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What constitutes maintenance?
[Savitaben Somabhai Bhatiya v State of Gujarat and Others (2005)]
Under Indian law, the term ‘maintenance’ includes an entitlement to food, clothing and shelter, being typically available to the wife, children and parents. It is a measure of social justice and an outcome of the natural duty of a man to maintain his wife, children and parents, when they are unable to maintain themselves. (Courts have now moved towards a broader interpretation of “wife” to include women in relationships in the nature of marriage, or live-in relationships that satisfy certain conditions.)
Maintenance includes provision for residence
[Komalam Amma vs. Kumara Pillai Raghavan Pillai and Others (2008)]
In a case decided on 14 November 2008, the Supreme Court ruled that maintenance necessarily encompasses a provision for residence and therefore ordered that the woman be provided with a residential facility similar to that which she had been accustomed in the past.
Maintenance claimed under section 125 CrPC applies to all religions, castes and creeds
[Mohd Ahmed Khan v Shah Bano Begum and Others (1985)]
Maintenance can be claimed under the respective personal laws of people following different faiths and proceedings under such personal laws are civil in nature, but proceedings initiated under Section 125 of the Criminal Procedure Code, however, are of a summary nature and apply to everyone regardless of caste, creed or religion.
‘Moral claim to support’
[Chaturbhuj v Sita Bai (2008)]
The object of proceedings under section 125 CrPC is not to punish a person for his past neglect. This provision has been enacted to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and have a moral claim to support. (This ‘moral claim to support’ now extends to women in ‘relationships in the nature of marriage’)
What constitutes a ‘relationship in the nature of marriage’?
[D Velusamy Vs D Patchaiammal, (SC, 2010)]
“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- the couple must hold 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; they must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time…If a man has akeep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage.”
relationship in the nature of marriage’ is akin to a common law marriage. Common law marriages require that although not being formally married- the couple must hold 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; they must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time…If a man has a
The Bench said though Indian laws may not permit it yet, there was no reason why such benefit should not be extended to a live-in-partner and cited the ruling of a Californian court in the US which had ordered similar relief by invoking the doctrine of “palimony.”
“You had spent 14 years with her. She lost her youth but you do not want to pay anything to her. She might not have been legally married to you but you have an obligation,” Justice Katju, heading the Bench, told Counsel Harish Kumar T appearing for D Velusamy.
[In an otherwise progressive judgment, which does need to go further to include every live-in relationship, use of the word ‘keep’ by the judges led lawyer Indira Jaising criticizing the Bench. She requested the Court to desist from using gender sensitive words while passing judgments. She told the bench of Justices Katju and Thakur that she would move an application to expunge the word ‘keep’ from the judgment. She questioned ‘how can the Supreme Court of India use the word ‘keep’ in the 21st century?’ Justice Thakur asked Indira Jaising “whether the expression ‘concubine’ would have been more appropriate than the word ‘keep’?”]
A Supreme Court Bench of Justice GS Singhvi and Justice AK Ganguly, while referring a similar matter [Chanmuniya v Virendra Kumar Singh & Another (2011 Crl. L.J. 96)] to the Chief Justice of India, had also opined that “…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, and strict proof of marriage should not be a pre-condition for maintenance under Section 125 of the CrPC, so as to fulfill the true spirit and essence of the beneficial provision of maintenance under Section 125. We also believe that such an interpretation would be a just application of the principles enshrined in the Preamble to our Constitution, namely, social justice and upholding the dignity of the individual”.
Woman duped into marrying an already married man entitled to maintenance
[Narinder Pal Kaur Chawla vs. M S Chawla (2008)]
In a recent case decided by the Delhi High Court, it was held that where a couple had lived like a married couple for 14 years and where the man had concealed the fact that he was already married, and further that where the woman had taken the responsibility of running the household as a housewife, treated the man as her husband and had borne and bred two of his children, the woman should not be deprived of her right to maintenance under the personal law applicable to Hindus. The Court further said that denial of maintenance under such circumstances would amount to putting a premium on or rewarding the man for defrauding the woman by concealing his first marriage. It was further recorded that for the purpose of granting maintenance under the personal law, a woman placed in the position of second wife can be treated as a legally wedded wives and is entitled to maintenance.
I am a former bureaucrat, and have worked a lot on gender issues, disaster management
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