Virendra Kumar Singh Kushwaha & ANR.  INSC 829 (7 October 2010)
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)
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 1 1988 and Usha, the second daughter, was born in 1990. Ram Saran
died on 7.03.1992.
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.
a result, she initiated proceedings under Section 125 of the Cr.P.C. for
maintenance (No.20/1997) 2 before the 1st Additional Civil Judge, Mohamadabad,
Ghazipur. This proceeding is pending.
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.
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.
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. 3 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.
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.
the appellant approached this Court by way of a special leave petition against
the impugned orders dated 28.11.2007 and 23.01.2009.
of the major issues which cropped up in the present case is whether or not
presumption of a 4 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
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.
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 will presume in favour of marriage and such presumption could only be
rebutted by strong and satisfactory evidence.
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 stronger than a presumption in regard to other facts.
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.
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.
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
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.
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 burden lies on him
who seeks to deprive the relationship of legal origin.
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.
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.
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
"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 9 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."
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.
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.
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) 11
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... "
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 12 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
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.
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 13 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
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) 14
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.
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, 15 the learned Judges relied on the decision
in the Yamunabai case (supra).
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
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.
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 16 `palimony' has been coined, which is a
combination of `pal' and `alimony', by the famous divorce lawyer in the said
case, Mr. Marvin Mitchelson.
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. 17 (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.
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.
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 18 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.
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)].
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.
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 19 criminal
court, affecting the aggrieved person and the respondent.
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.
women in live-in relationships are also entitled to all the reliefs given in
the said Act.
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
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.
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
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
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? 21
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
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.
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.