The petitioner wanted to general public also to take part in the procession which would be carried around a temple situated in Dindigul District.

The bench observed that as long as religious processions don’t intend cause communal disturbance and continue to spread positivity and brotherhood, the law enforcement agencies should grant the permission.

The petitioner contended that the District Collector of the Dindigul (respondent 1) prohibited gathering of more than five persons outside the temple.

The petitioner submitted that he had been carrying out this procession for past 20 years and on unreasonable grounds, he was being restricted.

The respondent, Inspector of Police, submitted that the members of various Hindu organizations would also be a part of procession and that they would be carrying placards and mike sets, and would also be chanting slogans, which was being objected by the people belonging to Islam religion.

According to people belonging to Islam religion, Rock Fort is their religious site where they carry on their religious activities like Namaz and Prayers, at the same time when Hindus were planning to light lamps.

Respondents contended that in order to control such a situation, where Hindu and Islam are practicing religion on same site, they would have to deploy 600 police officers.

The bench rejected the contentions placed by the respondents and stated that each individual has right to conduct religious activities, keeping in mind unity, diversity and communal harmony.

The bench also mentioned that it had granted permission for this ritual via its impugned order dated 28.12.2020 and should be complied with.

However, the bench also stated that Covid-19 protocol should be followed and provocative slogans or gestures should not be carried on.

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This right or choice of marriage is not to submit to the ‘class honour’ or ‘group thinking’.

The Court directed police authorities to formulate guidelines and training programmes to handle these socially sensitive cases.

In the instant case, a girl eloped and married after which her father filed a missing person complaint with the local police.

The Investigating Officer even after tracing their whereabouts asked her to report back at the police station and if she failed in doing so, a case for kidnapping would be registered against her husband upon the insistence of her family members.

The Court in this regard observed that police officers are to adopt required tactics for counseling to deal with this kind of sensitive issue and ordered the authorities to lay down guidelines to handle these situations within the next eight weeks.

It stated that “Educated boys and girls are choosing their life partners which, in turn, is a departure from the earlier norms of the society where caste and community play a major role.”

This change in the social dynamic is seen as a way forward by the courts from the caste and community-based tensions prevalent in the society.

If two consenting adults agree to enter wedlock then their consent is given primacy of that of their community or their clan.

Preventing a person’s right to choice can be considered as an erosion of their dignity as a direct consequence, infringing Article 21 of the Constitution of India.

The court further added while quashing the FIR, suggesting the parents to accept the marriage and re-establish social interaction with their daughter and their son-in-law.

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SHIROMANI JAIN v. ASHOK KUMAR JAIN AND ORS. (2018) 14 SCC 310

RELEVANT FACTS

Shiromani Jain (woman/appellant) was married to Ashok Kumar Jain (Respondent 1) in a Jain temple according to the Hindu rites and Manu (son) born out of this wedlock. Respondent 1 leaves his wife and his son out of the house because of not bringing sufficient dowry and had married Jyoti Jain (respondent 2) in a Jain temple under Hindu rites and had a daughter born out of this wedlock.

Appellant filed a petition before the Family Court to declare 2nd marriage as null and void and she also demanded maintenance from her husband. But in the absence of evidence of her marriage, the Family court and High Court both dismiss the application holding that performance of marriage in accordance with Hindu rites has not been proved by the Appellant. Relatives have not been examined. Now appellant filed an appeal before Hon’ble Supreme Court to allow her marriage to be valid and to provide maintenance.

ISSUES

• Whether there is allowed maintenance to the appellant and her son?
• Whether there is 1st and 2nd marriage valid and void respectively?

LAW POINTS/ RULE OF LAW

• Section 9 and 17 of Hindu Marriage Act, 1955.
• Section 494 and 495 of Indian Penal Code, 1860.

JUDGEMENT WITH REASONING

Learned counsel of the respondent stated that there is only an agreement had been entered into between appellant and respondent 1 that notarised agreement could not be said to be a valid form of marriage. And there is no proof of marriage between the appellant and respondent 1 but there is a valid marriage performed between respondent 1 and 2 in the Jain temple according to the Hindu rites. And according to the case law Gopal Lal v. the State of Rajasthan, Merely execution of the agreement could not be said to be a valid form of the marriage.

So, Family Court dismissed the application holding that performance of marriage in accordance with Hindu rites has not been proved by the Appellant. And High Court also affirmed with the judgment of the Family Court. 

Now learned counsel of the appellant stated in Hon’ble Supreme Court that declaration made in the application filed Under Section 9 of the Act had not been taken into consideration either by the Family Court or by the High Court for restitution of the conjugal rights and there are two witnesses who examined to support the fact of marriage.

There was also stated that the appellant and her son have not lived together with respondent 1 for the last 18 years. So, there should be given a maintenance of Rs. 8 Lakhs and 6000 per month. And marriage between respondent 1 and 2 is null and void according to section 17 of the Hindu Marriage Act, 1955, and respondent 1 should be punished on the basis of section 494 and 495 of the Indian Penal Code, 1860.

Finally, the Hon’ble Supreme Court stated that both the marriage solemnized according to the Hindu Rites but there is also not allowed bigamy to any Hindu person under section 17 of the Hindu Marriage Act, 1955. So, the court held that the marriage between respondent 1 and 2 is null and void and there should be given maintenance to the appellant by the Respondent.

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Swapna Rani Sahoo vs Niranjan Sahoo

Facts:

A matrimonial dispute was raised before a family court when the respondent that is the husband filed an appeal in the court against her wife, who was said to have misbehaved with the in-laws by making use of foul language and other misappropriate conduct was reported. The appellant went to her parental house along with her child and did not inform about her whereabouts to the respondent. It was appealed to dissolve the marriage on the ground of cruelty. However, in reply, the appellant denied all such allegations and submitted that the respondent in order to fulfill his personal motive filed an appeal of divorce knowing that the respondent had an extramarital affair with one of his staff members. The learned judge, the family court allowed the prayer for divorce by discarding all the allegations made by the appellant and decided that the wife is not subjected to any permanent alimony. Aggrieved by the decision, the appellant moved to High Court.

Issues:

Whether the appellant is entitled to permanent alimony?

Legal Provisions:

• Section 13, Hindu Marriage Act, 1955 – Divorce
• Section 25, Hindu Marriage Act, 1955 – Permanent alimony and maintenance

Appellant’s Contention:

It was submitted by the appellant that the judgment was illegal and the learned judge had erred in the finding if there was any cruelty against the husband by the wife. The wife claimed that the respondent had performed second marriage before the appeal period and laid evidence that proved that the second marriage took place much before the appeal period. The appellant further submitted that she had been suffering from breast cancer despite this she had been staying with her in-laws, whereas the respondent was cohabiting in a separate house with a newly wedded wife.
Therefore, it is prayed to set aside the judgment of the learned judge, Family court.

Respondent’s Contention:

The respondent laid evidence to prove that he had performed second marriage after the decree of the divorce of the first marriage and presented a birth certificate of the female child, born out of the second wedlock along with a marriage photograph.

Observation of the court:

The court was of the opinion that the learned judge, Family court had erred in not granting permanent alimony to the appellant, but the court did not feel inclined to set aside the decree of divorce just because the respondent was remarried. The court determined the quantum of alimony be granted to the appellant as per the Hindu Marriage Act, 1955 after considering the income and age of the husband, it was felt appropriate to fix permanent alimony and provide for expenses relating to the child born out of wedlock from the first marriage.

Judgment:

The court ordered the respondent to pay a sum of Rs. 7,00,000/- as permanent alimony and to secure the appellant with residential accommodation.

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CHURCH OF GOD (FULL GOSPEL) IN INDIA V. K.K.R. MAJESTIC COLONY WELFARE ASSOCIATION AND ORS. AIR 2000 SC 2773

MATERIAL FACTS

The Church of God (Full Gospel) in India (hereinafter referred to as the appellant) was a Pentecostal Christian hall of worship. For the presentation of their prayers, it employed loudspeakers and read-aloud prayers with drums, guitars, and other instrumental objects. The appellant was situated in the same area as the welfare association of K.K.R. Majestic Colony (hereinafter referred to as the respondent). The respondent filed a grievance to the Tamil Nadu Pollution Control Board alleging that noise pollution was caused by the church and thus created inconvenience for the residents.

Depending on the grievance, a check of the noise pollution in the area was carried out by the Joint Chief Environmental Engineer of the Board. The evaluation exhibited that the noise emission was owing to the locomotion of the vehicles. The respondent then appealed to the High Court for a criminal petition requesting authorization to the Superintendent of Police and the Inspector of Police to take measures in that respect.

The High Court maintained that in its requests, the respondent was reasonable. The study indicated hardly anything more than that the appellant was not exclusively liable for noise pollution, but that it had contributed to the current noise pollution problem. The Court ordered both the SP and the Inspector to take the appropriate measures to minimize noise pollution by initiating steps toward noise-causing vehicles and to maintain the Church’s speakers at a lower volume. The appellant, aggrieved by this ruling, moved to the Supreme Court.

ISSUES

• Whether the right to religion can supersede the right to an environment free from pollution?
• Whether the directions of the High Court undermine the right to profess and practice Christianity guaranteed under Art. 25 and Art. 26 of the Constitution?
• Whether the HC’s (i.e. Appa Rao’s case) judgment allowed the authorities entrusted to intervene in religious practices?

RULE OF LAW

• Article 25 and Article 26 of the Indian Constitution
• Madras City Police Act, 1888
• Madras Towns Nuisance Act, 1889
• Noise Pollution (Regulation and Control) Rules, 2000
• Environment (Protection) Act, 1986

ANALYSIS

This case addresses some rather critical issues: whether a single group or faction of that community can assert the right to contribute to noise pollution on the grounds of religion, in a nation with many religions and diverse cultures or belief systems? Is it reasonable to bang on drums or recite prayers using mics and loudspeakers to interrupt the neighborhood’s equilibrium or peacefulness?

The Court observed that it was not necessary to cope with the claim with regard to the rights under Articles 25 and 26 in-depth. It claimed that no religion mandates or professes that prayers must be conducted by amplifying the voice or banging drums. In that case, if the practice exists, the rights of everyone else should not be negatively impacted. It also justified that no right is unconditional to possess. The contentment of one’s rights must be compatible with the gratification of everybody else’s rights.

The court adopted the perspective that the issue at hand had no obligation to attach religious context to it. Yes, the judgment on which the High Court depends (Appa Rao’s case) authorized the entrusted officials to undertake steps on the basis of the directions established. The principles established in the case of Appa Rao were centered on the acts cited above.

Where it is not within reach to call forth voluntary equilibrium in the unrestricted movement of social powers, the State must intervene in order to correctly determine the tension between conflicting interests. A specific fundamental right does not reside in a sealed enclosure in seclusion. The fundamental right of an individual will also have to live side by side, in accordance with the fundamental right of others, with a fair and legitimate operation of power by the State in the context of the Directive principles, for the promotion of public welfare.

CONCLUSION

Therefore, the appeal was dismissed and it was held that the right to religion provided pursuant to Articles 25 and 26 of the Constitution is subject to public order and morality and that no religion may preach on large amplifiers or loudspeakers to pray, triggering discomfort and damage to other people’s health.

Practices that bother, elderly or ill people, pupils or kids sleeping in the early hours or throughout the day, or individuals engaging in other pursuits, cannot be tolerated in a functioning society in the guise of religion. It should not be overlooked that infants are accredited to retain their natural right to sleep in a healthy environment. A student studying for his test is supposed to focus on his learning without the neighbors becoming an unwanted nuisance. Likewise, individuals are required to embrace fair peacefulness during their recreational hours without any noise pollution problem. It is recognized that some of them are quite sensitive to noise, whose rights should therefore be acknowledged and protected.

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SK. MANIRUDDIN V. SOMA BANERJEE MANU/TN/7669/2018

MATERIAL FACTS

The parties, verified under the Marriage Registrar, Chinsurah, Hooghly, tied the knot on 05.01.1998 under the Special Marriage Act. On the basis of cruelty and desertion, the wife (respondent) pleaded for divorce. The respondent’s case was that, by practice, she was a Hindu, whereas the husband (appellant) was a Muslim and both became associated with each other through their mutual friend and eventually grew intimate towards one another.
It was also the scenario that the respondent had been dwelling at her father’s place after 1998, whereas the appellant was residing in his house, and had seldom expressed any interest in moving her to his family home. It was also argued that while Rs. 50,000/- (Rupees Fifty Thousand) was received by the appellant as salary per month, he hardly provided any amount for her maintenance.
Furthermore, by hiding material evidence, the appellant married her and he also harassed her directly as well as via his men and that both parties had been residing independently for more than fourteen (14) years and that the matrimonial bond had irrevocably dissolved and a divorce order could consequently be issued in her support.

ISSUE

Whether the decree of divorce can be granted?

RULE OF LAW

Section 24 of the Special Marriage Act, 1954

ANALYSIS

Apart from the plea on the basis of cruelty for an order for divorce under Section 27 of the Act, the facts of the wife (respondent) as P.W. 1 and her cross-examination explain that the appellant threatened and abused her on several occasions. For such claims, nevertheless, there was also no substantial proof on paper. P.W. 2 is the respondent’s father and throughout his questioning, he did not testify regarding anything about some occurrence of physical abuse or suffering.
Conversely, the claim made by the respondent, whatever it is, does not seem to be persuasive at all. Thus, on account of the proof of P.W. 1 and from P.W. 2 it can be inferred that there was no mental or physical cruelty in the actions of the appellant or the husband. As a consequence, the facts of the present case do not pose any question of cruelty, whether physical or mental.
With respect to desertion, the proof of P.W. 1 during her cross-examination shows that the respondent submitted multiple complaints to get away from the marital tie and that she married the appellant (husband) out of the former love relationship between them, but she sought to get out of the matrimonial bond by bringing various cases on numerous charges because her family members did not support such relationship. Therefore, based on the above facts, one can conclude that the respondent has faltered to show that the appellant deserted her for no reason whatsoever.

CONCLUSION

In order to allow the parties to establish a common arrangement with trust and dignity and to practice their independent choice and conscience in the case, the court proposed going for an alternative relief such as an order for legal separation. Therefore, a divorce order for the dissolution of the marriage was not a legal option available to the respondent/wife, and at present, there was no legitimate basis for the same.

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A PIL was filed regarding the encroachment on Kabristan. PIL prayed to take necessary action against the Respondents who illegally encroached on the parts of the Kabristan.

The nature of the writ was ‘Mandamus‘.

It was alleged that the respondents have been using the central portion of the Kabristan as a pathway. Recently, Respondents have started to construct a Road over it.

However, Petitioner did accept the fact that, Road had customarily been in use for the daily passage by the public.

Petitioners, pleaded to stop the public usage of the Kabristan for travel purpose and ensure that Government erect a boundary wall to that area.

It was argued that the Petitioner had an alternative remedy, i.e., Section 133 of the CrPC. However Court urged that, it cannot close it eyes to the ground realities.

Court opined that, the customary and religious rights of the Muslim community of village Boonda are being threatened and infringed by the acts of certain persons encroaching on the aforesaid kabristan. Though the private respondents have not been noticed, however, no positive directions effecting their legal rights are proposed to be issued against them

Court held that:

District Magistrate shall ensure that, encroachment over the Kabristan should be curtailed.

Proper Boundary walls shall be erected by the Government.

Plot shall never be used for public passage.

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Nurjahan Bibi Vs. Md. Kajim Ali AIR 1977 Cal. 90.

FACTS:

Nurjahan Bibi and Md. Kajim Ali were married to each other according to Mahommedan law. In the year 1964, Nurjahan filed a petition for dissolution of marriage. The husband/defendant submitted his written statement and stated that the plaintiff has a bad character and that she was enamored with one Asgar Ali and that she committed adultery with him. The plaintiff denied such a claim of the defendant. As a consequence of these allegations, the Trial Court/Munsif observed that plaintiff is entitled to dissolve her marriage with the defendant and observed that the wife should be always devoted to her husband and when the husband makes such kind of allegation without any proof, she is entitled to dissolve her marriage according to the law of Li’an. An appeal was filed against this order before the Additional District Judge where it was held that the statement made in the previous suit by the defendant does not amount to any charge of adultery which would give rise to dissolve the marriage. The Additional District Judge allowed the appeal and set aside the Order of Munsif court. The matter comes in this Hon’ble Court by way of a second appeal raised by appellant Nurjahan Bibi against the order/judgment of Additional District Judge, Murshidabad, which was in favor of the defendant.

ISSUE:

Whether the allegation made by the defendant against his wife (appellant) in his written statement is to be considered as a voluntary or aggressive or independent statement of adultery against his wife?

JUDGEMENT:

According to the Mahommedan law (Law of Li’an) the wife is entitled to a divorce if the husband makes a false charge of adultery against the wife. This false charge of adultery by the husband must be a voluntary and aggressive or independent statement of adultery against the wife. If the allegation or the charge is by way of self-defense or meant to disprove or counteract some allegations of the wife in attack, it cannot be said that the allegation of the husband regarding the adultery is voluntary or actionable for getting a decree of divorce. If any wife brings a suit for dissolution of marriage on certain grounds against the husband in his written statement makes an allegation of the plaintiff’s adultery with some other person by way of defense so that the plaintiff may not be believed and may not get a decree of divorce, such allegation cannot amount to a voluntary or aggressive or independent statement of adultery against wife. The husband by way of defense is compelled to make such allegations for his own protection. Such an allegation is certainly not a voluntary one which might give rise to a cause of action to the wife for dissolution of marriage. The law allows the defendant-husband to oppose the case of the plaintiff by appropriate grounds to defend himself. When the law allows the defendant to take up or relevant plea for self-defense as against the plaint case, such plea cannot be used as a weapon against him, if he is prevented from making such allegation in the written statement, it will go against the public policy and consequently, proper justice and decision cannot be made in any civil action. If such allegation by the defendant made in the written statement be allowed to be used by the plaintiff-wife as a ground for future litigation for dissolution of marriage, then certainly the privilege of law will be denied to make a relevant allegation due to the uncertainty of the decision to be made in the suit. This position for the defendant, if allowed, will mean denial of the legitimate right to the defendant. If the statement regarding the adultery of the wife made by the defendant-husband is relevant in the suit and necessary to meet the attack of the wife in the suit; it cannot be called a voluntary accusation of adultery against the wife and cannot be a ground for dissolution of marriage in a subsequent suit by her. Therefore, the Hon’ble court does not find any error in the impugned order and the appeal is hereby, dismissed.

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Mst. SHABNAM v. Mohd. SHAF AIR 2004 Raj. 303

FACTS OF THE CASE:

The appellant/plaintiff Mst. Shabnam was married to Mohd. Shafiq on 02-11-1991. She was married by her father because she was a minor at the time of Nikah aged 14 years. She filed a suit for dissolution of marriage under Section 2(vii) of Dissolution of Muslim Marriages Act, 1939 on the ground that she was being married by her father before she attained the age of 15 years which was repudiated by her before attaining the age of eighteen years. She disclosed her date of birth as 15-3-1978. It was further averred that the marriage of the plaintiff was never consummated with the defendant.
The defendants denied that at the time of Nikah she (Shabnam) was 14 years i.e., on 2-11-1991. It was said that she was the age of 16 years (dated 15-3-1975) according to pro forma filled by Shahar Qazi Shri Abid Ali. But, thereafter the father of the plaintiff managed to change the date of birth by producing false affidavits before the District Education Officer. It was also contended that the marriage was consummated between them after Nikah and the defendants have filed for the restoration of conjugal rights before Bikaner Family Court.
This is the plaintiff’s appeal under Section 19 of the Family Courts Act against the judgment dated 27- 7-1996 whereby the Judge, Family Court, Jodhpur dismissed the appellant’s petition for dissolution of marriage.

ISSUES FRAMED:

1. Whether the marriage of the petitioner was solemnized before she attained 15 years of age and she repudiated the same before attaining her 18 years of age?
2. Whether the petitioner ever discharged her conjugal duties after her marriage?

RULE OF LAW:

• Section 2 of Dissolution of Muslim Marriage Act, 1939
• The Evidence Act, 1872

OBSERVATION:

Section 2 of the Dissolution of Muslim Marriage Act, 1939 provides the grounds of divorce of Muslim Marriages. Sub-section (vii) reads as follows:
“(vii) that she, having been given in marriage by her father or another guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years: Provided that the marriage has not been consummated;”

In Muslim law, Marriage is considered as in the nature of the Contract. In the case of a minor, in Muslim law, married before attaining the age of puberty i.e., 15 years can always repudiate or ratify the contract made by her father during the minority after the attainment of puberty. The minor on attaining puberty may apply to the Court for dissolution of marriage on the ground as mentioned under Section 2 of the Act of 1939 but she has to establish that the marriage is not consummated. The Kerala High Court has held that even after there was any cohabitation before she had attained puberty, it would not affect her right to repudiate the marriage which right she gets only after attaining puberty. The cohabitation by a minor girl would not be sufficient to put an end to her right to repudiate the marriage after attaining puberty.
Further, the plaintiff produced many certificates regarding her date of birth (15-3-1978) i.e., secondary school certificate, date of the birth certificate issued by Municipal Council, marriage certificate, etc.
Defendant has produced as many as 50 documents. All the documents are nothing but certificates obtained from different schools to show the date of birth of the plaintiff.
The court observed that there is also no reason to disbelieve the birth certificate issued by the Municipal Council. The certificate issued by the Municipal Council with respect to the date of birth of a person is a public document under the provisions of Sections 35 and 77 of the Evidence Act. “A certificate of birth of a person is evidence and conclusive evidence of his age unless disproved by the evidence of the witness of the party denying the correctness of it.”
The opinion of the court was that Birth and Death certificate are statutory certificates and birth certificate issued by Municipal Council is presumed to be correct unless any contravention arises. As regards the issue of the consummation of the marriage, the court observed that the best witness available is the plaintiff herself. She has stated in terms that marriage was never consummated. Even if the version of the defendant that after the marriage on 2-11-1991, the plaintiff stayed with him and the marriage was consummated, is accepted the plaintiff’s date of birth being held to be 15-3- 1978, on that date she was a minor. She attained the age of puberty on 15-3-1993. There is no evidence worth the name to show that marriage was consummated after she attained the age of puberty. The court has the opinion that the consent to intercourse by a girl who had not attained puberty is not of any consequence.

JUDGEMENT:

The High Court confirms that the evidence produced on the record fully satisfies the essential ingredient of sub-section (vii) of Section 2 of Dissolution of Muslim Marriage Act, 1939. The Order of Family Court, Jodhpur set aside and marriage between plaintiff and defendant is dissolved.

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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.

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