Back
2010 (7) Supreme 321
SUPREME COURT OF INDIA
Markandey Katju and T. S. Thakur, JJ.
D. Velusamy — Appellant
versus
D. Patchaiammal — Respondent
Criminal Appeal Nos. 2028-2029__of 2010
[Arising out of Special Leave Petition (Crl.) Nos.2273-2274/2010]
Decided on : 21-10-2010
(b) Code of Criminal Procedure, 1973 – Section 125 – Wife – includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried – there is no scope to include a woman not lawfully married within the expression of ‘wife’. (Para s 12 to 14)
(1991) 2 SCC 375; AIR 2005 SC 1809 – Relied upon
(c) Code of Criminal Procedure, 1973 – Section 125 – A divorced wife is treated as a wife but if a person has not even been married, obviously that person could not be divorced – Hence the respondent cannot claim to be the wife of the appellant herein, unless it is established that the appellant was not married to Lakshmi. (Para 15)
(d) The Protection of Women from Domestic Violence Act, 2005 – Section 2(f) – Live-in relationship – The expression ‘domestic relationship’ includes not only the relationship of marriage but also a relationship ‘in the nature of marriage’ like live-in relationship. (Para 20)
(2010) 5 SCC 600 – Relied upon
(e) Words and Phrases – Palimony – Palimony 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 – However, the law on palimony is till evolving in the USA. (Para 24)
(1976) 18 C3d660; (1976) 18 C3d660; (1986) 224 Cal. Rpr. 186; 195 N.J., 247 (2008) – Referred
(f) The Protection of Women from Domestic Violence Act, 2005 – Section 2(f) – ‘Relationship in the nature of marriage’ is akin to common law marriage – Not all live in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act – Requirements for being acceptable stated. (Paras 33 and 34)
Facts of the case:
1. The appellant was married according to the Hindu Customary Rites with one Lakshmi on 25.6.1980. Out of the wedlock with Lakshmi a male child was born, who is now studying in an Engineering college at Ooty. The petitioner is working as a Secondary Teacher in Thevanga Higher Secondary School, Coimbatore.
2. It appears that the respondent-D. Patchaiammal filed a petition under Section 125 Cr.P.C. in the year 2001 in which she alleged that she was married to the appellant herein on 14.9.1986 and since then the appellant herein and she lived together in her father’s house for two or three years. It is alleged in the petition that after two or three years the appellant herein left the house of the respondent’s father and started living in his native place, but would visit the respondent occasionally.
3. It is alleged that the appellant herein deserted the respondent herein two or three years after marrying her in 1986 and she did not have any kind of livelihood and she is unable to maintain herself whereas the respondent 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.
4. The learned Family Court Judge has held that the appellant was married to the respondent and not to Lakshmi. These findings have been upheld by the High Court.
Finding of the Court:
Impugned judgments cannot be sustained.
Result : Appeal allowed.
Key Points: - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!)
JUDGMENT
Markandey Katju, J. —
1. Leave granted.
2. Heard learned counsel for the appellant. None has appeared for the respondent although she has been served notice. We had earlier requested Mr. Jayant Bhushan, learned Senior counsel to assist us as Amicus Curiae in the case, and we record our appreciation of Mr. Bhushan who was of considerable assistance to us.
3. These appeals have been filed against the judgment of the Madras High Court dated 12.10.2009.
4. The appellant herein has alleged that he was married according to the Hindu Customary Rites with one Lakshmi on 25.6.1980. Out of the wedlock with Lakshmi a male child was born, who is now studying in an Engineering college at Ooty. The petitioner is working as a Secondary Teacher in Thevanga Higher Secondary School, Coimbatore.
5. 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 and since then the appellant herein and she lived together in her father’s house for two or three years. It is alleged in the petition that after two or three years the appellant herein left the house of the respondent’s father and started living in his native place, but would visit the respondent occasionally.
6. It is alleged that the appellant herein (respondent in the petition under Section 125 Cr.P.C.) deserted the respondent herein (petitioner in the proceeding under Section 125 Cr.P.C.) two or three years after marrying her in 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.
7. In both her petition under Section 125 Cr.P.C. as well as in her deposition in the case the respondent has alleged that she was married to the appellant herein on 14.9.1986, and that he left her after two or three years of living together with her in her father’s house.
8. Thus it is the own case of the respondent herein that the appellant left her in 1988 or 1989 (i.e. two or three years after the alleged marriage in 1986). Why then was the petition under Section 125 Cr.P.C. filed in the year 2001, i.e. after a delay of about twelve years, shall have to be satisfactorily explained by the respondent. This fact also creates some doubt about the case of the respondent herein.
9. In his counter affidavit filed by the appellant herein before the Family Court, Coimbatore, it was alleged that the respondent (appellant herein) was married to one Lakshmi on 25.6.1980 as per the Hindu Marriage rites and customs and he had a male child, who is studying in C.S.I. Engineering college at Ooty. To prove his marriage with Lakshmi the appellant produced the ration card, voter’s identity card of his wife, transfer certificate of his son, discharge certificate of his wife Lakshmi from hospital, photographs of the wedding, etc.
10. The learned Family Court Judge has held by his judgment dated 5.3.2004 that the appellant was married to the respondent and not to Lakshmi. These findings have been upheld by the High Court in the impugned judgment.
11. 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 vis-‘- vis the appellant is wholly null and void as it will be violative of the rules of natural justice. 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. And if no such declaration could have been given obviously no declaration
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
