Case – D. Velusamy v. D. Patchaiammal, 2010
Fact – The appellant herein has alleged that he was married according to the Hindu Customary Rites with one Lakshmi on 25.6.1980. The petitioner is working as a Secondary Teacher in Thevanga Higher Secondary School, Coimbatore.
It appears that the respondent D. Patchaiammal filed a petition under Section 125 Cr.P.C. in the year 2001 before the Family Court at Coimbatore in which she alleged that she was married to the appellant herein on 14.9.1986.
In her petition under Section 125 Cr.P.C. she alleged that she did not have any kind of livelihood and she is unable to maintain herself whereas the respondent (appellant herein) is a Secondary Grade Teacher drawing a salary of Rs.10000/- per month. Hence it was prayed that the respondent (appellant herein) be directed to pay Rs. 500/- per month as maintenance to the petitioner.
In his counter affidavit filed by the appellant herein that the respondent (appellant herein) was married to one Lakshmi on 25.6.1980 as per the Hindu Marriage rites and customs. To prove his marriage with Lakshmi the appellant produced the ration card, voter’s identity card of his wife, discharge certificate of his wife Lakshmi from hospital, photographs of the wedding, etc. In our opinion, since Lakshmi was not made a party to the proceedings before the Family Court Judge or before the High Court and no notice was issued to her hence any declaration about her marital status.
Without giving a hearing to Lakshmi no such declaration could have validly be given by the Courts below that she had not married the appellant herein since such as a finding would seriously affect her rights. Issue – Whether the appellant was married to the respondent or not?
Contentions and Judgement:
➢ The word ‘wife’ has been defined in Explanation (b) to Section 125(1) of the Cr.P.C. as follows : “Wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
➢ Since we have held that the Courts below erred in law in holding that Lakshmi was not married to the appellant (since notice was not issued to her and she was not heard), it cannot be said at this stage that the respondent herein is the wife of the appellant. A divorced wife is treated as a wife for the purpose of Section 125 Cr.P.C. but if a person has not even been married obviously that person could not be divorced. Hence the respondent herein cannot claim to be the wife of the appellant herein, unless it is established that the appellant was not married to Lakshmi.
➢ From the point of view of The Protection of Women from Domestic Violence Act, 2005. 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”. 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 a kin to spouses for a significant period of time.
➢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’.
➢ 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.
➢ There is also no finding in the judgment of the learned Family Court Judge on the question whether the appellant and respondent had lived together for a reasonably long period of time in a relationship which was in the nature of marriage. In our opinion such findings were essential to decide this case. Hence, we set aside the impugned judgment of the High Court and Family Court Judge, Coimbatore and remand the matter to the Family
Court Judge to decide the matter afresh in accordance with law and in the light of the observations made above.
