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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. One Sarju Singh Kushwaha had two sons, Ram Saran (elder son) and Virendra Kumar Singh Kushwaha (younger son and the first respondent). The appellant, Chanmuniya, was married to Ram Saran and had 2 daughters-Asha, the first one, was born in 1

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 CIVIL APPEAL NO._____ OF 2010

 (Arising out of SLP (Civil) No.15071 of 2009)

Chanmuniya ..Appellant(s)


Virendra Kumar Singh Kushwaha & Anr. ..Respondent(s)

 J U D G M E N T


1. Leave granted.

2. One Sarju Singh Kushwaha had two sons, Ram Saran 

 (elder son) and Virendra Kumar Singh Kushwaha 

 (younger son and the first respondent). The 

 appellant, Chanmuniya, was married to Ram Saran and 

 had 2 daughters-Asha, the first one, was born in 


 1988 and Usha, the second daughter, was born in 

 1990. Ram Saran died on 7.03.1992. 

3. Thereafter, the appellant contended that she was 

 married off to the first respondent as per the 

 customs and usages prevalent in the Kushwaha 

 community in 1996. The custom allegedly was that 

 after the death of the husband, the widow was 

 married off to the younger brother of the husband. 

 The appellant was married off in accordance with the 

 local custom of Katha and Sindur. The appellant 

 contended that she and the first respondent were 

 living together as husband and wife and had 

 discharged all marital obligations towards each 

 other. The appellant further contended that after 

 some time the first respondent started harassing and 

 torturing the appellant, stopped her maintenance and 

 also refused to discharge his marital obligations 

 towards her. 

4. As a result, she initiated proceedings under Section 

 125 of the Cr.P.C. for maintenance (No.20/1997) 


 before the 1st Additional Civil Judge, Mohamadabad, 

 Ghazipur. This proceeding is pending. 

5. She also filed a suit (No.42/1998) for the 

 restitution of conjugal rights under Section 9 of 

 the Hindu Marriage Act, 1955 in the Court of 1st 

 Additional District Judge, Ghazipur. 

6. The Trial Court decreed the suit for restitution of 

 conjugal rights in favour of the appellant on 

 3.1.2004 as it was of the opinion that the appellant 

 had remarried the first respondent after the death 

 of Ram Saran, and the first respondent had deserted 

 the appellant thereafter. Thus, it directed the 

 first respondent to live with the appellant and 

 perform his marital duties. 

7. Hence, the first respondent preferred a first appeal 

 (No.110/2004) under Section 28 of the Hindu Marriage 

 Act. The main issue in appeal was whether there was 

 any evidence on record to prove that the appellant 

 was the legally wedded wife of the first respondent. 


 The High Court in its judgment dated 28.11.2007 was 

 of the opinion that the essentials of a valid Hindu 

 marriage, as required under Section 7 of the Hindu 

 Marriage Act, had not been performed between the 

 first respondent and the appellant and held that the 

 first respondent was not the husband of the 

 appellant and thus reversed the findings of the 

 Trial Court.

8. Aggrieved by the aforesaid judgment of the High 

 Court, the appellant sought a review of the order 

 dated 28.11.2007. The review petition was dismissed 

 on 23.01.2009 on the ground that there was no error 

 apparent on the face of the record of the judgment 

 dated 28.11.2007.

9. Hence, the appellant approached this Court by way of 

 a special leave petition against the impugned orders 

 dated 28.11.2007 and 23.01.2009. 

10.One of the major issues which cropped up in the 

 present case is whether or not presumption of a 


 marriage arises when parties live together for a 

 long time, thus giving rise to a claim of 

 maintenance under Section 125 Cr.P.C. In other 

 words, the question is what is meant by `wife' under 

 Section 125 of Criminal Procedure Code especially 

 having regard to explanation under clause (b) of the 


11.Thus, the question that arises is 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.

12.On the question of presumption of marriage, we may 

 usefully refer to a decision of the House of Lords 

 rendered in the case of Lousia Adelaide Piers & 

 Florence A.M. De Kerriguen v. Sir Henry Samuel Piers 

 [(1849) II HLC 331], in which their Lordships 

 observed that the question of validity of a marriage 

 cannot be tried like any other issue of fact 

 independent of presumption. The Court held that law 


 will presume in favour of marriage and such 

 presumption could only be rebutted by strong and 

 satisfactory evidence. 

13.In Lieutenant C.W. Campbell v. John A.G. Campbell 

 [(1867) Law Rep. 2 HL 269], also known as the 

 Breadalbane case, the House of Lords held that 

 cohabitation, with the required repute, as husband 

 and wife, was proof that the parties between 

 themselves had mutually contracted the matrimonial 

 relation. A relationship which may be adulterous at 

 the beginning may become matrimonial by consent. 

 This may be evidenced by habit and repute. In the 

 instant case both the appellant and the first 

 respondent were related and lived in the same house 

 and by a social custom were treated as husband and 

 wife. Their marriage was solemnized with Katha and 

 Sindur. Therefore, following the ratio of the 

 decisions of the House of Lords, this Court thinks 

 there is a very strong presumption in favour of 

 marriage. The House of Lords again observed in 

 Captain De Thoren v. The Attorney-General [(1876) 1 

 AC 686], that the presumption of marriage is much 


 stronger than a presumption in regard to other 


14.Again in Sastry Velaider Aronegary & his wife v. 

 Sembecutty Viagalie & Ors. [(1881) 6 AC 364], it was 

 held that where a man and woman are proved to have 

 lived together as man and wife, the law will 

 presume, unless the contrary is clearly proved, that 

 they were living together in consequence of a valid 

 marriage, and not in a state of concubinage.

15.In India, the same principles have been followed in 

 the case of A. Dinohamy v. W.L. Balahamy [AIR 1927 

 P.C. 185], in which the Privy Council laid down the 

 general proposition that where a man and woman are 

 proved to have lived together as man and wife, the 

 law will presume, unless, the contrary is clearly 

 proved, that they were living together in 

 consequence of a valid marriage, and not in a state 

 of concubinage.


16.In Mohabbat Ali Khan v. Muhammad Ibrahim Khan and 

 Ors. [AIR 1929 PC 135], the Privy Council has laid 

 down that the law presumes in favour of marriage and 

 against concubinage when a man and woman have 

 cohabited continuously for number of years.

17.In the case of Gokal Chand v. Parvin Kumari [AIR 

 1952 SC 231], this Court held that continuous co-

 habitation of man and woman as husband and wife may 

 raise the presumption of marriage, but the 

 presumption which may be drawn from long co-

 habitation is rebuttable and if there are 

 circumstances which weaken and destroy that 

 presumption, the Court cannot ignore them.

18.Further, in the case of Badri Prasad v. Dy. Director 

 of Consolidation & Ors. [(1978) 3 SCC 527], the 

 Supreme Court held that a strong presumption arises 

 in favour of wedlock where the partners have lived 

 together for a long spell as husband and wife. 

 Although the presumption is rebuttable, a heavy 


 burden lies on him who seeks to deprive the 

 relationship of legal origin. 

19.Again, in Tulsa and Ors. v. Durghatiya & Ors. [2008 

 (4) SCC 520], this Court held that where the 

 partners lived together for a long spell as husband 

 and wife, a presumption would arise in favour of a 

 valid wedlock.

20.Sir James Fitz Stephen, who piloted the Criminal 

 Procedure Code of 1872, a legal member of Viceroy's 

 Council, described the object of Section 125 of the 

 Code (it was Section 536 in 1872 Code) as a mode of 

 preventing vagrancy or at least preventing its 


21.Then came the 1898 Code in which the same provision 

 was in Chapter XXXVI Section 488 of the Code. The 

 exact provision of Section 488(1) of the 1898 Code 

 runs as follows:

 "488. (1) If any person having sufficient 

 means neglects or refuses to maintain his 

 wife or his legitimate or illegitimate 

 child unable to maintain itself, the 


 District Magistrate, a Presidency 

 Magistrate, a Sub-divisional Magistrate or 

 a Magistrate of the first class may, upon 

 proof of such neglect or refusal, order 

 such person to make a monthly allowance 

 for the maintenance of his wife or such 

 child, at such monthly rate, not exceeding 

 five hundred rupees in the whole as such 

 Magistrate thinks fit, and to pay the same 

 to such person as the Magistrate from time 

 to time directs." 

22.In Jagir Kaur & Anr. v. Jaswant Singh [AIR 1963 SC 

 1521], the Supreme Court observed with respect to 

 Chapter XXXVI of Cr.P.C. of 1898 that provisions for 

 maintenance of wives and children intend to serve a 

 social purpose. Section 488 prescribes forums for a 

 proceeding to enable a deserted wife or a helpless 

 child, legitimate or illegitimate, to get urgent 


23.In Nanak Chand v. Chandra Kishore Aggarwal & Ors. 

 [1969 (3) SCC 802], the Supreme Court, discussing 

 Section 488 of the older Cr.P.C, virtually came to 

 the same conclusion that Section 488 provides a 

 summary remedy and is applicable to all persons 

 belonging to any religion and has no relationship 

 with the personal law of the parties.


24.In Captain

 Chander Kaushal v. Veena Kaushal 

 and Ors. [AIR 1978 SC 1807], this Court held that 

 Section 125 is a reincarnation of Section 488 of the 

 Cr.P.C. of 1898 except for the fact that parents 

 have also been brought into the category of persons 

 entitled for maintenance. It observed that this 

 provision is a measure of social justice specially 

 enacted to protect, and inhibit neglect of women, 

 children, old and infirm and falls within the 

 constitutional sweep of Article 15(3) reinforced by 

 Article 39. Speaking for the Bench Justice Krishna 

 Iyer observed that- "We have no doubt that sections 

 of statutes calling for construction by courts are 

 not petrified print but vibrant words with social 

 functions to fulfill. The brooding presence of the 

 constitutional empathy for the weaker sections like 

 women and children must inform interpretation if it 

 is to have social relevance. So viewed, it is 

 possible to be selective in picking out that 

 interpretation out of two alternatives which advance 

 the cause- the cause of the derelicts." (Para 9 on 

 pages 1809-10)


25.Again in Vimala (K) v. Veeraswamy (K) [(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 the term 

 `wife' consistent with the objective... "

26.Thus, in those cases where a man, who lived with a 

 woman for a long time and even though they may not 

 have undergone legal necessities of a valid 

 marriage, should be made liable to pay the woman 

 maintenance if he deserts her. 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.

27.The Committee on Reforms of Criminal Justice System, 

 headed by Dr. Justice V.S. Malimath, in its report 

 of 2003 opined that evidence regarding a man and 

 woman living together for a reasonably long period 

 should be sufficient to draw the presumption that 

 the marriage was performed according to the 

 customary rites of the parties. Thus, it recommended 

 that the word `wife' in Section 125 Cr.P.C. should 

 be amended to include a woman who was living with 

 the man like his wife for a reasonably long period. 

28.The Constitution Bench of this Court in Mohammad 

 Ahmed Khan v. Shah Bano Begum & Ors. reported in 

 [(1985) 2 SCC 556], considering the provision of 

 Section 125 of the 1973 Code, opined that the said 

 provision is truly secular in character and is 

 different from the personal law of the parties. The 


 Court further held that such provisions are 

 essentially of a prophylactic character and cut 

 across the barriers of religion. The Court further 

 held that the liability imposed by Section 125 to 

 maintain close relatives, who are indigent, is 

 founded upon the individual's obligation to the 

 society to prevent vagrancy and destitution.

29.In a subsequent decision, in Dwarika Prasad Satpathy 

 v. Bidyut Prava Dixit & Anr. [(1999) 7 SCC 675], 

 this Court held that the standard of proof of 

 marriage in a Section 125 proceeding is not as 

 strict as is required in a trial for an offence 

 under Section 494 of IPC. The learned Judges 

 explained the reason for the aforesaid finding by 

 holding that an order passed in an application under 

 Section 125 does not really determine the rights and 

 obligations of parties as the section is enacted 

 with a view to provide a summary remedy to neglected 

 wives to obtain maintenance. The learned Judges held 

 that maintenance cannot be denied where there was 

 some evidence on which conclusions of living 

 together could be reached. (See para 9)


30.However, striking a different note, in Yamunabai 

 Anantrao Adhav v. Anantrao Shivram Adhav and 

 another, reported in AIR 1988 SC 644, a two-Judge 

 Bench of this Court held that an attempt to exclude 

 altogether personal law of the parties in 

 proceedings under Section 125 is improper. (See para 

 6). The learned Judges also held (paras 4 & 8) that 

 the expression `wife' in Section 125 of the Code 

 should be interpreted to mean only a legally wedded 


31.Again in a subsequent decision of this Court in 

 Savitaben Somabhat Bhatiya v. State of Gujarat and 

 others, reported in AIR 2005 SC 1809, this Court 

 held however desirable it may be to take note of 

 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. While coming to the aforesaid finding, 


 the learned Judges relied on the decision in the 

 Yamunabai case (supra).

32.It is, therefore, clear from what has been discussed 

 above that there is a divergence of judicial opinion 

 on the interpretation of the word `wife' in Section 


33.We are inclined to take a broad view of the 

 definition of `wife' having regard to the social 

 object of Section 125 in the Code of 1973. However, 

 sitting in a two-Judge Bench, we cannot, we are 

 afraid, take a view contrary to the views expressed 

 in the abovementioned two cases.

34.However, law in America has proceeded on a slightly 

 different basis. The social obligation of a man 

 entering into a live-in relationship with another 

 woman, without the formalities of a marriage, came 

 up for consideration in the American courts in the 

 leading case of Marvin v. Marvin [(1976) 18 Cal.3d 

 660]. In that context, a new expression of 


 `palimony' has been coined, which is a combination 

 of `pal' and `alimony', by the famous divorce lawyer 

 in the said case, Mr. Marvin Mitchelson.

35.In the Marvin case (supra), the plaintiff, Michelle 

 Marvin, alleged that she and Lee Marvin entered into 

 an oral agreement which provided that while "the 

 parties lived together they would combine their 

 efforts and earnings and would share equally any and 

 all property accumulated as a result of their 

 efforts whether individual or combined." The parties 

 allegedly further agreed that Michelle would "render 

 her services as a companion, homemaker, housekeeper 

 and cook." Michelle sought a judicial declaration of 

 her contract and property rights, and sought to 

 impose a constructive trust upon one half of the 

 property acquired during the course of the 

 relationship. The Supreme Court of California held 

 as follows:

 (1) The provisions of the Family Law Act do not 

 govern the distribution of property acquired 

 during a non-marital relationship; such a 

 relationship remains subject solely to judicial 



 (2) The courts should enforce express contracts 

 between non-marital partners except to the extent 

 that the contract is explicitly founded on the 

 consideration of meretricious sexual services. 

 (3) In the absence of an express contract, the 

 courts should inquire into the conduct of the 

 parties to determine whether that conduct 

 demonstrates an implied contract, agreement of 

 partnership or joint venture, or some other tacit 

 understanding between the parties. The courts may 

 also employ the doctrine of quantum meruit, or 

 equitable remedies such as constructive or 

 resulting trusts, when warranted by the facts of 

 the case. 

36.Though in our country, law has not developed on the 

 lines of the Marvin case (supra), but our social 

 context also is fast changing, of which cognizance 

 has to be taken by Courts in interpreting a 

 statutory provision which has a pronounced social 

 content like Section 125 of the Code of 1973.

37.We think the larger Bench may consider also the 

 provisions of the Protection of Women from Domestic 

 Violence Act, 2005. This Act assigns a very broad 


 and expansive definition to the term `domestic 

 abuse' to include within its purview even economic 

 abuse. `Economic abuse' has been defined very 

 broadly in sub-explanation (iv) to explanation I of 

 Section 3 of the said Act to include deprivation of 

 financial and economic resources.

38.Further, Section 20 of the Act allows the Magistrate 

 to direct the respondent to pay monetary relief to 

 the aggrieved person, who is the harassed woman, for 

 expenses incurred and losses suffered by her, which 

 may include, but is not limited to, maintenance 

 under Section 125 Cr.P.C. [Section 20(1)(d)].

39.Section 22 of the Act confers upon the Magistrate, 

 the power to award compensation to the aggrieved 

 person, in addition to other reliefs granted under 

 the Act.

40.In terms of Section 26 of the Act, these reliefs 

 mentioned above can be sought in any legal 

 proceeding, before a civil court, family court or a 


 criminal court, affecting the aggrieved person and 

 the respondent.

41.Most significantly, the Act gives a very wide 

 interpretation to the term `domestic relationship' 

 as to take it outside the confines of a marital 

 relationship, and even includes live-in 

 relationships in the nature of marriage within the 

 definition of `domestic relationship' under Section 

 2(f) of the Act.

42.Therefore, women in live-in relationships are also 

 entitled to all the reliefs given in the said Act.

43.We are thus of the opinion that if the 

 abovementioned monetary relief and compensation can 

 be awarded in cases of live-in relationships under 

 the Act of 2005, they should also be allowed in a 

 proceedings under Section 125 of Cr.P.C. It seems to 

 us that the same view is confirmed by Section 26 of 

 the said Act of 2005.


44.We believe that in light of the constant change in 

 social attitudes and values, which have been 

 incorporated into the forward-looking Act of 2005, 

 the same needs to be considered with respect to 

 Section 125 of Cr.P.C. and accordingly, a broad 

 interpretation of the same should be taken.

45.We, therefore, request the Hon'ble Chief Justice to 

 refer the following, amongst other, questions to be 

 decided by a larger Bench. According to us, the 

 questions are:

 1. 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?

 2. Whether strict proof of marriage is essential 

 for a claim of maintenance under Section 125 

 Cr.P.C. having regard to the provisions of 

 Domestic Violence Act, 2005?


 3. Whether a marriage performed according to 

 customary rites and ceremonies, without 

 strictly fulfilling the requisites of Section 

 7(1) of the Hindu Marriage Act, 1955, or any 

 other personal law would entitle the woman to 

 maintenance under Section 125 Cr.P.C.?

46.We are of the opinion that a broad and expansive 

 interpretation should be given to the term `wife' to 

 include even those cases where a man and woman have 

 been living together as husband and wife for a 

 reasonably long period of time, and strict proof of 

 marriage should not be a pre-condition for 

 maintenance under Section 125 of the Cr.P.C, so as 

 to fulfil the true spirit and essence of the 

 beneficial provision of maintenance under Section 


47.We also believe that such an interpretation would be 

 a just application of the principles enshrined in 

 the Preamble to our Constitution, namely, social 

 justice and upholding the dignity of the individual.






New Delhi 

October 07, 2010 23

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