D Velusamy V/s D Patchaiammal

 REPORTABLE IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 2028 2029__OF 2010 Arising out of Special Leave PetitionNos.2273 2274 2010 D. Velusamy .. versus D. Patchaiammal .. Respondent JUDGMENT Markandey Katju J Heard learned counsel for the appellant. None has appeared for the respondent although she has been served notice. We had earlier requested Mr. Jayant Bhushan learned Senior counsel to assist us as Amicus Curiae in the case and we record our appreciation of Mr. Bhushan who was of considerable assistance to us High Court dated 12.10.2009 These appeals have been filed against the judgment of the Madras The appellant herein has alleged that he was married according to the Hindu Customary Rites with one 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. The petitioner is working as a Secondary Teacher in Thevanga Higher Secondary School Coimbatore It appears that the respondent D. 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 It is alleged that the appellant hereindeserted the respondent herein two or three years after marrying her in 1986. 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 whereas the respondent is a Secondary Grade Teacher drawing a salary of Rs.10000 per month. Hence it was prayed that the respondent be directed to pay Rs.500 per month as maintenance to the petitioner In both her petition under Section 125 Cr.P.C. as well as in her deposition in the case the respondent has alleged that she was married to the appellant herein on 14.9.1986 and that he left her after two or three years of living together with her in her father’s house Thus it is the own case of the respondent herein that the appellant left her in 1988 or 1989was married to one Lakshmi on 25.6.1980 as per the Hindu Marriage rites and customs and he had a male child who is studying in C.S.I. Engineering college at Ooty. 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. 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 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. Without giving a hearing to Lakshmi no such declaration could have validly be given by the Courts below that she had not married the appellant herein since such as a finding would seriously affect her rights. And if no such declaration could have been given obviously no declaration could validly have been given that the appellant was validly married to the respondent because if Lakshmi was the wife of the appellant then without divorcing her the appellant could not have validly married the respondent It may be noted that Section 125 Cr.P.C. provides for giving maintenance to the wife and some other relatives. The word `wife’ has been defined in Explanationto Section 125(1) of the Cr.P.C. as follows “Wife includes a woman who has been divorced by or has obtained a divorce from her husband and has not In Vimalavs. Veeraswamy[(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. 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.” In a subsequent decision of this Court in Savitaben Somabhat Bhatiya vs. State of Gujarat and others AIR 2005 SC 1809 this Court held that however desirable it may be to take note of the 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 Since we have held that the Courts below erred in law in holding that Lakshmi was not married to the appellantit 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 16. However the question has also be to be examined from the point of view of The Protection of Women from Domestic Violence Act 2005. Section 2(a) of the Act states “2(a) “aggrieved person” means any woman who is or has been in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent” Section 2(f) states “2(f) “domestic relationship” means a relationship between two persons who live or have at any point of time lived together in a shared household when they are related by consanguinity marriage or through a relationship in the nature of marriage adoption or are family members living together as a joint family” Section 2(s) states “2(s) “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right title interest or equity and includes such a household which may belong to the joint family of which the respondent is a member irrespective of whether the respondent or the aggrieved person has any right title or interest in the shared household.” Section 3(a) states that an act will constitute domestic violence in case it “3(a) harms or injures or endangers the health safety life limb or well being whether mental or physical of the aggrieved person or tends to do so and includes causing physical abuse sexual abuse verbal and emotional abuse and economic abuse ” or deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including but not limited to household necessities for the aggrieved person and her children if any stridhan property jointly or separately owned by the aggrieved person payment of rental related to the shared household and maintenance” the Magistrate can grant maintenance while disposing of the application under Section 12(1 Section 26(1) provides that the relief mentioned in Section 20 may also be sought in any legal proceeding before a civil court family court or a criminal court. 20. Having noted the relevant provisions in The Protection of Women from Domestic Violence Act 2005 we may point out that the expression domestic relationship’ includes not only the relationship of marriage but also a relationship `in the nature of marriage’. The question therefore arises as to what is the meaning of the expression `a relationship in the nature of marriage’. Unfortunately this expression has not been defined in the Act. Since there is no direct decision of this Court on the interpretation of this expression we think it necessary to interpret it because a large number of cases will be coming up before the Courts in our country on this point and hence an authoritative decision is required In our opinion Parliament by the aforesaid Act has drawn 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 It seems to us that in the aforesaid Act of 2005 Parliament has taken notice of a new social phenomenon which has emerged in our country known as live in relationship. This new relationship is still rare in our country and is sometimes found in big urban cities in India but it is very common in North America and Europe. It has been commented upon by this Court in S. Khushboo vs. Kanniammal & Anr.5 SCC 60018 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. These Courts in USA have taken divergent views some granting palimony some denying it altogether and some granting it on certain conditions. Hence in USA the law is still in a state of evolution on the right to palimony 25. 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 In Taylor vs. Fields224 Cal. Rpr. 186 the facts were that the plaintiff Taylor had a relationship with a married man Leo. After Leo died Taylor sued his widow alleging breach of an implied agreement to take care of Taylor financially and she claimed maintenance from the estate of Leo. The Court of Appeals in California held that the relationship alleged by Taylor was nothing more than that of a married man and his mistress. It was held that the alleged contract rested on meretricious consideration and hence was invalid and unenforceable. The Court of Appeals relied on the fact that Taylor did not live together with Leo but only occasionally spent weekends with him. There was no sign of a stable and significant cohabitation between the two. 27. However the New Jersey Supreme Court in Devaney vs. L’ Esperance 195 N.J. 247held that cohabitation is not necessary to claim palimony rather “it is the promise to support expressed or implied coupled with a marital type relationship that are indispensable elements to support a valid claim for palimony”. A law has now been passed in 2010 by the State legislature of New Jersey that there must be a written agreement between the parties to claim palimony. 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. 29. Written palimony contracts are rare but some US Courts have found implied contracts when a woman has given up her career has managed the household and assisted a man in his business for a lengthy period of time. Even when there is no explicit written or oral contract some US Courts have held that the action of the parties make it appear that a constructive or implied contract for grant of palimony existed 30. However a meretricious contract exclusively for sexual service is held in all US Courts as invalid and unenforceable In the case before us we are not called upon to decide whether in our country there can be a valid claim for palimony on the basis of a contract express or implied written or oral since no such case was set up by the respondent in her petition under Section 125 Cr.P.C. Some countries in the world recognize common law marriages. A common law marriage sometimes called de facto marriage or informal marriage is recognized in some countries as a marriage though no legally recognized marriage ceremony is performed or civil marriage contract is entered into or the marriage registered in a civil registryThe 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 see ‘Common Law Marriage’ in Wikipedia on Google 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’ In our opinion not all live in relationships will amount to a relationship in the nature of marriag8e to get the benefit of the Act of 2005. To get such benefit the conditions mentioned by us above must be satisfied and this has to be proved by evidence. If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and or as a servant it would not in our opinion be a relationship in the nature of marriage’ 35. No doubt the view we are taking would exclude many women who have had a live in relationship from the benefit of the 2005 Act but then it is not for this Court to legislate or amend the law. Parliament has used the expression `relationship in the nature of marriage’ and not `live in relationship’. The Court in the grab of interpretation cannot change the language of the statute In feudal society sexual relationship between man and woman outside marriage was totally taboo and regarded with disgust and horror as depicted in Leo Tolstoy’s novel `Anna Karenina’ Gustave Flaubert’s novel `Madame Bovary’ and the novels of the great Bengali writer Sharat Chandra 37. However Indian society is changing and this change has been reflected and recognized by Parliament by enacting The Protection of Women from Domestic Violence Act 2005 38. 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. Appeals allowed. ….. .J (MARKANDEY KATJU . ..….J (T. S. THAKUR NEW DELHI 21st OCTOBER 2010

Summary: To get the benefit of ‘relationship in the nature of marriage’, it must fulfill the essential on common law marriage and in addition to that the parties must have lived together in a ‘shared household’ as defined in Section 2(s) of the Act D Patchaiammal (herein the respondent in the present case) filed a petition before the Family Court in 2001 u/s 125 of Cr.P.C, alleging that she was married to the appellant on 14.09.1986 and since then they lived together in her father’s house for two or three years. After two or three years, the appellant left the house and started living at a native place but he visited occasionally.She alleged that she did not have any kind of livelihood and she is unable to maintain herself whereas the respondent (appellant herein) is a Secondary Grade Teacher drawing a salary of Rs.10000/- per month and hence requested to be paid Rs. 550 per month as her maintenance.The appellant who is working as a secondary teacher at Thevanga Higher Secondary School, Coimbatore, on a counter affidavit, alleged that he was married to Lakshmi on 25.06.1980 according to Hindu Customary Rites. Out of the wedlock, a male child was born who is studying in C.S.I Engineering College at Ooty.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.The Family Court held by his judgement dated 05.03.2004 that the appellant was married to the respondent and the Hon’ble High Court upheld the validity of the judgement.Therefore, the present appeal was filed before the Hon’ble Supreme Court. ISSUE BEFORE THE COURT:Whether the appellant was married to the respondent?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? RATIO OF THE COURTSince Lakshmi was neither the party to the petition filed before the Family Court or the High Court nor there was any notice issue to her about the case, therefore any declaration about her marital status would be violative of the principle of natural justice since the said declaration would seriously affect her rights.Because no declaration can be given about the marital status of Lakshmi and the appellant, no declaration can also be given about the appellant and respondent being legally married because if Lakshmi was the wife of the appellant then without divorcing her the appellant could not have validly married the respondent.Examining the definition of wife under Cr.P.C, the court referred to a three judge bench decision in the case of Vimala (K) vs. Veeraswamy (K) [(1991) 2 SCC 375]: “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. 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.” Another case of Savitaben Somabhat Bhatiya vs. State of Gujarat and others, AIR 2005 SC 1809 where the court held that there is no scope to include a woman not lawfully married within the expression of ‘wife’.However, relief u/s 20(1)(d) can be claimed by the aggrieved under the Protection of Women from the Domestic Violence Act, 2005. Under the Act, economic abuse to the aggrieved party is treated as domestic violence where the aggrieved and the other party have a domestic relationship. Domestic relationship as defined u/s 2(f) of the Act, includes relationship in the nature of marriage.By interpreting the meaning of “relationship in the nature of marriage”, the court was of the opinion that Parliament by the aforesaid Act has drawn 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 and has taken notice of a new social phenomenon which has emerged in our country known as live-in relationship.The court also examined the concept of ‘Palimony’ which was first coined in U.S.A 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. The first case decided on this concept was California Superior Court in Marvin vs. Marvin (1976) 18 C3d660 where 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. But in the present case, no such claim for palimony was called upon to decide under Cr.P.C for maintenance.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. and in addition, the parties must have lived together in a ‘shared household’ as defined in Section 2(s) of the Act. This concept must be proved with evidence to get a benefit under the Act. DECISION HELD BY COURT:The decision of the family court and the High court was errored in deciding that the appellant was married to respondent and hence set aside. The matter is remanded back to the family court which may issue notice to Lakshmi and start a fresh hearing.There is also no finding in the judgment of the learned Family Court Judge on the question whether the appellant and respondent living in a nature of marriage, which was essential, hence the judgement is set aside and remanded back to the family court to decide on the same.