The Union Cabinet today approved the introduction of a Bill in the Budget Session of Parliament to amend the Registration of Births and Deaths Act, 1969 to include registration of marriages as well, so that the existing administrative mechanisms will be able to carry out such registration of marriages in accordance with the specified procedures and be able to maintain necessary records and statistics for registration of marriages also.
The Cabinet also approved introducing a Bill in Parliament to further amend the Anand Marriage Act, 1909 to provide for registration of marriages under the Act.
The proposed Bills will be beneficial for the women from unnecessary harassment in matrimonial and maintenance cases. It will also provide evidentiary value in the matters of custody of children, right of children born from the wedlock of the two persons whose marriage is registered and the age of the parties to the marriage.
The Hon`ble Supreme Court vide its judgment dated 14.02.2006 in Seema Vs. Ashwani Kumar (AIR 2006 S.C 1158) has directed the State Governments and the Central Government that marriages of all persons who are citizens of India belonging to various religious denominations should be made compulsorily registerable in their respective States where such marriages are solemnized and inter alia directing that as and when the Central Government enacts a comprehensive statute, the same shall be placed before that Court for scrutiny.
The Committee on Empowerment of Women (2006-2007) in its Twelfth Report (Fourteenth Lok Sabha) on “Plight of Indian Women deserted by Indian husbands” has viewed that all marriages, irrespective of religion should be compulsorily registered and desired that the Government to make registration of all marriages mandatory, making the procedure simpler, affordable and accessible.
The 18th Law Commission of India in its 205th Report titled” Proposal to Amend the Prohibition of Child Marriage Act, 2006 and Other Allied Laws” vide paragraph (iv) recommending that “registration of marriages within a stipulated period, of all the communities, viz. Hindu, Muslim, Christians, etc. should be made mandatory by the Government”.
The 18th Law Commission of India further in its 211th Report titled “Laws on Registration of Marriage and Divorce- A proposal for consolidation and Reform”, recommending for a Parliamentary Legislation on Compulsory Registration of Marriages by enacting of a “Marriage and Divorce Registration Act” which may be made applicable to the whole of India and to all citizens irrespective of their religion and personal law and without any exceptions or exemptions”.
The Registration of Births and Deaths Act, 1969 (18 of 1969) is an Act to provide for the regulation of registration of births and deaths and for the matters connected therewith. Accordingly, provisions have already been provided in the said Act for Registration establishment consisting of Registrar-General, Chief Registrar and Registration Division, District Registrars and Registrars. Further, procedures for registration of births and death and for maintenance of records and statistics are provided for in the said Act. Also, by virtue of the powers conferred under section 30 thereof, rules for compulsory registration of births and deaths have been framed by all the State Governments and Union territory Administrations. Therefore, if the said Act is suitably amended to include registration of marriages as well, then the existing administrative mechanisms will be able to carry out such registration of marriages in accordance with the specified procedures and be able to maintain necessary records and statistics for registration of marriages also.
The registration of marriages of the parties under the proposed amendment would not affect any right recognized or acquired by any party to marriage under any law, custom or usage.
A Hindu woman cannot be evicted out of the matrimonial home after divorce except through procedure established by law, as there is no provision for her automatic eviction, the Supreme Court has ruled. A bench of justices G S Singhvi and S D Mukhopadhyay, in a judgement, said that though a woman may not have a legal right to continue in the house of the ex-husband, yet the latter cannot forcibly evict her. The apex court gave the ruling while upholding an appeal filed by Ranjit Kaur challenging the decisions of the Punjab and Haryana high court which had upheld her eviction from the house of a disputed property upon a decree of divorce granted to the husband Major Harmohinder Singh, an Army officer. “Learned counsel is right in his submission that even though in the decree of divorce, the appellant has not been given a right of residence and her occupation of the suit property can be treated as unauthorised, respondent No 1 (Singh) cannot evict her except after following the procedure established by law. “The material placed on record shows that the appellant had entered into the property as the wife of respondent No. 1. Therefore, even though, after passing of the decree of the divorce she may not have a legal right to continue to remain in possession of the suit property, respondent No. 1 cannot be given liberty to forcibly evict her,” the bench said.
Compulsory Registration of Marriages The Supreme Court vide its judgment dated 14.02.2006 in Seema Vs. Ashwani Kumar (AIR 2006 S.C 1158) has directed the State Governments and the Central Government that marriages of all persons who are citizens of India belonging to various religious denomination should be made compulsorily registerable in their respective States where such marriages are solemnized.
Giving this information in written reply to a question in the Rajya Sabha this week, ShriSalman Khurshid, Minister of Law & Justice, said that it is not correct to say that the process of registration of marriages is cumbersome. The process for compulsory registration of marriage is worked out by respective State Governments and the Union Territory Administrations by making suitable legislation/ rules or by amending existing legislation/ rules on the basis of the situation obtained in their respective territories to make the process simple and easier. Hence, no separate action by the Central Government is considered necessary, Shri Khurshid said.
The sanctity of marriage cannot be allowed to be undermined by the whims of one of the annoying spouses. The law allows divorce by mutual consent, but its intent is not to facilitate the dissolution of marriage. To save marriage and not to hasten its dissolution should be the core concern of courts
“Marriages are made in heaven, or so it is said. But we are more often than not made to wonder what happens to them by the time they descend to earth. Though there is legal machinery in place to deal with such cases, these are perhaps the toughest for the courts to deal with. Such is the case presently before with us.” (emphasis added) This is how a Bench of the Supreme Court consisting of D.K. Jain and H.L. Dattu, JJ., prefaced its judgment in the case of Hitesh Bhatnagar v. Deepa Bhatnagar delivered on April 18, 2011.
Hitesh and Deepa got married in 1994. The following year they were blessed with a daughter. Sometime in 2000 due to “differences in their temperaments”, they began to live separately from each other and have been living thus ever since. In 2001 they filed a petition under section 13-B of the Hindu Marriage Act, 1955, seeking divorce by mutual consent. Subsequently, before the court could consider their case for a divorce decree, the wife withdrew her consent. This resulted in the dismissal of the petition by the district court.
The High Court through its “well considered order” dismissed the appeal of the husband against the decision of the trial court. On further appeal, the husband again failed to get the desired divorce decree from the Supreme Court.
Why it is tough
One reason that applies to the resolution of matrimonial disputes generally is of course the inherent complexity of human nature and behaviour defying the application of set standard formulas. The other reason is the persistent misconceptions or misgivings about the very nature, scope and ambit of the remedy of divorce by mutual consent itself.
The apex court in the Hitesh Bhatnagar case has not just decided the dispute but undertaken fairly an extensive survey of the law developed through judicial decision-making. A juridical analysis of this decision would, therefore, be instructive in unfolding the various nuances. The following misgivings often come into vogue.
A close reading of section 13-B of the Hindu Marriage Act, 1955, shows that a divorce decree by mutual consent is not really a divorce decree by mere consent of parties. In effect, it is with the consent of the court. It becomes operational “with effect from the date of the decree” granted by the court and not from the date of filing of the petition “by both the parties to a marriage together.” To this extent, the expression “divorce by mutual consent” seems to be a misnomer. Literally speaking, it seems to imply that as there is “marriage by mutual consent” by taking seven steps around the sacred fire, say, in clockwise direction, so is “divorce by mutual consent” as if taking seven steps in anti-clockwise direction!
Compared to the grant of divorce on grounds like adultery, cruelty, desertion, etc. under section 13 of the Act, the conditions for the grant of decree under section 13B are rather more stringent. Under the mutual consent provision, the parties intending to dissolve marriage are required to wait, not only for at least one year from the date of marriage, termed as the “trial period” under section 14 of the Act, but also obligated to show further that they have been living separately for a period of one year or more before the presentation of the petition, and during this period of separation “they have not been able to live together” as husband and wife. Besides, after filing the joint petition they must wait further for at least another six months, usually termed as the “cooling off period”. In short, mere filing the joint petition does not by itself snap the marital ties.
After the lapse of six months, if the said petition is not withdrawn in the meanwhile either singly or jointly, both the parties may move the court by way of joint motion within the stipulated period of 18 months from the initial date of filing of the joint petition. The interregnum is obviously intended to give more time and opportunity to the parties “to reflect on their move”, give a second thought or otherwise seek advice and counsel from relations and/or friends for maintaining their marriage.
Withdrawal of consent
For pursuing divorce by mutual consent, it is imperative that mutual consent should continue till the decree is granted by the court. In case, even if one of the parties to marriage withdraws his or her consent initially given, the court instantly loses the jurisdiction to proceed further and grant relief under section 13-B of the Act. In this respect, the Supreme Court in the Hitesh Bhatnagar case reaffirmed its earlier decision in Sureshta Devi v. Om Prakash (1991), which overruled the view of the High Courts of Bombay and Delhi that proceeded on the premise that the crucial time for giving mutual consent for divorce is the time of filing petition and not the time when they subsequently move for a divorce decree.
The statutory expression “they have not been able to live together” under section 13-B(1) of the Act, is to be construed not just as a trite statement of pure volition. It bears a deeper connotation. It indicates, as the apex court has expounded, “the concept of broken down marriage”’ implying thereby that reconciliation between them is not possible. In this respect, the court is duty bound to satisfy itself “after hearing the parties and after making such inquiry as it thinks fit” about the bona fides and the consent of the parties, and then and then alone the court shall consider the grant of divorce decree.
The purpose of the period of 18 months from the date of presentation of the joint petition under Section 13-B (2) of the Act is for re-think and reconciliation. If the consent is withdrawn by either party to marriage, the petition becomes instantly ineffective and is liable to be dismissed at the threshold on this very count.
In view of the long separation of more than a decade from his wife, the husband, as a last resort, urged the apex court to dissolve his marriage by exercising its special jurisdiction under Article 142 of the Constitution. To buttress his claim he specifically cited a proximate decision of the Supreme Court itself – Anil Kumar Jain v. Maya Jain (2009) – wherein though the consent was withdrawn by the wife, yet the court found the marriage to have irretrievably broken down and granted a decree of divorce by exercising its special constitutional power.
However, in the instant case the apex court refused to invoke its special power in favour of the husband mainly for two reasons. One, the special power is to be used very sparingly in cases which cannot be effectively and appropriately tackled by the existing provisions of law or when the existing provisions cannot bring about complete justice between the parties.
Generally such a power is exercised neither in contravention of statutory provisions nor merely on grounds of sympathy. Two, the sanctity of the institution of marriage cannot allowed to be undermined merely at the whims of one of the annoying spouses, more specially in the situation and circumstances, as in the present case, wherein the wife has stated that she wants this marriage to continue “to secure the future of their minor daughter”.
Invariably it is found that a petition for divorce on fault grounds under section 13 is replaced by the remedy of dissolution of marriage by mutual consent under section 13-B of the Act. This is advisedly done as if the purpose of the latter provision is to facilitate divorce by effecting compromise between the parties in respect of ancillary matters. This in our view is perhaps the most erroneous construction of the provisions of section 13-B of the Act. The purpose of the remedy of mutual consent, we repeat, is not to facilitate the dissolution of marriage, inasmuch as even the provisions of section 13-B are subject to the other provisions of the Act.
Thus, to save marriage and not to hasten its dissolution should be the core concern of the court. Spouses may think of dissolving their marriage if they so fancy provided the court is satisfied that any of the grounds for granting relief exists, and that in court’s view it is not possible to make them reconciled!
Divorce with Mutual Consent- What it is all about
Section 13-B of the Hindu Marriage Act, 1955, deals with divorce by mutual consent
Compared to the grant of divorce on grounds like adultery, cruelty, desertion, etc. under section 13 of the Act, the conditions for the grant of decree under section 13-B are rather more stringent
A divorce decree by mutual consent is not really a divorce decree by mere consent of the parties. In effect, it is with the consent of the court
The parties intending to dissolve marriage are required to wait for at least one year from the date of marriage
They have to show that they have been living separately for a period of one year or more before the presentation of the petition for divorce and that during this period of separation they have not been able to live together as husband and wife
After filing the joint petition they must wait further for at least six months
It is imperative that mutual consent should continue till the decree of divorce is granted by the court
If the consent is withdrawn by either party to marriage, the petition becomes instantly ineffective and is liable to be dismissed on this very count.
The writer is the Director (Academics), Chandigarh Judicial Academy.
THE recent judgement of the Bombay High Court setting aside the parallel proceedings for divorce of the Family Court, Pune, and upholding a divorce decree passed by the Court of Oakland, State of Michigan, USA, dissolving a Hindu marriage on the principle of breakdown, has evoked a new stream of thought with which this writer differs. The verdict, Kashmira Kale vs. Kishore Kumar Mohan Kale, 2011 (1) Hindu Law Reporter (HLR), 333, lending sanctity to a US Divorce decree in preference to proceedings under the Hindu Marriage Act between the same parties upsets the settled law.
The parties married in Mumbai in 2005 according to Hindu rites lived in the US and intermittently visited Mumbai and Pune. In September 2008, the wife filed divorce proceedings in the US whose jurisdiction was challenged by the husband in the US. Simultaneously, in October 2008, the husband filed a divorce petition in the Pune Family Court, claiming it to be the competent forum for adjudication of their dispute. The husband did not pursue the wife’s divorce petition in the US any further and in January 2009, the US court dissolved the marriage and divided the assets of the parties.
However, the Pune Family Court in September 2009 held that it still had the jurisdiction to try the husband’s petition for divorce in India. In appeal, the Bombay High Court set aside the Family Court order and upheld the US divorce decree dissolving the Hindu marriage.
The conclusions drawn by the Bombay High Court that the parties were domiciled in the US and hence the Hindu Marriage Act (HMA) cannot apply to them is per se erroneous. The HMA’s non-application to Hindus was misconstrued and the application of the breakdown principle without considering the written statement of the husband challenging the US court’s jurisdiction were factors which did not lend a imprimatur to the foreign decree which did not take into consideration the HMA’s provisions under which the parties were married.
Noticing that Section 1 (2) of the HMA applies only to Hindus in the territories to which it applies but not considering that it also “applies to Hindus domiciled in the territories to which this Act extends who are outside the said territories” left the contention only half noticed. In addition, Section 2 of the HMA prescribing application of the Act to Hindus, irrespective of domicile, nationality or citizenship, renders the judgement fallacious. Earlier precedents on the point enunciated by different High Courts stipulate that the HMA applies to all Hindus irrespective of domicile or residence if they have married in India according to Hindu rites. Thus, it has been held that the HMA has extra-territorial application as a Hindu carries with him his personal law of marriage and courts in India have jurisdiction to try their matrimonial disputes regardless of change of nationality or new domicile.
The Bombay High Court in Sondur Rajini Vs. Sondur Gopal, 2006(2) HLR 475, had held that the HMA provisions do not cease to apply on change of domicile which is determined when the parties tie the nuptial knot under the HMA and not on the date when an application is made for matrimonial reliefs. In Naveen Chander Advani Vs. Leena Advani 2005 (2) HLR 582, the Bombay High Court held that the Pune Family Court wrongly declined to entertain a matrimonial petition relating to a marriage where parties who last resided and married in the US according to Hindu rites and ceremonies as the Family Court has jurisdiction to deal with matters under the HMA.
Equally flawed is the Bombay High Court’s view that since the parties last resided together in Michigan, the US court has territorial jurisdiction to decide their divorce dispute. This conclusion falls foul of the settled law laid down by the Supreme Court in Jagir Kaur vs. Jaswant Singh, AIR 1963 SC 1521 that prescribing the limits of jurisdiction, speaking of last residence of a person with his wife, can only mean his last residence in India. It does not imply his residing with her in a foreign country for an Act cannot confer jurisdiction on a foreign court.
The Bombay High Court in Meera vs. Anil Kumar 1992 (2) HLR 284 held that “last resided” in Section 19 of HMA implies last residence in India and the High Court in India within whose jurisdiction the parties last resided together can take cognisance of the matter.
Flowing from the same stream of thought, the Punjab and Haryana High Court has held that any temporary residence would confer jurisdiction to try the matrimonial dispute. This settled view militates against the erred conclusion of the Bombay High Court that temporary stay at Pune or Mumbai could not mean last residence in India as parties last resided together in the US.
Above all, the Bombay High Court’s view disagrees with the Supreme Court’s celebrated view in Y. Narasimha Rao vs. Y. Venkata Lakshmi, 1991 (3) SCC 451 that the jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married.
Three exceptions were culled out to this rule by the Supreme Court. First, permanent foreign residence and invoking of relief on a ground available in matrimonial law under which parties were married. Secondly, voluntary submission to foreign jurisdiction coupled with contest on merits abroad on grounds available under matrimonial law under which parties were married. And thirdly, parties unconditionally consent to grant of relief although the jurisdiction of foreign court is not in accordance with the provisions of matrimonial law of parties.
The Apex Court in Neerja Saraph vs. Jayant Saraph 1994 (6) SCC 641, thereafter had suggested feasibility of a legislation to hold that “no marriage between an NRI and an India woman which has taken place in India may be annulled by a foreign court”. Not noticing the Supreme Court’s above precedent, the recent view of the Bombay High Court per se appears to be disagreeable if not per incuriam.
With due deference, the Bombay High Court order does not agree with the precedent, adapt to Hindu law of marriage of the parties or is it conclusive. Parties may be treated as divorced in the US and still married in India. The line of action adopted in a number of matrimonial disputes in the Punjab and Haryana High Court is most useful to quote. Limping marriages are taken before the Mediation and Conciliation Centre at the High Court premises where the hatchet is peacefully buried and matters are amicably compromised to convert the matrimonial feuds to divorce petitions by mutual consent. Matters thereafter rest without contest on written settlements. Warring claims are put to sleep harmoniously.
This is the better path than allowing foreign courts to decide on Hindu marriage disputes without conflict of laws. Indian courts are better suited to decide them without foreign interference. Domestic law must prevail.
Author of “India, NRIs and the Law”, and co-author of “Acting for Non-resident Indian Clients,” the writer is Supreme Court Advocate and Member, UT NRI Cell, Chandigarh.
“Merely spending weekends together or a one-night stand would not make it a domestic relationship,” said a bench of Justices Markandey Katju and TS Thakur, cautioning that in future, claims for financial relief arising out of live-in link-ups would increase in India. The Supreme Court of India has noted that just any ‘live-in relationship’ does not entitle a woman to alimony. To make a ‘live-in’ legal the Supreme Court says that 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; and they must have voluntarily cohabited for a significant period of time. Making an attempt to iron out certain ambiguous situations, the judges also said that if a man has a ‘mistress’ 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.”
Conscious that the judgment would exclude many women in live-in relationships from the benefit of the PWDVA, the apex court further said it is not for this court to legislate or amend the law. Parliament has used the expression ‘relationship in the nature of marriage’ and not ‘live-in relationship’.
Considering the increasing number of live-in relationships in our times in India, the Supreme Court wants the scope of the provision for maintenance under section 125 of the criminal procedure code (Cr.P.C.) expanded, so that women in such relationships do not face economic deprivation after living in a domestic set-up for long periods of time.
The issue has assumed and rightly so huge dimensions that Justice GS Singhvi and Justice AK Ganguly have urged the Chief Justice SH Kapadia to set up a larger bench to consider whether “the living together of a man and woman as husband and wife for a considerable period 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.?’’ Secondly whether proof of marriage is essential for a claim of maintenance under the section? Also whether a marriage performed according to customary rites, without strictly fulfilling the requisites of the Hindu Marriage Act, or any other personal law, would entitle the woman to maintenance under the section?”
The bench also wanted an expansive interpretation of the term ‘wife’ to include cases where a man and woman have been living together as husband and wife for a reasonably long period. The judges said the PWDVA gave a very broad definition of the term ‘domestic abuse’, which must include economic abuse.
The law traditionally has been biased in favour of marriage. Public policy supports marriage as necessary to the stability of the family, the basic societal unit. To preserve and encourage marriage, the law reserves many rights and privileges to married persons. Cohabitation carries none of those rights and privileges. It has been said in the context that cohabitation has all the headaches of marriage without any of the benefits.
What the PWDVA does is that it deters men from having ‘live-in-relationships’ for the fear of providing maintenance to his partner. On the other hand if a married man provides maintenance to his partner he is denying what was the economic right of his legal wife and children.
What needs to be understood is that the institution of marriage and issues that emerge from it is essentially a concept that needs to be perceived in a time frame and specific context. A set of norms valued and acceptable in one context cannot easily or rather should not easily be planted in another context. Today’s India is changing at a pace that was socially unimaginable say 50 years ago. Issues like ‘live-in relationship’ that were taken up by the western society are gradually percolating into our social norms. The most obvious contributing factor being the transformed urban life which itself is growing from factors associated with urbanisation and increased income, long hours of work, often late in the night and virtually no time for family.
But the issue that needs our conscious attention is that is Indian society ready for this trend? It needs to be noted that whatever one may say the fact is that women will ultimately emerge as the most vulnerable and possibly the greatest losers. Children that result from such relationships are also to be kept in mind. The conventional argument that has always been cited in favour of India’s unique concept of the family being responsible for looking after the young and the aged is also an issue of concern.
The PWDVA is silent on the status of children out of a ‘live-in relationship’. Finally it must also be appreciated that laws and legal obligations notwithstanding foundations of a relationship are based on commitment.
Marriage is just another commitment. If people are shying away from marriages – one reason could be that people are scared of commitments that grow from marriage and are worried– what if it does not work out? Divorce procedures in our country are cumbersome and taxing. May be they need a more liberal reframing so as to decrease the element of fear.
ON October 21, 2010 a Two-Judge Bench of Supreme Court comprising Justices Markandey Katju and TS Thakur in D Veluswamy vs D Patchaiammal ruled that in their opinion not all live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the PWDVA, 2005.
Merely spending weekends together or a one-night stand would not make it a “domestic relationship.” If a man has a “keep” whom he maintains financially and uses mainly for sexual purposes and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage. No doubt, the view we are taking would exclude many women who have a live-in relationship from the benefit of the PWDVA Act, but then it is not for this court to legislate or amend the law. Parliament has used the expression “relationship in the nature of marriage” and not “live in relationship”.
Dispel Confusion – BY Hemant Kumar
THE diverse societal opinion on the growing trend of “live-in-relationship” apart, the judicial viewpoint over the same has been rather cautious. Of course, things have undergone a change after the enactment of Protection of Women from Domestic Violence Act, 2005 (PWDVA) whose provisions also extend to women living-in a relationship in the nature of marriage. By doing so, albeit in a veiled manner, the legislature has finally endeavored to accept the contemporary global phenomena appreciated and attempted by some persons among the Gen Next.
In August this year, a Division Bench of the Supreme Court ruled that a live-in which has been long lasting will be considered as marriage and children born out of it are not illegitimate. This verdict came just days after a Delhi High Court ruling which laid down that a partner in a live-in relationship can walk out of it at any point of time without any legal consequence and neither of the partners can complain of infidelity if one deserts the other. It held that “live-in is a walk-in and walk-out relationship. There are no strings attached to it nor the same creates any legal bond between the parties. Such a thing is a contract of living together which is renewed every day by the parties and can be terminated by either without consent of the other party.”
In mid-2008, the National Commission for Women recommended that a woman in a live-in relationship should be entitled to maintenance if she is deserted by her partner. The commission sought a change in the definition of ‘‘wife’’ as described in the Section 125 of Criminal Procedure Code (CrPC), which deals with maintenance and suggested that it should include women involved in a live-in relationship. The move aims at harmonising other sections of the law with the PWDVA that treats a live-in couple’s relationship on a par with that between a legally married husband and wife. The state of Maharashtra also okayed this proposal in 2008 but it requires the final nod of the Centre. Section 125 provides for maintenance of wife, children and parents, who cannot maintain themselves. As of now maintenance can only be claimed by a woman who is a wife, has either been divorced or has obtained a divorce, or is legally separated and is not remarried. It is hoped that the Supreme Court would urgently interpret the whole issue thoroughly in order to ensure that there is no room for any ambiguity for lower courts in the country while dealing with issues related to live-in. Until the concept is granted statutory recognition by Parliament, it is imperative for the judiciary to clear its stand over the same so as to protect the interests of women in such relationships.
(The writer is an advocate Punjab and Haryana High Court)
Is it an offence to cohabit with a woman after inducing a belief of marriage in her? Is it an offence to back out of such a relationship? Supreme Court (SC) judges Markandey Katju and Gyan Sudha Mishra are divided and want a larger bench to decide the matter. Chief Justice of India (CJI) SH Kapadia will soon take a call on setting up such a bench to put at rest the controversy over an ‘illegal’ act and ‘indecent’ behaviour. Katju and Mishra differences have emerged over an appeal filed by Ram Chandra Bhagat, who was convicted by a trial court and the Jharkhand high court for committing an offence under IPC section 493 (cohabitation by a man after deceitfully inducing a belief of lawful marriage in a woman). The section also says every man who by deceit cohabits with a woman who is not his wife on the assurance that they are a legally married couple is liable to be punished with imprisonment up to 10 years.
Mishra found no ambiguity in this provision. She agreed with Katju on the limited issue that law and morality might stand on different footings. But in her perception they are “inextricably linked”. Mishra also said a legal decision could not be based purely on morality.Katju, however, said often an act may be regarded immoral by society, but it may not be illegal. He offered a different interpretation of section 493 IPC that it is meant for couples legally married under Hindu Marriage Act.Revenue officer Bhagat lived like a couple with Sunita Kumari for years and they had two children. Sunita accompanied him wherever he was posted. He had filed an affidavit with the authorities that they were a married couple. The voters list too shows this. However, he kicked her out of home in 1990. She lodged a criminal complaint and the courts convicted Bhagat, saying he had committed fraud and cheated Sunita.
Bhagat has not behaved like a “gentleman”. He lived with Sunita for nine years and had two children with her and “hence as a decent person he should have married her, which he did not do”, they said.
Katju, however, said Bhagat didn’t commit an illegal act and that there was a difference between law and morality.“If we say something is illegal, we must point to some specific section of IPC or some other statute which has been violated,” he said, adding, “Merely saying that the person has done something improper will not necessarily make the act illegal.”
The Supreme Court in D Veluswamy Vs D Patchaiammal has explained the definition of Live In Relationships with reference to Domestic Violence Act. The Court in its judgement in the mentioned ruled:
16. However, the question has also be to be examined from the point of view of The Protection of Women from Domestic Violence Act, 2005.
Section 2(a) of the Act states :
“2(a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent”;
Section 2(f) states :
“2(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family”;
Section 2(s) states :
“2(s) “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.”
Section 3(a) states that an act will constitute domestic violence in case it-
“3(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse;” or (emphasis supplied)
17. The expression “economic abuse” has been defined to include :
“(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance”.
18. An aggrieved person under the Act can approach the Magistrate under Section 12 for the relief mentioned in Section 12(2). Under Section 20(1)(d) the Magistrate can grant maintenance while disposing of the application under Section 12(1).
19. Section 26(1) provides that the relief mentioned in Section 20 may also be sought in any legal proceeding, before a civil court, family court or a criminal court.
20. Having noted the relevant provisions in The Protection of Women from Domestic Violence Act, 2005, we may point out that the expression `domestic relationship’ includes not only the relationship of marriage but also a relationship `in the nature of marriage’. The question, therefore, arises as to what is the meaning of the expression `a relationship in the nature of marriage’. Unfortunately this expression has not been defined in the Act. Since there is no direct decision of this Court on the interpretation of this expression we think it necessary to interpret it because a large number of cases will be coming up before the Courts in our country on this point, and hence an authoritative decision is required.
21. In our opinion Parliament by the aforesaid Act has drawn a distinction between the relationship of marriage and a relationship in the nature of marriage, and has provided that in either case the person who enters into either relationship is entitled to the benefit of the Act.
22. It seems to us that in the aforesaid Act of 2005 Parliament has taken notice of a new social phenomenon which has emerged in our country known as live-in relationship. This new relationship is still rare in our country, and is sometimes found in big urban cities in India, but it is very common in North America and Europe. It has been commented upon by this Court in S. Khushboo vs. Kanniammal & Anr. (2010) 5 SCC 600 (vide
23. When a wife is deserted, in most countries the law provides for maintenance to her by her husband, which is called alimony. However, earlier there was no law providing for maintenance to a woman who was having a live-in relationship with a man without being married to him and was then deserted by him.
24. In USA the expression `palimony‘ was coined which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying him, and is then deserted by him (see `palimony’ on Google). The first decision on palimony was the well known decision of the California Superior Court in Marvin vs. Marvin (1976) 18 C3d660. This case related to the famous film actor Lee Marvin, with whom a lady Michelle lived for many years without marrying him, and was then deserted by him and she claimed palimony. Subsequently in many decisions of the Courts in USA, the concept of palimony has been considered and developed. The US Supreme Court has not given any decision on whether there is a legal right to palimony, but there are several decisions of the Courts in various States in USA. These Courts in USA have taken divergent views, some granting palimony, some denying it altogether, and some granting it on certain conditions. Hence in USA the law is still in a state of evolution on the right to palimony.
25. Although there is no statutory basis for grant of palimony in USA, the Courts there which have granted it have granted it on a contractual basis. Some Courts in USA have held that there must be a written or oral agreement between the man and woman that if they separate the man will give palimony to the woman, while other Courts have held that if a man and woman have lived together for a substantially long period without getting married there would be deemed to be an implied or constructive contract that palimony will be given on their separation.
26. In Taylor vs. Fields (1986) 224 Cal. Rpr. 186 the facts were that the plaintiff Taylor had a relationship with a married man Leo. After Leo died Taylor sued his widow alleging breach of an implied agreement to take care of Taylor financially and she claimed maintenance from the estate of Leo. The Court of Appeals in California held that the relationship alleged by Taylor was nothing more than that of a married man and his mistress. It was held that the alleged contract rested on meretricious consideration and hence was invalid and unenforceable. The Court of Appeals relied on the fact that Taylor did not live together with Leo but only occasionally spent weekends with him. There was no sign of a stable and significant cohabitation between the two.
27. However, the New Jersey Supreme Court in Devaney vs. L’Esperance 195 N.J., 247 (2008) held that cohabitation is not necessary to claim palimony, rather “it is the promise to support, expressed or implied, coupled with a marital type relationship, that are indispensable elements to support a valid claim for palimony”. A law has now been passed in 2010 by the State legislature of New Jersey that there must be a written agreement between the parties to claim palimony.
28. Thus, there are widely divergent views of the Courts in U.S.A. regarding the right to palimony. Some States like Georgia and Tennessee expressly refuse to recognize palimony agreements.
29. Written palimony contracts are rare, but some US Courts have found implied contracts when a woman has given up her career, has managed the household, and assisted a man in his business for a lengthy period of time. Even when there is no explicit written or oral contract some US Courts have held that the action of the parties make it appear that a constructive or implied contract for grant of palimony existed.
30. However, a meretricious contract exclusively for sexual service is held in all US Courts as invalid and unenforceable.
31. In the case before us we are not called upon to decide whether in our country there can be a valid claim for palimony on the basis of a contract, express or implied, written or oral, since no such case was set up by the respondent in her petition under Section 125 Cr.P.C.
32. Some countries in the world recognize common law marriages. A common law marriage, sometimes called de facto marriage, or informal marriage is recognized in some countries as a marriage though no legally recognized marriage ceremony is performed or civil marriage contract is entered into or the marriage registered in a civil registry (see details on Google).
33. In our opinion a `relationship in the nature of marriage’ is akin to a common law marriage. Common law marriages require that although not being formally married :-
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
(see `Common Law Marriage’ in Wikipedia on Google)
In our opinion a `relationship in the nature of marriage’ under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a `shared household’ as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a `domestic relationship’.
34. In our opinion not all live in relationships will amount to a
relationship in the nature of marriag8e to get the benefit of the Act of 2005.
To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence. 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’
35. 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. Parliament has used the expression `relationship in the nature of marriage’ and not `live in relationship’. The Court in the grab of interpretation cannot change the language of the statute.
36. In feudal society sexual relationship between man and woman outside marriage was totally taboo and regarded with disgust and horror, as depicted in Leo Tolstoy’s novel `Anna Karenina’, Gustave Flaubert’s novel `Madame Bovary’ and the novels of the great Bengali writer Sharat Chandra Chattopadhyaya.
37. However, Indian society is changing, and this change has been reflected and recognized by Parliament by enacting The Protection of Women from Domestic Violence Act, 2005
NEW DELHI: If a man keeps a woman, this relationship will not be in the nature of marriage for her to claim the benefit of live-in to get maintenance under the Protection of Women from Domestic Violence (PWDV) Act, 2005, the Supreme Court has held.
A Bench of Justice Markandey Katju and Justice T.S. Thakur pointed out that the Act had used the expression “relationship in the nature of marriage” and not “live-in relationship” for the grant of benefit to affected women. “In our opinion, not all live-in relationships will amount to a ‘relationship in the nature of marriage’ [for women] to get the benefit of the Act. A ‘relationship in the nature of marriage’ is akin to a common law marriage. Common law marriages require that the couple, although not formally married, 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.”
(Earlier this month, Justices G.S. Singhvi and A.K. Ganguly referred to a larger Bench the issue relating to grant of maintenance to women in live-in relationships; whether it could be done under Section 125 CrPC or the PWDV Act.)Writing the judgment in this case, Justice Katju said: “Merely spending weekends together or a one-night stand would not make it a ‘domestic relationship’.
“To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence. 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. Parliament has used the expression ‘relationship in the nature of marriage’ and not ‘live-in relationship’. The court, in the grab of interpretation, cannot change the language of the statute.”
The Bench quoted the judgments of various courts in the United States. “In the USA the expression ‘palimony’ was coined, which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying him, and is then deserted by him. Although there is no statutory basis for grant of palimony in the USA, the courts there which have granted it have granted it on a contractual basis.”
However, “in the case before us we are not called upon to decide whether in our country there can be a valid claim for palimony on the basis of a contract, express or implied, written or oral, since no such case was set up by the respondent in her petition under Section 125 Cr.PC.”D. Velusamy was aggrieved over a Madras High Court judgment upholding a Coimbatore trial court order, awarding maintenance of Rs. 500 to respondent D. Patchaiammal, declaring her his wife, though his first marriage with Lakshmi was not dissolved.The Bench set aside the impugned judgment of the High Court and the Family Court Judge, Coimbatore, and remanded the matter to the Family Court Judge to decide the matter afresh in accordance with law and in the light of its observations.
The long-awaited move comes more than a year after the Law Commission of Indiasuo motu took up the study of the subject and in its 217th report in March 2009 strongly made the above recommendation.
The Commission examined the existing legislation as well as a number of judgments of the Supreme Court and the High Courts on the subject and was of the view that “irretrievable breakdown of marriage” should be incorporated as another ground for granting divorce under the provisions of the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. The Commission also recommended that before granting a decree for divorce on the ground that the marriage has irretrievably broken down, the court should examine whether adequate financial arrangements had been made for the parties and children.
Although such a ground for divorce is currently not mentioned in HMA, the Supreme Court has, in appropriate cases, granted a decree of divorce on grounds of “irretrievable breakdown of marriage” by virtue of the powers vested in it under Article 142 of the Constitution. However, different Benches of the Supreme Court have taken separate stands over this issue.
In March, 2006, a three-judge Bench of the Supreme Court granted divorce in Naveen Kohli vs. Neelu Kohli (2006) 4 SCC 558. But in February, 2009, a two-judge Bench of the court in Vishnu Dutt Sharma vs. Manju Dutt Sharma (2009) 6 SCC 379, refused to grant divorce on the ground of irretrievable breakdown of marriage. The court observed that it could not add such a ground to Section 13 of HMA as it would amount to amending the Act which is a function of the Legislature.
In the most recent view in May, 2010, in Neeti Malviya vs. Rakesh Malviya (2010) 6 SCC 413, the Supreme Court, while examining the question of waiving the six-month waiting period for divorce by mutual consent by invoking its extraordinary powers under Article 142 of the Constitution, has referred the question for consideration to a Bench of three judges.
Clearly, the underlining note of invoking irretrievable breakdown of marriage as a ground for divorce did not find favour with the Bench. Thus, from the views in the Judgment of the Supreme Court in V. Bhagat vs. D. Bhagat (1994) 1 SCC 337 allowing divorce on the ground of irretrievable breakdown of marriage to the pronouncement of the Supreme Court in Anil Kumar Jain Vs. Maya Jain (2009) 10 SCC 415, not allowing so, there has been a variant view on this controversial subject for 15 years. The Supreme Court, however, has been consistent in its view that neither the High Courts nor the subordinate courts can exercise such power vested only in it.
Realistically speaking, a broken marriage limps to dissolution. Law cannot reunite parties if the matrimonial bond has severed. Consequently, a peaceful parting is necessary if the parties cannot reconcile despite best efforts. Thus, the adding of irretrievable breakdown of marriage as a ground for divorce by Parliament by amending the marriage laws may be the best possible solution for the future of limping marriages.
However, the power of the court to grant divorce on the ground of irretrievable breakdown should be exercised with extreme caution only in circumstances warranting so and when it is in the interest of both the parties. Due regard for maintenance of the dependent spouse, besides welfare of children, must be safeguarded by enabling legislation. Hence, simultaneous amendments to other provisions of marriage laws in this regard must follow forthwith whenever such a law is made.
A balance needs to be maintained wherein the sanctity of the institution of marriage should be protected as well as the individual interests of aggrieved spouses addressed. Moral and cultural values are embedded in Indian ethos and emulation of western principles in matrimonial matters is not appreciable and should not be adopted with ease. Hence, the ground of irretrievable breakdown of marriage should be introduced cautiously and hedged with safeguards so that the provision is not misused.
Nevertheless, there is also an urgent need to set up a family court in every district of the country for adjudicating all kinds of matrimonial disputes. It is really unfortunate that even after more than 25 years of enactment of the Family Courts Act, 1984, only a miniscule number of such courts have been set up only in metropolitan cities.
Also, there must be marriage and divorce laws not just for Hindus but also for Muslims, Christians, Parsis and other religious denominations in line with contemporary practices of young generations who receive higher education and have more cosmopolitan thinking of the brave new world. Times have changed and the people of India must move ahead without living in the past. Harmony at home and peace at work is the most important component and quality of successful Indians in the 21st century. A stable family is an epitome of Indian society.
(Author of “India, NRIs and the Law,” the writer is a Chandigarh-based practising lawyer and can be reached at firstname.lastname@example.org)