- P. Rajendran http://www.prassociate.com
Sir James Fitz Stephen, who piloted the Criminal Procedure Code of 1872, a legal member of Viceroy's Council, described the object of Section 536 of the Code (Section 125 of the Code of Civil Procedure, 1973 is a reincarnation of Section 536 and Section 488 of the Code of 1898) as a mode of preventing vagrancy or at least preventing its consequences. In the1898 Code the same provision was incorporated in Section 488 as follows:
“ (1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding five hundred rupees in the whole as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.”
As per the above provision of law, a “wife” is entitled for maintenance. Now, the question is: who is a wife?
In Lieutenant C.W. Campbell v. John A.G. Campbell [(1867) Law Rep. 2 HL 269], also known as the Breadalbane case, the House of Lords held that cohabitation, with the required repute, as husband and wife, was proof that the parties between themselves had mutually contracted the matrimonial relation. A relationship which may be adulterous at the beginning may become matrimonial by consent. This may be evidenced by habit and repute. The House of Lords again observed in Captain De Thoren v. The Attorney-General [(1876) 1 AC 686], that the presumption of marriage is much stronger than a presumption in regard to other facts.
In India, the same principles have been followed in the case of A. Dinohamy v. W.L. Balahamy [AIR 1927 P.C. 185], in which the Privy Council laid down the general proposition that where a man and woman are proved to have lived together as man and wife, the law will presume, unless, the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage. In the case of Gokal Chand v. Parvin Kumari [AIR 1952 SC 231], the Hon’ble Supreme Court of India held that continuous co- habitation of man and woman as husband and wife may raise the presumption of marriage, but the presumption which may be drawn from long co- habitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them. Further, in the case of Badri Prasad Vs Dy. Director of Consolidation & others [(1978) 3 SCC 527], the Supreme Court held that a strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. Again, in Tulsa and others Vs Durghatiya and others [2008 (4) SCC 520], the Supreme Court held that where the partners lived together for a long spell as husband and wife, a presumption would arise in favour of a valid wedlock.
In Nanak Chand v. Chandra Kishore Aggarwal & Ors. [1969 (3) SCC 802], the Supreme Court, discussing Section 488 of the older Cr.P.C, virtually came to the same conclusion that Section 488 provides a summary remedy and is applicable to all persons belonging to any religion and has no relationship with the personal law of the parties. Section 125 is a reincarnation of Section 488 of the Cr.P.C. of 1898 except for the fact that parents have also been brought into the category of persons entitled for maintenance. In Vimala (K) Vs Veeraswamy (K) [(1991) 2 SCC 375], a three-Judge Bench of the Hon’ble Supreme 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. Thus, in those cases where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay the woman maintenance if he deserts her. The man should not be allowed to benefit from the legal loopholes by enjoying the advantages of a de facto marriage without undertaking the duties and obligations. Any other interpretation would lead the woman to vagrancy and destitution, which the provision of maintenance in Section 125 is meant to prevent”.
However, in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and another, reported in AIR 1988 SC 644, a two-Judge Bench of the Supreme Court held that an attempt to exclude altogether personal law of the parties in proceedings under Section 125 is improper and the learned Judges also held that the expression `wife' in Section 125 of the Code should be interpreted to mean only a legally wedded wife. Again in a subsequent decision of the Supreme Court in Savitaben Somabhat Bhatiya v. State of Gujarat and others, reported in AIR 2005 SC 1809, the Supreme Court held that however desirable it may be to take note of 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. While coming to the aforesaid finding the learned Judges relied on the decision in the Yamunabai case (supra).
The Committee on Reforms of Criminal Justice System, headed by Dr. Justice V.S. Malimath, in its report of 2003 opined that evidence regarding a man and woman living together for a reasonably long period should be sufficient to draw the presumption that the marriage was performed according to the customary rites of the parties. Thus, it recommended that the word `wife' in Section 125 Cr.P.C. should be amended to include a woman who was living with the man like his wife for a reasonably long period. This amendment has not been made till now.
It is, therefore, clear from what has been discussed above that there is a divergence of judicial opinion on the interpretation of the word `wife' in Section 125 of the Code of Criminal Procedure, 1973.
The law in America has proceeded on a slightly different basis. The social obligation of a man entering into a live-in relationship with another woman, without the formalities of a marriage, came up for consideration in the American courts in the leading case of Marvin v. Marvin [(1976) 18 Cal.3d 660]. In that context, a new expression of `palimony' has been coined, which is a combination of `pal' and `alimony', by the famous divorce lawyer in the said case, Mr. Marvin Mitchelson. In this case, the plaintiff, Michelle Marvin, alleged that she and Lee Marvin entered into an oral agreement which provided that while the parties lived together they would combine their efforts and earnings and would share equally any and all property accumulated as a result of their efforts whether individual or combined and the parties further agreed that Michelle would render her services as a companion, homemaker, housekeeper and cook. Michelle sought a judicial declaration of her contract and property rights, and sought to impose a constructive trust upon one half of the property acquired during the course of the relationship. The Supreme Court of California held as follows:
(1) The provisions of the Family Law Act do not govern the distribution of property acquired during a non-marital relationship; such a relationship remains subject solely to judicial decision. (2) The courts should enforce express contracts between non-marital partners except to the extent that the contract is explicitly founded on the consideration of meretricious sexual services. (3) In the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties. The courts may also employ the doctrine of quantum meruit, or equitable remedies such as constructive or resulting trusts, when warranted by the facts of the case.
In our country, law has not developed on the lines of the Marvin case. However, the Protection of Women from Domestic Violence Act, 2005 assigns a very broad and expansive definition to the term `domestic abuse' to include within its purview even economic abuse. `Economic abuse' has been defined very broadly in sub-explanation (iv) to explanation I of Section 3 of the said Act to include deprivation of financial and economic resources. Section 20 of the Act allows the Magistrate to direct the respondent to pay monetary relief to the aggrieved person, who is the harassed woman, for expenses incurred and losses suffered by her, which may include, but is not limited to, maintenance under Section 125 Cr.P.C. [Section 20(1)(d)]. Section 22 of the Act confers upon the Magistrate, the power to award compensation to the aggrieved person, in addition to other reliefs granted under the Act. In terms of Section 26 of the Act, these reliefs mentioned above can be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent. Most significantly, the Act gives a very wide interpretation to the term `domestic relationship' as to take it outside the confines of a marital relationship, and even includes live-in relationships in the nature of marriage within the definition of `domestic relationship' under Section 2(f) of the Act. Therefore, women in live-in relationships are also entitled to all the reliefs given in the said Act. If the abovementioned monetary relief and compensation can be awarded in cases of live-in relationships under the Act of 2005, they should also be allowed in a proceedings under Section 125 of Cr.P.C. In light of the constant change in social attitudes and values, which have been incorporated into the forward-looking Act of 2005, the same needs to be considered with respect to Section 125 of Cr.P.C. and a broad interpretation of the same should be taken.
In fact a two judge Bench of the Hon’ble Supreme Court of India, in the case of Chanmuniya Vs Virendra Kumar Singh Kushwaha, has requested the Hon'ble Chief Justice of India to refer the following questions to be decided by a larger Bench:
“1. Whether the living together of a man and woman as husband and wife for a considerable period of time would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under Section 125 Cr.P.C?
2. Whether strict proof of marriage is essential for a claim of maintenance under Section 125 Cr.P.C. having regard to the provisions of Domestic Violence Act, 2005?
3. Whether a marriage performed according to 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 Cr.P.C.?”
Therefore, whether a broad and expansive interpretation should be given to the term `wife' to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a pre-condition for maintenance under Section 125 of the Cr.P.C, so as to fulfill the true spirit and essence of the beneficial provision of maintenance under Section 125 has to be decided by the larger Bench of the Supreme Court of India.
The judgment of Mr. Justice Karnan that if any couple, subject to their attaining the mandatory age of freedom, indulge in sexual gratification, then that would be considered as valid marriage and they could be termed as “husband and wife” should be examined in the light of the above cited decisions of the Supreme Court of India. The settled legal position is that a strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife and even this presumption is a rebuttable presumption. In the case before Mr. Justice Karnan, the parties lived together for a long time and therefore he was perfectly right in upholding the claim of the woman who claimed maintenance. But his judgment goes beyond that and states that if any couple, subject to their attaining the mandatory age of freedom, indulge in sexual gratification, then that would be considered as valid marriage is not in line with the above cited decisions of the Supreme Court of India particularly when he has not clarified whether the rule laid down relates to sustained cohabitation or just sexual consummation.