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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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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