Cohabitation: Proof of a valid marriage

The judgment has given a new meaning to the term ‘marriage’ to claim ‘maintenance’ under section 125 of the Code of Criminal Procedure, 1973 (CrPC).

The SC held that a man cannot deny maintenance to a woman, claiming to be his wife, on the plea that there was no ‘valid marriage’ between them. It held, “when a man and woman have cohabited for many years and when the man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.” Further, “validity of the marriage will not be a ground for refusal of maintenance if other requirements of section 125 of CrPC are fulfilled,” the court ruled.

Secular Act
Section 125 of CrPC is secular in nature and applies to every faith. Though maintenance can be claimed by a wife, children and parents, this article is restricted to maintenance claimable by a destitute wife from her husband if he has ‘sufficient means’ to maintain her, but ‘neglects’ or ‘refuses’ to do so. However, the primary condition to claim maintenance is that she is ‘unable to maintain herself.’ Divorced (but not remarried) wife is also entitled to maintenance. Once the eligibility ceases, maintenance stops.

In law, ‘sufficient means’ does not signify only visible means such as real property or definite employment. A good number of court rulings say, if a man is healthy and able-bodied he must be held to possess the means to support his wife; and cannot be relieved of his obligation on the ground that he is unemployed.

While the terms ‘neglects’ and ‘refuses’ carry their ordinary meaning, the phrase ‘unable to maintain herself’  has a legal sense. In law, it has nothing to do with her potential capacity to earn. A wife may prefer to be a homemaker or simply refuse to put in her own efforts to make a living.

It has been held that merely because a wife refuses to earn, it does not mean that she is not entitled to maintenance. Once a wife pleads that she is unable to maintain herself, the burden is on the husband to prove that she has ‘sufficient means’ to maintain herself. The only point that merits consideration in determining the quantum of maintenance is her real income, if any; and their standard of living.

A wife is not entitled to claim maintenance if she, (1) is living in adultery; or (2) refuses to live with her husband without any sufficient reason; or (3) they are living separately with mutual consent.

The significance of the present judgment is in its far-reaching consequences. In the days to come, it will be a boon to a deserted wife to claim maintenance from her estranged husband.

Earlier, the general stand of the courts was, ‘where marriage is not proved, the petitioner-wife is not entitled to maintenance’ and ‘a second wife whose marriage is void on account of the survival of the first marriage, is not a legally wedded wife and is, therefore, not entitled for maintenance.’ Now these decisions will no longer hold good, as the law declared by the SC is binding on all courts in India under Art 141 of the Constitution.

It should be remembered that dragging of a case on and on by parties opposing each other on issues weaker than a strand of hair does no good in upholding the spirit and substance of law. Moreover, if interpretation of law remains stagnant and moves not with time, it becomes stale and obsolete and becomes a problem rather than a solution to the society. It is then time for the judiciary (in the absence of timely amendments by the legislature) to exert itself and reign.

The present judgment is the result of countless number of cases where a husband used to argue (to negate the claim of his deserted wife) that ‘she was his second wife’ or a ‘mistress’ and he was ‘already married’ to someone else.

This was defeating the very social purpose of enacting the section quoted. Hopefully, this argument will end now. The SC should be congratulated for giving a new meaning to the term ‘marriage’ and giving the much needed relief to destitute wives to claim maintenance from their estranged husbands.

(The writer is an advocate)