The law provides for presumption of marriage. Where parties have cohabited together for a certain period of time, then the courts can construe a presumption of marriage and hence apply the rules of marriage. Read on to find out more
The Hon’ble Supreme Court in a path breaking judgment in Chanmuniya Vs. Chanmuniya Virendra Kumar Singh Kushwaha and Anr(2011)1SCC141 held that “Where partners lived together for a long spell as husband and wife, a presumption would arise in favour of a valid wedlock”
The appellant contended that she and the first respondent after their ‘marriage’ lived together as husband and wife and discharged all marital obligations towards each other. The appellant further contended that after some time the first respondent started harassing and torturing the appellant, stopped her maintenance and also refused to discharge his marital obligations towards her.
A trend has evolved among unmarried couples to live together as husband and wife, after they have attained the age of majority. Some of these couples never contract a legally binding marriage. Difficult consequences flow from such relationships due to one reason or another and the relationship may come to an end. In such cases we find that couples who had invested heavily in the relationship both financially and emotionally felt disgruntled. And the disgruntled persons in such relationships think that since there was no legally recognized marriage, they cannot resort to the law in acquiring their property back or in some instances getting compensation. In the case of Chanmuniya Vs. Chanmuniya Virendra Kumar Singh Kushwaha and Anr, the appellant has been married off to one Virendra Kumar Singh in accordance with the local custom of Katha and Sindur. The High Court in its findings opined that the essentials of a valid Hindu marriage, as required under Section 7 of the Hindu Marriage Act, was not performed, thus the respondent was not the husband of the appellant.
The parties might not have performed the statutory essentials of a valid marriage, but they had entered into this relationship with the intention to marry and to live as husband and wife before the eyes of society. It was clearly stated down in the facts of the case that the appellant and respondent lived together as husband and wife and discharged all marital obligations towards each other. The law provides for presumption of marriage. Where parties have cohabited together for a certain period of time, then the courts can construe a presumption of marriage and hence apply the rules of marriage to deal with issues of those parties. All parties that seek to rely on the presumption of marriage must prove that indeed a union existed, and such a union can be challenged only by strong and satisfactory evidence (Lousia Adelaide Piers and Florence A.M. De Kerriguen v. Sir Henry Samuel Piers (1849) II HLC 331).
In the instant case the appellant and the respondent have been staying together as man and wife for a considerable period of time. The people around them must have believed, from their conduct that the parties were husband and wife. The parties must be living or have lived in one household and behaved in a way that led others to believe that they were husband and wife. A relationship, which may be adulterous at the beginning, may become matrimonial. This may be evidenced by habit and repute (In Lieutenant C.W. Campbell v. John A.G. Campbell (1867) Law Rep. 2 HL 269). Courts also insist that such unions should be qualitative and quantitative. The cohabitation should be long, continuous, having substance and not periodical. Parties should be living under one roof, do things together like acquiring property, and maybe even have children together, which would then move the relationship from the realm of concubinage to marriage. The Privy Council laid down the general proposition that where a man and woman are proved to have lived together as man and wife, the law will presume, unless, the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in estate of concubinage ( A. DINOHAMY V. W.L. BALAHAMY AIR 1927 P.C. 185).
The next question as to whether claim of maintenance can be sought under Section. 125 of Cr.P.C. if valid marriage is presumed and what ‘wife’ under Section 125 of Cr.P.C. means especially having regard to explanation under Clause (b) of the Section, is answered here as follows. The objectives of Section-125 of Cr.P.C are to achieve a social purpose and to prevent vagrancy and destitution.
The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a keptmistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage. The term ‘wife’ in Section 125 of the Code of Criminal Procedure includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term ‘wife’ consistent with the objective (VIMALA (K) V. VEERASWAMY (K) MANU/SC/0719/1991: (1991) 2 SCC 375).
Thus, in those cases where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay the woman maintenance if he deserts her. The man should not be allowed to benefit from the legal loopholes by enjoying the advantages of a de facto marriage without undertaking the duties and obligations. Any other interpretation would lead the woman to vagrancy and destitution, which the provision of maintenance in Section 125 is meant to prevent.
The Committee on Reforms of Criminal Justice System, headed by Dr. Justice V.S. Malimath, in its report of 2003 opined that evidence regarding a man and woman living together for a reasonably long period should be sufficient to draw the presumption that the marriage was performed according to the customary rites of the parties. Thus, it recommended that the word ‘wife’ in Section 125 Cr.P.C. should be amended to include a woman who was living with the man like his wife for a reasonably long period. The Constitution Bench of this Court in Mohammad Ahmed Khan v. Shah Bano Begum and Ors, considering the provision of Section 125 of the 1973 Code, opined that the said provision is truly secular in character and is different from the personal law of the parties. The Court further held that such provisions are essentially of a prophylactic character and cut across the barriers of religion. The Court further held that the liability imposed by Section 125 to maintain close relatives, who are indigent, is founded upon the individual’s obligation to the society to prevent vagrancy and destitution.
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