Chanmuniya v. Virendra Kumar Singh Kushwaha

A widow said she was married by custom to her late husband's younger brother, and asked for maintenance under Section 125 of the Code of Criminal Procedure. The High Court said no valid marriage was proved. The Supreme Court Bench took a broad view of the word wife but was bound by earlier two-Judge decisions, so it asked the Chief Justice to refer three questions to a larger Bench.

Quick Revision

Read the full judgment: Indian Kanoon (unofficial copy)

Parties

Chanmuniya — appellant; widow of Ram Saran, who claims to be the wife of the first respondent.

Virendra Kumar Singh Kushwaha — respondent No. 1; the younger son of Sarju Singh Kushwaha and younger brother of Ram Saran.

Anr. — respondent No. 2; the second respondent, not named in the judgment.

Ram Saran — the elder son of Sarju Singh Kushwaha and the appellant's first husband; died on 7 March 1992.

Asha and Usha — the appellant's two daughters, born in 1988 and 1990.

Procedural History

1. The appellant began a proceeding under Section 125 of the Code of Criminal Procedure for maintenance (No. 20/1997) before the 1st Additional Civil Judge, Mohamadabad, Ghazipur. It is pending (para 4).
2. She filed a suit (No. 42/1998) for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 in the Court of the 1st Additional District Judge, Ghazipur (para 5).
3. On 3 January 2004 the Trial Court decreed the suit. It held that the appellant had remarried the first respondent after Ram Saran's death and that he deserted her. It directed him to live with her and perform his marital duties (para 6).
4. The first respondent filed a first appeal (No. 110/2004) under Section 28 of the Hindu Marriage Act (para 7).
5. By judgment of 28 November 2007 the High Court held that the essentials of a valid Hindu marriage under Section 7 were not performed. It held that the first respondent was not her husband and reversed the Trial Court (para 7).
6. The appellant's review was dismissed on 23 January 2009 for want of an error apparent on the face of the record (para 8).
7. She filed a special leave petition against the orders of 28 November 2007 and 23 January 2009. Leave was granted (paras 1, 9).
8. The Bench decided on 7 October 2010 to request a reference to a larger Bench (paras 45-47).

Facts

1. Sarju Singh Kushwaha had two sons, Ram Saran (elder) and Virendra Kumar Singh Kushwaha (younger). The appellant Chanmuniya was married to Ram Saran and had two daughters, Asha (born 1988) and Usha (born 1990). Ram Saran died on 7 March 1992 (para 2).
2. The appellant said she was married off to the first respondent in 1996 by the custom of the Kushwaha community. The custom was that a widow marries the husband's younger brother. She said the marriage was in the local custom of Katha and Sindur (para 3).
3. She said they lived together as husband and wife and discharged marital obligations. After some time he began to harass and torture her, stopped her maintenance and refused to discharge his marital obligations (para 3).
4. The main issue in the first appeal was whether there was any evidence that the appellant was the legally wedded wife of the first respondent (para 7).
5. The appellant and the first respondent were related, lived in the same house and by social custom were treated as husband and wife (para 13).

Issues Raised

1. Does a presumption of marriage arise when parties live together for a long time, giving rise to a claim for maintenance under Section 125 of the Code of Criminal Procedure (para 10)?
2. What is meant by wife in Section 125, especially the explanation to clause (b) (para 10)?
3. Would a man and woman living together for a long time, even without a valid marriage, raise a presumption of a valid marriage entitling the woman to maintenance (para 11)?

Arguments Contended

For the appellant (Chanmuniya): the judgment records her case as follows.

• She was married to the first respondent by the custom of Katha and Sindur, under a Kushwaha custom that the widow marries the younger brother (para 3).
• They lived together as husband and wife and discharged marital obligations, until he harassed and tortured her and stopped maintenance (para 3).

For the respondent: the judgment does not record the first respondent's arguments. It records the High Court's finding that the essentials of a valid Hindu marriage under Section 7 of the Hindu Marriage Act, 1955 had not been performed (para 7).

Court's Reasoning

The judgment is by Ganguly, J. for the Bench of Asok Kumar Ganguly and G.S. Singhvi, JJ. Paragraph numbers are those of the judgment.

Ganguly, J. (for the Bench)

The question

1. Noted: Paragraphs 2 to 9 record the facts and the courts' orders as set out in Procedural History and Facts. (paras 2-9)
2. Noted: One major issue is whether a presumption of marriage arises when parties live together for a long time, giving a claim for maintenance under Section 125. The question is what wife means in Section 125, having regard to the explanation to clause (b). (para 10)
3. Noted: The question is whether a man and woman living together for a long time, even without a valid marriage, would raise a presumption of a valid marriage. (para 11)

Presumption of marriage in earlier cases

1. Noted: In Piers v. Piers ((1849) II HLC 331), the House of Lords said the validity of a marriage cannot be tried like any other issue of fact independent of presumption. The law presumes in favour of marriage, and only strong and satisfactory evidence can rebut it. (para 12)
2. Noted: In Campbell v. Campbell, the Breadalbane case ((1867) L.R. 2 HL 269), cohabitation with the required repute as husband and wife was proof that the parties had contracted the matrimonial relation. A relationship adulterous at the beginning may become matrimonial by consent, shown by habit and repute. (para 13)
3. Held: Here the appellant and the first respondent were related, lived in the same house, and by social custom were treated as husband and wife. Their marriage was solemnized with Katha and Sindur. Following the House of Lords, there is a very strong presumption in favour of marriage. (para 13)
4. Noted: Captain De Thoren v. The Attorney-General ((1876) 1 AC 686) said the presumption of marriage is much stronger than a presumption about other facts. (para 13)
5. Noted: Sastry Velaider Aronegary v. Sembecutty Viagalie ((1881) 6 AC 364) said that where a man and woman lived together as man and wife, the law presumes a valid marriage and not concubinage, unless the contrary is clearly proved. (para 14)
6. Noted: In India, A. Dinohamy v. W.L. Balahamy (AIR 1927 P.C. 185) laid down the same proposition. Mohabbat Ali Khan v. Muhammad Ibrahim Khan (AIR 1929 PC 135) said the law presumes in favour of marriage and against concubinage where a man and woman have cohabited continuously for years. (paras 15-16)
7. Noted: Gokal Chand v. Parvin Kumari (AIR 1952 SC 231) held that continuous cohabitation may raise the presumption, but it is rebuttable, and the Court cannot ignore circumstances that weaken or destroy it. (para 17)
8. Noted: Badri Prasad v. Dy. Director of Consolidation ((1978) 3 SCC 527) held a strong presumption of wedlock arises when partners lived together for a long spell as husband and wife. Although rebuttable, a heavy burden lies on the person who seeks to deprive the relationship of legal origin. (para 18)
9. Noted: Tulsa v. Durghatiya (2008 (4) SCC 520) held that where partners lived together for a long spell, a presumption of valid wedlock arises. (para 19)

The purpose of Section 125

1. Noted: Sir James Fitz Stephen, who piloted the Criminal Procedure Code of 1872, described the object of Section 125 (Section 536 in the 1872 Code) as preventing vagrancy or at least its consequences. (para 20)
2. Noted: The 1898 Code had the same provision in Section 488. The Court reproduces Section 488(1). It let a District Magistrate, Presidency Magistrate, Sub-divisional Magistrate or Magistrate of the first class act. He could order a man with sufficient means to pay a monthly allowance not exceeding five hundred rupees. The man must have neglected or refused to maintain his wife or his legitimate or illegitimate child unable to maintain itself. (para 21)
3. Noted: Jagir Kaur v. Jaswant Singh (AIR 1963 SC 1521) said maintenance provisions serve a social purpose. Section 488 prescribes forums so that a deserted wife or helpless child can get urgent relief. (para 22)
4. Noted: Nanak Chand v. Chandra Kishore Aggarwal (1969 (3) SCC 802) said Section 488 is a summary remedy for persons of any religion, unrelated to personal law. (para 23)
5. Noted: Captain Ramesh Chander Kaushal v. Veena Kaushal (AIR 1978 SC 1807) held Section 125 is a reincarnation of Section 488, with parents also brought in. It is a measure of social justice under Article 15(3) reinforced by Article 39. (para 24)
6. Noted: Krishna Iyer, J. said statutes are "not petrified print but vibrant words with social functions to fulfill". The constitutional empathy for weaker sections such as women and children must inform interpretation. (para 24)
7. Noted: Vimala (K) v. Veeraswamy (K) ((1991) 2 SCC 375), a three-Judge Bench, held that Section 125 achieves a social purpose to prevent vagrancy and destitution. It gives a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It said the court would insist on strict proof of an earlier marriage where a husband depicts a neglected wife as a kept-mistress on the plea that he was already married. (para 25)
8. Noted: Vimala said wife in Section 125 includes a woman divorced by a husband or who obtained a divorce and has not remarried. A woman without the legal status of a wife is brought within the inclusive definition. (para 25)
9. Held: Where a man lived with a woman for a long time, even without the legal necessities of a valid marriage, he should be liable to pay maintenance if he deserts her. He should not benefit from legal loopholes by enjoying the advantages of a de facto marriage without the duties. (para 26)
10. Held: Any other interpretation would lead the woman to vagrancy and destitution, which Section 125 is meant to prevent. (para 26)
11. Noted: The Committee on Reforms of Criminal Justice System, headed by Dr. Justice V.S. Malimath (2003), said evidence of a man and woman living together for a reasonably long period should suffice for a presumption of marriage by customary rites. It recommended amending wife in Section 125 to include such a woman. (para 27)
12. Noted: Mohammad Ahmed Khan v. Shah Bano Begum ((1985) 2 SCC 556), a Constitution Bench, said Section 125 is truly secular and different from personal law. Its provisions are prophylactic and cut across religion. The liability rests on the individual's obligation to society to prevent vagrancy and destitution. (para 28)
13. Noted: Dwarika Prasad Satpathy v. Bidyut Prava Dixit ((1999) 7 SCC 675) held that the standard of proof of marriage under Section 125 is not as strict as in a trial under Section 494 IPC. An order under Section 125 does not determine the parties' rights and duties, and maintenance cannot be denied where there is some evidence of living together. (para 29)

The divergence and the limit on a two-Judge Bench

1. Noted: Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav (AIR 1988 SC 644), a two-Judge Bench, held it improper to exclude personal law altogether in Section 125 proceedings. It also held that wife means a legally wedded wife. (para 30)
2. Noted: Savitaben Somabhat Bhatiya v. State of Gujarat (AIR 2005 SC 1809) held that, however desirable it may be to note the plight of a woman who unwittingly enters wedlock with a married man, there is no scope to include a woman not lawfully married in wife. Only the Legislature can amend this. It relied on Yamunabai. (para 31)
3. Held: There is a divergence of judicial opinion on the meaning of wife in Section 125. (para 32)
4. Held: The Bench is inclined to a broad view of wife, given the social object of Section 125. But a two-Judge Bench cannot take a view contrary to the two earlier cases. (para 33)

Comparison with American law and the 2005 Act

1. Noted: In America, Marvin v. Marvin ((1976) 18 Cal.3d 660) dealt with the social obligation of a man in a live-in relationship. It gave rise to the word palimony, a mix of pal and alimony. (para 34)
2. Noted: Michelle Marvin alleged an oral agreement with Lee Marvin to combine efforts and earnings and to share property equally. She sought a declaration of her contract and property rights and a constructive trust on half the property. (para 35)
3. Noted: The Supreme Court of California held three points. The Family Law Act does not govern property in a non-marital relationship, and courts should enforce express contracts except where founded on meretricious sexual services. Without an express contract, courts should look at conduct for an implied contract, partnership or tacit understanding, and may use quantum meruit or constructive and resulting trusts. (para 35)
4. Noted: Indian law has not developed like Marvin, but the social context is changing, and courts must take account of it in reading Section 125. (para 36)
5. Noted: The larger Bench may also consider the Protection of Women from Domestic Violence Act, 2005. It has a broad definition of domestic abuse, including economic abuse, defined in sub-explanation (iv) to explanation I of Section 3. (para 37)
6. Noted: Section 20(1)(d) lets the Magistrate direct monetary relief to the aggrieved person, including maintenance under Section 125. Section 22 allows compensation. Section 26 allows the reliefs in any legal proceeding before a civil, family or criminal court. (paras 38-40)
7. Noted: The Act gives a wide meaning to domestic relationship, beyond marriage, and includes live-in relationships in the nature of marriage under Section 2(f). Women in live-in relationships are entitled to all its reliefs. (paras 41-42)
8. Held: If monetary relief and compensation can be awarded in live-in relationships under the 2005 Act, they should also be allowed in a proceeding under Section 125. Section 26 confirms this view. (para 43)
9. Held: In light of the change in social attitudes and values in the forward-looking 2005 Act, a broad interpretation of Section 125 should be taken. (para 44)

The reference

1. Noted: The Bench asks the Chief Justice to refer three questions, among others, to a larger Bench. (para 45)
   • First, whether living together as husband and wife for a considerable time raises a presumption of valid marriage that entitles the woman to maintenance under Section 125.
   • Second, whether strict proof of marriage is essential for maintenance under Section 125, given the Domestic Violence Act, 2005.
   • Third, whether a marriage by customary rites, without strictly meeting Section 7(1) of the Hindu Marriage Act, 1955 or another personal law, entitles the woman to maintenance under Section 125.
2. Held: The Bench is of the opinion that wife should be given a broad and expansive meaning to include cases where a man and woman have lived together as husband and wife for a reasonably long time. The Bench said "strict proof of marriage should not be a pre-condition for maintenance under Section 125 of the Cr.P.C", to fulfil the true spirit and essence of the beneficial provision of maintenance. (para 46)
3. Held: Such an interpretation is a just application of the Preamble's principles of social justice and upholding the dignity of the individual. (para 47)

Authorities

• Lousia Adelaide Piers and Florence A.M. De Kerriguen v. Sir Henry Samuel Piers ((1849) II HLC 331): law presumes in favour of marriage (para 12).
• Lieutenant C.W. Campbell v. John A.G. Campbell ((1867) L.R. 2 HL 269): cohabitation with repute as proof of marriage (para 13).
• Captain De Thoren v. The Attorney-General ((1876) 1 AC 686): presumption of marriage is stronger than other presumptions (para 13).
• Sastry Velaider Aronegary v. Sembecutty Viagalie ((1881) 6 AC 364): presumption of marriage against concubinage (para 14).
• A. Dinohamy v. W.L. Balahamy (AIR 1927 P.C. 185) and Mohabbat Ali Khan v. Muhammad Ibrahim Khan (AIR 1929 PC 135): Privy Council on the presumption (paras 15-16).
• Gokal Chand v. Parvin Kumari (AIR 1952 SC 231); Badri Prasad v. Dy. Director of Consolidation ((1978) 3 SCC 527); Tulsa v. Durghatiya (2008 (4) SCC 520): presumption from long cohabitation, rebuttable (paras 17-19).
• Jagir Kaur v. Jaswant Singh (AIR 1963 SC 1521); Nanak Chand v. Chandra Kishore Aggarwal (1969 (3) SCC 802): social purpose of maintenance provisions (paras 22-23).
• Captain Ramesh Chander Kaushal v. Veena Kaushal (AIR 1978 SC 1807); Vimala (K) v. Veeraswamy (K) ((1991) 2 SCC 375); Mohammad Ahmed Khan v. Shah Bano Begum ((1985) 2 SCC 556): Section 125 as social justice (paras 24-25, 28).
• Dwarika Prasad Satpathy v. Bidyut Prava Dixit ((1999) 7 SCC 675): lesser standard of proof of marriage (para 29).
• Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav (AIR 1988 SC 644) and Savitaben Somabhat Bhatiya v. State of Gujarat (AIR 2005 SC 1809): wife means a legally wedded wife. Binding on a two-Judge Bench (paras 30-33).
• Marvin v. Marvin ((1976) 18 Cal.3d 660): palimony in America. Noted (paras 34-36).
• Other sources: the Malimath Committee report of 2003 (para 27); Sir James Fitz Stephen on the 1872 Code (para 20).
• Names as spelt in the source text: Chanmuniya vs Virendra Kumar Singh Kushwaha & Anr (case title); Lousia Adelaide Piers & Florence A.M. De Kerriguen v. Sir Henry Samuel Piers; Lieutenant C.W. Campbell v. John A.G. Campbell; Sastry Velaider Aronegary & his wife v. Sembecutty Viagalie & Ors.; Badri Prasad v. Dy. Director of Consolidation & Ors.; Tulsa and Ors. v. Durghatiya & Ors.; Jagir Kaur & Anr. v. Jaswant Singh; Nanak Chand v. Chandra Kishore Aggarwal & Ors.; Captain Ramesh Chander Kaushal v. Veena Kaushal and Ors.; Mohammad Ahmed Khan v. Shah Bano Begum & Ors.; Dwarika Prasad Satpathy v. Bidyut Prava Dixit & Anr.; Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and another; Savitaben Somabhat Bhatiya v. State of Gujarat and others.

Provisions mentioned

• Section 125, Code of Criminal Procedure, 1973: maintenance of wives, children and parents. The explanation to clause (b) is in issue (para 10).
• Section 488, Code of Criminal Procedure, 1898 and Section 536, Code of 1872: earlier forms of the maintenance provision (paras 20-21).
• Section 7, Section 9 and Section 28, Hindu Marriage Act, 1955: ceremonies of a Hindu marriage; restitution of conjugal rights; appeals (paras 5, 7, 45).
• Section 494, Indian Penal Code: the offence of marrying again in a spouse's lifetime. Dwarika Prasad Satpathy held that proof of marriage under Section 125 is not as strict as in a trial under this section (para 29).
• Protection of Women from Domestic Violence Act, 2005: Section 2(f) (domestic relationship), Section 3 (domestic abuse and economic abuse), Section 20(1)(d) (monetary relief), Section 22 (compensation) and Section 26 (reliefs in other proceedings) (paras 37-43).
• Article 15(3) and Article 39, Constitution; Preamble: Section 125 falls within the constitutional sweep of Article 15(3) reinforced by Article 39 (para 24). The Preamble's principles are social justice and the dignity of the individual (paras 24, 47).

Judgement

1. The Bench does not decide the appeal finally. It requests the Chief Justice to refer three questions, among others, to a larger Bench (para 45).
2. The first question is whether living together as husband and wife for a considerable time raises a presumption of a valid marriage that entitles the woman to maintenance under Section 125 of the Code of Criminal Procedure (para 45).
3. The second question is whether strict proof of marriage is essential for maintenance under Section 125, having regard to the Domestic Violence Act, 2005 (para 45).
4. The third question is whether a marriage by customary rites, without strictly meeting Section 7(1) of the Hindu Marriage Act, 1955 or another personal law, entitles the woman to maintenance under Section 125 (para 45).
5. The Bench records its opinion that wife in Section 125 should be given a broad and expansive interpretation, without strict proof of marriage as a pre-condition (para 46).

Legal Principle / Ratio

A woman who lived with a man as husband and wife for a long time may claim maintenance under Section 125 without strict proof of marriage, in the view of this Bench. It could not so hold finally (para 33), since two earlier two-Judge decisions read wife as a legally wedded wife, so it referred the questions to a larger Bench. The Bench stated (para 46) that "strict proof of marriage should not be a pre-condition for maintenance under Section 125 of the Cr.P.C".

Critical Analysis

Analysis based on the judgment text.

The order leaves the appeal open. The Bench requests a reference and states its opinion. The judgment does not say what happens to the appellant's claim while the reference is pending.

The Bench did not decide whether the marriage was proved. It noted the strong presumption in para 13 for these parties. The judgment does not set aside the High Court's order in terms.

The Bench used the 2005 Act to argue for a broad reading of Section 125. It says reliefs under the 2005 Act should also be allowed under Section 125. The judgment does not explain how a different Act affects the meaning of wife in the Code.

Significance

• The Bench took a broad view of wife in Section 125, based on the social object of maintenance law.
• It set out the line of cases on presumption of marriage from long cohabitation, and the conflict on the meaning of wife.
• It asked a larger Bench to decide three questions, including the effect of the Domestic Violence Act, 2005.

Exam-Important Points

• Facts in one line: a widow claimed marriage by custom to her late husband's younger brother and sought maintenance. The Bench referred three questions to a larger Bench.
• Rule: long cohabitation raises a rebuttable presumption of marriage.
• Rule: the object of Section 125 is to prevent vagrancy and destitution.
• Trap: this is a reference. The Bench was bound by Yamunabai and Savitaben, which read wife as a legally wedded wife.
• Trap: the Bench gave its opinion but did not finally decide the appeal.
• Questions referred: presumption from cohabitation; whether strict proof of marriage is needed; and marriage by custom without Section 7(1).

Prepared from the full text of the judgment. Paragraph numbers follow the official Supreme Court judgment text; law reports may number the same paragraph differently.