Section 125 CrPC and Domestic Violence Act 2005: Maintenance ( D. Velusamy vs. D. Patchaimmal)

Facts:

The appellant herein has alleged that he was married according to the Hindu Customary Rites with Lakshmi on 25.6.1980. Out of the wedlock with Lakshmi a male child was born, who is now studying in an Engineering college at Ooty. Respondent, Patchaiammal, filed a petition under Section 125 Cr.P.C. in the year 2001 before the Family Court at Coimbatore in which she alleged that she was married to the appellant herein on 14.9.1986 and since then the appellant herein and she lived together in her father’s house for two or three years. It is alleged in the petition that after two or three years the appellant herein left the house of the respondent’s father and started living in his native place, but would visit the respondent occasionally. In her petition under Section 125 Cr.P.C. she alleged that she did not have any kind of livelihood and she is unable to maintain herself.

 

Issue:

Is the Respondent entitled to maintenance under section 125, given the subsistence of first marriage?

 

If not, is the respondent entitled to maintenance under Domestic Violence Act 2005, due to the nature of relationship?

Relevant sections

125 CrPC

Section 2(a), 2(f), 2(s), 3(a), 20(1)(d) Domestic Violence Act 2005

 

Ratio decidendi:

To prove his marriage with Lakshmi the appellant produced the ration card, voter’s identity card of his wife, transfer certificate of his son, discharge certificate of his wife Lakshmi from hospital, photographs of the wedding, etc. but the learned Family Court Judge has held by his judgment dated 5.3.2004 that the appellant was married to the respondent and not to Lakshmi. These findings have been upheld by the High Court in the impugned judgment. In our opinion, since Lakshmi was not made a party to the proceedings before the Family Court Judge or before the High Court and no notice was issued to her hence any declaration about her marital status vis-à- vis the appellant is wholly null and void as it will be violative of the rules of natural justice. Since no declaration to the marriage of respondent and Lakshmi can be given, hence, the appellant could not have validly married the respondent if he has not divorced Lakshmi.

Section 125 Cr.P.C. provides for giving maintenance to the wife and some other relatives:

“Wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.”

In Vimala (K) vs. Veeraswamy (K) the meaning of the word ‘wife’ the Court held:

“…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 woman not having the legal status of a wife is thus brought within the inclusive definition of the term ‘wife’ consistent with the objective. However, under the law a second wife whose marriage is void on account of the survival of the first marriage is not a legally wedded wife, and is, therefore, not entitled to maintenance under this provision.” The same was held in  Savitaben Somabhat Bhatiya vs. State of Gujarat. 

Since we have held that the Courts below erred in law in holding that Lakshmi was not married to the appellant (since notice was not issued to her and she was not heard), it cannot be said at this stage that the respondent herein is the wife of the appellant. A divorced wife is treated as a wife for the purpose of Section 125 Cr.P.C. but if a person has not even been married obviously that person could not be divorced. Hence the respondent herein cannot claim to be the wife of the appellant herein, unless it is established that the appellant was not married to Lakshmi.

 

However, the question has also be to be examined from the point of view of The Protection of Women from Domestic Violence Act, 2005. 

 

We may point out that the expression `domestic relationship (Section 2(f)’ includes not only the relationship of marriage but also a relationship `in the nature of marriage’.  There is a  distinction between the relationship of marriage and a relationship in the nature of marriage, and has provided that in either case the person who enters into either relationship is entitled to the benefit of the Act. The act has notices live-in relationship In USA the expression `palimony’ was coined which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying him, and is then deserted by him (see ‘palimony’ on Google). The first decision on palimony was the well known decision of the California Superior Court in Marvin vs. Marvin (1976) 18 C3d660. This case related to the famous film actor Lee Marvin, with whom a lady Michelle lived for many years without marrying him, and was then deserted by him and she claimed palimony. Subsequently in many decisions of the Courts in USA, the concept of palimony has been considered and developed. The US Supreme Court has not given any decision on whether there is a legal right to palimony, but there are several decisions of the Courts in various States in USA. Although there is no statutory basis for grant of palimony in USA, the Courts there which have granted it have granted it on a contractual basis. Some Courts in USA have held that there must be a written or oral agreement between the man and woman that if they separate the man will give palimony to the woman, while other Courts have held that if a man and woman have lived together for a substantially long period without getting married there would be deemed to be an implied or constructive contract that palimony will be given on their separation. Thus, there are widely divergent views of the Courts in U.S.A. regarding the right to palimony. Some States like Georgia and Tennessee expressly refuse to recognize palimony agreements.

In our opinion a ‘relationship in the nature of marriage’ is akin to a common law marriage. Common law marriages require that although not being formally married :-

(a) The couple must hold themselves out to society as being akin to spouses.

(b) They must be of legal age to marry.

(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

In our opinion a ‘relationship in the nature of marriage’ under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a ‘shared household’ as defined in Section 2(s) of the Act.  Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’.

 

Coming back to the facts of the present case, we are of the opinion that the High Court and the learned Family Court Judge erred in law in holding that the appellant was not married to Lakshmi without even issuing notice to Lakshmi. Hence this finding has to be set aside and the matter remanded to the Family Court which may issue notice to Lakshmi and after hearing her give a fresh finding in accordance with law. The question whether the appellant was married to the respondent or not can, of course, be decided only after the aforesaid finding.

There is also no finding in the judgment of the learned Family Court Judge on the question whether the appellant and respondent had lived together for a reasonably long period of time in a relationship which was in the nature of marriage. In our opinion such findings were essential to decide this case. Hence we set aside the impugned judgment of the High Court and Family Court Judge, Coimbatore and remand the matter to the Family Court Judge to decide the matter afresh in accordance with law and in the light of the observations made above.

 

Judgement:

Appeals allowed.