This product is Licensed to : vinat

2010 7 Supreme 321 ; 2010 0 Supreme(SC) 1006

2010 96 AIC 65 ; 2011 1 AICLR 356 ; 2011 1 AIR(Bom)(R) 145 ; 2011 0 AIR(SC) 479 ; 2011 0
AIR(SC)(Civ) 917 ; 2011 0 AIR(SC)(Cri) 225 ; 2010 0 AIR(SCW) 6731 ; 2010 71 AllCriC 966 ;
2011 1 ANJ(SC) 69 ; 2011 1 BBCJ(SC) 104 ; 2011 1 BBCJ(SC) 166 ; 2010 3 BomCR(SC) 764 ;
2011 1 CalLT(SC) 57 ; 2010 4 CCR(SC) 164 ; 2010 4 CivCC 775 ; 2011 2 CivLJ 125 ; 2010 4
CriCC 749 ; 2010 0 CriLR 367 ; 2011 1 CriLR(Cal) 278 ; 2011 0 CrLJ 320 ; 2010 6 CTC 216 ;
2010 173 DLT 1 ; 2010 2 DMC 677 ; 2011 1 EastCrC(SC) 95 ; 2010 4 JCC 2891 ; 2010 11 JT
325 ; 2010 4 KHC 425 ; 2010 4 KLT 384 ; 2010 6 LawHerald(SC) 4322 ; 2011 1 MhLJ(Cri)(SC)
657 ; 2011 1 MPHT 228 ; 2011 1 NCC 226 ; 2010 4 RCR(Civ) 827 ; 2010 4 RCR(Cri) 746 ;
2011 1 RLW(Raj) 198 ; 2010 11 Scale 112 ; 2010 10 SCC 469 ; 2010 4 SCC(Civ) 223 ; 2011 1
SCC(Cri) 59 ; 2010 13 SCR 706 ; 2010 9 UJ 4721 ; 2011 1 WLC 234 ; 2010 4 WLN 96

2010 (7) Supreme 321

SUPREME COURT OF INDIA
Markandey Katju and T. S. Thakur, JJ.
D. Velusamy — Appellant
versus
D. Patchaiammal — Respondent
Criminal Appeal Nos. 2028-2029__of 2010
[Arising out of Special Leave Petition (Crl.) Nos.2273-2274/2010]
Decided on : 21-10-2010

IMPORTANT POINT
Not all live in relationships will amount to a relationship in the
nature of marriage to get the benefit of the Act.

Subject: Family Law - Domestic Violence

domestic relationship - live-in relationship - palimony - common law marriage -

relationship in the nature of marriage - shared household - economic abuse -
maintenance

Act Referred :
CRIMINAL PROCEDURE CODE : S.125, S.125(a)
JUDICIAL REVIEW : .
PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT : S.2(f)

(a) Judicial Review – Natural Justice – Lakshmi was not made a party to the
proceedings before the courts below and no notice was issued to her –
Hence any declaration about her marital status vis-à-vis the appellant is
wholly null and void being violative of the rules of natural justice – Without
giving a hearing to Lakshmi no such declaration could have validly be
given by the Courts below that she had not married the appellant herein
since such as a finding would seriously affect her rights. (Para 11)

(b) Code of Criminal Procedure, 1973 – Section 125 – Wife – includes a

woman who has been divorced by a husband or who has obtained a
divorce from her husband and has not remarried – there is no scope to
include a woman not lawfully married within the expression of ‘wife’. (Para
s 12 to 14)

(1991) 2 SCC 375; AIR 2005 SC 1809 – Relied upon

Page No. 1 of 9
 (c) Code of Criminal Procedure, 1973 – Section 125 – A divorced wife is
treated as a wife but if a person has not even been married, obviously that
person could not be divorced – Hence the respondent cannot claim to be
the wife of the appellant herein, unless it is established that the appellant
was not married to Lakshmi. (Para 15)

(d) The Protection of Women from Domestic Violence Act, 2005 –

Section 2(f) – Live-in relationship – The expression ‘domestic relationship’
includes not only the relationship of marriage but also a relationship ‘in
the nature of marriage’ like live-in relationship. (Para 20)

(2010) 5 SCC 600 – Relied upon

(e) Words and Phrases – Palimony – Palimony means grant of

maintenance to a woman who has lived for a substantial period of time
with a man without marrying him, and is then deserted by him – However,
the law on palimony is till evolving in the USA. (Para 24)

(1976) 18 C3d660; (1976) 18 C3d660; (1986) 224 Cal. Rpr. 186; 195
N.J., 247 (2008) – Referred

(f) The Protection of Women from Domestic Violence Act, 2005 –

Section 2(f) – ‘Relationship in the nature of marriage’ is akin to common
law marriage – Not all live in relationships will amount to a relationship in
the nature of marriage to get the benefit of the Act – Requirements for
being acceptable stated. (Paras 33 and 34)

Facts of the case:

1. The appellant was married according to the Hindu Customary Rites

with one Lakshmi on 25.6.1980. Out of the wedlock with Lakshmi a male
child was born, who is now studying in an Engineering college at Ooty. The
petitioner is working as a Secondary Teacher in Thevanga Higher
Secondary School, Coimbatore.

2. It appears that the respondent-D. Patchaiammal filed a petition

under Section 125 Cr.P.C. in the year 2001 in which she alleged that she
was married to the appellant herein on 14.9.1986 and since then the
appellant herein and she lived together in her father’s house for two or
three years. It is alleged in the petition that after two or three years the
appellant herein left the house of the respondent’s father and started
living in his native place, but would visit the respondent occasionally.

3. It is alleged that the appellant herein deserted the respondent

herein two or three years after marrying her in 1986 and she did not have
any kind of livelihood and she is unable to maintain herself whereas the
respondent is a Secondary Grade Teacher drawing a salary of Rs.10000/-
per month. Hence it was prayed that the respondent (appellant herein) be
directed to pay Rs.500/- per month as maintenance to the petitioner.

4. The learned Family Court Judge has held that the appellant was
married to the respondent and not to Lakshmi. These findings have been
upheld by the High Court.

Page No. 2 of 9
 Finding of the Court:

Impugned judgments cannot be sustained.

Result : Appeal allowed.

Cases Referred:
Marvin v. Marvin, , (1976) 18 C3d660 – Referred [Para 24]
Taylor v. Fields, , (1986) 224 Cal. Rpr. 186 – Referred [Para 26]
Devaney v. L’ Esperance 195 N.J., , 247 (2008) – Referred [Para 27]
Savitaben Somabhat Bhatiya v. State of Gujarat, , AIR 2005 SC 1809 – Relied upon
[Para 14]
Vimala (K) v. Veeraswamy (K), , (1991) 2 SCC 375 – Relied upon [Para 13]
S. Khushboo v. Kanniammal, , (2010) 5 SCC 600 – Referred[Para 22]

JUDGMENT

Markandey Katju, J. —

1. Leave granted.

2. Heard learned counsel for the appellant. None has appeared for the respondent
although she has been served notice. We had earlier requested Mr. Jayant Bhushan,
learned Senior counsel to assist us as Amicus Curiae in the case, and we record our
appreciation of Mr. Bhushan who was of considerable assistance to us.

3. These appeals have been filed against the judgment of the Madras High Court
dated 12.10.2009.

4. The appellant herein has alleged that he was married according to the Hindu
Customary Rites with one Lakshmi on 25.6.1980. Out of the wedlock with Lakshmi a
male child was born, who is now studying in an Engineering college at Ooty. The
petitioner is working as a Secondary Teacher in Thevanga Higher Secondary School,
Coimbatore.

5. It appears that the respondent-D. Patchaiammal filed a petition under Section 125
Cr.P.C. in the year 2001 before the Family Court at Coimbatore in which she alleged
that she was married to the appellant herein on 14.9.1986 and since then the
appellant herein and she lived together in her father’s house for two or three years.
It is alleged in the petition that after two or three years the appellant herein left the
house of the respondent’s father and started living in his native place, but would
visit the respondent occasionally.

6. It is alleged that the appellant herein (respondent in the petition under Section
125 Cr.P.C.) deserted the respondent herein (petitioner in the proceeding under
Section 125 Cr.P.C.) two or three years after marrying her in 1986. In her petition
under Section 125 Cr.P.C. she alleged that she did not have any kind of livelihood
and she is unable to maintain herself whereas the respondent (appellant herein) is a
Secondary Grade Teacher drawing a salary of Rs.10000/- per month. Hence it was
prayed that the respondent (appellant herein) be directed to pay Rs.500/- per month
as maintenance to the petitioner.

7. In both her petition under Section 125 Cr.P.C. as well as in her deposition in the
Page No. 3 of 9
case the respondent has alleged that she was married to the appellant herein on
14.9.1986, and that he left her after two or three years of living together with her in
her father’s house.

8. Thus it is the own case of the respondent herein that the appellant left her in
1988 or 1989 (i.e. two or three years after the alleged marriage in 1986). Why then
was the petition under Section 125 Cr.P.C. filed in the year 2001, i.e. after a delay of
about twelve years, shall have to be satisfactorily explained by the respondent. This
fact also creates some doubt about the case of the respondent herein.

9. In his counter affidavit filed by the appellant herein before the Family Court,
Coimbatore, it was alleged that the respondent (appellant herein) was married to
one Lakshmi on 25.6.1980 as per the Hindu Marriage rites and customs and he had
a male child, who is studying in C.S.I. Engineering college at Ooty. To prove his
marriage with Lakshmi the appellant produced the ration card, voter’s identity card
of his wife, transfer certificate of his son, discharge certificate of his wife Lakshmi
from hospital, photographs of the wedding, etc.

10. The learned Family Court Judge has held by his judgment dated 5.3.2004 that
the appellant was married to the respondent and not to Lakshmi. These findings
have been upheld by the High Court in the impugned judgment.

11. In our opinion, since Lakshmi was not made a party to the proceedings before
the Family Court Judge or before the High Court and no notice was issued to her
hence any declaration about her marital status vis-‘- vis the appellant is wholly null
and void as it will be violative of the rules of natural justice. Without giving a hearing
to Lakshmi no such declaration could have validly be given by the Courts below that
she had not married the appellant herein since such as a finding would seriously
affect her rights. And if no such declaration could have been given obviously no
declaration could validly have been given that the appellant was validly married to
the respondent, because if Lakshmi was the wife of the appellant then without
divorcing her the appellant could not have validly married the respondent.

12. It may be noted that Section 125 Cr.P.C. provides for giving maintenance to the
wife and some other relatives. The word ‘wife’ has been defined in Explanation (b) to
Section 125(1) of the Cr.P.C. as follows :

“Wife includes a woman who has been divorced by, or has obtained a divorce from,
her husband and has not remarried.”

13. In Vimala (K) vs. Veeraswamy (K),1 [(1991) 2 SCC 375], a three-Judge Bench of
this 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
Page No. 4 of 9
the term `wife’ consistent with the objective. However, under the law a second wife
whose marriage is void on account of the survival of the first marriage is not a
legally wedded wife, and is, therefore, not entitled to maintenance under this
provision.”

14. In a subsequent decision of this Court in Savitaben Somabhat Bhatiya vs. State
of Gujarat and others,2 AIR 2005 SC 1809, this Court held that however desirable it
may be to take note of the 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.

15. Since we have held that the Courts below erred in law in holding that Lakshmi
was not married to the appellant (since notice was not issued to her and she was not
heard), it cannot be said at this stage that the respondent herein is the wife of the
appellant. A divorced wife is treated as a wife for the purpose of Section 125 Cr.P.C.
but if a person has not even been married obviously that person could not be
divorced. Hence the respondent herein cannot claim to be the wife of the appellant
herein, unless it is established that the appellant was not married to Lakshmi.

16. However, the question has also be to be examined from the point of view of The
Protection of Women from Domestic Violence Act, 2005. Section 2(a) of the Act
states :

“2(a) “aggrieved person” means any woman who is, or has been, in a domestic
relationship with the respondent and who alleges to have been subjected to any act
of domestic violence by the respondent”;

Section 2(f) states :

“2(f) “domestic relationship” means a relationship between two persons who live or
have, at any point of time, lived together in a shared household, when they are
related by consanguinity, marriage, or through a relationship in the nature of
marriage, adoption or are family members living together as a joint family”;

Section 2(s) states :

“2(s) “shared household” means a household where the person aggrieved lives or at
any stage has lived in a domestic relationship either singly or along with the
respondent and includes such a household whether owned or tenanted either jointly
by the aggrieved person and the respondent, or owned or tenanted by either of
them in respect of which either the aggrieved person or the respondent or both
jointly or singly have any right, title, interest or equity and includes such a
household which may belong to the joint family of which the respondent is a
member, irrespective of whether the respondent or the aggrieved person has any
right, title or interest in the shared household.”

Section 3(a) states that an act will constitute domestic violence in case it-

“3(a) harms or injures or endangers the health, safety, life, limb or well-being,
whether mental or physical, of the aggrieved person or tends to do so and includes
causing physical abuse, sexual abuse, verbal and emotional abuse and economic
abuse;” or (emphasis supplied)

Page No. 5 of 9
17. The expression “economic abuse” has been defined to include :

“(a) deprivation of all or any economic or financial resources to which the aggrieved
person is entitled under any law or custom whether payable under an order of a
court or otherwise or which the aggrieved person requires out of necessity
including, but not limited to, household necessities for the aggrieved person and her
children, if any, stridhan, property, jointly or separately owned by the aggrieved
person, payment of rental related to the shared household and maintenance”.
(emphasis supplied)

18. An aggrieved person under the Act can approach the Magistrate under Section
12 for the relief mentioned in Section 12(2). Under Section 20(1)(d) the Magistrate
can grant maintenance while disposing of the application under Section 12(1).

19. Section 26(1) provides that the relief mentioned in Section 20 may also be
sought in any legal proceeding, before a civil court, family court or a criminal court.

20. Having noted the relevant provisions in The Protection of Women from Domestic
Violence Act, 2005, we may point out that the expression ‘domestic relationship’
includes not only the relationship of marriage but also a relationship ‘in the nature
of marriage’. The question, therefore, arises as to what is the meaning of the
expression ‘a relationship in the nature of marriage’. Unfortunately this expression
has not been defined in the Act. Since there is no direct decision of this Court on the
interpretation of this expression we think it necessary to interpret it because a large
number of cases will be coming up before the Courts in our country on this point,
and hence an authoritative decision is required.

21. In our opinion Parliament by the aforesaid Act has drawn a distinction between
the relationship of marriage and a relationship in the nature of marriage, and has
provided that in either case the person who enters into either relationship is entitled
to the benefit of the Act.

22. It seems to us that in the aforesaid Act of 2005 Parliament has taken notice of a
new social phenomenon which has emerged in our country known as live-in
relationship. This new relationship is still rare in our country, and is sometimes
found in big urban cities in India, but it is very common in North America and
Europe. It has been commented upon by this Court in S. Khushboo vs. Kanniammal
& Anr.3 (2010) 5 SCC 600 (vide para 31).

23. When a wife is deserted, in most countries the law provides for maintenance to
her by her husband, which is called alimony. However, earlier there was no law
providing for maintenance to a woman who was having a live-in relationship with a
man without being married to him and was then deserted by him.

24. In USA the expression ‘palimony’ was coined which means grant of maintenance
to a woman who has lived for a substantial period of time with a man without
marrying him, and is then deserted by him (see ‘palimony’ on Google). The first
decision on palimony was the well known decision of the California Superior Court in
Marvin vs. Marvin,4 (1976) 18 C3d660. This case related to the famous film actor
Lee Marvin, with whom a lady Michelle lived for many years without marrying him,
and was then deserted by him and she claimed palimony. Subsequently in many
decisions of the Courts in USA, the concept of palimony has been considered and
developed. The US Supreme Court has not given any decision on whether there is a
Page No. 6 of 9
legal right to palimony, but there are several decisions of the Courts in various
States in USA. These Courts in USA have taken divergent views, some granting
palimony, some denying it altogether, and some granting it on certain conditions.
Hence in USA the law is still in a state of evolution on the right to palimony.

25. Although there is no statutory basis for grant of palimony in USA, the Courts
there which have granted it have granted it on a contractual basis. Some Courts in
USA have held that there must be a written or oral agreement between the man and
woman that if they separate the man will give palimony to the woman, while other
Courts have held that if a man and woman have lived together for a substantially
long period without getting married there would be deemed to be an implied or
constructive contract that palimony will be given on their separation.

26. In Taylor vs. Fields,5 (1986) 224 Cal. Rpr. 186 the facts were that the plaintiff
Taylor had a relationship with a married man Leo. After Leo died Taylor sued his
widow alleging breach of an implied agreement to take care of Taylor financially and
she claimed maintenance from the estate of Leo. The Court of Appeals in California
held that the relationship alleged by Taylor was nothing more than that of a married
man and his mistress. It was held that the alleged contract rested on meretricious
consideration and hence was invalid and unenforceable. The Court of Appeals relied
on the fact that Taylor did not live together with Leo but only occasionally spent
weekends with him. There was no sign of a stable and significant cohabitation
between the two.

27. However, the New Jersey Supreme Court in Devaney vs. L’ Esperance,6 195 N.J.,
247 (2008) held that cohabitation is not necessary to claim palimony, rather “it is
the promise to support, expressed or implied, coupled with a marital type
relationship, that are indispensable elements to support a valid claim for palimony”.
A law has now been passed in 2010 by the State legislature of New Jersey that there
must be a written agreement between the parties to claim palimony.

28. Thus, there are widely divergent views of the Courts in U.S.A. regarding the right
to palimony. Some States like Georgia and Tennessee expressly refuse to recognize
palimony agreements.

29. Written palimony contracts are rare, but some US Courts have found implied
contracts when a woman has given up her career, has managed the household, and
assisted a man in his business for a lengthy period of time. Even when there is no
explicit written or oral contract some US Courts have held that the action of the
parties make it appear that a constructive or implied contract for grant of palimony
existed.

30. However, a meretricious contract exclusively for sexual service is held in all US
Courts as invalid and unenforceable.

31. In the case before us we are not called upon to decide whether in our country
there can be a valid claim for palimony on the basis of a contract, express or
implied, written or oral, since no such case was set up by the respondent in her
petition under Section 125 Cr.P.C.

32. Some countries in the world recognize common law marriages. A common law
marriage, sometimes called de facto marriage, or informal marriage is recognized in
some countries as a marriage though no legally recognized marriage ceremony is
Page No. 7 of 9
performed or civil marriage contract is entered into or the marriage registered in a
civil registry (see details on Google).

33. In our opinion a ‘relationship in the nature of marriage’ is akin to a common law
marriage. Common law marriages require that although not being formally married
:-

(a) The couple must hold themselves out to society as being akin to spouses.

(b) They must be of legal age to marry.

(c) They must be otherwise qualified to enter into a legal marriage, including being
unmarried.

(d) They must have voluntarily cohabited and held themselves out to the world as
being akin to spouses for a significant period of time.

(see ‘Common Law Marriage’ in Wikipedia on Google) In our opinion a ‘relationship

in the nature of marriage’ under the 2005 Act must also fulfill the above
requirements, and in addition the parties must have lived together in a ‘shared
household’ as defined in Section 2(s) of the Act. Merely spending weekends together
or a one night stand would not make it a ‘domestic relationship’.

34. In our opinion not all live in relationships will amount to a relationship in the
nature of marriage to get the benefit of the Act of 2005. To get such benefit the
conditions mentioned by us above must be satisfied, and this has to be proved by
evidence. If a man has a ‘keep’ whom he maintains financially and uses mainly for
sexual purpose and/or as a servant it would not, in our opinion, be a relationship in
the nature of marriage’

35. No doubt the view we are taking would exclude many women who have had a
live in relationship from the benefit of the 2005 Act, but then it is not for this Court
to legislate or amend the law. Parliament has used the expression ‘relationship in
the nature of marriage’ and not ‘live in relationship’. The Court in the grab of
interpretation cannot change the language of the statute.

36. In feudal society sexual relationship between man and woman outside marriage
was totally taboo and regarded with disgust and horror, as depicted in Leo Tolstoy’s
novel ‘Anna Karenina’, Gustave Flaubert’s novel ‘Madame Bovary’ and the novels of
the great Bengali writer Sharat Chandra Chattopadhyaya.

37. However, Indian society is changing, and this change has been reflected and
recognized by Parliament by enacting The Protection of Women from Domestic
Violence Act, 2005.

38. Coming back to the facts of the present case, we are of the opinion that the High
Court and the learned Family Court Judge erred in law in holding that the appellant
was not married to Lakshmi without even issuing notice to Lakshmi. Hence this
finding has to be set aside and the matter remanded to the Family Court which may
issue notice to Lakshmi and after hearing her give a fresh finding in accordance with
law. The question whether the appellant was married to the respondent or not can,
of course, be decided only after the aforesaid finding.

39. There is also no finding in the judgment of the learned Family Court Judge on the

Page No. 8 of 9
question whether the appellant and respondent had lived together for a reasonably
long period of time in a relationship which was in the nature of marriage. In our
opinion such findings were essential to decide this case. Hence we set aside the
impugned judgment of the High Court and Family Court Judge, Coimbatore and
remand the matter to the Family Court Judge to decide the matter afresh in
accordance with law and in the light of the observations made above. Appeals
allowed.

***********

Page No. 9 of 9