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SLP Civil No. 15071/2009 – 7th October, 2010

CORAM: Two judge bench comprising of Justice G.S. Singhvi and Justice Ashok Kumar Ganguly.

Wherein, it was being held in this case that

“A man, who has lived long enough with a woman for a long time and even though they may have not undergone legal necessities for a valid marriage, he should be made liable to pay the woman maintenance if he deserts her.”

The facts of this case are that a man named Sarju Singh Kushwaha had two sons namely Ram Saran (elder son) and Virendra Kumar Singh Kushwaha (younger son & respondent). The appellant, Chanmuniya, was married to Ram Saran and had two daughters – Asha in 1988 & Usha in 1990. Ram Saran died on 7.3.1992. Due to the alleged custom, after the death of the husband the widow was married off to the younger brother of her deceased husband, i.e, the respondent in accordance with the local custom of Katha & Sindur. She complained that after few days of marriage she was being harassed and tortured by the respondent, stopped providing her maintenance and also faced refusal of discharge of marital obligations towards him. So she filed a case before the Trial Court under Sec. 125 of Cr. PC for maintenance and under Sec 9 of the Hindu Marriage Act for the restitution of conjugal rights. They held the respondent to live with the appellant and perform his marital duties. When the matter went to the HC they held that the essentials of a marriage u/s. 7 of Hindu Marriage Act had not been done between the appellant and the respondent & so it is not a marriage but more of a live in relationship & thus reversed the findings of the Trial Court. Aggrieved, the appellant filed a review petition but it was dismissed.

The issues raised were:

Whether a marriage performed according to customary rites and ceremonies but has not fulfilled the requisites u/s. 7(1) of Hindu Marriage Act, 1955 or any other personal law would still make the marriage valid or not?

Whether a man and woman living together will make it a valid marriage between them or not?

Whether the term ‘wife’ u/s S.125 of Cr. PC, 1973 should be interpreted in such a way that the woman is legally wedded or not?

The Appellant contended that she got married to the respondent as per the customs and usages that existed in the Kushwaha Community in 1996. She also contended that she and the respondent lived together as husband and wife and had discharged all marital obligations together till he started becoming abusive towards her. She also contended that she is entitled to maintenance that was stopped by the respondent and also entitled to restitution of conjugal rights.

The respondent contended that since the marriage had not been done in accordance to the requisites of S. 7(1) of the Hindu Marriage Act, 1955 and so it is not a marriage and hence she is not his legally and lawfully wedded wife and so he need not give her maintenance & restitution of conjugal rights

It was observed that if there is reliable evidence to prove that a man and a woman had been living together for a reasonably long period that is sufficient enough to say that they had done the marriage even though it is not valid as it has not fulfilled the requisites of marriage under S. 7(1) of Hindu Marriage Act, 1955. Also, there is nothing that suggests strict construction of S. 125 of Cr. PC to be limited to that of a wife. It was held that even though the relationship that existed between the appellant and the respondent was more of a live in rather than that of a legally married couple, since they had not fulfilled the legal necessities of a valid marriage, the respondent should be still made liable to pay the entitled maintenance for the appellant especially since her husband & respondent’s brother Ram Saran had died with issue of two daughters. Intention of both them to live in together alone is not sufficient to confer or take away marital status. Also it was held that there is nothing that suggests the scope of S.125 of Cr. PC, 1973 is to be limited to that of a wife only.


– Nardhana Ram



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