Can a Live-In Partner Claim Maintenance?

Sarju Singh Kushwaha had two sons. Ram Saran was the elder. Virendra Kumar Singh Kushwaha was the younger son and the first respondent. Chanmuniya married Ram Saran, and their daughters Asha and Usha were born in 1988 and 1990. Ram Saran died on March 7, 1992.

After that, Chanmuniya said she was married in 1996 to Virendra under the Kushwaha custom of marrying a widow to her husband's younger brother. The ceremony used Katha and Sindur. The couple lived together as husband and wife and, she said, discharged their marital obligations. Later Virendra allegedly harassed and tortured her, stopped her maintenance and refused to perform his marital obligations.

She filed a Section 125 CrPC maintenance application, No.20/1997, before the 1st Additional Civil Judge, Mohamadabad, Ghazipur. That proceeding was pending. She also filed suit No.42/1998 for restitution of conjugal rights under Section 9 of the Hindu Marriage Act before the 1st Additional District Judge, Ghazipur. On January 3, 2004, the trial court decreed restitution. It held that she had remarried Virendra after Ram Saran's death and that he had deserted her.

The Allahabad High Court reversed that on November 28, 2007. It held that the essentials of a valid Hindu marriage under Section 7 of the Hindu Marriage Act had not been performed, so Virendra was not legally her husband. The review petition was dismissed on January 23, 2009. Chanmuniya then approached the Supreme Court by special leave petition.

The judgment records that Sir James Fitz Stephen, who piloted the Criminal Procedure Code of 1872 as a legal member of the Viceroy's Council, described the object of Section 125 (Section 536 in the 1872 Code) as a mode of preventing vagrancy or at least preventing its consequences. The 1898 Code placed the same provision in Chapter XXXVI, Section 488. Vimala (K) v. Veeraswamy (K), a three-Judge Bench decision, repeated the same object: "The object is to prevent vagrancy and destitution." It added that the section provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife.

The word 'wife' was the problem. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, AIR 1988 SC 644, and Savitaben Somabhat Bhatiya v. State of Gujarat, AIR 2005 SC 1809, read 'wife' as only a legally wedded wife. The two-Judge Bench in Chanmuniya leaned toward the social purpose of Section 125 CrPC and the forward-looking Protection of Women from Domestic Violence Act, 2005. Even so, it said that, sitting as two Judges, it could not take a view contrary to those two decisions.

The Bench found a very strong presumption of marriage in Chanmuniya's case. She and Virendra were related, lived in the same house, were treated by social custom as husband and wife, and their marriage was solemnized with Katha and Sindur. The Court relied on House of Lords decisions such as Lieutenant C.W. Campbell v. John A.G. Campbell, (1867) Law Rep. 2 HL 269, and on Privy Council decisions such as A. Dinohamy v. W.L. Balahamy, AIR 1927 P.C. 185.

The core warning was aimed at the loophole Chanmuniya was facing:

In its closing paragraphs, the Bench said 'wife' should be given a broad and expansive meaning. That meaning should cover a man and woman who have lived together as husband and wife for a reasonably long period. Strict proof of marriage, it said, should not be a precondition for maintenance under Section 125 CrPC.

• Long cohabitation as husband and wife raises a strong presumption of marriage. In Badri Prasad, the Supreme Court said the presumption is rebuttable, but a heavy burden lies on him who seeks to deprive the relationship of legal origin.
• Section 125 CrPC is to be read by its social object. The Bench said a man should not enjoy the advantages of a de facto marriage while avoiding its duties.

The Bench then referred the conflict to a larger Bench. It asked three things:

• Would the living together of a man and woman as husband and wife for a considerable period of time raise the presumption of a valid marriage between them, and would that presumption entitle the woman to maintenance under Section 125 CrPC?
• Is strict proof of marriage essential for maintenance under Section 125 CrPC, having regard to the Protection of Women from Domestic Violence Act, 2005?
• Would 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, entitle the woman to maintenance under Section 125 CrPC?

It also noted Marvin v. Marvin, the American 'palimony' case, while saying Indian law has not developed on those lines.

This judgment did not finally decide the three referred questions. The table shows the Bench's own views and the earlier decisions it discussed, not settled law.

The Bench also noted that the Protection of Women from Domestic Violence Act, 2005 includes live-in relationships in the nature of marriage within 'domestic relationship' under Section 2(f). In its view, women in such relationships are entitled to all the reliefs in that Act, including monetary relief and compensation.

• Records to gather first: Collect evidence that you and the man lived together as husband and wife for a reasonably long time and that society treated you as such. If a customary ceremony took place, as with Katha and Sindur in Chanmuniya's case, keep evidence of that ceremony and of the local custom. Also keep proof of desertion, harassment and the stopping of maintenance.
• Where to go: In Chanmuniya's case, the Section 125 application was filed before the 1st Additional Civil Judge, Mohamadabad, Ghazipur, and the restitution suit before the 1st Additional District Judge, Ghazipur. Under the Protection of Women from Domestic Violence Act, 2005, the Magistrate can direct monetary relief under Section 20 and award compensation under Section 22. Section 26 allows those reliefs to be sought in any legal proceeding before a civil court, family court or criminal court affecting the parties.
• The standard of proof: The judgment notes, from Dwarika Prasad Satpathy v. Bidyut Prava Dixit, that proof of marriage in a Section 125 proceeding is not as strict as in a trial for an offence under Section 494 of the IPC. It also notes that maintenance cannot be denied where there is some evidence from which living together can be concluded.
• The biggest mistake to avoid: Chanmuniya's own case shows the risk. The High Court reversed the trial court because the essentials of a valid Hindu marriage under Section 7 had not been performed. The Supreme Court's stated concern was that a man should not benefit from legal loopholes by enjoying a de facto marriage without undertaking its duties. Because the Bench referred the key questions to a larger Bench, this judgment does not finally settle that a ceremony falling short of Section 7(1) will succeed.