WOMAN IN A LIVE-IN RELATIONSHIP AND SECOND WIFE NOT ENTITILED TO MAINTENANCE

The woman in a live-in relationship and second wife is not entitled to maintenance unless she fulfills certain parameters, the Supreme Court in VELUSAMY Vs D PATCHAIAMMAL [2010 (10) SCC 469] had observed that merely spending weekends together or a one night would not make it a domestic relationship.

A bench comprising Justices Markandey Katju and T S Thakur said that in order to get maintenance, a women, even if not married, has to fulfill the following four requirements:

1. The couple must hold themselves out to society as being akin to spouses.

2. They must be of legal age to marry.

3. They must be otherwise qualified to enter into a legal marriage, including being unmarried.

4.  They must be voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

The Supreme Court observed, in our opinion not all Live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the Protection of Women from Domestic Violence Act, 2005. To get such benefit the conditions mentioned above must be satisfied, and this has to be proved by evidence. If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purposes and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage.

The Apex court passed the judgment while setting aside the concurrent orders passed by a matrimonial court and the Madras High Court awarding Rs 500 maintenance to Patchaiammal who claimed to have married the appellant D Velusamy.

Velusamy had challenged the two Court’s order on the ground that he was already married to one Laxmi and Patchiammal was not married to him though he lived with her for some time.

The Apex court also observed, "No doubt the view we are taking would exclude many women who have had a Live-in relationship from the benefit of the 2005 Act (Protection of Women from Domestic Violence Act), but then it is not for this court to legislate or amend the law. Parliament has used the expression 'relationship in the nature of marriage' and not 'Live-in relationship'. The court in the garb of interpretation cannot change the language of the statute," the bench observed.

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Prepared by: S. Hemanth

Advocate at Hemanth & Associates

IN CHILD CUSTODY AND VISITATION RIGHTS MATTER, THE DESIRE, INTEREST AND WELFARE IS PARAMOUNT IMPORTANCE

While the Supreme Court deciding the question with regard to the custody of the children and visitation rights, if any, in Gaytri Bajaj Vs Jiten Bhalla  observed:

An order of custody of minor children either under the provisions of the Guardians and Wards Act, 1890 or Hindu Minority and Guardianship Act, 1956 is required to be made by the Court treating the interest and welfare of the minor to be of paramount importance. It is not the better right of the either parent that would require adjudication while deciding their entitlement to custody. The desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the concerned parent to take care of the child are some of the relevant factors that have to be taken into account by the Court while deciding the issue of custody of a minor. The desire, interest and welfare of the minor which is the crucial and ultimate consideration that must guide the determination required to be made by the Court.

The appeal was sought by the mother of two minor girls against the order of the Delhi High Court stating that she abandoned the visitation rights due to fraud and deceit practiced on her. The Supreme Court after having a personal interaction with children, to bring the issue with regard to custody and visitation rights to a satisfactory conclusion. Held, both appear to be happy in the company of their father who also appears to be in a position to look after them. The children having expressed their reluctance to go with the mother, even for a short duration of time.

The Supreme Court came to a conclusion that the children would continue to remain in the custody of their father until they attain the age of majority. Denied any visitation right to the mother and thereby upholding the order of the High Court.

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Prepared by: S. Hemanth

Advocate at Hemanth & Associates

CONTEMPT OF COURT AGAINST A WOMAN FOR BREACHING UNDERTAKING TO DIVORCE

The Delhi High Court issued the contempt of court to the women for breaching her undertaking to a family Court to divorce her husband with mutual consent.

A contempt petition was filed under the provisions of the Contempt of Courts Act, 1971 by the petitioner (husband) to take action against the respondent (wife) for withdrawing from her undertaking given the Court, at the time of filing of the petition for mutual divorce, in the matrimonial Court.

The parties negotiated between themselves and with the intervention of the family friends, both arrived at a Memorandum of Understanding (MOU). They agreed to seek divorce by mutual consent. The petitioner (husband) paid a lumpsum of rupees Seven Crores to the respondent (wife), as a one time settlement in lieu of all the claims of the wife towards maintenance, alimony, istridhan, jewellery etc. The husband agreed to pay Rupees One crore Fifty Lakhs at the time of filing of the divorce petition to seek divorce by mutual consent and the balance amount was to be paid at the time of filing of the second motion. The wife also agreed to make a statement before the court in support of the divorce petition.

The petitioner (husband) said that his wife did not come forward to make a statement before the matrimonial Court on the second motion to obtain a divorce.

The Delhi High Court in Avneesh Sood Vs Tithi Sood  held:

“I, therefore, hold the respondent guilty of contempt of Court as she has breached her undertaking given to the learned ADJ-01, New Delhi on 14.09.2010 in the first motion divorce proceedings under section 13-B of the Hindu Marriage Act. The agreement arrived at between the parties not only deals with the aspect of divorce, to be obtained by mutual consent, but also deals with the aspect of custody/visitation rights of the minor child. Admittedly, the respondent has breached the said arrangement……”

The Court issued the contempt notice to the wife and was subjected to costs which was quantified at Rupees One Lakhs to be paid to the petitioner (husband).  

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

WIFE RIGHT TO RESIDE WITH HER HUSBAND UNDER THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT

The Delhi High Court in Kavita Dass Vs NCT of Delhi & Another24 , held that a woman can never be charged with trespass if she insists on staying with her husband in a house taken on rent.

In the above case the wife had sought to quash FIR registered for criminal trespass. The Delhi High Court observed:

The legally wedded wife has a right to live with the husband, whether he lives in an ancestral house or own acquired house or rented house. If the husband does not allow the aggrieved wife, then by taking shelter of the Court under the provisions of the Protection of Women from Domestic Violence Act, the Magistrate may pass the order so that she may enter to the house or she would not be thrown out of the house of his husband without due process of law.  The wife cannot be directed to vacate the house without due process of law.

The High Court in the above matter, quashed the FIR registered under section 448 of the Indian Penal Code, 1860 and all the emanating proceedings therefrom. 

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Prepared by: S. Hemanth

Advocate at Hemanth & Associates 

DEATH RESULT OF CRUELTY OR DEMAND OF DOWRY, DENIAL CANNOT BE TREATED AS DISCHARGE OF ONUS

In a case of dowry death,  accused were charged with offences under sections 498-A and 304-B of the Penal Code, 1860, the Supreme Court in Pathan Hussair Basha Vs State of A.P1 observed that the present case completely satisfied the ingredients of section 304-B and 498-A IPC. The Court further observed that it is for the accused to show that the death of the deceased did not result from any cruelty or demand of dowry by the accused persons. The accused did not care to explain as to how the death of his wife occurred. Denial cannot be treated to be the discharge of onus. Onus has to be discharged by leading proper and cogent evidence. It is expected of the accused to explain as to how and why his wife died, as well as his conduct immediately prior and subsequent to the death of the deceased. Maintaining silence cannot be equated to discharge of onus by the accused. Herein, prosecution by reliable and cogent evidence has established the guilt of the accused. There being no rebuttal thereto, there is no occasion to interfere in the judgements of the courts under appeal.

The Supreme Court in Pathan Hussair Basha Vs State of A.P1, held:

“… the rule of law requires a person to be innocent till proved guilty. The concept of deeming fiction is hardly applicable to the criminal jurisprudence. In contradistinction to this aspect, the legislature has applied the concept of deeming fiction to the provisions of section 304-B. Where other ingredients of section 304-B are satisfied, in that event, the husband or all relatives shall be deemed to have caused her death. In other words, the offence shall be deemed to have been committed by fiction of law. Once the prosecution proves its case with regard to the basic ingredients of section 304-B the Court will presume by deemed fiction of law that the husband or the relatives complained of, has caused her death. Such a presumption can be drawn by the Court keeping in view the evidence produced by the prosecution in support of the substantive charge under section 304-B of the Code.

Applying these principles to the facts of the present case, it is clear that the ingredients of section 304B read with section 498A IPC are completely satisfied in the present case. By a deeming fiction in law, the onus shifts on the accused to prove as to how the deceased died. It is for the accused to show that the death of the deceased did not result from any cruelty or demand of dowry by the accused persons. The accused did not care to explain as to how the death of his wife occurred. Denial cannot be treated to be the discharge of onus. Onus has to be discharged by leading proper and cogent evidence. It was expected of the accused to explain as to how and why his wife died, as well as his conduct immediately prior and subsequent to the death of the deceased. Maintaining silence cannot be equated to discharge of onus by the accused. In the present case, the prosecution by reliable and cogent evidence has established the guilt of the accused. There being no rebuttal thereto, there is no occasion to interfere in the judgements of the courts under appeal”.

Related Articles:

Mutual consent divorce in India

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Prepared by: S. Hemanth

Advocate at Hemanth & Associates

END NOTES

END NOTES

1	Pathan Hussair Basha Vs State of A.P	(2012) 8 SCC 594
2	Kavita Dass Vs NCT of Delhi & Another	CDJ 2012 DHC 630

Related Articles:

Mutual consent divorce in India

Legal Principles

Prepared by: S. Hemanth

Advocate at Hemanth & Associates