of the principles enshrined in
the Preamble to our Constitution, namely, social
justice and upholding the dignity of the individual.
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.....................J.
(G.S. SINGHVI)
.....................J.
(ASOK KUMAR GANGULY)
New Delhi
October 07, 2010
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- advocatemmmohan
- since 1985 practicing as advocate in both civil & criminal laws
