Court : The Supreme Court Of India
Citation : Reference: Slp (Civil) No.15071 Of 2009)
Judgement Summary: Chanmuniya Vs Virendra Kumar Singh Kushwaha And Another
Date Of Judgement: 7 October, 2010
Judges: G.S. Singhvi, Asok Kumar Ganguly
Parties: Chanmuniya ( Appellant) Virendra Kumar Singh Kushwaha & Another
Facts Of The Case:
- Sarju Singh Kushwaha had two sons. Ram Saran was the elder son, and Virendra Kumar Singh Kushwaha was the younger one. Virendra Kumar Singh Kushwaha was also Respondent No. 1 in this case.
- The Appellant- Chanmuniya was married to Ram Saran. Their first daughter Asha was born in 1988, and their second daughter Usha was born in 1990. Ram Saran died on 07/03/1992.
- The Kushwaha community had an alleged custom wherein, after the husband's death, the widow was married off to the younger brother of the dead husband. It was called Katha and Sindur.
- The Appellant contended that in line with this custom, she was married off to Respondent No. 1 in 1996.
- The Appellant contended that Respondent No. 1 and the Appellant started living together as husband and wife. They discharged all marital obligations towards each other.
- The Appellant further contended that after some time, Respondent No. 1 started torturing and harassing her, stopped her maintenance and also refused to discharge his marital obligations towards her.
- Therefore, she initiated proceedings under Section 125 of the Cr.PC. for maintenance (No.20/1997) before the 1st Additional Civil Judge, Mohamadabad, Ghazipur. The said proceedings were still pending.
- The Appellant also filed a suit (No.42/1998) in the Court of 1st Additional District Judge, Ghazipur under Section 9 of the Hindu Marriage Act for the restitution of conjugal rights.
- The Trial Court directed Respondent No.1 to live with the Appellant and fulfil his marital obligations towards the Appellant. It was of the opinion that the Appellant had married Respondent No.1 after the death of her 1st husband Ram Saran, and Respondent No.1 had deserted the Appellant after that. The Trial Court decreed the suit for restitution of conjugal rights in favour of the Appellant on 03/01/2004.
- Respondent No.1 preferred the first appeal (No. 110/2004) under Section 28 of the Hindu Marriage Act. The primary issue in the appeal was whether there was any evidence to prove that the Appellant was the legally wedded wife of Respondent No.1. In its judgement dated 28/11/2007, the High Court was of the opinion that the essentials of a valid Hindu marriage, as required under Section 7 of the Act, were not fulfilled between the parties and held that Respondent No.1 was not the husband of the Appellant. Thus, the High Court reversed the findings of the Trial Court.
- Aggrieved by this judgement, the Appellant sought a review of the High Court's judgement dated 28/11/2007. On the ground that there was no error apparent on the face of the judgement, the review petition was dismissed on 23/01/2009.
- Therefore, the Appellant approached the Supreme Court, by way of a special leave petition, against the impugned High Court orders dated 28/11/2007 and 23/01/2009.
Relevant Section Involved
Section 125. Order for maintenance of wives, children and parents.
- Whether the cohabitation of a man and woman as husband and wife for an
appreciable period would raise the conjecture of a valid marriage between
them and whether such a conjecture would designate the woman to maintenance
under Section 125 Cr. P.C
- Whether rigid proof of marriage is imperative for a claim of maintenance
under Section 125 Cr. P.C taking into consideration the provisions of the Domestic
Violence Act, 2005?
- Whether a marriage performed according to traditional customs and
ceremonies, without strictly fulfilling the prerequisites of Section 7(1) of
the Hindu Marriage Act, 1955, or any other personal law would designate the
woman to maintenance under Section 125 Cr.P.C.?
- If any person having sufficient means neglects or refuses to maintain:
- his wife, unable to maintain herself, or
- his legitimate or illegitimate minor child, whether married or not,
unable to maintain itself, or
- his legitimate or illegitimate child (not being a married daughter) who
has attained majority, where such child is, by reason of any physical or
mental abnormality or injury unable to maintain itself, or
- his father or mother, unable to maintain himself or herself,
a Magistrate of the first class may, upon proof of such neglect or refusal,
order such person to make a monthly allowance for the maintenance of his wife or
such child, father or mother, at such monthly rate 1* * * as such Magistrate
thinks fit and to pay the same to such person as the Magistrate may from time to
Provided that the Magistrate may order the father of a minor female child
referred to in clause (b) to make such allowance, until she attains her
majority, if the Magistrate is satisfied that the husband of such minor female
child, if married, is not possessed of sufficient means:
2[Provided further that the Magistrate may, during the pendency of the
proceeding regarding monthly allowance for the maintenance under this
sub-section, order such person to make a monthly allowance for the interim
maintenance of his wife or such child, father or mother, and the expenses of
such proceeding which the Magistrate considers reasonable, and to pay the same
to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim
maintenance and expenses of proceeding under the second proviso shall, as far as
possible, be disposed of within sixty days from the date of the service of
notice of the application to such person.]
Explanation: For the purposes of this Chapter,
(a) "minor" means a person who, under the provisions of the Indian Majority Act,
1875 (9 of 1875) is deemed not to have attained his majority;
(b) "wife" includes a woman who has been divorced by, or has obtained a divorce
from, her husband and has not remarried.
3[(2) Any such allowance for the maintenance or interim maintenance and expenses
of proceeding shall be payable from the date of the order, or, if so ordered,
from the date of the application for maintenance or interim maintenance and
expenses of proceeding, as the case may be.]
- If any person so ordered fails without sufficient cause to comply with
the order, any such Magistrate may, for every breach of the order, issue a
warrant for levying the amount due in the manner provided for levying fines,
and may sentence such person, for the whole or any part of each months
4[allowance for the maintenance or the interim maintenance and expenses of
proceeding, as the case may be,] remaining unpaid after the execution of the
warrant, to imprisonment for a term which may extend to one month or until
payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due
under this section unless application be made to the Court to levy such amount
within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of
her living with him, and she refuses to live with him, such Magistrate may
consider any grounds of refusal stated by her, and may make an order under this
section notwithstanding such offer, if he is satisfied that there is just ground
for so doing.
If a husband has contracted marriage with another woman or keeps a
mistress, it shall be considered to be just ground for his wifes refusal to live
- No wife shall be entitled to receive an 5[allowance for the maintenance
or the interim maintenance and expenses of proceeding, as the case may be,]
from her husband under this section if she is living in adultery, or if,
without any sufficient reason, she refuses to live with her husband, or if
they are living separately by mutual consent.
- On proof that any wife in whose favour an order has been made under this
section in living in adultery, or that without sufficient reason she refuses to
live with her husband, or that they are living separately by mutual consent, the
Magistrate shall cancel the order.
The Contention By The Appellant:
According to the custom of Katha and Sindur, the Appellant was married to
Respondent No. 1 started torturing and harassing the Appellant after some time.
He also stooped her maintenance and stopped performing his marital obligations
The Contention By The Respondent:
There was no evidence to prove that the Appellant was the legally wedded wife of
The presumption of marriage is much stronger than a presumption in regard to
When it is proved that a man and woman were living together as husband and wife,
the law will presume, unless the contrary is clearly established, that they were
living together as a consequence of a valid marriage and not in a state of
The primary objective of section 125 of the Cr.PC. is to prevent poverty and
vagrancy of women, children and old people.
If a man has lived with a woman for a long time, then he must be held
accountable and pay the woman maintenance if he deserts her. It does not matter
if they haven't completed all the legal formalities of a valid marriage.
The Domestic Violence Act 2005 attributes a very broad meaning to the term
'domestic abuse' and also includes economic abuse within its purview. The Act
also gives a very wide interpretation to the term 'domestic relationship' and
includes even live-in relationships in that meaning. Section 26 of the Act
mentions that the reliefs stated in the Act can be sought in any legal
proceedings before any civil, family or criminal court.
A broad and expansive interpretation should be given to the term 'wife' to
include even those cases where a man and woman have been living together as
husband and wife for a reasonably long period of time. Strict proof of marriage
should not be a pre-condition for maintenance under Section 125 of the Cr.P.C,
so as to fulfil the true spirit and essence of the beneficial provision of
maintenance under Section 125.
The parties of the case lived together, and their marriage was solemnized by the
social custom of Katha and Sindur. By this social custom, they were treated as
husband and wife.
Section 125 of the Cr.PC. serves a very important social justice function. It
falls within the constitutional purview of Articles 15(3) and 39 of the Indian
A man should not be able to take advantage of legal loopholes by enjoying the
benefits of a de facto marriage without taking any responsibilities and
The two-judge Bench was of the opinion that the monetary reliefs and
compensations provided to women in live-in relationships under the 2005 Act must
also be allowed to the proceedings under Section 125 of the Cr.PC.
The two-judge Bench requested the Chief Justice of India to refer the following,
amongst other, questions to a larger bench:
Whether the living together of a man and woman as husband and wife for a
considerable period of time 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?
Whether strict proof of marriage is essential for a claim of maintenance under
Section 125 Cr.P.C. having regard to the provisions of Domestic Violence Act,
Whether a marriage performed according to customary rites and ceremonies,
without strictly fulfilling the requisites of Section 7(1) of the Hindu Marriage
Act, 1955, or any other personal law would entitle the woman to maintenance
under Section 125 Cr.P.C.?
In the present eon, a movement has evolved among unmarried couples to live
together as husband and wife as long as they have attained the age of majority.
Some of these couples never obligate a legally binding marriage. Difficult
ramifications flow from such relationships where due to one reason or another,
the relationship may come to an end. In such cases, we find that couples had
devoted heavily to the relationship both financially and emotionally.
The disappointed persons in the relationship think that since there was no
legally recognized marriage, they cannot make a reference 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 have been married to one Virendra Kumar Singh in accordance with the
local traditions of Katha and Sindur.
The High Court in its findings has surmised that the preconditions of a valid
Hindu marriage, as required under Section 7 of the Hindu Marriage Act, had not
been performed, thus the respondent was not the husband of the appellant. But
the SC said that even if the parties may not have performed the sanctioned
essentials of a valid marriage, but they had entered into this relationship with
the animus to marry and to be called as husband and wife before the eyes of the
society. It was lucidly stated down in the facts of the case that the appellant
and respondent had been living together as husband and wife and had been
performing all marital obligations towards each other for some time.
The law provides for the hypothesis of marriage. In the instant case, the
appellant and the respondent have been living together as man and wife for a
sufficient period of time. The people around them must have supposed, from their
manner that the parties are husband and wife. The parties must be living or
should have lived in one household and behaved in a way that led others to
believe that they were husband and wife.
The objectives of Section-125 of Cr.P.C are to achieve a social purpose and to
avoid vagrancy and destitution. So in light of this, the court held that the
questions raised by the petitioner should be referred to a larger bench of the
SC and in their view, the interpretation they have given would be a just
application of the principles enshrined in the preamble of the constitution.
The two-judge Bench was inclined to take a broad view of the term 'wife'.
However, there were cases wherein the Supreme Court had taken a contrary view.
Therefore, the two-judge Bench had to respect the past judgements of the Court.
It was evident that the Courts must take cognizance of the fast-changing social
context of our country while interpreting statutory provisions which have social
Award Winning Article Is Written By: Mr.Burhan U Din Bashir
Authentication No: OT328523029268-12-1023