SECURING LIVE-IN RELATIONSHIPS

What can be termed as a progressive move that will have a far reaching impact, the Maharashtra government recently proposed an amendment in the Criminal Procedure Code (Cr.P.C) that would give a woman in a live-in relationship the right to seek maintenance post-desertion.

The Maharashtra Government approved that a woman in a live-in relationship for a “reasonable period” of time would get the status of a “wife”. The approval came on the heels of the recommendations of the Justice Malimath Committee, which said that if a man and a woman are living together shall be deemed to have married according to customary rights of either party.

However, the Centre has comfortably chosen to ignore them as they are bound to raise the hackles of the moral police. When the proposed amendment was announced, critics immediately sprung up to say that the move would encourage men and women to get into multiple relationships outside of marriage. One of the major reasons for this move was that numerous women were finding it very difficult to get any assistance from men who had deserted them after living with them on the promises of marriage in the future. In many cases, the women did not even know that the man they had been living with was, in fact, already married.

As per the Malimath Committee recommendations, the state government, therefore, wants the Cr.P.C. to be amended so that the word “wife” under section 125 includes a woman living with a man like his wife for a “reasonably long period”. This will ensure that these women are entitled to alimony. When the amendment comes through, it will, for the first time, protect the interest of women who have been taken for a ride by uncaring men. But the State has yet to clarify how long the “reasonably long period” should be and this ambiguity many feel may give rise to bigamy.

Following the case law of Madan Mohan Singh Vs. Rajni Kant, Supreme Court of India in this case had held that a couple in a long-term live-in relationship would be presumed to be married under law, unless proven otherwise. A live-in relationship if continued for such a long time cannot be termed as a “walk in and walk out” relationship and there is a presumption of marriage between them. Justice P. Sathasivam and B.S. Chauhan allows son born out of wedlock to be named as property heirs, the children in such cases will not be considered illegitimate under section 144 of the Evidence Act.

The Supreme Court while examining whether a woman can claim maintenance from a man with whom she was in a live-in relationship, the Bench of Justice G.S. Singhvi and A.K. Ganguly appointed senior advocates Altaf Ahmed and P.S. Patwalia and counsel Shibu Shankar Mishra as amicus curiae in the matter to assist the court and seek their suggestions on the issue. The court decided to adjudicate on the issue as the man, who was asked by the High Court to provide maintenance to the live-in partner, has challenged the decision. The man has claimed that since they were not married, he was under no obligation under law to provide maintenance.

Of the latest Supreme Court judgment in the case of Chunmuniya Vs. Virendra Kumar Singh Kushwaha, the court has held that support should be given if woman is deserted by long-term partner, married or no, women maintenance a must. In a landmark judgment and first of its kind in the history of Supreme Court, Justice A.K. Ganguly, sitting with senior judge G.S. Singhvi, ruled that it is immaterial whether the woman was legally married to the man or not, what matters is whether she was completely dependent on him for sustenance or not. Woman can’t be left vagrant. Right to life (guaranteed under the constitution) includes the right to live with dignity. It is not possible to live with dignity when a woman has no food and leads the life of a destitute. Justice Singhvi added that “Someone has to take care of her if she is not able to, just to prevent vagrancy. Leaving women to vagrancy threatens social stability and public order; women are after all the source of all power.

The two judges were hearing the petition of a woman, Chunmuniya, who claimed that after her husband Ram Sharan died his younger brother Virendra Kumar Singh Kushwaha, as was the practice in her caste. Among some communities in northern India, the widow of an older brother is forced to live with any surviving brother. The marriage was performed simply by doing a Katha. Virendra who was 10 years younger than Ram Sharan, deserted her in 1996. She moved an application for maintenance on March 26, 1997, but he married another woman in 1998 while it was pending. A family court upheld Chunmuniya’s plea for maintenance. But Virendra went to the High Court denying that he had been married to her. He claimed she had fraudulently inserted her name as his wife in the family register with the panchayat to get a share of the property.

The High Court ruled in his favour on November 11, 2007, saying Chunmuniya had not been able to prove marriage. Innovation before a sacred fire and Saptapadi were the two ceremonies essential to the validity of a marriage, setting aside the family court order. Chunmuniya then appealed to the Supreme Court.

The Supreme Court decided that the issue needed consideration and appointed Altaf Ahmad and P.S. Patwalia as the amicus curiae to assist the Judges in deciding the issue. Both contended that the law could be interpreted to include all such women in the definition of “wife” to enable them to get maintenance.

Ahmed said that if a woman marries under personal laws, she immediately gets several rights and obligations. Those who do not, do not get any rights. “If such dependent women are provided for this trend (of living-in) will also be discouraged, he contended. The bench agreed that the status of a wife need not be a pre-requisite for getting maintenance before reserving orders in the case. A prolonged domestic relationship resembling marriage is enough to entitle a deserted woman to maintenance, it observed.

Patwalia said that living-in was a fast catching “urban phenomenon” which the law must address. “Here the man has no obligations or responsibilities of any kind. Let the law reach out to them”, he said.

The Bench also expressed anguish over the use of such words as “illegitimate Children” and “Other Woman” in various laws and blamed the “patriarchal” mindset of lawmakers for this. “The use of the word illegitimate stigmatizes these children the day they are born”, Justice Singhvi said.

At another point, the court criticized lawmakers for enshrining Rs.500/- as the maximum maintenance per month in a 1973 law. “Whoever fixed the amount was miserly”, the judges observed. The Code of Criminal Procedure, 1973, enshrines this as the maiximum maintenance for all dependants – wife and children.

In 1976 California court had developed the concept of paying Palimony for deserted Live-in Pal dumped by the other Partner in the Marvin Versus Marvin case, involving American actor Lee Marvin and his partner. His partner of several years took him to court seeking “rehabilitation payments” after the relationship was over. Although she sought half of the property earned during the relationship, she was awarded only a fixed amount that was later set aside by an appellate court. The California court ruled that a woman in a non –marital relationship was not entitled to any benefits under family law but she was entitled to palimony. While provisions of the Family Law Act do not govern distribution of property acquired during a non-marital relationship, the court should enforce express contracts between cohabitants except when it was explicitly founded on the consideration of “meretricious sexual services”, the California court had quoted.

With upcoming generation our Indian Judiciary today is strongly advocating the need to develop such a concept in India. Hearing a case involving a couple from Tamil Nadu, a bench of Justice Markandey Katju and T.S. Thakur asked: “Why should we not develop such a concept in our country?”

In the Tamil Nadu case, one D. Patchaiamal claimed that D. Velusamy had married her on September 19, 1986 and dumped her soon after. She then approached the family court, seeking maintenance under Section 125 of the CrPC.  The family court awarded her Rs.500/- per month but the man challenged the order in the High Court and then in the Supreme Court. He claimed he had a legally wedded first wife who was still living. He had married in 1981 and had a daughter from the marriage, his counsel said. Therefore, he could not have validly married another woman in 1986. Since the second marriage was invalid, she had no maintenance rights, he argued. But the court said : “You have taken youth and then deserted her. Why shouldn’t you pay palimony?” “Why shouldn’t we presume an oral contract?” Justice Katju wondered. In such cases, the woman need not have statutory rights under the law, but she could have contractual rights, he emphasized. A contract could be presumed from either an oral agreement or by conduct of parties (prolonged cohabitation), he said. Since the lady was not present in court, the bench directed senior counsel Jayant Bhushan to represent her interests and explore whether she could be granted “palimony”. Such a right under American Law is called a Marvin right.

On October 21st, 2010, the Supreme Court pruned the scope of live-in relationships under Domestic Violence Act, 2005, thus preventing many women who have been dumped by their partners from claiming maintenance.

 

The SC hinged its judgment on the fact that Parliament, while enacting the Domestic Violence Act, had mentioned "relationships in the nature of marriage" and not "live-in relationships" and said both were quite different from each other.

A Bench comprising Justices Markandey Katju and T S Thakur culled out four important grounds from the definition of `common law marriage' and said that arrangements commonly understood as live-in relationship must satisfy these conditions to be recognised as a "relationship in the nature of marriage" under the DV Act.

When a live-in partners satisfied these four conditions in addition to living together under one roof, only then could a deserted woman move an application before the concerned area magistrate seeking maintenance from the man who deserted her, said the court. The four conditions are:

 

* The couple must hold themselves out to society as being akin to spouses;

 
* They must be of legal age to marry;

 
* They must be otherwise qualified to enter into a legal marriage, including being unmarried;

* They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time;

 

The SC was aware that laying down these conditions would exclude a lot of live-in partners from claiming maintenance from their male partners in case of desertion.

 

"No doubt the view we are taking would exclude many women who have had a live-in relationship from the benefit of the 2005 Act, but then it is not for this court to legislate or amend the law," said Justice Katju, who wrote the judgment for the Bench.

The SC also stated that "merely spending weekends together or a one-night stand would not make it a domestic relationship" under the DV Act. Moreover, "if a man has a `keep' whom he maintains financially and uses mainly for sexual purpose and/or as a servant, it would not, in our opinion, be a relationship in the nature of marriage" under the Act.
This judgment came in a case where a woman, D Patchaiammal, had a two-year relationship with an already married man D Velusamy, who later deserted her to be with his wife Lakshmi and family. Twelve years after the alleged desertion, Patchaiammal moved a Coimbatore family court seeking maintenance under Section 125 of Criminal Procedure Code.

The family court held that Velusamy was married to Patchaiammal and not to Lakshmi and ordered payment of alimony. The Madras HC upheld the family court's order. Velusamy appealed against it.

The Supreme Court set aside the trial court and HC orders saying without giving notice to Lakshmi, the courts could not have come to a finding that Velusamy was married to Patchaiammal because if he was married to Lakshmi before, he could not have married Patchaiammal without divorcing Lakshmi.

 

It said that Patchaiammal would also have to explain why she filed the maintenance plea under Section 125 of CrPC after a lapse of 12 years. The SC remanded the matter back to the family court asking it to determine all these issues afresh.

 

CONCLUSION :

Lastly, as times passes, marriage as an institution will get less important. It has already lost ground. A lot of people in urban settings are living together. In this quest for the right of the woman in a live-in relationship, are we not viewing marriage as a purely simple contract?

(Abstract from My Article on “Right to Maintenance Revisited”  submitted in College Final Year Practical)