IN THE SUPREME COURT OF INDIA
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.
Heard schooled warn for a appellant. None has seemed for a respondent nonetheless she has been served notice. We had progressing requested Mr. Jayant Bhushan, schooled Senior warn to support us as Amicus Curiae in a case, and we record a appreciation of Mr. Bhushan who was of estimable assistance to us.
These appeals have been filed opposite a visualisation of a Madras High Court antiquated 12.10.2009.
The appellant herein has purported that he was married according to a Hindu Customary Rites with one Lakshmi on 25.6.1980. Out of a nuptials with Lakshmi a masculine child was born, who is now study in an Engineering college during Ooty. The postulant is operative as a Secondary Teacher in Thevanga Higher Secondary School, Coimbatore.
It appears that a respondent-D. Patchaiammal filed a petition underneath Section 125 Cr.P.C. in a year 2001 before a Family Court during Coimbatore in that she purported that she was married to a appellant herein on 14.9.1986 and given afterwards a appellant herein and she lived together in her father’s residence for dual or 3 years. It is purported in a petition that after dual or 3 years a appellant herein left a residence of a respondent’s father and started vital in his local place, yet would revisit a respondent occasionally.
It is purported that a appellant herein (respondent in a petition underneath Section 125 Cr.P.C.) forlorn a respondent herein (petitioner in a move underneath Section 125 Cr.P.C.) dual or 3 years after marrying her in 1986. In her petition underneath Section 125 Cr.P.C. she purported that she did not have any kind of sustenance and she is incompetent to say herself given a respondent (appellant herein) is a Secondary Grade Teacher sketch a income of Rs.10000/- per month. Hence it was prayed that a respondent (appellant herein) be destined to compensate Rs.500/- per month as upkeep to a petitioner.
In both her petition underneath Section 125 Cr.P.C. as good as in her deposition in a box a respondent has purported that she was married to a appellant herein on 14.9.1986, and that he left her after dual or 3 years of vital together with her in her father’s house.
Thus it is a possess box of a respondent herein that a appellant left her in 1988 or 1989 (i.e. dual or 3 years after a purported matrimony in 1986). Why afterwards was a petition underneath Section 125 Cr.P.C. filed in a year 2001, i.e. after a check of about twelve years, shall have to be satisfactorily explained by a respondent. This fact also creates some doubt about a box of a respondent herein.
In his opposite confirmation filed by a appellant herein before a Family Court, Coimbatore, it was purported that a respondent (appellant herein) was married to one Lakshmi on 25.6.1980 as per a Hindu Marriage rites and etiquette and he had a masculine child, who is study in C.S.I. Engineering college during Ooty. To infer his matrimony with Lakshmi a appellant constructed a allotment card, voter’s temperament label of his wife, send certificate of his son, liberate certificate of his mother Lakshmi from hospital, photographs of a wedding, etc.
The schooled Family Court Judge has reason by his visualisation antiquated 5.3.2004 that a appellant was married to a respondent and not to Lakshmi. These commentary have been inspected by a High Court in a impugned judgment.
In a opinion, given Lakshmi was not done a celebration to a record before a Family Court Judge or before a High Court and no notice was released to her hence any stipulation about her marital standing vis-`- vis a appellant is unconditionally zero and blank as it will be violative of a manners of healthy justice. Without giving a conference to Lakshmi no such stipulation could have validly be given by a Courts next that she had not married a appellant herein given such as a anticipating would severely impact her rights. And if no such stipulation could have been given apparently no stipulation could validly have been given that a appellant was validly married to a respondent, given if Lakshmi was a mother of a appellant afterwards yet divorcing her a appellant could not have validly married a respondent.
It might be remarkable that Section 125 Cr.P.C. provides for giving upkeep to a mother and some other relatives. The word `wife’ has been tangible in Explanation (b) to Section 125(1) of a Cr.P.C. as follows : “Wife includes a lady who has been divorced by, or has achieved a divorce from, her father and has not remarried.”
In Vimala (K) vs. Veeraswamy (K) [(1991) 2 SCC 375], a three- Judge Bench of this Court reason that Section 125 of a Code of 1973 is meant to grasp a amicable purpose and a intent is to forestall itinerancy and destitution. Explaining a clarification of a word `wife’ a Court held: “..the intent is to forestall itinerancy and destitution. It provides a rapid pill for a supply of food, wardrobe and preserve to a forlorn wife. When an try is done by a father to disastrous a explain of a neglected mother depicting her as a kept-mistress on a presumable defence that he was already married, a justice would insist on despotic explanation of a progressing marriage. The tenure `wife’ in Section 125 of a Code of Criminal Procedure, includes a lady who has been divorced by a father or who has achieved a divorce from her father and has not remarried. The lady not carrying a authorised standing of a mother is so brought within a thorough clarification of a tenure `wife’ unchanging with a objective. However, underneath a law a second mother whose matrimony is blank on comment of a presence of a initial matrimony is not a legally married wife, and is, therefore, not entitled to upkeep underneath this provision.”
In a successive preference of this Court in Savitaben Somabhat Bhatiya vs. State of Gujarat and others, AIR 2005 SC 1809, this Court reason that however fascinating it might be to take note of a predicament of an hapless woman, who unwittingly enters into nuptials with a married man, there is no range to embody a lady not rightly married within a countenance of `wife’. The Bench reason that this dearth in law can be nice usually by a Legislature.
Since we have reason that a Courts next erred in law in holding that Lakshmi was not married to a appellant (since notice was not released to her and she was not heard), it can't be pronounced during this theatre that a respondent herein is a mother of a appellant. A divorced mother is treated as a mother for a purpose of Section 125 Cr.P.C. yet if a chairman has not even been married apparently that chairman could not be divorced. Hence a respondent herein can't explain to be a mother of a appellant herein, unless it is determined that a appellant was not married to Lakshmi.
However, a doubt has also be to be examined from a indicate of perspective of The Protection of Women from Domestic Violence Act, 2005. Section 2(a) of a Act states :
“2(a) “aggrieved person” means any lady who is, or has been, in a domestic attribute with a respondent and who alleges to have been subjected to any act of domestic assault by a respondent”;
Section 2(f) states :
“2(f) “domestic relationship” means a attribute between dual persons who live or have, during any indicate of time, lived together in a common household, when they are associated by consanguinity, marriage, or by a attribute in a inlet of marriage, adoption or are family members vital together as a corner family”;
Section 2(s) states :
“2(s) “shared household” means a domicile where a chairman depressed lives or during any theatre has lived in a domestic attribute possibly simply or along with a respondent and includes such a domicile possibly owned or tenanted possibly jointly by a depressed chairman and a respondent, or owned or tenanted by possibly of them in honour of that possibly a depressed chairman or a respondent or both jointly or simply have any right, title, seductiveness or equity and includes such a domicile that might go to a corner family of that a respondent is a member, irrespective of possibly a respondent or a depressed chairman has any right, pretension or seductiveness in a common household.”
Section 3(a) states that an act will consecrate domestic assault in box it-
“3(a) harms or injures or endangers a health, safety, life, prong or well-being, possibly mental or physical, of a depressed chairman or tends to do so and includes causing earthy abuse, passionate abuse, created and romantic abuse and mercantile abuse;” or (emphasis supplied)
The countenance “economic abuse” has been tangible to embody : “(a) damage of all or any mercantile or financial resources to that a depressed chairman is entitled underneath any law or tradition possibly payable underneath an sequence of a justice or differently or that a depressed chairman requires out of prerequisite including, yet not singular to, domicile necessities for a depressed chairman and her children, if any, stridhan, property, jointly or alone owned by a depressed person, remuneration of let associated to a common domicile and maintenance”. (emphasis supplied)
An depressed chairman underneath a Act can proceed a Magistrate underneath Section 12 for a use mentioned in Section 12(2). Under Section 20(1)(d) a Magistrate can extend upkeep while disposing of a focus underneath Section 12(1).
Section 26(1) provides that a use mentioned in Section 20 might also be sought in any authorised proceeding, before a polite court, family justice or a rapist court.
Having remarkable a applicable supplies in The Protection of Women from Domestic Violence Act, 2005, we might indicate out that a countenance `domestic relationship’ includes not usually a attribute of matrimony yet also a attribute `in a inlet of marriage’. The question, therefore, arises as to what is a clarification of a countenance `a attribute in a inlet of marriage’. Unfortunately this countenance has not been tangible in a Act. Since there is no approach preference of this Court on a interpretation of this countenance we consider it compulsory to appreciate it given a vast series of cases will be entrance adult before a Courts in a nation on this point, and hence an lawful preference is required.
In a opinion Parliament by a aforesaid Act has drawn a eminence between a attribute of matrimony and a attribute in a inlet of marriage, and has supposing that in possibly box a chairman who enters into possibly attribute is entitled to a advantage of a Act.
It seems to us that in a aforesaid Act of 2005 Parliament has taken notice of a new amicable materialisation that has emerged in a nation famous as live-in relationship. This new attribute is still singular in a country, and is infrequently found in large civic cities in India, yet it is really common in North America and Europe. It has been commented on by this Court in S. Khushboo vs. Kanniammal Anr. (2010) 5 SCC 600 (vide para 31).
When a mother is deserted, in many countries a law provides for upkeep to her by her husband, that is called alimony. However, progressing there was no law providing for upkeep to a lady who was carrying a live-in attribute with a male yet being married to him and was afterwards forlorn by him.
In USA a countenance `palimony’ was coined that means extend of upkeep to a lady who has lived for a estimable duration of time with a male yet marrying him, and is afterwards forlorn by him (see `palimony’ on Google). The initial preference on palimony was a good famous preference of a California Superior Court in Marvin vs. Marvin (1976) 18 C3d660. This box associated to a famous film actor Lee Marvin, with whom a lady Michelle lived for many years yet marrying him, and was afterwards forlorn by him and she claimed palimony. Subsequently in many decisions of a Courts in USA, a visualisation of palimony has been deliberate and developed. The US Supreme Court has not given any preference on possibly there is a authorised right to palimony, yet there are several decisions of a Courts in several States in USA. These Courts in USA have taken anomalous views, some extenuation palimony, some denying it altogether, and some extenuation it on certain conditions. Hence in USA a law is still in a state of expansion on a right to palimony.
Although there is no orthodox basement for extend of palimony in USA, a Courts there that have postulated it have postulated it on a contractual basis. Some Courts in USA have reason that there contingency be a created or verbal agreement between a male and lady that if they apart a male will give palimony to a woman, while other Courts have reason that if a male and lady have lived together for a almost prolonged duration yet removing married there would be deemed to be an pragmatic or constructive agreement that palimony will be given on their separation.
In Taylor vs. Fields (1986) 224 Cal. Rpr. 186 a contribution were that a plaintiff Taylor had a attribute with a married male Leo. After Leo died Taylor sued his widow alleging crack of an pragmatic agreement to take caring of Taylor financially and she claimed upkeep from a estate of Leo. The Court of Appeals in California reason that a attribute purported by Taylor was zero some-more than that of a married male and his mistress. It was reason that a purported agreement complacent on gaudy care and hence was shabby and unenforceable. The Court of Appeals relied on a fact that Taylor did not live together with Leo yet usually spasmodic spent weekends with him. There was no pointer of a fast and poignant cohabitation between a two.
However, a New Jersey Supreme Court in Devaney vs. L’ Esperance 195 N.J., 247 (2008) reason that cohabitation is not compulsory to explain palimony, rather “it is a guarantee to support, voiced or implied, joined with a marital form relationship, that are indispensable elements to support a current explain for palimony”. A law has now been upheld in 2010 by a State legislature of New Jersey that there contingency be a created agreement between a parties to explain palimony.
Thus, there are widely anomalous views of a Courts in U.S.A. per a right to palimony. Some States like Georgia and Tennessee specifically bar to commend palimony agreements.
Written palimony contracts are rare, yet some US Courts have found pragmatic contracts when a lady has given adult her career, has managed a household, and assisted a male in his business for a extensive duration of time. Even when there is no pithy created or verbal agreement some US Courts have reason that a movement of a parties make it seem that a constructive or pragmatic agreement for extend of palimony existed.
However, a gaudy agreement exclusively for passionate use is reason in all US Courts as shabby and unenforceable.
In a box before us we are not called on to confirm possibly in a nation there can be a current explain for palimony on a basement of a contract, demonstrate or implied, created or oral, given no such box was set adult by a respondent in her petition underneath Section 125 Cr.P.C.
Some countries in a universe commend common law marriages. A common law marriage, infrequently called de facto marriage, or spontaneous matrimony is famous in some countries as a matrimony yet no legally famous matrimony rite is achieved or polite matrimony agreement is entered into or a matrimony purebred in a polite registry (see sum on Google).
In a opinion a `relationship in a inlet of marriage’ is same to a common law marriage. Common law marriages need that nonetheless not being rigourously married :-
(a) The integrate contingency reason themselves out to multitude as being same to spouses.
(b) They contingency be of authorised age to marry.
(c) They contingency be differently competent to enter into a authorised marriage, including being unmarried.
(d) They contingency have willingly cohabited and reason themselves out to a universe as being same to spouses for a poignant duration of time. (see `Common Law Marriage’ in Wikipedia on Google)
In a opinion a `relationship in a inlet of marriage’ underneath a 2005 Act contingency also perform a above requirements, and in further a parties contingency have lived together in a `shared household’ as tangible in Section 2(s) of a Act. Merely spending weekends together or a one night mount would not make it a `domestic relationship’.
In a opinion not all live in relations will volume to a attribute in a inlet of marriag8e to get a advantage of a Act of 2005. To get such advantage a conditions mentioned by us above contingency be satisfied, and this has to be valid by evidence. If a male has a `keep’ whom he maintains financially and uses especially for passionate purpose and/or as a menial it would not, in a opinion, be a attribute in a inlet of marriage’
No doubt a perspective we are holding would bar many women who have had a live in attribute from a advantage of a 2005 Act, yet afterwards it is not for this Court to order or rectify a law. Parliament has used a countenance `relationship in a inlet of marriage’ and not `live in relationship‘. The Court in a squeeze of interpretation can't change a denunciation of a statute.
In feudal multitude passionate attribute between male and lady outward matrimony was totally banned and regarded with offend and horror, as decorated in Leo Tolstoy’s novel `Anna Karenina’, Gustave Flaubert’s novel `Madame Bovary’ and a novels of a good Bengali author Sharat Chandra Chattopadhyaya.
However, Indian multitude is changing, and this change has been reflected and famous by Parliament by enacting The Protection of Women from Domestic Violence Act, 2005.
Coming behind to a contribution of a benefaction case, we are of a opinion that a High Court and a schooled Family Court Judge erred in law in holding that a appellant was not married to Lakshmi yet even arising notice to Lakshmi. Hence this anticipating has to be set aside and a matter remanded to a Family Court that might emanate notice to Lakshmi and after conference her give a uninformed anticipating in suitability with law. The doubt possibly a appellant was married to a respondent or not can, of course, be motionless usually after a aforesaid finding. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
There is also no anticipating in a visualisation of a schooled Family Court Judge on a doubt possibly a appellant and respondent had lived together for a pretty prolonged duration of time in a attribute that was in a inlet of marriage. In a opinion such commentary were essential to confirm this case. Hence we set aside a impugned visualisation of a High Court and Family Court Judge, Coimbatore and remand a matter to a Family Court Judge to confirm a matter new in suitability with law and in a light of a observations done above. Appeals allowed.
J. (MARKANDEY KATJU)
.J. (T. S. THAKUR)
21st OCTOBER, 2010