India: Right To Maintenance Under Section 125 Of Criminal Procedure Code , 1973

The Hon'ble Supreme Court in a path breaking judgment Chanmuniya Vs. Chanmuniya Virendra Kumar Singh Kushwaha and Anr1 held that "Where partners lived together for a long spell as husband and wife, a presumption would arise in favour of a valid wedlock"

FACTS OF THE CASE :

1. 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 1988 and Usha, the second daughter, was born in 1990. Ram Saran died on 7.03.1992.

2. 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.

ISSUES:

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?

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.?

OBSERVATIONS:

In the present era, a trend has evolved among unmarried couples to live together as husband and wife as long as they have attained the age of majority. Some of these couples never contract a legally binding marriage. Difficult consequences flow from such relationships where due to one reason or another, the relationship may come to an end. In such cases we find that couples had invested heavily in the relationship both financially and emotionally. The disgruntled persons in the relationship think that since there was no legally recognized marriage, they cannot resort to the law in acquiring their property back or in some instances getting compensation.

In the case of Chanmuniya Vs. Chanmuniya Virendra Kumar Singh Kushwaha and Anr. The appellant have been married off to one Virendra Kumar Singh in accordance with the local custom of Katha and Sindur. The High Court in its findings have opined that the essentials of a valid Hindu marriage, as required under Section 7 of the Hindu Marriage Act, had not been performed, thus the respondent was not the husband of the appellant.

The first question as to whether or not a presumption of marriage arises when parties live together for a long time is answered here as follows.

The parties may not have performed the statutory essentials of a valid marriage, but they had entered into this relationship with the intention to marry and to be called as husband and wife before the eyes of the society. It was clearly stated down in the facts of the case that the appellant and respondent had been living together as husband and wife and had discharged all marital obligations towards each other.

The law provides for presumption of marriage. Where parties have cohabited together for a certain period of time, then the courts can construe a presumption of marriage and hence apply the rules of marriage to deal with issues of those parties. All parties that seek to rely on the presumption of marriage must prove that indeed a union existed, and such a union can be challenged only by strong and satisfactory evidence2 .

In the instant case the appellant and the respondent have been staying together as man and wife for a period of time. The people around them must have believed, from their conduct that the parties are husband and wife. The parties must be living or lived in one household and behaved in a way that led others to believe that they were husband and wife. A relationship, which may be adulterous at the beginning, may become matrimonial consent. This may be evidenced by habit and repute3 . Courts also insist that such unions should be qualitative and quantitative. The cohabitation should be long, continuous having substance and not periodical. Parties should be living under one roof, do things together like acquiring property, and maybe even have children together, which would then move the relationship from the realm of concubinage to marriage. 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 astate of concubinage4 .

The next question as to whether claim of maintenance can be sought under Section. 125 of Cr.P.C. if valid marriage is presumed and what 'wife' under Section 125 of Cr.P.C. means especially having regard to explanation under Clause (b) of the Section, is answered here as follows. The objectives of Section-125 of Cr.P.C are to achieve a social purpose and to prevent vagrancy and destitution.

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 objective5 . 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 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. 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. The Constitution Bench of this Court in Mohammad Ahmed Khan v. Shah Bano Begum and Ors6 , 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 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.

Acts/Rules/Orders:

1. Hindu Marriage Act, 1955 - Section 2, Section 7, Section 7(1), Section 9, Section 20, Section 20(1), Section 22, Section 26, Section 28;

2. Family Law Act; Protection of Women from Domestic Violence Act, 2005 - Section 3, Protection of Women from Domestic Violence Act, 2005 – Section 26;

3. Code of Criminal Procedure, 1973 (CrPC) - Section 125; Section 536; Section 488, Section 488(1);

4. Indian Penal Code (IPC) - Section 494;

5. Constitution of India - Article 15(3), Constitution of India - Article 39

Footnotes

1. Chanmuniya Vs.Chanmuniya Virendra Kumar Singh Kushwaha and Anr (2011)1SCC141

2. Lousia Adelaide Piers and Florence A.M. De Kerriguen v. Sir Henry Samuel Piers (1849) II HLC 331

3. In Lieutenant C.W. Campbell v. John A.G. Campbell (1867) Law Rep. 2 HL 269

4. A. DINOHAMY V. W.L. BALAHAMY AIR 1927 P.C. 185

5. VIMALA (K) V. VEERASWAMY (K) MANU/SC/0719/1991: (1991) 2 SCC 375

6. MANU/SC/0194/1985: (1985) 2 SCC 556

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