The fate of female partner in a live-in relationship, though presently at the crossroads and in intersection with the institution of marriage, has been shown a ‘yellow light’ by a divisional bench of Supreme Court in its latest decision in Chanmuniya v. Virendra Kumar Singh Kushwaha & Ors, wherein the Court has requested the Chief Justice of India to refer three contentious questions of law to be decided by a larger bench. The most important question among them is that whether the living together of a man and woman as husband and wife for a considerable period of time would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under Section 125 Cr.P.C?
In the present case, the Appellant, after the death of her husband, had married to his younger brother (the first respondent) as per the alleged customs and usages (viz. Katha and Sindur) prevalent in the Kushwaha community in 1996. They both lived together and fulfilled all the marital obligations toward each other till the time when the husband starting torturing her which was followed by refusal to maintain her and fulfill the marital obligations. The High Court held that there was no valid marriage as the essentials of a valid Hindu marriage, as required under Section 7 of the Hindu Marriage Act, 1955 had not been performed between them and thus it held that the first respondent was not the husband of the appellant. Aggrieved by this, the appellant brought the matter to the Supreme Court wherein the Court was once again cropped with the question whether a man and woman living together for a long time, even without a valid marriage, would raise as in the present case, a presumption of a valid marriage entitling such a woman to maintenance.
To clear the grey clouds around the interpretation of word ‘wife’ as given in section 125 of Cr.P.C, the Court referred to the catena of cases decided by House of Lords, Privy Council and Supreme Court and categorically remarked that “the man should not be allowed to benefit from the legal loopholes by enjoying the advantages of a de facto marriage without undertaking the duties and obligations. Any other interpretation would lead the woman to vagrancy and destitution, which the provision of maintenance in Section 125 is meant to prevent.” The Court being conscious to the probable sufferings of the female partner in such relationships remarked that a broad view needs to be taken to interpret the word wife in this section, nevertheless, the Court also took note of the fact that sitting in a two-Judge Bench, they cannottake a view contrary to the views expressed in the Yamunabai Anantrao Case and Savitaben Bhatiya Case wherein the Court held that the wife means legally wedded wife.
The author, although satisfied by the concerns of the Hon’ble Court, is conscious as to the approach taken up by the Court to interpret the law on this point. It is humbly submitted that the Court should be careful when it uses phrases like presumption of a valid marriage. I had earliest opportunity to discuss the ramifications of such terminology in a recent decision of the Apex Court with my classmates during our Family Law class discussions. A valid marriage as per HMA not only requires fulfillment of essentials as provided under section 5 but also the essential ceremonies as provided under section 7. When the Court makes presumption of a valid marriage, the author believes that the Court looks at section 5 in isolation and completely ignores the other collary essentials. The question which still remains unsolved and unresolved is that – is such presumption is in strict compliance with the fulfillment of requirements of a valid marriage. Moreover, this legal fiction of validity of a marriage would defeat the purpose of the HMA wherein the Parliament has clearly provided a set of requirements which are necessarily to be fulfilled by the parties to the marriage. The Court has reached the right conclusion but still the reasoning employed by the Court contradicts the status of women as wife in HMA. Though the female partner is protected and covered under the ambit of Domestic Violence Act, 2005, yet, notwithstanding the current case law development, there is still a long journey ahead. It is a difficult task for the Supreme Court to arrive at a conclusive decision on this yet the hopes of many couples living in such relationships are attached with this referral.