REPORTABLE     

IN THE SUPREME COURT OF INDIA   

CRIMINAL APPELLATE JURISDICTION   

CRIMINAL APPEAL NOS.  2028-2029__OF 2010 [Arising out of Special Leave Petition (Crl.) Nos.2273-2274/2010]

 D. Velusamy                                              ..     Appellant              -versus-   D. Patchaiammal                                      ..        Respondent                                           

J U D G M E N T   

 Markandey Katju, J.

1. Leave granted.

2. Heard learned counsel for the appellant.  None has appeared for the  

respondent although she has been served notice.  We had earlier requested  

Mr. Jayant Bhushan, learned Senior counsel to assist us as Amicus Curiae in

the  case,  and  we  record  our  appreciation  of  Mr.  Bhushan  who  was  of  

considerable assistance to us.

3. These appeals  have been filed against  the  judgment  of  the Madras  

High Court dated 12.10.2009.

4. The appellant herein has alleged that he was married according to the  

Hindu  Customary  Rites  with  one  Lakshmi  on  25.6.1980.   Out  of  the  

wedlock with Lakshmi a male child was born, who is now studying in an  

Engineering  college  at  Ooty.   The  petitioner  is  working  as  a  Secondary  

Teacher in Thevanga Higher Secondary School,  Coimbatore.

5. It appears that the respondent-D. Patchaiammal filed a petition under  

Section 125 Cr.P.C. in the year 2001 before the Family Court at Coimbatore  

in  which  she  alleged  that  she  was  married  to  the  appellant  herein  on  

14.9.1986 and since then the appellant herein and she lived together in her  

father’s house for two or three years.  It is alleged in the petition that after  

two or three years the appellant herein left the house of the respondent’s  

father and started living in his native place, but would visit the respondent  

occasionally.  

2

6. It is alleged that the appellant herein (respondent in the petition under  

Section  125  Cr.P.C.)  deserted  the  respondent  herein  (petitioner  in  the  

proceeding under Section 125 Cr.P.C.) two or three years after marrying her  

in 1986.  In her petition under Section 125 Cr.P.C. she alleged that she did  

not  have  any  kind  of  livelihood  and  she  is  unable  to  maintain  herself  

whereas  the  respondent  (appellant  herein)  is  a  Secondary  Grade  Teacher  

drawing a salary of Rs.10000/- per month.  Hence it was prayed that the  

respondent  (appellant  herein)  be  directed  to  pay  Rs.500/-  per  month  as  

maintenance to the petitioner.

7. In  both  her  petition  under  Section  125  Cr.P.C.  as  well  as  in  her  

deposition in the case the respondent has alleged that she was married to the  

appellant herein on 14.9.1986, and that he left her after two or three years of  

living together with her in her father’s house.

8. Thus it is the own case of the respondent herein that the appellant left  

her in 1988 or 1989 (i.e. two or three years after the alleged marriage in  

1986).  Why then was the petition under Section 125 Cr.P.C. filed in the  

year  2001,  i.e.  after  a  delay  of  about  twelve  years,  shall  have  to  be  

satisfactorily explained by the respondent.  This fact also creates some doubt  

about the case of the respondent herein.

3

9. In his counter affidavit filed by the appellant herein before the Family  

Court, Coimbatore, it was alleged that the respondent (appellant herein) was  

married to one Lakshmi on 25.6.1980 as per the Hindu Marriage rites and  

customs and he had a male  child,  who is  studying in C.S.I.  Engineering  

college at Ooty.  To prove his marriage with Lakshmi the appellant produced  

the ration card, voter’s identity card of his wife, transfer certificate of his  

son, discharge certificate of his wife Lakshmi from hospital, photographs of  

the wedding, etc.   

10. The  learned  Family  Court  Judge  has  held  by  his  judgment  dated  

5.3.2004  that  the  appellant  was  married  to  the  respondent  and  not  to  

Lakshmi.   These  findings  have  been  upheld  by  the  High  Court  in  the  

impugned judgment.

11. In  our  opinion,  since  Lakshmi  was  not  made  a  party  to  the  

proceedings before the Family Court Judge or before the High Court and no  

notice was issued to her hence any declaration about her marital status vis-à-

vis the appellant is wholly null and void as it will be violative of  the rules of  

natural justice.  Without giving a hearing to Lakshmi no such declaration  

could have validly be given by the Courts below that she had not married the  

appellant herein since such as a finding would seriously affect her rights.  

4

And if no such declaration could have been given obviously no declaration  

could validly have been given that the appellant was validly married to the  

respondent, because if Lakshmi was the wife of the appellant then without  

divorcing her the appellant could not have validly married the respondent.

12. It  may  be  noted  that  Section  125  Cr.P.C.  provides  for  giving  

maintenance to the wife and some other relatives.  The word `wife’ has been  

defined in Explanation (b) to Section 125(1) of the Cr.P.C. as follows :

“Wife includes a woman who has been divorced by, or  has  obtained a  divorce  from, her  husband and has not  remarried.”

13. In  Vimala (K) vs.  Veeraswamy (K) [(1991) 2 SCC 375], a three-

Judge Bench of this  Court held that Section 125 of the Code of 1973 is  

meant to achieve a social purpose and the object is to prevent vagrancy and  

destitution.  Explaining the meaning of the word ‘wife’ the Court held:

“..the object  is  to prevent vagrancy and destitution.   It  provides  a  speedy  remedy  for  the  supply  of  food,  clothing  and  shelter  to  the  deserted  wife.   When  an  attempt is made by the husband to negative the claim of  the neglected wife depicting her as a kept-mistress on the  specious  plea  that  he  was  already  married,  the  court  would insist on strict proof of the earlier marriage.  The  term  ‘wife’  in  Section  125  of  the  Code  of  Criminal  Procedure, includes a woman who has been divorced by  a  husband  or  who  has  obtained  a  divorce  from  her  

5

husband and has not remarried.  The woman not having  the  legal  status  of  a  wife  is  thus  brought  within  the  inclusive definition of the term ‘wife’ consistent with the  objective.  However, under the law 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 to maintenance under this provision.”

14. In  a  subsequent  decision  of  this  Court  in  Savitaben  Somabhat  

Bhatiya  vs. State of Gujarat and others, AIR 2005 SC 1809, this Court  

held  that  however  desirable  it  may  be  to  take  note  of  the  plight  of  an  

unfortunate  woman,  who unwittingly  enters  into  wedlock with  a  married  

man, there is no scope to include a woman not lawfully married within the  

expression of ‘wife’.  The Bench held that this inadequacy in law can be  

amended only by the Legislature.

   15. Since we have held that the Courts below erred in law in holding that  

Lakshmi was not married to the appellant (since notice was not issued to her  

and she was not heard), it cannot be said at this stage that the respondent  

herein is the wife of the appellant.  A divorced wife is treated as a wife for  

the purpose of Section 125 Cr.P.C. but if a person has not even been married  

obviously that person could not be divorced.  Hence the respondent herein  

cannot claim to be the wife of the appellant herein, unless it is established  

that the appellant was not married to Lakshmi.

6

16.  However, the question has also be to be examined from the point of  

view  of  The  Protection  of  Women  from Domestic  Violence  Act,  2005.  

Section 2(a) of the Act states :

“2(a) “aggrieved person” means any woman who is, or  has been, in a domestic relationship with the respondent  and who alleges  to  have  been subjected  to  any  act  of  domestic violence by the respondent”;

Section 2(f) states :

“2(f) “domestic  relationship”  means  a  relationship  between two persons who live or have, at any point of  time, lived together in a shared household, when they are  related  by  consanguinity,  marriage,  or  through  a  relationship  in  the  nature  of  marriage,  adoption  or  are  family members living together as a joint family”;  

Section 2(s) states :

“2(s) “shared household” means a household where the  person  aggrieved  lives  or  at  any  stage  has  lived  in  a  domestic  relationship  either  singly  or  along  with  the  respondent  and  includes  such  a  household  whether  owned or tenanted either jointly by the  aggrieved person  and the respondent,  or  owned or  tenanted by either  of  them in respect of which either the aggrieved person or  the respondent or both jointly or singly have any right,  title,  interest  or  equity  and  includes  such  a  household  which  may  belong  to  the  joint  family  of  which  the  respondent  is  a  member,  irrespective  of  whether  the  respondent or the aggrieved person has any right, title or  interest in the shared household.”  

7

Section 3(a) states that an act will constitute domestic violence in case  it-  

“3(a) harms or  injures  or  endangers  the  health,  safety,  life, limb or well-being, whether mental or physical, of  the  aggrieved  person  or  tends  to  do  so  and  includes  causing  physical  abuse,  sexual  abuse,  verbal  and  emotional abuse and economic abuse;” or   

                                                           (emphasis supplied)

17. The expression “economic abuse” has been defined to include :  

“(a) deprivation   of   all   or  any  economic  or  financial         resources  to which  the  aggrieved  person is entitled        under any  law  or  custom whether payable under an        order  of a court or otherwise or which the aggrieved        person  requires  out  of  necessity including, but not        limited  to,  household  necessities  for the aggrieved        person  and  her  children, if any, stridhan, property,        jointly or separately owned by the aggrieved person,        payment  of  rental  related  to  the shared household        and maintenance”.

                                                           (emphasis supplied)

 18. An aggrieved person under the Act can approach the Magistrate under  

Section 12 for the relief mentioned in Section 12(2).  Under Section 20(1)(d)  

the  Magistrate  can  grant  maintenance  while  disposing  of  the  application  

under Section 12(1).

8

19. Section 26(1) provides that the relief mentioned in Section 20 may  

also be sought in any legal proceeding, before a civil court, family court or a  

criminal court.  

20. Having noted  the  relevant  provisions  in  The Protection  of  Women  

from Domestic Violence Act, 2005, we may point out that the expression  

`domestic  relationship’  includes not only the relationship of marriage but  

also  a  relationship  `in  the  nature  of  marriage’.   The  question,  therefore,  

arises  as  to  what  is  the  meaning  of  the  expression `a  relationship  in  the  

nature of marriage’.   Unfortunately this expression has not been defined in  

the Act.  Since there is no direct decision of this Court on the interpretation  

of this expression we think it necessary to interpret it because a large number  

of cases will be coming up before the Courts in our country on this point,  

and hence an authoritative decision is required.

21. In our opinion Parliament by the aforesaid Act has drawn a distinction  

between  the  relationship  of  marriage  and a  relationship  in  the  nature  of  

marriage,  and has provided that in either case the person who enters into  

either relationship is entitled to the benefit of the Act.

9

22. It seems to us that in the aforesaid Act of 2005 Parliament has taken  

notice  of  a  new  social  phenomenon  which  has  emerged  in  our  country  

known as  live-in  relationship.   This  new relationship  is  still  rare  in  our  

country, and is sometimes found in big urban cities in India, but it is very  

common in North America and Europe.  It has been commented upon by this  

Court in S. Khushboo  vs.  Kanniammal & Anr. (2010) 5 SCC 600 (vide  

para 31).

23. When  a  wife  is  deserted,  in  most  countries  the  law  provides  for  

maintenance  to  her  by  her  husband,  which is  called alimony.   However,  

earlier there was no law providing for maintenance to a woman who was  

having a live-in relationship with a man without being married to him and  

was then deserted by him.  

24. In USA the expression `palimony’ was coined which means grant of  

maintenance to a woman who has lived for a substantial period of time with  

a man without marrying him, and is then deserted by him (see ‘palimony’ on  

Google).  The first decision on palimony was the well known decision of the  

California Superior Court in  Marvin vs.  Marvin (1976) 18 C3d660.  This  

case  related  to  the  famous  film  actor  Lee  Marvin,  with  whom  a  lady  

Michelle lived for many years without marrying him, and was then deserted  

1

by him and she claimed palimony.  Subsequently in many decisions of the  

Courts in USA, the concept of palimony has been considered and developed.  

The US Supreme Court has not given any decision on whether there is a  

legal  right  to  palimony,  but  there  are  several  decisions  of  the  Courts  in  

various States in USA.  These Courts in USA have taken divergent views,  

some granting palimony, some denying it altogether, and some granting it on  

certain conditions.  Hence in USA the law is still in a state of evolution on  

the right to palimony.

25. Although there is no statutory basis for grant of palimony in USA, the  

Courts there which have granted it have granted it on a contractual basis.  

Some  Courts  in  USA  have  held  that  there  must  be  a  written  or  oral  

agreement between the man and woman that if they separate the man will  

give palimony to the woman, while other Courts have held that if a man and  

woman have lived together for a substantially long period without getting  

married there would be deemed to be an implied or constructive contract that  

palimony will be given on their separation.

26.   In Taylor vs. Fields (1986) 224 Cal. Rpr. 186 the facts were that the  

plaintiff Taylor had a relationship with a married man Leo.  After Leo died  

Taylor sued his widow alleging breach of an implied agreement to take care  

1

of Taylor financially and she claimed maintenance from the estate of Leo.  

The Court  of  Appeals  in  California  held  that  the  relationship  alleged  by  

Taylor was nothing more than that of a married man and his mistress.  It was  

held that the alleged contract rested on meretricious consideration and hence  

was invalid and unenforceable.  The Court of Appeals relied on the fact that  

Taylor did not live together with Leo but only occasionally spent weekends  

with  him.   There  was  no  sign  of  a  stable  and  significant  cohabitation  

between the two.   

27. However,  the  New  Jersey  Supreme  Court  in  Devaney vs.  L’  

Esperance 195 N.J., 247 (2008) held that cohabitation is not necessary to  

claim palimony, rather “it is the promise to support, expressed or implied,  

coupled with a marital type relationship, that are indispensable elements to  

support a valid claim for palimony”.  A law has now been passed in 2010 by  

the State legislature of New Jersey that there must be a written agreement  

between the parties to claim palimony.  

28. Thus,  there  are  widely  divergent  views  of  the  Courts  in  U.S.A.  

regarding the right to palimony.  Some States like Georgia and Tennessee  

expressly refuse to recognize palimony agreements.  

1

29.   Written palimony contracts are rare, but some US Courts have found  

implied contracts when a woman has given up her career, has managed the  

household, and assisted a man in his business for a lengthy period of time.  

Even when there is no explicit written or oral contract some US Courts have  

held  that  the  action  of  the  parties  make  it  appear  that  a  constructive  or  

implied contract for grant of palimony existed.

30. However,  a  meretricious  contract  exclusively  for  sexual  service  is  

held in all US Courts as invalid and unenforceable.

31. In the case before us we are not called upon to decide whether in our  

country there can be a valid claim for palimony on the basis of a contract,  

express or implied, written or oral,  since no such case was set up by the  

respondent in her petition under Section 125 Cr.P.C.  

32. Some countries in the world recognize common law marriages.   A  

common  law marriage,  sometimes  called  de  facto  marriage,  or  informal  

marriage is recognized in some countries  as a marriage though no legally  

recognized marriage ceremony is  performed or  civil  marriage  contract  is  

entered into or the marriage registered  in a civil  registry (see details  on  

Google).   

1

33. 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 :-

(a) The couple must hold themselves out to society as being         akin to spouses.

(b) They must be of legal age to marry.

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

(d) They  must  have  voluntarily  cohabited  and  held  themselves out to the world as being akin to spouses for a  significant period of time.

(see ‘Common Law Marriage’ in Wikipedia on Google)

In our opinion a ‘relationship in the nature of  marriage’  under the  

2005 Act must also fulfill the above requirements, and in addition the parties  

must have lived together in a ‘shared household’ as defined in Section 2(s)  

of the Act.  Merely spending weekends together or a one night stand would  

not make it a ‘domestic relationship’.

34. In  our  opinion  not  all  live  in  relationships  will  amount  to  a  

relationship in the nature of marriag8e to get the benefit of the Act of 2005.  

To get such benefit the conditions mentioned by us above must be satisfied,  

and this has to be proved by evidence.  If a man has a ‘keep’ whom he  

1

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’   

35. 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, 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 grab of interpretation cannot change the  

language of the statute.

36. In feudal society sexual relationship between man and woman outside  

marriage was totally taboo and regarded with disgust and horror, as depicted  

in Leo Tolstoy’s novel `Anna Karenina’, Gustave Flaubert’s novel `Madame  

Bovary’  and  the  novels  of  the  great  Bengali  writer  Sharat  Chandra  

Chattopadhyaya.

37. However,  Indian  society  is  changing,  and  this  change  has  been  

reflected  and  recognized  by  Parliament  by  enacting  The  Protection  of  

Women from Domestic Violence Act, 2005.

38. Coming back to the facts of the present case, we are of the opinion  

that  the High Court  and the learned Family Court  Judge erred in law in  

1

holding that the appellant was not married to Lakshmi without even issuing  

notice to Lakshmi.  Hence this finding has to be set aside and the matter  

remanded to the Family Court which may issue notice to Lakshmi and after  

hearing  her  give  a  fresh  finding  in  accordance  with  law.   The  question  

whether the appellant was married to the respondent or not can, of course, be  

decided only after the aforesaid finding.

39. There is also no finding in the judgment of the learned Family Court  

Judge  on  the  question  whether  the  appellant  and  respondent  had  lived  

together for a reasonably long period of time in a relationship which was in  

the nature of marriage.  In our opinion such findings were essential to decide  

this case.  Hence we set aside the impugned judgment of the High Court and  

Family Court Judge, Coimbatore and remand the matter to the Family Court  

Judge to decide the matter afresh in accordance with law and in the light of  

the observations made above.  Appeals allowed.         

  ……………..……………….J.                                                 (MARKANDEY KATJU)   

                                                 .…………………………..….J.                                                   (T. S. THAKUR)

NEW DELHI; 21st  OCTOBER, 2010

1