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Supreme Court of India

Bharatha Matha & Anr vs R. Vijaya Renganathan & Ors on 1 May!

"#1#

Author: . B. ChauhanBen$h% B.S. Chauhan! Satanter 'umar

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 710 o! "00#

$%arat%a Mat%a & A'r. .......Appella't(

Ver()(

R. V*+a,a Re'-a'at%a' & Or(. .........Re(po'e't(

ORDER

Dr. B. S. CHAUHAN, J

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1. This appeal has been preferred against the Judgent and !rder of the High Court of

Judi"ature at #adras dated 1$th Jul%, &$$1 allo'ing the appeal filed b% the respondent

No.1 against the (udgent and de"ree of the )st Appellate Court dated 1*.+.1+-

affiring the (udgent and de"ree of the Trial Court dated *..1+** in !.S. No.&-+/1+*0instituted b% the prede"essorininterest of the present appellants for "laiing the

propert% in dispute and den%ing the share to the respondent Nos. & to 0 or their

prede"essorininterest.

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tie of filing the suit. There had been no legal separation bet'een the. Therefore, the

2uestion of li3einrelationship of St. 4engaal 'ith #uthu 4eddiar "ould not arise.

. Being aggrie3ed, the defendants therein filed the 5irst Appeal. The respondent No. 1herein, 6i(a%a 4enganathan, pur"hased the suit propert% in 1+* i.e. during the

penden"% of the 5irst Appeal for a su of about 4s. 1$,$$$/ and got hiself ipleaded

in the appeal as a part%. The 5irst Appeal 'as disissed b% the Appellate Court 3ide

(udgent and de"ree dated 1*th Septeber, 1+-. The said pur"haser, respondent No.1,

alone filed the Se"ond Appeal under Se"tion 1$$ of Code of Ci3il 7ro"edure, 1+$

8hereinafter "alled as 9C7C; before the High Court 'hi"h has been allo'ed. Hen"e, this

appeal.

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Supreme Court of India

(.Ve)usamy vs (.*at$haiamma) on "1 O$to+er! "#1#

Author: #

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#ar=ande% ea3e granted.

&. Heard learned "ounsel for the appellant. None has appeared for the

respondent although she has been ser3ed noti"e. ?e had earlier

re2uested #r. Ja%ant Bhushan, learned Senior "ounsel to assist us as

Ai"us Curiae in the "ase, and 'e re"ord our appre"iation of #r.

Bhushan 'ho 'as of "onsiderable assistan"e to us.

. These appeals ha3e been filed against the (udgent of the #adras

High Court dated 1&.1$.&$$+.

@. The appellant herein has alleged that he 'as arried a""ording to

the Hindu Custoar% 4ites 'ith one >a=shi on &0.-.1+$. !ut of the

'edlo"= 'ith >a=shi a ale "hild 'as born, 'ho is no' stud%ing in

an ngineering "ollege at !ot%. The petitioner is 'or=ing as a

Se"ondar% Tea"her in The3anga Higher Se"ondar% S"hool,

Coibatore.

0. )t appears that the respondentD. 7at"haiaal filed a petition

under Se"tion 1&0Cr.7.C. in the %ear &$$1 before the 5ail% Court at

Coibatore in 'hi"h she alleged that she 'as arried to the appellant

herein on 1@.+.1+- and sin"e then the appellant herein and she li3ed

together in her fathers house for t'o or three %ears. )t is alleged in the

petition that after t'o or three %ears the appellant herein left thehouse of the respondents father and started li3ing in his nati3e pla"e,

but 'ould 3isit the respondent o""asionall%.

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-. )t is alleged that the appellant herein 8respondent in the petition

under Se"tion 1&0Cr.7.C.; deserted the respondent herein 8petitioner

in the pro"eeding under Se"tion 1&0Cr.7.C.; t'o or three %ears after

arr%ing her in 1+-. )n her petition under Se"tion 1&0Cr.7.C. she

alleged that she did not ha3e an% =ind of li3elihood and she is unable

to aintain herself 'hereas the respondent 8appellant herein; is a

Se"ondar% rade Tea"her dra'ing a salar% of 4s.1$$$$/ per onth.

Hen"e it 'as pra%ed that the respondent 8appellant herein; be dire"ted

to pa% 4s.0$$/ per onth as aintenan"e to the petitioner.

*. )n both her petition under Se"tion 1&0Cr.7.C. as 'ell as in herdeposition in the "ase the respondent has alleged that she 'as arried

to the appellant herein on 1@.+.1+-, and that he left her after t'o or

three %ears of li3ing together 'ith her in her fathers house.

. Thus it is the o'n "ase of the respondent herein that the appellant

left her in 1+ or 1++ 8i.e. t'o or three %ears after the alleged

arriage in 1+-;. ?h% then 'as the petition under Se"tion1&0Cr.7.C. filed in the %ear &$$1, i.e. after a dela% of about t'el3e

%ears, shall ha3e to be satisfa"toril% eplained b% the respondent. This

fa"t also "reates soe doubt about the "ase of the respondent herein.

+. )n his "ounter affida3it filed b% the appellant herein before the

5ail% Court, Coibatore, it 'as alleged that the respondent

8appellant herein; 'as arried to one >a=shi on &0.-.1+$ as perthe Hindu #arriage rites and "ustos and he had a ale "hild, 'ho is

stud%ing in C.S.). ngineering "ollege at !ot%. To pro3e his arriage

'ith >a=shi the appellant produ"ed the ration "ard, 3oters identit%

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"ard of his 'ife, transfer "ertifi"ate of his son, dis"harge "ertifi"ate of

his 'ife >a=shi fro hospital, photographs of the 'edding, et".

1$. The learned 5ail% Court Judge has held b% his (udgent dated0..&$$@ that the appellant 'as arried to the respondent and not to

>a=shi. These findings ha3e been upheld b% the High Court in the

ipugned (udgent.

11. )n our opinion, sin"e >a=shi 'as not ade a part% to the

pro"eedings before the 5ail% Court Judge or before the High Court

and no noti"e 'as issued to her hen"e an% de"laration about her

arital status 3is9 3is the appellant is 'holl% null and 3oid as it 'ill

be 3iolati3e of the rules of natural (usti"e. ?ithout gi3ing a hearing to

>a=shi no su"h de"laration "ould ha3e 3alidl% be gi3en b% the Courts

belo' that she had not arried the appellant herein sin"e su"h as a

finding 'ould seriousl% affe"t her rights. And if no su"h de"laration

"ould ha3e been gi3en ob3iousl% no de"laration "ould 3alidl% ha3e

been gi3en that the appellant 'as 3alidl% arried to the respondent,be"ause if >a=shi 'as the 'ife of the appellant then 'ithout

di3or"ing her the appellant "ould not ha3e 3alidl% arried the

respondent.

1&. )t a% be noted that Se"tion 1&0Cr.7.C. pro3ides for gi3ing

aintenan"e to the 'ife and soe other relati3es. The 'ord 9'ife has

been defined in planation 8b; to Se"tion 1&081;of the Cr.7.C. asfollo's :

?ife in"ludes a 'oan 'ho has been di3or"ed b%, or has obtained a

di3or"e fro, her husband and has not rearried.

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1. )n 6iala 8

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10. Sin"e 'e ha3e held that the Courts belo' erred in la' in holding

that >a=shi 'as not arried to the appellant 8sin"e noti"e 'as not

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issued to her and she 'as not heard;, it "annot be said at this stage

that the respondent herein is the 'ife of the appellant. A di3or"ed 'ifeis treated as a 'ife for the purpose of Se"tion 1&0Cr.7.C. but if a

person has not e3en been arried ob3iousl% that person "ould not be

di3or"ed. Hen"e the respondent herein "annot "lai to be the 'ife of

the appellant herein, unless it is established that the appellant 'as not

arried to >a=shi.

1-. Ho'e3er, the 2uestion has also be to be eained fro the point of

3ie' of The 7rote"tion of ?oen fro Doesti" 6iolen"e A"t,

&$$0. Se"tion &8a;of the A"t states :

&8a; aggrie3ed person eans an% 'oan 'ho is, or has been, in a

doesti" relationship 'ith the respondent and 'ho alleges to ha3e

been sub(e"ted to an% a"t of doesti" 3iolen"e b% the respondentG

Se"tion &8f;states :&8f; doesti" relationship eans a relationship bet'een t'o

persons 'ho li3e or ha3e, at an% point of tie, li3ed together in a

shared household, 'hen the% are related b% "onsanguinit%, arriage,

or through a relationship in the nature of arriage, adoption or are

fail% ebers li3ing together as a (oint fail%G

Se"tion &8s;states :

&8s; shared household eans a household 'here the person

aggrie3ed li3es or at an% stage has li3ed in a doesti" relationship

either singl% or along 'ith the respondent and in"ludes su"h a

household 'hether o'ned or tenanted either (ointl% b% the aggrie3ed

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person and the respondent, or o'ned or tenanted b% either of the in

respe"t of 'hi"h either the aggrie3ed person or the respondent or both

(ointl% or singl% ha3e an% right, title, interest or e2uit% and in"ludes

su"h a household 'hi"h a% belong to the (oint fail% of 'hi"h the

respondent is a eber, irrespe"ti3e of 'hether the respondent or the

aggrie3ed person has an% right, title or interest in the shared

household.

Se"tion 8a;states that an a"t 'ill "onstitute doesti" 3iolen"e in "ase

it

8a; hars or in(ures or endangers the health, safet%, life, lib or'ellbeing, 'hether ental or ph%si"al, of the aggrie3ed person or

tends to do so and in"ludes "ausing ph%si"al abuse, seual abuse,

3erbal and eotional abuse and e"onoi" abuseG or 8ephasis

supplied;

1*. The epression e"onoi" abuse has been defined to in"lude :

8a; depri3ation of all or an% e"onoi" or finan"ial resour"es to 'hi"h

the aggrie3ed person is entitled under an% la' or "usto 'hether

pa%able under an order of a "ourt or other'ise or 'hi"h the aggrie3ed

person re2uires out of ne"essit% in"luding, but not liited to,

household ne"essities for the aggrie3ed person and her "hildren, if

an%, stridhan, propert%, (ointl% or separatel% o'ned b% the aggrie3ed

person, pa%ent of rental related to the shared household and

aintenan"e.

8ephasis supplied;

1. An aggrie3ed person under the A"t "an approa"h the #agistrate

under Se"tion 1&for the relief entioned in Se"tion 1&8&;. Under

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Se"tion &$81;8d; the #agistrate "an grant aintenan"e 'hile

disposing of the appli"ation under Se"tion 1&81;.

1+. Se"tion &-81;pro3ides that the relief entioned in Se"tion &$a%also be sought in an% legal pro"eeding, before a "i3il "ourt, fail%

"ourt or a "riinal "ourt.

&$. Ha3ing noted the rele3ant pro3isions in The 7rote"tion of ?oen

fro Doesti" 6iolen"e A"t, &$$0, 'e a% point out that the

epression 9doesti" relationship in"ludes not onl% the relationship

of arriage but also a relationship 9in the nature of arriage. The

2uestion, therefore, arises as to 'hat is the eaning of the epression

9a relationship in the nature of arriage. Unfortunatel% this

epression has not been defined in the A"t. Sin"e there is no dire"t

de"ision of this Court on the interpretation of this epression 'e thin=

it ne"essar% to interpret it be"ause a large nuber of "ases 'ill be

"oing up before the Courts in our "ountr% on this point, and hen"e

an authoritati3e de"ision is re2uired.

&1. )n our opinion 7arliaent b% the aforesaid A"t has dra'n a

distin"tion bet'een the relationship of arriage and a relationship in

the nature of arriage, and has pro3ided that in either "ase the person

'ho enters into either relationship is entitled to the benefit of the A"t.

&&. )t sees to us that in the aforesaid A"t of &$$0 7arliaent has

ta=en noti"e of a ne' so"ial phenoenon 'hi"h has eerged in our

"ountr% =no'n as li3ein relationship. This ne' relationship is still

rare in our "ountr%, and is soeties found in big urban "ities in

)ndia, but it is 3er% "oon in North Aeri"a and urope. )t has been

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"oented upon b% this Court in S. ee #ar3in, 'ith 'ho a lad% #i"helle li3ed for an% %ears 'ithout

arr%ing hi, and 'as then deserted b% hi and she "laied

palion%. Subse2uentl% in an% de"isions of the Courts in USA, the"on"ept of palion% has been "onsidered and de3eloped. The US

Supree Court has not gi3en an% de"ision on 'hether there is a legal

right to palion%, but there are se3eral de"isions of the Courts in

3arious States in USA. These Courts in USA ha3e ta=en di3ergent

3ie's, soe granting palion%, soe den%ing it altogether, and soe

granting it on "ertain "onditions. Hen"e in USA the la' is still in a

state of e3olution on the right to palion%.

&0. Although there is no statutor% basis for grant of palion% in USA,

the Courts there 'hi"h ha3e granted it ha3e granted it on a "ontra"tual

basis. Soe Courts in USA ha3e held that there ust be a 'ritten or

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oral agreeent bet'een the an and 'oan that if the% separate the

an 'ill gi3e palion% to the 'oan, 'hile other Courts ha3e held

that if a an and 'oan ha3e li3ed together for a substantiall% long

period 'ithout getting arried there 'ould be deeed to be an

iplied or "onstru"ti3e "ontra"t that palion% 'ill be gi3en on their

separation.

&-. )n Ta%lor 3s. 5ields 81+-; &&@ Cal. 4pr. 1- the fa"ts 'ere that the

plaintiff Ta%lor had a relationship 'ith a arried an >eo. After >eo

died Ta%lor sued his 'ido' alleging brea"h of an iplied agreeent to

ta=e "are of Ta%lor finan"iall% and she "laied aintenan"e fro theestate of >eo. The Court of Appeals in California held that the

relationship alleged b% Ta%lor 'as nothing ore than that of a arried

an and his istress. )t 'as held that the alleged "ontra"t rested on

eretri"ious "onsideration and hen"e 'as in3alid and unenfor"eable.

The Court of Appeals relied on the fa"t that Ta%lor did not li3e

together 'ith >eo but onl% o""asionall% spent 'ee=ends 'ith hi.

There 'as no sign of a stable and signifi"ant "ohabitation bet'een the

t'o.

&*. Ho'e3er, the Ne' Jerse% Supree Court in De3ane% 3s. >

speran"e 1+0 N.J., &@* 8&$$; held that "ohabitation is not ne"essar%

to "lai palion%, rather it is the proise to support, epressed or

iplied, "oupled 'ith a arital t%pe relationship, that are

indispensable eleents to support a 3alid "lai for palion%. A la'

has no' been passed in &$1$ b% the State legislature of Ne' Jerse%

that there ust be a 'ritten agreeent bet'een the parties to "lai

palion%.

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&. Thus, there are 'idel% di3ergent 3ie's of the Courts in U.S.A.

regarding the right to palion%. Soe States li=e eorgia and

Tennessee epressl% refuse to re"ogniIe palion% agreeents.

&+. ?ritten palion% "ontra"ts are rare, but soe US Courts ha3e

found iplied "ontra"ts 'hen a 'oan has gi3en up her "areer, has

anaged the household, and assisted a an in his business for a

length% period of tie. 3en 'hen there is no epli"it 'ritten or oral

"ontra"t soe US Courts ha3e held that the a"tion of the parties a=e

it appear that a "onstru"ti3e or iplied "ontra"t for grant of palion%

eisted.

$. Ho'e3er, a eretri"ious "ontra"t e"lusi3el% for seual ser3i"e is

held in all US Courts as in3alid and unenfor"eable.

1. )n the "ase before us 'e are not "alled upon to de"ide 'hether in

our "ountr% there "an be a 3alid "lai for palion% on the basis of a

"ontra"t, epress or iplied, 'ritten or oral, sin"e no su"h "ase 'as set

up b% the respondent in her petition under Se"tion 1&0Cr.7.C.

&. Soe "ountries in the 'orld re"ogniIe "oon la' arriages. A

"oon la' arriage, soeties "alled de fa"to arriage, or

inforal arriage is re"ogniIed in soe "ountries as a arriage

though no legall% re"ogniIed arriage "ereon% is perfored or "i3il

arriage "ontra"t is entered into or the arriage registered in a "i3il

registr% 8see details on oogle;.

. )n our opinion a 9relationship in the nature of arriage is a=in to

a "oon la' arriage. Coon la' arriages re2uire that

although not being forall% arried :

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8a; The "ouple ust hold thesel3es out to so"iet% as being a=in to

spouses.

8b; The% ust be of legal age to arr%.

8"; The% ust be other'ise 2ualified to enter into a legal arriage,

in"luding being unarried.

8d; The% ust ha3e 3oluntaril% "ohabited and held thesel3es out to

the 'orld as being a=in to spouses for a signifi"ant period of tie.

8see 9Coon >a' #arriage in ?i=ipedia on oogle; )n our opinion

a 9relationship in the nature of arriage under the &$$0 A"t ustalso fulfill the abo3e re2uireents, and in addition the parties ust

ha3e li3ed together in a 9shared household as defined in Se"tion

&8s;of the A"t. #erel% spending 'ee=ends together or a one night

stand 'ould not a=e it a 9doesti" relationship.

@. )n our opinion not all li3e in relationships 'ill aount to a

relationship in the nature of arriage to get the benefit of the A"t of

&$$0. To get su"h benefit the "onditions entioned b% us abo3e ust

be satisfied, and this has to be pro3ed b% e3iden"e. )f a an has a

9=eep 'ho heaintains finan"iall% and uses ainl% for seual

purpose and/or as a ser3ant it 'ould not, in our opinion, be a

relationship in the nature of arriage

0. No doubt the 3ie' 'e are ta=ing 'ould e"lude an% 'oen 'ho

ha3e had a li3e in relationship fro the benefit of the &$$0 A"t, but

then it is not for this Court to legislate or aend the la'. 7arliaent

has used the epression 9relationship in the nature of arriage and

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not 9li3e in relationship. The Court in the grab of interpretation

"annot "hange the language of the statute.

-. )n feudal so"iet% seual relationship bet'een an and 'oanoutside arriage 'as totall% taboo and regarded 'ith disgust and

horror, as depi"ted in >eo Tolsto%s no3el 9Anna a=shi. Hen"e this finding has to be set aside and

the atter reanded to the 5ail% Court 'hi"h a% issue noti"e to

>a=shi and after hearing her gi3e a fresh finding in a""ordan"e 'ith

la'. The 2uestion 'hether the appellant 'as arried to the

respondent or not "an, of "ourse, be de"ided onl% after the aforesaid

finding.

+. There is also no finding in the (udgent of the learned 5ail%

Court Judge on the 2uestion 'hether the appellant and respondent

had li3ed together for a reasonabl% long period of tie in a

relationship 'hi"h 'as in the nature of arriage. )n our opinion su"h

findings 'ere essential to de"ide this "ase. Hen"e 'e set aside the

ipugned (udgent of the High Court and 5ail% Court Judge,

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Coibatore and reand the atter to the 5ail% Court Judge to

de"ide the atter afresh in a""ordan"e 'ith la' and in the light of the

obser3ations ade abo3e. Appeals allo'ed.

....................................J.

8#A4

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