D. Velusamy v. D. Patchaiammal

A woman claimed maintenance under Section 125 Cr.P.C. saying she had married the appellant. He said he was already married to someone else and had never married her. The dispute also reached the Protection of Women from Domestic Violence Act, 2005, whose protection extends not only to wives but also to certain long-term live-in partners — a category Parliament never defined precisely. The Supreme Court had to give it a workable legal test.

Quick Revision

Read the full judgment: Supreme Court of India (sci.gov.in)

Parties

D. Velusamy — appellant; resisted a maintenance claim under Section 125 Cr.P.C., saying he was already married to one Lakshmi since 1980 and had never married the respondent.

D. Patchaiammal — respondent; claimed maintenance under Section 125 Cr.P.C., saying she was married to the appellant on 14 September 1986 and that he deserted her after two or three years.

Procedural History

1. The respondent filed a petition under Section 125 Cr.P.C. in 2001 before the Family Court, Coimbatore, claiming maintenance of Rs.500 per month. She said she was married to the appellant on 14.9.1986 and deserted after two or three years (para 5).
2. The appellant filed a counter affidavit before the Family Court. He said he was married to one Lakshmi on 25.6.1980 under Hindu customary rites, with a son from that marriage. He produced documents to prove it (para 9):
   • a ration card;
   • his wife's voter identity card;
   • his son's transfer certificate;
   • a hospital discharge certificate for his wife; and
   • wedding photographs.
3. The Family Court Judge, by judgment dated 5.3.2004, held that the appellant was married to the respondent and not to Lakshmi (para 10).
4. This finding was upheld by the Madras High Court in the judgment under appeal, dated 12.10.2009 (paras 3, 10).
5. The appellant appealed to the Supreme Court by special leave (permission the Supreme Court gives to hear an appeal), arising out of Special Leave Petition (Crl.) Nos. 2273-2274/2010. Leave was granted (para 1).
6. Counsel appeared only for the appellant; none appeared for the respondent, though she had been served notice. The Court requested Mr. Jayant Bhushan, senior counsel, to assist as Amicus Curiae (a lawyer appointed by the Court to assist it) (para 2).

Facts

1. The appellant alleged he was married under Hindu customary rites to one Lakshmi on 25.6.1980. A son was born of that marriage and was studying at an Engineering college in Ooty. The appellant worked as a Secondary Teacher in Thevanga Higher Secondary School, Coimbatore (para 4).
2. The respondent, D. Patchaiammal, filed a petition under Section 125 Cr.P.C. in 2001 before the Family Court, Coimbatore. She alleged she was married to the appellant on 14.9.1986 and that they lived together in her father's house for two or three years before he left (paras 5-6).
3. She alleged the appellant deserted her two or three years after the 1986 marriage. She said she had no livelihood, while he was a Secondary Grade Teacher earning Rs.10,000 per month. She sought Rs.500 per month as maintenance (para 6).
4. Her petition and her deposition were consistent: married on 14.9.1986, and left two or three years later (para 7).
5. On her own case the appellant left her in 1988 or 1989, yet she filed the Section 125 Cr.P.C. petition only in 2001, about twelve years later. The Court noted this delay had to be satisfactorily explained and created doubt about her case (para 8).
6. The appellant's counter affidavit said he was married to Lakshmi on 25.6.1980. He produced documentary evidence: the ration card, his wife's voter identity card, his son's transfer certificate, his wife's hospital discharge certificate, and wedding photographs (para 9).

Issues Raised

1. Could the Family Court and the High Court validly hold that the appellant was not married to Lakshmi, and so was married to the respondent, when Lakshmi was never made a party and never heard?
2. What is the meaning of the expression relationship in the nature of marriage (a live-in relationship treated as equivalent to marriage for the Act's purposes) in the definition of domestic relationship under Section 2(f) of the Protection of Women from Domestic Violence Act, 2005? The Act does not define this phrase.
3. Had the Family Court Judge made the findings needed to decide whether the appellant and respondent had lived together long enough in a relationship in the nature of marriage?

Arguments Contended

The reported judgment does not record separate arguments for the appellant and the respondent. Only the appellant's counsel appeared; none appeared for the respondent, though she had been served notice (para 2). The Court examined the applicable law itself, with the assistance of the amicus curiae it had appointed, rather than deciding between arguments of opposing counsel.

Court's Reasoning

The judgment is a single opinion by Markandey Katju, J., for himself and T.S. Thakur, J. Paragraph numbers follow the judgment's own numbering.

Opinion of the Court (Katju, J., for himself and Thakur, J.)

1. Held: Since Lakshmi was never made a party and no notice was issued to her, any declaration about her marital status was wholly null and void, as it violated the rules of natural justice. Why: she was never heard before a finding that could seriously affect her rights. (para 11)
2. Held: If no valid declaration could be made that the appellant was not married to Lakshmi, then no valid declaration could be made that he was married to the respondent either. Why: he could not lawfully marry the respondent without first divorcing Lakshmi. (para 11)
3. Noted: Section 125 Cr.P.C. provides maintenance for a wife and other relatives. The word wife is defined in Explanation (b) to Section 125(1): "Wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried." (para 12)
4. Noted: In Vimala (K) v. Veeraswamy (K) [(1991) 2 SCC 375], a three-Judge Bench held Section 125 serves a social purpose, to prevent vagrancy and destitution. It explained wife to include a divorced woman who has not remarried. But a second wife whose marriage is void because of a subsisting first marriage is not a legally wedded wife, and is not entitled to maintenance under this provision. (para 13)
5. Noted: In Savitaben Somabhai Bhatiya v. State of Gujarat, AIR 2005 SC 1809, the Court held there is no scope to include a woman not lawfully married within the expression wife, however desirable it may be to help an unfortunate woman who unwittingly marries an already-married man. Correcting this inadequacy is for the Legislature, not the Courts. (para 14)
6. Held: Since the Courts below erred in law in holding Lakshmi was not married to the appellant without hearing her, it cannot yet be said that the respondent is the appellant's wife. A divorced wife counts as a wife under Section 125, but a person never validly married cannot be divorced. (para 15)
7. Noted: The question must also be examined under the Protection of Women from Domestic Violence Act, 2005. Section 2(a) defines aggrieved person (the woman entitled to seek relief under the Act) as any woman in a domestic relationship with the respondent who alleges domestic violence by him. Section 2(f) defines domestic relationship to include persons related by marriage, or through a relationship in the nature of marriage, who live or have lived together in a shared household (the household the aggrieved person has lived in with the respondent). Section 2(s) defines shared household broadly, covering a household owned, tenanted or otherwise connected to either party, including one belonging to the respondent's joint family. (para 16)
8. Noted: Section 3(a) says an act is domestic violence if it "harms or injures or endangers the health, safety, life, limb or well-being ... of the aggrieved person", including physical, sexual, verbal, emotional and economic abuse (denying a woman the financial resources or property she is entitled to). Economic abuse is defined to include depriving her of financial resources she is entitled to or needs, including household necessities, stridhan (a woman's own property), and maintenance. (paras 16-17)
9. Noted: An aggrieved person can approach the Magistrate under Section 12 for relief under Section 12(2). The Magistrate can grant maintenance under Section 20(1)(d) while disposing of that application. Section 26(1) lets the same relief be sought in any other civil, family or criminal court proceeding. (paras 18-19)
10. Held: The expression domestic relationship covers not only marriage but also a relationship in the nature of marriage. The Act does not define this phrase, and no direct decision of the Court had interpreted it. Since many future cases would turn on it, the Court considered it necessary to lay down an authoritative interpretation. (para 20)
11. Held: Parliament, by using both expressions, intended that a person in either kind of relationship — marriage, or a relationship in the nature of marriage — is entitled to the Act's benefit. (para 21)
12. Noted: The 2005 Act recognises a new social phenomenon, the live-in relationship, still rare in India though common in North America and Europe. This had earlier been commented on in S. Khushboo v. Kanniammal & Anr. (2010) 5 SCC 600. (para 22)
13. Noted: Where a wife is deserted, most countries provide maintenance by the husband, called alimony. There was earlier no law providing maintenance for a woman deserted after a live-in relationship. (para 23)
14. Noted: In the USA the term palimony (maintenance claimed by an unmarried live-in partner) was coined for maintenance to a woman who lived with a man for a substantial period without marrying him and was then deserted. The first such decision was Marvin v. Marvin (1976) 18 Cal.3d 660, involving the actor Lee Marvin and a woman, Michelle, who lived with him for years without marriage. US courts since then have taken divergent views on palimony, some granting it and some denying it; the US Supreme Court has never ruled on it. (para 24)
15. Noted: US courts granting palimony have done so on a contractual basis. Some require a written or oral agreement to pay palimony on separation. Others treat long cohabitation as giving rise to an implied or constructive contract. (para 25)
16. Noted: In Taylor v. Fields (1986) 224 Cal.Rptr. 186, a California appellate court held that a relationship between the plaintiff and a married man was nothing more than that of a married man and his mistress. The alleged contract to support her rested on meretricious consideration (an old term for a bargain resting on an illicit sexual relationship) and was unenforceable. They had not truly lived together, only spent occasional weekends. (para 26)
17. Noted: The New Jersey Supreme Court in Devaney v. L'Esperance, 195 N.J. 247 (2008), held cohabitation is not necessary for palimony. It is the promise to support, express or implied, together with a marital-type relationship, that matters most. New Jersey later required, by a 2010 statute, that such a promise be in writing. (para 27)
18. Noted: US courts remain divided on palimony; some States, like Georgia and Tennessee, refuse to recognise palimony agreements at all. (para 28)
19. Noted: Written palimony contracts are rare. Some US courts have found implied contracts where a woman gave up her career or ran the household for a man over a long period. There, the parties' own conduct showed a constructive or implied contract. (para 29)
20. Held: A meretricious contract exclusively for sexual services is invalid and unenforceable in all US courts. (para 30)
21. Held: The Court was not deciding whether Indian law recognises a contractual claim to palimony, express or implied, since the respondent had set up no such case in her Section 125 Cr.P.C. petition. (para 31)
22. Noted: Some countries recognise common law marriage (a marriage-like status recognised without a formal ceremony), also called de facto marriage — a marriage-like status without a legally recognised ceremony or registration. (para 32)
23. Held: A relationship in the nature of marriage is akin to a common law marriage. Common law marriages require, although not formally married (para 33):
    • (a) the couple hold themselves out to society as spouses;
    • (b) both are of legal age to marry;
    • (c) both are otherwise qualified to marry, including being unmarried; and
    • (d) they have voluntarily cohabited and held themselves out as spouses for a significant period of time.
    A relationship in the nature of marriage under the 2005 Act must meet these four conditions, and the parties must also have lived together in a shared household under Section 2(s). "Merely spending weekends together or a one night stand would not make it a 'domestic relationship'." (para 33)
24. Held: Not every live-in relationship qualifies as a relationship in the nature of marriage; the four conditions must be proved by evidence. If a man keeps a woman whom he maintains financially, mainly for sexual purposes and/or as a servant, that would not, in the Court's opinion, be a relationship in the nature of marriage. (para 34)
25. Held: This reading would exclude many women from the 2005 Act's benefit, but the Court cannot legislate or amend the law. Parliament used the words relationship in the nature of marriage, not live in relationship, and the Court cannot change the statute's language by the guise of interpretation. (para 35)
26. Noted: In feudal society, sexual relationships outside marriage were treated with disgust and horror, as depicted in Leo Tolstoy's Anna Karenina, Gustave Flaubert's Madame Bovary, and the novels of Sharat Chandra Chattopadhyaya. (para 36)
27. Held: Indian society is changing, and Parliament recognised this change by enacting the 2005 Act. (para 37)
28. Held: The High Court and the Family Court Judge erred in law in holding the appellant was not married to Lakshmi without issuing notice to her. This finding is set aside and remanded to the Family Court. The Family Court must issue notice to Lakshmi, hear her, and give a fresh finding; only then can it decide whether the appellant was married to the respondent. (para 38)
29. Held: The Family Court Judge made no finding on whether the appellant and respondent had lived together for a reasonably long period in a relationship in the nature of marriage, a finding essential to the case. The impugned judgments of the High Court and the Family Court Judge are set aside. The matter is remanded for fresh decision in light of the Court's observations. Appeals allowed. (para 39)

Authorities

• Vimala (K) v. Veeraswamy (K) [(1991) 2 SCC 375]: three-Judge Bench; Section 125 Cr.P.C. prevents vagrancy and destitution; explains "wife"; a bigamous second wife is not entitled to maintenance (para 13).
• Savitaben Somabhai Bhatiya v. State of Gujarat (AIR 2005 SC 1809): no scope to read an unlawfully married woman into "wife"; correction is for the Legislature (para 14).
• S. Khushboo v. Kanniammal & Anr. ((2010) 5 SCC 600): commented on the live-in relationship phenomenon (para 22).
• Marvin v. Marvin ((1976) 18 Cal.3d 660, California Superior Court): first US decision on palimony (para 24).
• Taylor v. Fields ((1986) 224 Cal.Rptr. 186): relationship was that of a married man and his mistress; contract unenforceable for meretricious consideration (para 26).
• Devaney v. L'Esperance (195 N.J. 247 (2008)): New Jersey Supreme Court; cohabitation not necessary for palimony if there is a promise to support with a marital-type relationship (para 27).

Provisions mentioned

• Section 125, Code of Criminal Procedure, 1973: provides maintenance to a wife and certain other relatives (para 12).
• Explanation (b) to Section 125(1), Cr.P.C.: wife includes a divorced woman who has not remarried (para 12).
• Section 2(a), Protection of Women from Domestic Violence Act, 2005: defines aggrieved person (para 16).
• Section 2(f): defines domestic relationship, including a relationship in the nature of marriage (para 16).
• Section 2(s): defines shared household (para 16).
• Section 3(a): defines an act of domestic violence, including economic abuse (paras 16-17).
• Sections 12, 12(2), 20(1)(d) and 26(1): the procedure for an aggrieved person to seek relief, including maintenance, before a Magistrate or another court (paras 18-19).

Judgement

1. The finding of the Family Court Judge and the High Court that the appellant was not married to Lakshmi is set aside, since it was made without notice to Lakshmi (para 38).
2. The matter is remanded to the Family Court, which must issue notice to Lakshmi, hear her, and give a fresh finding on whether the appellant was married to her (para 38).
3. Only after that finding can the Family Court decide whether the appellant was married to the respondent (para 38).
4. The impugned judgments of the High Court and the Family Court Judge are also set aside. This is for want of a finding on whether the appellant and respondent lived together long enough in a relationship in the nature of marriage. The matter is remanded for a fresh decision applying the Court's four-condition test (para 39).
5. Appeals allowed. The judgment records no order on costs.

Legal Principle / Ratio

A relationship in the nature of marriage under Section 2(f) of the Protection of Women from Domestic Violence Act, 2005 is akin to a common law marriage. It requires four conditions:

• the couple hold themselves out to society as spouses;
• both are of legal age to marry;
• both are otherwise legally qualified to marry, including being unmarried; and
• they have voluntarily cohabited and held themselves out as spouses for a significant period, in a shared household.

Not every live-in relationship qualifies. As the Court put it, "Merely spending weekends together or a one night stand would not make it a 'domestic relationship'."

Subsequent Treatment

Indra Sarma v. V.K.V. Sarma — Criminal Appeal No. 2009 of 2013 (arising out of SLP (Crl.) No. 4895 of 2012); Supreme Court of India; K.S. Radhakrishnan and Pinaki Chandra Ghose, JJ.; decided 26 November 2013.

• Facts: the appellant, unmarried, and the respondent, already married with two children, lived together in a shared household from 1992 after the appellant left her job. Both families opposed the relationship. When it broke down, she sought maintenance under the Domestic Violence Act (paras 4-7).
• Use of this case: the respondent relied on D. Velusamy before the High Court, arguing its tests were not satisfied. The High Court agreed and set aside the maintenance orders of the Magistrate and the appellate court (para 8). The Supreme Court repeatedly relies on this case as the starting point for its own analysis.
• The test applied and expanded: the Court held it must look at the whole relationship, not isolated factors. It set out eight further guiding factors, not exhaustive, to test whether a relationship is in the nature of marriage (para 55 of that judgment):
  • duration of the relationship;
  • shared household;
  • pooling of resources and financial arrangements;
  • domestic arrangements;
  • sexual relationship;
  • children;
  • socialisation in public; and
  • the parties' intention and conduct.
• Result on the facts: the appellant knew the respondent was married when the relationship began, so she could not claim the status of a wife. Her status was that of a concubine or mistress, who cannot enter a relationship in the nature of marriage. No evidence of shared finances, public acknowledgment as a couple, or children being intended was found. The Court held her relationship fell outside Section 2(f) of the Act and dismissed the appeal (paras 56-68 of that judgment).
• Reading of D. Velusamy: the Court read D. Velusamy as recognising that instances exist where a married man maintains a woman for sexual pleasure or emotional support. Such a woman suffers social disadvantage but cannot enter into a relationship in the nature of marriage (para 58 of that judgment, describing the Velusamy case).

Critical Analysis

Analysis based on the judgment text.

The four-condition test is drawn from foreign sources, not the statute. The Court builds its test from US palimony decisions and a general description of common law marriage it says it found through general online research (paras 24, 32-33). The Protection of Women from Domestic Violence Act, 2005 itself does not define relationship in the nature of marriage or point to these sources. The judgment does not explain why a foreign contractual doctrine (palimony) and a foreign status doctrine (common law marriage) should together supply the test for an Indian welfare statute.

The palimony discussion is acknowledged as unnecessary to the decision. The Court itself says it is not called upon to decide whether Indian law permits a contractual claim to palimony, since no such case was set up (para 31). Paragraphs 23-31, describing US palimony law in detail, are therefore not part of the operative reasoning for the four-condition test that follows.

The keep example (para 34) is not applied to the facts. The Court illustrates what would fall outside the Act using a hypothetical case of a woman maintained mainly for sexual purposes or as a servant. It does not explain how this differs, as a matter of evidence, from a case that does satisfy the four conditions.

Significance

D. Velusamy v. D. Patchaiammal is the first considered Supreme Court interpretation of relationship in the nature of marriage under the Protection of Women from Domestic Violence Act, 2005, an expression Parliament left undefined. Before this judgment, courts had no settled test for deciding which live-in relationships could claim the Act's protection.

The four-condition test became the starting point for nearly every later case on live-in relationships and maintenance in India:

• holding out as spouses;
• legal capacity to marry;
• being otherwise qualified to marry, including being unmarried; and
• significant voluntary cohabitation in a shared household.

Indra Sarma v. V.K.V. Sarma (2013) applied and refined this test with eight further factors.

The case is also significant for its natural justice holding. A court cannot decide, in one person's case, that they were never married to a third party, without making that third party a party to the proceeding and hearing them.

Exam-Important Points

• Facts in one line: a woman claimed maintenance as the appellant's wife under Section 125 Cr.P.C.; he said he was already validly married to another woman, Lakshmi, who was never heard by the courts below.
• Two distinct holdings, often confused:
  • (1) the finding that Lakshmi was not married to the appellant was void for want of notice to her (paras 11, 38);
  • (2) the Court laid down the four-condition test for a relationship in the nature of marriage under the DV Act (para 33).
• Holding: four cumulative conditions for a relationship in the nature of marriage:
  • (1) hold out to society as spouses;
  • (2) both of legal age to marry;
  • (3) both otherwise qualified to marry, including unmarried; and
  • (4) voluntary cohabitation and holding out as spouses for a significant period, in a shared household under Section 2(s).
• Classic exam trap: the extensive US palimony discussion (paras 23-31) is background only. The Court expressly says it is not deciding any Indian palimony claim (para 31). Do not cite this case as recognising palimony contracts in India.
• Key line for exams: "Merely spending weekends together or a one night stand would not make it a 'domestic relationship'" (para 33). Equally, a man keeping a woman mainly for sex or as a servant is not a relationship in the nature of marriage (para 34).
• Always read together with Indra Sarma v. V.K.V. Sarma (2013), which applies this test and adds eight further guiding factors (duration, shared household, finances, domestic arrangements, sexual relationship, children, public socialisation, intention and conduct).

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.