D Velusamy V/s D Patchaiammal

To get the benefit of ‘relationship in the nature of marriage’, it must fulfill the essential on common law marriage and in addition to that the parties must have lived together in a ‘shared household’ as defined in Section 2(s) of the Act

Case name:D Velusamy V/s D Patchaiammal.
Case number:Criminal Appeal Nos. 2028-2029 Of 2010
Court:Supreme Court of India
Bench:Justice T S Thakur Justice Markandey Katju
Decided on:OCTOBER 21, 2010
Relevant Act/Sections:Code of Criminal Procedure, 1974, Protection of Women from Domestic Violence Act, 2005.
  • D Patchaiammal (herein the respondent in the present case) filed a petition before the Family Court in 2001 u/s 125 of Cr.P.C, alleging that she was married to the appellant on 14.09.1986 and since then they lived together in her father’s house for two or three years. After two or three years, the appellant left the house and started living at a native place but he visited occasionally.
  • 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 and hence requested to be paid Rs. 550 per month as her maintenance.
  • The appellant who is working as a secondary teacher at Thevanga Higher Secondary School, Coimbatore, on a counter affidavit, alleged that he was married to Lakshmi on 25.06.1980 according to Hindu Customary Rites. Out of the wedlock, a male child was born 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.
  • The Family Court held by his judgement dated 05.03.2004 that the appellant was married to the respondent and the Hon’ble High Court upheld the validity of the judgement.
  • Therefore, the present appeal was filed before the Hon’ble Supreme Court.
  • Whether the appellant was married to the respondent?
  • 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?
  • Since Lakshmi was neither the party to the petition filed before the Family Court or the High Court nor there was any notice issue to her about the case, therefore any declaration about her marital status would be violative of the principle of natural justice since the said declaration would seriously affect her rights.
  • Because no declaration can be given about the marital status of Lakshmi and the appellant, no declaration can also be given about the appellant and respondent being legally married because if Lakshmi was the wife of the appellant then without divorcing her the appellant could not have validly married the respondent.
  • Examining the definition of wife under Cr.P.C, the court referred to a three judge bench decision in the case of Vimala (K) vs. Veeraswamy (K) [(1991) 2 SCC 375]:

“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. 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.”

  • Another case of Savitaben Somabhat Bhatiya vs. State of Gujarat and others, AIR 2005 SC 1809 where the court held that there is no scope to include a woman not lawfully married within the expression of ‘wife’.
  • However, relief u/s 20(1)(d) can be claimed by the aggrieved under the Protection of Women from the Domestic Violence Act, 2005. Under the Act, economic abuse to the aggrieved party is treated as domestic violence where the aggrieved and the other party have a domestic relationship. Domestic relationship as defined u/s 2(f) of the Act, includes relationship in the nature of marriage.
  • By interpreting the meaning of “relationship in the nature of marriage”, the court was of the opinion that 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 and has taken notice of a new social phenomenon which has emerged in our country known as live-in relationship.
  • The court also examined the concept of ‘Palimony’ which was first coined in U.S.A 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. The first case decided on this concept was California Superior Court in Marvin vs. Marvin (1976) 18 C3d660 where 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. But in the present case, no such claim for palimony was called upon to decide under Cr.P.C for maintenance.
  • 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.

and in addition, the parties must have lived together in a ‘shared household’ as defined in Section 2(s) of the Act. This concept must be proved with evidence to get a benefit under the Act.

  • The decision of the family court and the High court was errored in deciding that the appellant was married to respondent and hence set aside. The matter is remanded back to the family court which may issue notice to Lakshmi and start a fresh hearing.
  • There is also no finding in the judgment of the learned Family Court Judge on the question whether the appellant and respondent living in a nature of marriage, which was essential, hence the judgement is set aside and remanded back to the family court to decide on the same.

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