The Hindu sages emphatically enjoin upon
every person the duty of maintaining the dependant members
of his family. The following are a few of the many texts on the
MANU: 'The ample support of those who are entitled to
maintenance is rewarded with bliss in heaven; but hell is the
portion of that man whose family is afflicted with pain by his
neglect: therefore let him maintain his family with the utmost
NARADA: 'Even they who are born, or yet unborn and
they who exist in the womb, require funds for subsistence;
deprivation of the means of subsistence is reprehended.'
BRIHASPATI: 'A man may give what remains after the food
and clothing of his family, the giver of more who leaves his
family naked and unfed, may taste honey at first, but still
afterwards find it poison.’ ”
The text of MANU as added reads:
"He who bestows gifts on strangers, with a view to
worldly fame, while he suffers his family to live in distress,
though he has power to support them, touches his lips with
honey, but swallows poison; such virtue is counterfeit: even
what he does for the sake of his future spiritual body, to the
injury of those whom he is found to maintain, shall bring him
ultimate misery both in this life and in the next." "where the women are praised and worshiped, there lies the Gods"
(yathra naryasthu pujyanthe, ramanthe, thatra devatha)." (Wife under 125 means legally wedded wife) The phrase “unable to maintain herself” would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow.
Under the law, the burden is placed in the first place upon the wife to show that the means of her husband are sufficient. In the instant case, there is no dispute that the appellant has the requisite means. But there is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife.
(Nature of proceeding is summary in nature and its basically a civil proceeding.) Grant of interim maintenance is an interlocutory order (Mamta v. ashok M. Viadya 1992 Cr LJ2605 (Bom) ) M.A Rahman V. Venkata Ramamma ( 1980 Cr LJ NOC 3 AP) Conversion to islam will not absolve the person from the liability of maintain his wife and children. Bombay High Court
Bhikaiji Maneckji vs Maneckji Mancherji on 26 February, 1907 the conduct and acts of the husband from which the Court may draw the inference of neglect or refusal to maintain the wife. A neglect or refusal by the husband to maintain his wife may be by words or by conduct. It may be express or implied. If there is evidence of cruelty on the part of the husband towards the wife from which, with other evidence as to surrounding circumstances, the Court can presume neglect or refusal
Patna High Court
Rajesh Kochar vs Reeta Kumari on 18 March, 2002
Equivalent citations: 2002 CriLJ 3357 in the instant case, pertinent question was whether Reeta Kumari had surrendered her right of maintenance contemplated within Section 127(3)(c). It was the case of Reeta Kumari that the alleged agreement surrendering her right of maintenance was obtained under duress. Moreover, simply because in the divorce case before the Lucknow Family Court, the party had filed an agreement paper, that in itself will not suggest that Reeta Kumari had voluntarily surrendered right of maintenance to be claimed under Section 125, Cr.P.C. Voluntary surrender had to be substantiated on the basis of evidence on record. The Court held on the basis of evidence that there was no such case of voluntary surrender of the right of maintenance by Reeta Kumari.
Ceilings on maintainance allowance has been abolished : Supreme Court of India
Manoj Yadav vs Pushpa @ Kiran Yadav on 11 January, 2011 after the amendment to Section 125 Cr.P.C., which is a Central Act, by the Code of Criminal Procedure (Amendment) Act, 2001 which deleted the words "not exceeding five hundred rupees in the whole", all State amendments to Section 125 Cr.P.C. by which a ceiling has been fixed to the amount of maintenance to be awarded to the wife have become invalid. Nanak Chand vs Shri Chandra Kishore Agarwala on 20 May, 1969
Equivalent citations: 1970 AIR SC 446 section provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties. Nandlal Misra vs K. L. Misra on 1 April, 1960
Equivalent citations: 1960 AIR 882 The relief given under this Chapter is essentially of civil nature. It prescribes a summary procedure for compelling a man to maintain his wife or children. The findings of a magistrate under this Chapter are not final and the parties can legitimately agitate their rights in a civil court. This Chapter is a self-contained one. It recognizes the right of a child or wife to claim maintenance. It prescribes the procedure to be followed and provides for the enforcement of the decision of the magistrate. Delhi High Court
Mohd. Shakeel vs Smt. Shaeehna Parveen, And Others on 6 November, 1986 maintenance to the wife which is her right and who has been able to establish it under S. 125 Cr.P.C. cannot be denied merely because the husband has obtained a decree for restitution of conjugal rights against her. The two proceedings, one under S. 125 Cr.P.C. and the other under the respective personal laws of the spouses operate in different spheres though in a very limited area, they do overlap. Generally, they are intended to serve different purposes.The aim and object of this provision under section 125 and other provisions in Chap. IX of the Code is to help the weaker of the two to obtain assistance of the Code in getting maintenance. Discarded or helpless wives, deserted children and destitute parents can get much relief by invoking S. 125 of the Code. In Captain Ramesh Chander Kaushal v. Veena Kaushal and Ors. [AIR 1978 SC 1807], Supreme Court held that Section 125 is a reincarnation of Section 488 of the Cr.P.C. of 1898 except for the fact that parents have also been brought into the category of persons entitled for maintenance. It observed that this provision is a measure of social justice specially enacted to protect, and inhibit neglect of women, children, old and infirm and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. Speaking for the Bench Justice Krishna Iyer observed that- "We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfill. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it is to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause- the cause of the derelicts." Supreme Court of India
Chaturbhuj vs Sita Bai on 27 November, 2007
The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The phrase "unable to maintain herself" in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow.In an illustrative case where wife was surviving by begging, would not amount to her ability to maintain herself. It can also be not said that the wife has been capable of earning but she was not making an effort to earn. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient she can claim maintenance under Section 125 Cr.P.C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband.
In Bhagwan v. Kamla Devi (AIR 1975 SC 83) it was observed that the wife should be in a position to maintain standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression "unable to maintain herself" does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr.P.C. No strict proof of performance of marriage is required:- In Mohabbat Ali Khan v. Mohd. Ibrahim Khan MANU/PR/0068/1929 : AIR 1929 PC 135 the Privy Council has laid down that the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years. In Gokal Chand v. Parvin Kumari MANU/SC/0077/1952 : AIR 1952 SC 231, Supreme Court held that continuous cohabitation of man and woman as husband and wife may raise the presumption of marriage, but the presumption which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them Dwarika Prasad Satpathy vs Bidyut Prava Dixit And Another on 14 October, 1999 Supreme Court held that no strict proof of performance of marriage is required if the claimant prima facie satisfied the Court that claimant and her husband lived as husband and wife . The Court also observed that the standard of proof of marriage in proceedings under Section 125(1) of CrPC is not as strict as required in trial of offences under Section 494 of the Indian Penal Code.
It is to be remembered that the order passed in an application under Section 125 Cr.P.C. does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide summary remedy for providing maintenance to a wife, children and parents.
Supreme Court opined that if the claimant in proceedings under Section 125(1) of CrPC succeeds in showing that she and the respondent have lived together as husband and wife, the court can presume that they are legally wedded spouse, and in such a situation, the party who denies the marital status can rebut the presumption.
That once it is admitted that the marriage procedure was followed then it is not necessary to further probe into whether the said procedure was complete as per the Hindu Rites in the proceedings under Section 125(1) of CrPC. From the evidence which is led if the Magistrate is prima facie satisfied with regard to the performance of marriage in proceedings under Section 125(1) of CrPC which are of summary nature strict proof of performance of essential rites is not required. ( view reiterated in Kamala Vs. M.R. Mohan Kumar Decided On: 24.10.2018)
ANIRBAN GHOSH vs SANCHITA GHOSH on 03.12.2019.
SC actually enhanced order of maintenance to daughter with regard being had to her age. So age may be a factor in enhancement of maintenance. "Since the daughter is stated to be aged about 16 years, in modification of Order of this Court dated 05.10.2018, we direct the appellant to pay the maintenance of Rs.20,000/- (Rupees Twenty Thousand) per month to the daughter, instead of Rs.15,000/- as ordered earlier, in the same manner, either by way of RTGS or by way of Demand Draft/Cheque, until further orders from this Court." Shailja & Anr. v. Khobanna Criminal Appeal Nos. 125-126 of 2017 (Special Leave Petition (Crl.) Nos. 6025-6026 of 2013) merely because the wife is capable of earning it is not a reason to reduce the maintenance awarded to her and said that whether a wife is capable of earning and is actually earning are two different factors.
Supreme Court - Daily Orders
Sanju Devi vs The State Of Bihar on 6 December, 2017
An argument was submitted by learned counsel for the respondent – husband that there is already a decree of judicial separation and in view of Section 125(4) of the Code of Criminal Procedure, 1973, the petitioner is not entitled to any maintenance. Supreme court noted this argument only to reject it since it find no substance in this argument. If a divorced wife is entitled for maintenance there is no reason why a wife who is judicially separated is not entitled for maintenance.
Sukhjinder Singh Saini vs Harvinder Kaur (Delhi High Court judgment) CRL.REV.P. 494/2015 and Crl.M.A.No. 11437/15, decided on November 10, 2017 That it is a settled principle of law that both the parents have a legal, moral and social duty to provide to their child the best education and standard of living within their means.
That the mere fact that the spouse with whom the child is living is having a source of income, even if sufficient, would in no way absolve the other spouse of his obligation to make his contribution towards the maintenance and welfare of the child.
That monetary relief can be granted to meet the expenses incurred and losses suffered by the aggrieved person and the child of the aggrieved person as a result of the domestic violence. Prakash Babulal Dangi v. The State of Maharashtra on 10 October, 2017 In this case, the wife had initially claimed maintenance under Section 125 CrPC and the Court had awarded maintenance of Rs. 6000 to the wife and Rs. 4000 to her minor daughter. While the case under Section 125 of CrPC was pending, a case was filed and an interim maintenance was sought by the wife under Domestic Violence Act, whereby the husband was directed to pay maintenance of Rs. 8000 and Rs. 5000 to wife and daughter respectively.
In aforesaid context, the Bombay High Court made reference to Section 36 of Domestic Violence Act, 2015 which entails that the provisions of the Act shall be in addition to, and not in derogation of the provisions of any other law and held that that the amount of maintenance awarded under the Domestic Violence Act cannot be substituted to the order of maintenance under Section 125 of CrPC. ( Even though this judgment was stayed by the Supreme Court yet it did not hold the grant of maintenance to be granted to wife under domestic violence act)
Manoj Kumar v. Champa Devi, Special Leave to Appeal (Crl.) No(s).10137/2015 The Supreme Court, upholding an order of the Himachal Pradesh High Court, granted maintenance to a divorced wife who had deserted her husband. Her husband had obtained divorce on the ground of desertion, and opposed her maintenance petition on the strength of an exception under Sec. 125(4) of the Criminal Procedure Code. This subsection states that a woman is not entitled to maintenance if she refuses to cohabit with her husband without any reasonable cause. Reiterating its earlier position, the Court stated that a divorced wife also falls within the purview of Sec. 125 CrPC, and is thus entitled to maintenance. Anil S/o Shri Suganchandra Jain vs. Smt. Sunita W/o Shri Anil Kumar Jain [Criminal Revision No. 829 of 2014; decided on 29 November 2016]. In the factual matrix of this case, the wife left her husband’s home and resided at her matrimonial home. The husband claimed that he went to bring her wife back but she refused. The wife in the case had claimed maintenance from her husband of Rs. 5000.
The husband in the case claimed that the wife without any sufficient reason was refusing to stay with him and also that she was an advocate and capable of earning and still was demanding maintenance.
in this context, the Madhya Pradesh High Court denied maintenance to the wife and observed that in view of the facts of the case, wife resided in her matrimonial home for the first time for 7 days and second time for 12 days and it is alleged that in these 12 days she was harassed. It is practically impossible that she could have been so harassed that it is impossible for her to live in her matrimonial home. After 12 days she had voluntarily gone with her brother with a view to select a girl for marriage of her brother. Thus, it cannot be held that she was thrown with force from her matrimonial home or she was forced to leave her matrimonial home. in the case of Badri Prasad v. Dy. Director of Consolidation & Ors. [(1978) 3 SCC 527], the Supreme Court held that a strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife.
Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin.
In Tulsa and Ors. v. Durghatiya & Ors. [2008 (4) SCC 520], this Court held that where the partners lived together for a long spell as husband and wife, a presumption would arise in favour of a valid wedlock.
In Vimala (K) v. Veeraswamy (K) [(1991) 2 SCC 375], a three-Judge Bench of this Court held that Section 125 of the Code of 1973 is meant to achieve a social purpose and the object is to prevent vagrancy and destitution. Explaining the meaning of the word `wife' the Court held:
"...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 kept-mistress 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... " Supreme Court of India
Chanmuniya vs Virendra Kumar Singh Kushwaha & ... on 7 October, 2010 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.
Second Wife can also Claim Maintenance u/ Section 125(1) of CrPC
Badshah vs Sou. Urmila Badshah Godse & Anr.– In this case, the marriage between the petitioner and respondent was solemnized; respondent co-habited with the petitioner after the said marriage a child was begotten out of the said co-habitation, whose biological father was the petitioner. The crux of the matter lies in the fact that at the time when the petitioner married the respondent, he had a living wife and the said marriage was still subsisting. Thus, the issue that fell for consideration before the Supreme Court was whether in such circumstances, the respondent could filed application under Section 125(1) of CrPC?
The Supreme Court in the case while ruling in favour of the respondent opined that the provision of maintenance would definitely fall in this category which aims at empowering the destitute and achieving social justice or equality and dignity of the individual. While dealing with cases under this provision, drift in the approach from “adversarial” litigation to social context adjudication is the need of the hour.
The Court held that an expansive and purposive interpretation needs to be given to the provisions of Section 125(1) of CrPC.
The Apex Court remarked that while dealing with the application of destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalized sections of the society. The purpose is to achieve “social justice” which is the Constitutional vision, enshrined in the Preamble of the Constitution of India. Preamble to the Constitution of India clearly signals that we have chosen the democratic path under rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the Courts to advance the cause of the social justice. While giving interpretation to a particular provision, the Court is supposed to bridge the gap between the law and society. The Court as the interpreter of law is supposed to supply omissions, correct uncertainties, and harmonize results with justice through a method of free decision—“libre recherché sceintifique” i.e. “free Scientific research”. We are of the opinion that there is a non-rebuttable presumption that the Legislature while making a provision like Section 125(1) of CrPC to fulfill its Constitutional duty in good faith, had always intended to give relief to the woman becoming “wife” under such circumstances. Gauhati High Court
Sri Sabita Deka vs Shri Babul Deka on 4 September, 2017
In this case, a proceeding, under Section 125(1) of CrPC, was initiated by the petitioner against the present respondent claiming monthly maintenance allowance from the respondent. According to the petitioner wife, the respondent married her by executing a registered agreement at Guwahati, and, after the agreement was executed, he had put vermilion on her forehead accepting her as his wife in presence of village people.
However, the respondent contested the proceeding by denying the marriage and claiming that the present petitioner is not his wife and was not entitled to any maintenance allowance.
The High Court of Gauhati held that the fact of marriage was substantiated by the fact that respondent had put vermilion on the forehead of the petitioner, meaning thereby, that he had married her.
The High Court also made reference to Apex Court’s verdict in the case of Savitaben Somabhai Bhatiya v. State of Gujarat & ors. wherein it was held that by putting vermilion on the forehead of the petitioner by the respondent, the marriage procedure was followed, and as such, it was not necessary for the petitioner to prove further as to whether the said procedure was completed as per Hindu rites, in a proceeding under Section 125(1) of CrPC.
Ganesh v. Sudhirkumar Srivastava and Ors., Civil Appeal No. 4031-4032 of 2019 (in my view judgment of supreme court in this case is wrong) In the present matter, the parties had entered into divorce through mutual consent. One of the terms of the settlement between the parties was that the applicant i.e. the mother has released the right of monthly maintenance to the daughter with the non-applicant i.e. father. The applicant has fully accepted responsibility for the child’s livelihood, education and health.
The Supreme Court though accepted the terms of settlement, it expressed its disapproval with reference to the aforesaid term. The Court stated that it was certainly open to the wife to give up any claim so far as maintenance or permanent alimony or stridhan but she could not have given up the rights which vest in the daughter insofar as maintenance and other issues are concerned.
Taking the aforesaid view, the Apex Court while exercising it’s powers under Article 142 of the Constitution of India, set-aside the impugned clause of the Consent Terms. Bombay High Court, in the matter of Ramchandra Laxman Kamble vs Shobha Ramchandra Kamble and Anr, Writ Petition No 3439 of 2016, while dealing with the right to maintenance under Section 125 CrPC, had held that even if the wife gave up or relinquished her right to claim maintenance, at any time in the future, it was opposed to public policy and therefore such an agreement, even if voluntarily entered into, would not be enforceable.
In the matter of Ranjit Kaur vs Pavittar Singh, 1992 CriLJ 262, a division bench of Punjab and Haryana High Court had to decide whether a wife who had voluntarily surrendered her right to maintenance in divorce proceedings, would not be entitled to claim subsequently maintenance allowance under Section 125 of the Code of Criminal Procedure. The court held:
“That right under S125 is a statutory right which the legislature has framed irrespective of the nationality, cast or creed of the parties. The statutory liability imposed by this Section is, therefore, distinct from the liability under any other law. Thus, where it is proved to the satisfaction of the Court that there is a refusal or neglect on the part of the husband to maintain his wife, children or parents, none of them can be deprived of the maintenance. This right being a right to survival or livelihood essentially survives and lives every moment of life of the person entitled to be maintained. Therefore, this statutory right of a wife to maintenance cannot be bartered, done away with or negatived by the husband by setting up an agreement to the contrary. Such an agreement in addition to it being against public policy would also be against the clear intendment of this provision. Giving effect to an agreement which over-rides this provision of law, would tantamount to not only giving recognition to something which is opposed to public policy but would also amount to negation of it."
Though the phrase "public policy" or "opposed to public policy" has neither been defined in the Contract Act nor anywhere else, yet by now in the light of various authoritative pronouncements of different Courts, including the final one, (Central Inland Water Transport Corporation Ltd. v. Tarun Kanti Sengupta, AIR 1986 SC 1571), it has come to acquire a definite meaning. It connotes some matter which concerns the public good and the public interest. In any case, it can broadly stated to be equivalent to the policy of law. Therefore, giving effect to an agreement which overrides this provision of law, that is, Section 125, Code of Criminal Procedure, would tantamount to not only giving recognition to something which is opposed to public policy but would also amount to negation of it. The law makes a clear distinction between a void and illegal agreement and a void but legal agreement. In the former case, the legislature penalises it or prohibits it. In the later case, it merely refuses to give effect to it. That is what exactly Section 23 of the Contract Act provides for. We are thus clearly of the opinion that the agreement of the type referred to in the question posed may not per se be illegal but it cannot be given effect to being a negation of the statutory right as provided for in this section and being opposed to public policy. In an authoritative pronouncement of the Apex Court in Bai Tahira v. Ali Hussain Fissalli Chothia, AIR 1979 SC 362 : (1979 Cri LJ 151). The facts of the case were that in a suit relating to a flat in which the husband had housed the wife resulted in a compromise decree which also settled the marital disputes. The decree recited that the respondent had transferred the suit premises, namely, a flat in Bombay, to the appellant and also the shares of the Co-operative Housing Society which built the flat concerned. There was a reference to mehar money (Rs. 5,000/- and 'iddat' money Rs. 180) which was also stated to have been adjusted by the compromise terms. There was a clause in the compromise:
"The plaintiff declares that she has now no claim or right whatsoever against the defendant or against the estate and the properties of the defendant,"
Later, during the course of proceedings initiated by the wife under Section 125 of the Code, one of the contentions raised to defeat her claim related to the above noted contractual arrangement as recorded in the consent decree. The Supreme Court negatived the contention with the following observations (paras 10 and 12 of AIR 1979 SC 362) :--
"No settlement of claims which does not have the special statutory right of the divorce under Section 125 can operate to negate that claim."....
Whether woman having live-in-relationship with married man is entitled to get maintenance?
In D. Velusamy v. D. Patchaiammal, MANU/SC/0872/2010 : the Hon'ble Apex Court, while looking into the question whether the appellant-husband therein would be entitled to maintain the respondent-wife, gave certain findings with regard to holding a live in relationship to be valid that is, if the couple held 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 and held themselves out to the world as being akin to spouses for a significant period of time. What is noteworthy in this judgment is the opinion that the parties must be otherwise qualified to enter into a legal marriage. In the case of Badri Prasad v. Dy. Director of Consolidation and Others, MANU/SC/0004/1978 : 1978 (SLT Soft) 149 : MANU/SC/0004/1978 : 1978 AIR (SC) 1557, the Hon'ble Apex Court held that there was a presumption in favour of wedlock and that law leaned in favour of legitimacy and frowned upon bastardy in a situation where the parties had been in live in relationship for about 50 years. In Lata Singh v. State of U.P. [AIR 2006 SC 2522] it was observed that a live-in relationship between two consenting adults of does not amount to any offence even though it may be perceived as immoral. However, in order to provide a remedy in Civil Law for protection of women, from being victims of such relationship, and to prevent the occurrence of domestic violence in the society, first time in India, the DV Act has been enacted to cover the couple having relationship in the nature of marriage, persons related by consanguinity, marriages etc. We have few other legislations also where reliefs have been provided to woman placed in certain vulnerable situations. Supreme Court of India
Indra Sarma vs V.K.V.Sarma on 26 November, 2013 Hon'ble Apex Court went into the question whether a "live in relationship" would amounts to a "relationship in the nature of marriage", falling within the definition of "domestic relationship" under Section 2(F) of the Protection of Women from Domestic Violence Act, 2005 and whether the failure to maintain a women involved in such a relationship amounts to "domestic violence" within Section 3 of the DV Act. The Hon'ble Apex Court, delineated upon the definition of "domestic relationship", "domestic violence", "marriage", as well as "relationship in the nature of marriage" and on the basis of discussion culled out some guidelines for testing under what circumstances a live in relationship would fall within the expression "relationship in the nature of marriage" as under:
"We may, on the basis of above discussion cull out some guidelines for testing under what circumstances, a live-in relationship will fall within the expression "relationship in the nature of marriage" under Section 2(f) of the DV Act. The guidelines, of course, are not exhaustive, but will definitely give some insight to such relationships.
(1) Duration of period of relationship
Section 2(f) of the DV Act has used the expression "at any point of time", which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation.
(2) Shared household
The expression has been defined under Section 2(s) of the DV Act and, hence, need no further elaboration.
(3) Pooling of Resources and Financial Arrangements Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long term investments inbusiness shares in separate and joint names, so as to have a long standing relationship, may be a guiding factor.
(4) Domestic Arrangements
Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or upkeeping the house, etc. is an indication of a relationship in the nature of marriage.
(5) Sexual Relationship
Marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring, etc.
Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long standing relationship. Sharing the responsibility for bringing up and supporting them is also a strong indication.
(7) Socialization in Public
Holding out to the public and socializing with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.
(8) Intention and conduct of the parties
Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship." Can maintenance be rejected because wife is drawing more salary than the husband ? if difference is not at all substantial ? (in the case reproduced below , the argument that wife earns more than husband was rejected by the High Court) Amit Kumar v. Navjot Dubey CR No.6198 of 2013 (Punjab and Haryana High Court)
Decided on: 12.12.2016 "the parties
performed marriage on 10.10.1999 and two children one son and a
daughter born out of their wedlock have been residing with the
respondent – wife. The respondent – wife is working as a teacher in a
government school and the petitioner – husband is working in the office
of S.P. Kandi Township. The wife is drawing salary more than the
husband and there is difference of approximately Rs.10,000/- in the
gross emoluments of the wife viz-a-viz that of the husband. As per the
settled position in law, the wife is entitled to enjoy the same amenities
of life as she would have been had she been staying in the matrimonial
home. Taking into consideration prices of daily necessities of life,
expenses on education of the children who have to meet the challenges
of the society and face peer pressure, I find it difficult to accept
contention of the petitioner that maintenance pendente lite assessed by
the Court below is on higher side and requires reduction." Denial Of Maintenance Is A Continuing Cause Of Action; Claim Not Time Barred After 3 Years ANTHONY JOSE v. STATE OF NCT OF DELHI & ORS W.P.(CRL) 2325/2017 Relying on Supreme Court precedent Arun Vyas Vs. Anita Vyas (1999) 4 SCC 690, the Delhi High court held that matrimonial offences are to be treated as continuing offence under Section 472 CrPC. The Court referred to Section 473 of the CrPC, which enjoins the Court to condone or ignore delay in the interests of justice. The Court referred to Supreme court's decision Vanka Radhamanohari Vs. Vanka Venkata Reddy (1993) 3 SCC 4, which held that while considering question of limitation in complaints of domestic violence, courts should examine the issue from the angle of "interest of justice" under Section 473 CrPC. Because, criminal complaints are filed in matrimonial cases as a last resort most often. Maintenance Claim under Domestic Violece Act Not time barred.
Right to maintenance accrues since inception of marriage:- Bimla Devi Vs Shamsher Singh (2015) 224 DLT (CN8) 8 where it was observed “Maintenance is a right which accrues to a wife against her husband since the inception of her getting married with him. A moral and legal obligation and duty is cast upon the husband to maintain his wife. The necessary corollary is that from the time the wife starts residing separately from her husband, she can claim maintenance from him”.
NISHA SAIFI vs MOHD SHAHID on 03.04.2019 One has to look at the nature of the maintenance awarded under section 125 Cr.P.C. If the object of section 125 Cr.P.C is to afford subsistence allowance to the wife, who is not able to maintain herself, then the award normally should be from the date of the application”.“For the court to award maintenance from the date of the order there have to be compelling circumstances for the court to take such a view. Maintenance awarded to a wife is not a bounty. It is awarded to her so that she can survive. The fact that time is spent between the date of the application and a final adjudication and an award in favour of the wife, does not mean that she had enough funds to maintain herself. When the trial court comes to conclusion that wife is entitled to an award of maintenance, the assessment in fact relates back to the date of the application. When the assessment relates back to the date of the application then there have to be compelling circumstances for the trial court to restrict the award of maintenance to a period post the date of the application”. maintenance is awarded to a wife so that she can survive and it is not a bounty, normally it should be awarded from the date of the application and for valid reasons, to be recorded, from the date of the order" Ajay Kumar vs. Latha @ Sharuti CRIMINAL APPEAL NO(S). 617 OF 2019 Supreme Court has observed that a brother in law can be ordered to pay maintenance to a widow.
In this case, the lady and her deceased husband were residing at a house which constitutes ancestral Hindu Joint Family Property.The deceased husband and the brother in law jointly carried on a business of a kiryana store.
The woman, filed a complaint under Domestic Violence Act alleging that, after the death of her husband she and her child was not permitted to reside in her matrimonial home. The Trial court passed an interim order granting monthly maintenance in the amount of Rs 4,000 to the woman and Rs 2,000 to the child. The brother in law was directed to pay the said amount. This order came to be affirmed by the High court. Supreme Court observed that substantive part of Section 2(q) indicates that the expression "respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom relief has been sought. It said
"The proviso indicates that both, an aggrieved wife or a female living in a relationship in the nature of marriage may also file a complaint against a relative of the husband or the male partner, as the case may be.. Section 2(f) defines the expression 'domestic relationship' to mean a relationship where two persons live or have lived together at any point of time in a shared household when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are members living together as a joint family…. All these definitions indicate the width and amplitude of the intent of Parliament in creating both an obligation and a remedy in the terms of the enactment." "Ultimately, whether the requirements of Section 2(f); Section 2(q); and Section 2(s) are fulfilled is a matter of evidence which will be adjudicated upon at the trial. At this stage, for the purpose of an interim order for maintenance, there was material which justifies the issuance of a direction in regard to the payment of maintenance."
A condition for future automatic cost may be imposed for non payment of maintenance:- Mukesh Kumar Grover vs State on 17.06.2019.