Citation: 2010 10 SCC 469
Case Type: Criminal Appeal
Case No: 2028-2029 of 2010
Appellants: D. Velusamy
Respondents: D. Patchaiammal
Decided On: 21-10-2010
- Code of Criminal Procedure
- The Protection of Women from Domestic Violence Act, 2005
- Vimala (K) vs. Veeraswamy (K)
- Savitaben Somabhat Bhatiya vs. State of Gujarat and others
- S. Khushboo vs. Kanniammal & Anr
Bench: Markandey Katju, T. S. Thakur JJ
The appellant was alleged to have been married in accordance with Hindu rites with one Lakshmi dated 25-06-1980. The wedlock gave birth to a son. And the petitioner-appellant was working as teacher in Thevanga Higher Secondary School, Coimbatore.
The respondent filed a petition U/S 125 CrPc in the year 2001 at the Family High Court at Coimbatore where it was alleged that she was married to the appellant on 14-09-1986, wherefrom both lived together in her father’s house for two to three years.
In the petition it was alleged that after two or three year the appellant left the house of the respondent’ father and began to reside at his native place but paid occasional visit to respondent house.
So it was claimed that the appellant had deserted the respondent in 1986. Also that the respondent did not had any kind of livelihood whereas the appellant was Secondary Grade Teacher with salary of 10,000 pm. Therefore under Section 125 CrPc it was prayed that the appellant be directed to pay 500 pm as maintenance to the respondent.
It was also alleged by the respondent against the appellant that he was married to one Lakshmi on 25-06-1980, a ration card, voter’s identity card, transfer certificate of the son borne to that marriage, discharge certificate of Lakshmi from hospital, photographs of the marriage etc, was produced before the Court as a testimony of the allegation.
The Family Court held that the appellant had been married to the respondent and not to one Lakshmi and the same was upheld by the High Court as well.
The special leave petition was filed before the Supreme Court against the order of the judgment of the Madras High Court.
Whether the appellant was married to the respondent or not.
What is the meaning of the expression `a relationship in the nature of marriage’?
The whole objective of Section 125 CrPc is to ward off a suffering wife from vagrancy and destitution. It is a means to accord speedy remedy for the supply of food, clothing, and shelter to the deserted wife. Section 125 of CrPc is applicable upon woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried.
Thus a woman without marital status is within the ambit of the definition of term ‘wife’. But a marriage with a second wife is void and the wife therefore is not entitled to maintenance provision.
No matter how grave is the plight of an unfortunate woman who unwittingly enters into marriage with a married man, cannot be included within the ambit of remedy U/S 125 CrPc. Such gap in law can only be filled by the Legislature through an amendment.
Lakshmi was not issued any notice and was not made party to the case neither in the family Court nor in the High Court, hence any declaration upon the marital status of Lakshmi shall be wholly null and void.
The Court held that the lower Courts erred in deciding that Lakshmi was not married to the appellant as notice was issued to her and she did not turn up and therefore wasn’t heard, it cannot be successfully contended that the respondent is the wife of the appellant.
The expression ‘domestic relationship’ includes relationship of marriage and also the nature of the marriage. But the Court opined that the Parliament in the Protection of Women from Domestic Violence Act, 2005 had lined a clear margin between the relationship of marriage and a relationship in the nature of marriage, whereby a person entering into a either case is entitled to the benefit of the Act.
It gives the impression that the Parliament through the said Act tried to take notice of the new social phenomenon, known as live-in relationship.
In USA the term ‘palimony’ was coined to mean the grant of maintenance to a women who has lived with a man without marrying him for a substantial period of time and is then deserted by him. In various decisions of the Courts in USA, the concept of palimony has been considered and developed.
Also some countries of the world has recognised ‘common law marriage’ which is also called as de facto marriage or informal marriage, where no marriage ceremony takes place or civil marriage contract is entered or registered.
The Court opined that ‘relationship in the nature of marriage’ is like common law marriage. Requirement of common law marriage are:-
- The couple must hold themselves out to society as being akin to spouses.
- They must be of legal age to marry.
- They must be otherwise qualified to enter into a legal marriage, including being unmarried.
- They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
In addition to the above requirements parties in live-in relationship must live together in a ‘shared household’ as defined in Section 2(s) of the Act. Merely where man keeps a woman who is financially maintained and uses mainly for sexual purposes or as a servant it would not amount to be a relationship in the nature of marriage.
In a feudal society having sexual relationship without marriage was regarded as toboo and with disgust and horror was not accepted. But however the Indian society is changing and such a change is recognised by the Parliament itself through Protection of Women from Domestic Violence Act, 2005.
The Apex Court’s bench comprising of Markandey Katju, T. S. Thakur JJ, held the following:
Non issuance of the notice to Lakshmi was an error upon which the High Court and the Family Court decided that appellant was not married to Lakshmi. Therefore the impugned order of lower court was set aside.
The Family Court was order to issue notice to Lakshmi and hear her and then give a fresh finding in accordance with law.
Only upon such finding can the Court decide that whether appellant is married to the respondent or not.
Also that the Family Court did not find out whether the appellant and the respondent had lived together for a reasonably long period of time in a relationship which was in the nature of marriage.
Hence the matter was remanded to the Family Court Judge to adjudicate afresh in accordance with the observation made in this case. Appeal was allowed.
The days of restricted norms have passed away, today is the day when living together without marriage is a new norm. Marriage is not only sacred but comes with various social obligation to be performed to which some couples might be reluctant.
But it is to be borne in mind that this case has laid dawn certain requirement to be fulfilled in order to be qualified as a relationship which is in the nature of marriage. Such a qualification is essential in order to deliver justice to those women who lived with the man for a considerable period of time, was later deserted and tagged as an unfortunate women.