A Female partner can get maintenance if marriage is performed as per the social customs

A Female partner can get maintenance if marriage is performed as per the social customs written by Himanshu Garg student of Maharashtra National Law University Aurangabad

CHANMUNIYA v. VIRENDRA KUMAR SINGH KUSHWAHA AND ANOTHER (2011) 1 SCC 141

RELEVANT FACTS

• Chanmuniya was married to Ram Saran. After the death of Ram Saran, the appellant married Virendra Kumar Singh Kushwaha (brother of Ram Saran/Respondent) according to the customs of the Kushwaha community under Katha and sindur.
• She was treated in a cruel manner, was tortured, and subsequently left by Respondent, after the many years of marital companionship.
• She filed a maintenance application under Section 125 of Cr.P.C. and also filed an application for restitution of conjugal rights.
• The trial court revealed that the marriage between the appellant and respondent is not completely valid and some ceremonies have not been performed.
• Aggrieved by this decision Chanmuniya had appealed this to the Hon’ble Supreme Court.

ISSUES

• Whether or not a presumption of marriage arises when parties live together for a long time, thus giving rise to a claim of maintenance under section 125 of Cr.P.C.?
• Whether strict proof of marriage is essential for a claim of maintenance under section 125 Cr.P.C. having regard to the provision of the Domestic Violence Act, 2005?
• Whether a marriage performed according to the 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 of Cr.P.C.?

RULE OF LAW

• Section 125, 488 of Criminal Procedure Code, 1898
• Section 3, 20, 21 of Protection of Women from Domestic Violence Act, 2005
• Article 141 of the Indian Constitution
• Section 7, 9 of the Hindu Marriage Act, 1955

JUDGEMENT WITH REASONING

• In Lt., C.W. Campbell v. John A.G. Campbell (Breadalbane case)1, the House of Lords held that cohabitations, with the required repute, as husband and wife, was proof that the parties between themselves had mutually contracted the matrimonial relation. A relationship that may be adulterous at the beginning may become matrimonial by consent. This may be evidenced by habit and repute.
• In the instant case, there are both the parties lived in the same house by a social custom Katha and sindur. Therefore, the Court held that there is a very strong presumption in favor of marriage.
• So far as the application of section 125 of Cr.P.C. is concerned, Apex Court was of the opinion that in such cases there arises a presumption as to marriage and by presumption them to be husband and wife, the court can presume in such cases based on the fact that:
  • Parties lived together for a reasonable period of time.
  • They lived together as husband and wife.

More importantly, as per the option of the Hon’ble Supreme Court, strict proof of marriage is not necessary for the purpose of application of section 125 of Cr.P.C. in support of this judicial finding, a number of cases can be referred to substantiate the argument:

1. In the case of Mohd. Ali v. Md. Ibrahim, wherein Privy Council made an important observation: “Law presumes in favor of marriage and against concubinage when a man and woman have cohabited continuously for a number of years”.
2. In the case of Mohd. Amin v. Vakil Ahmed, wherein the court recognized long standing cohabitation of the parties, from which the couple had 4 kids and their cohabitation was for 24 years and there was no documentary evidence in support of their marriage. This case was concerning the succession suit not maintenance under section 125 of Cr. P.C.
3. In the case of Badri Prasad v. Dy. Director of Consolidation, the case concerning maintenance under section 125 of Cr.P.C. that the court recognized by the court that law leans in favor of legitimacy.
4. In Dwarka Prasad Sathpathy v. Bidyut Dixit5, the court observed that “if the claimant in proceedings of Section 125 of Cr. P.C succeeds in showing that she and the respondent have lived tougher as husband and wife the court can presume that they are legally wedded spouses and in such a situation the party who denies the marital status can rebut the presumption. Once it is admitted that the marriage preacher was followed then it is not necessary to further probe into whether the said procedure was complete as per the Hindu rites in the proceedings in Section 125.”Observation made by the court, in this case, is self-explanatory and is sufficient to establish the scope and extent of Section 125 of Cr. P.C.
5. In the case of Madan Mohan Singh v. Rajni Kant, the court observed that there arises a presumption when a man and woman live together and children born of such relationship will not be illegitimate and if a live-in relationship continues for a long time it will not amount walk-in and walkout. But then this case was not concerning Section 125 of Cr. P.C.
6. In the case of Savitaben v. the State of Gujarat, the Hon’ble Supreme Court held that strict proof of marriage is the requirement of u/Section 125 of Cr.P.C. and held that the expression “wife” must be construed in a strict manner.
7. However, in the case of Badshah v. Urmila Badshah Godse, the Hon’ble Supreme Court overruled Savitaben v. State of Gujarat (AIR 2005 SC 1809) and allowed a bigamous wife to claim maintenance under Section 125 of Cr.P.C. subject to her lack of knowledge as to respondent’s first marriage.

On the behalf of all these cases’ judgment, the court held that Maintenance claim u/Section 125 of Cr. P.C, in “such cases” should be allowed to a woman based on:

• long-standing relationship
• as Husband and wife
• presumption of marriage.

And an intervention of a larger bench of the Supreme court is expected so as to clarify the legal position in such cases. And the court also believed that such an interpretation would be a just application of the principles enshrined in the Preamble of the Constitution, namely, social justice and upholding the dignity of the individual.