IN THE SUPREME COURT OF
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 2028-2029__OF 2010
[Arising out of Special Leave Petition (Crl.) Nos.2273-2274/2010]
D. Velusamy .. Appellant
D. Patchaiammal .. Respondent
Markandey Katju, J.
1. Leave granted.
2. 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.
3. These appeals have been filed against the judgment of the
High Court dated 12.10.2009.
4. 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,
5. 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
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
6. It is alleged that the appellant herein (respondent in the petition under
Section 125 Cr.P.C.) deserted the respondent herein (petitioner in the
proceeding under Section 125 Cr.P.C.) 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 (appellant herein) is a Secondary Grade Teacher
drawing a salary of Rs.10000/- per month. Hence it was prayed that the
respondent (appellant herein) be directed to pay Rs.500/- per month as
maintenance to the petitioner.
7. 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.
8. Thus it is the own case of the respondent herein that the appellant left
her in 1988 or 1989 (i.e. two or three years after the alleged marriage in
1986). Why then was the petition under Section 125 Cr.P.C. filed in the
year 2001, i.e. after a delay of about twelve years, shall have to be
satisfactorily explained by the respondent. This fact also creates some doubt
about the case of the respondent herein.
9. In his counter affidavit filed by the appellant herein before the Family
, it was alleged that the respondent (appellant herein) was Coimbatore
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.
10. 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
11. 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-`-
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.
12. 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 Explanation (b) to 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
13. In Vimala (K) vs. 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. 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."
14. In a subsequent decision of this Court in Savitaben Somabhat
Bhatiya vs. State of
and others, AIR 2005 SC 1809, this Court Gujarat
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.
15. 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.
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
"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
17. The expression "economic abuse" has been defined to include :
"(a) 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
18. An aggrieved person under the Act can approach the Magistrate under
Section 12 for the relief mentioned in Section 12(2). Under Section 20(1)(d)
the Magistrate can grant maintenance while disposing of the application
under Section 12(1).
19. 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
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.
21. 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.
22. 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
, but it is very India
common in North America and
Europe. It has been commented upon by this
Court in S. Khushboo vs. Kanniammal & Anr. (2010) 5 SCC 600 (vide
23. When a wife is deserted, in most countries the law provides for
maintenance to her by her husband, which is called alimony. However,
earlier there was no law providing for maintenance to a woman who was
having a live-in relationship with a man without being married to him and
was then deserted by him.
the expression `palimony' was coined which means grant of USA
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
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
, the concept of palimony has been considered and developed. USA
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
. These Courts in USA have taken divergent views, USA
some granting palimony, some denying it altogether, and some granting it on
certain conditions. Hence in
the law is still in a state of evolution on USA
the right to palimony.
25. Although there is no statutory basis for grant of palimony in
, the USA
Courts there which have granted it have granted it on a contractual basis.
Some Courts in
have held that there must be a written or oral USA
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.
Taylor vs. Fields (1986) 224 Rpr. 186 the facts were that the Cal.
plaintiff Taylor had a relationship with a married man Leo. After Leo died
financially and she claimed maintenance from the estate of Leo. Taylor
The Court of Appeals in
held that the relationship alleged by California
held that the alleged contract rested on meretricious consideration and hence
was invalid and unenforceable. The Court of Appeals relied on the fact that
with him. There was no sign of a stable and significant cohabitation
between the two.
27. However, the
Supreme Court in Devaney vs. L' New Jersey
Esperance 195 N.J., 247 (2008) held 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
that there must be a written agreement New Jersey
between the parties to claim palimony.
28. Thus, there are widely divergent views of the Courts in
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.
31. 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.
32. 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 registry (see details on
33. 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.
(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'.
34. 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.
36. 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.
39. 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,
and remand the matter to the Family Court Coimbatore
Judge to decide the matter afresh in accordance with law and in the light of
the observations made above. Appeals allowed.
(T. S. THAKUR)
21st OCTOBER, 2010