CHANMUNIYAversusVIRENDRA KUMAR SINGH KUSHWAHA & ANR.

                     [2010] 12 S.C.R. 223


                        CHANMUNIYA                                 A
                               v.
     VIRENDRA KUMAR SINGH KUSHWAHA & ANR.
           (Civil Appeal No. 8866 of 2010)
     ;,1·            OCTOBER 07, 2010
                                                                   B
   [G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]

      Code of Criminal Procedure, 19 73 - s. 125 -
Maintenance under - Claim of - Interpretation of word 'wife'
in s. 125 - Divergent views in earlier decision of Supreme C
Court - Issues: (1) whether living together of a man and
woman as husband and wife for a considerable period of time
would raise presumption of valid marriage between them and
would entitle the woman to maintenance u/s. 125- (2) whether
strict proof of marriage essential for claim of maintenance u/ D
s. 125 having regard to the provisions of Protection of Women
from Domestic Violence Act, 2005 - (3) whether marriage
performed according to customary rites and ceremonies,
without strictly fulfilling the requisites of s. 7(1) of 1955 Act, or
any other personal law entitles the woman to maintenance u/ E
s. 125 - Referred to larger Bench - Protection of Women from
Domestic Violence Act, 2005 - Hindu Marriage Act, 1955 -
s. 7 - Reference to larger Bench - Words and Phrases.

     According to the appellant, she was married to 'RS',
elder brother of the first respondent. 'RS' died. Thereafter,      F
the appellant was married to the first respondent as per
the customs and usages prevalent in the Kushwaha
community. The marriage was solemnized with Katha and
Sindur. They lived together as husband and wife. After
some time the first respondent started harassing and               G
torturing the appellant, stopped her maintenance and
also refused to discharge his marital obligations towards
her. The appellant filed petition under Section 125 of the
Code of Criminal Procedure, 1973 for maintenance and
                              223                                  H
    224      SUPREME COURT REPORTS            [2010] 12 S.C.R.


A for the restitution of conjugal rights under Section 9 of
  the Hindu Marriage Act, 1955. The trial court decreed the
  suit for restitution of conjugal rights. In appeal, the High
  Court held that since the essentials of a valid Hindu
  marriage as required under Section 7 of the Hindu
8 Marriage Act were not performed between the first
  respondent and the appellant, the first respondent was
  not the husband of the appellant, and set aside the
  findings of the trial court. The review petition was also
  dismissed. Therefore, the appellant filed the instant
c appeal.
      The questions which arose for consideration in the
  instant appeal were: whether a man and woman living
  together for a long time, even without a valid marriage,
  would raise a presumption of a valid marri<'ge entitling
D such a woman to maintenance under section 125 Cr.P.C.;
  and what is meant by 'wife' under section 125 Cr.P.C.
  especially having regard to explanation under clause (b)
  of Section 125 Cr.P.C.

E         Referring the matter to the larger bench, the Court

      HELD: 1.1 In cases where a man, who lived with a
  woman for a long time and even though they may not
  have undergone legal necessities of a valid marriage,
  should be made liable to pay the woman maintenance if
F he deserts her. The man should not be allowed to benefit
  from the legal loopholes by enjoying the advantages of
  a de facto marriage without undertaking the duties and
  obligations. Any other interpretation would lead the
  woman to vagrancy and destitution, which the provision
G of maintenance in Section 125 of the Code of Criminal
  Procedure, 1973 is meant to prevent. [Para 26] [235-D-FJ

        1.2 In the instant case, both the appellant and the first
    respondent were related and lived in the same house and
H
     CHANMUNIYA v. VIRENDRA KUMAR SINGH                 225
             KUSHWAHA & ANR.
by a social custom were treated as husband and wife.           A
Their marriage was solemnized with Katha and Sindur.
Therefore, there is a very strong presumption in favour
of marriage. [Para 13] [232-A-B]

     1.3 There is a divergence of judicial opinion on the      8
interpretation of the word 'wife' in Section 125 of the Code
of Criminal Procedure, 1973. A broad view is to be taken
of the definition of 'wife' having regard to the social
object of Section 125 in the Code. However, sitting in a
two-Judge Bench, a view contrary to the views expressed        C
in Yamuna Bai's case and Savitaben Somabai Bhatiya's
case that the expression 'wife' in section 125 of the Code
should be interpreted to mean only a legally wedded wife,
cannot be taken. [Para 33] [237-D]

     Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav        D
and Anr. AIR 1988 SC 644; Savitaben Somabhat Bhatiya v.
State of Gujarat and Ors. AIR 2005 SC 1809 - referred to.

     1.4 Though in India, law has not developed on the
lines of the Marvin's case but the social context also is      E
fast changing, of which cognizance has to be taken by
courts in interpreting a statutory provision which has a
pronounced social content like Section 125 of the Code.
[Para 36] [238-E-F]

     Marvin v. Marvin (1976) 18 Cal.3d 660, referred to.       F

      1.5 The larger Bench could also refer to Marvin's
  case considering the provisions of the Protection of
  Women from Domestic Violence Act, 2005. This Act
  assigns a very broad and expansive definition to the term    G
  'domestic abuse' to include within its purview even
  economic abuse. 'Economic abuse' has been defined
  very broadly in sub-explanation (iv) to Explanation I of
. Section 3 of the 2005 Act to include deprivation of
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   226      SUPREME COURT REPORTS              (2010] 12 S.C.R.


A financial and economic resources. Section 20 of the Act
  allows the Magistrate to direct the respondent to pay
  monetary relief to the aggrieved person, who is the
  harassed woman, for expenses incurred and losses
  suffered by her, which may include, but is not limited to,
B maintenance under Section 125 Cr.P.C. Section 22 of the
  Act confers upon the Magistrate, the power to award
  compensation to the aggrieved person, in addition to
  other reliefs granted under the Act. In terms of Section
  26 of the Act, these reliefs can be sought in any legal
c proceeding, before a civil court, family court or a criminal
  court, affecting the aggrieved person and the
  respondent. [Paras 37, 38, 39 and 40) [238-G-H; 239-A-C]

       1.6 Most significantly, the Act gives a very wide
  interpretation to the term 'domestic relationship' as to
D take it outside the confines of a marital relationship, and
  even includes live-in relationships in the nature of
  marriage within the definition of 'domestic relationship'
  under Section 2(f) of the Act. Therefore, women in live-in
  relationships are also entitled to all the reliefs given in the
E said Act. Thus, if the monetary relief and compensation
  can be awarded in cases of live-in relationships under the
  Act of 2005, they should also be allowed in a proceeding
  under Section 125 of Cr.P.C. It seems that the same view
  is confirmed by Section 26 of the Act of 2005. [Paras 41,
F 42, 43) [239-0-F]

      1. 7 It is believed that in the light of the constant
  change in social attitudes and values, which have been
  incorporated into the forward-looking Act of 2005, the
G same needs to be considered with respect to Section 125
  of Cr.P.C. and accordingly, a broad interpretation of the
  same should be taken. [Para 44) [239-G)

       1.8 The Hon'ble Chief Justice is requested to refer
  the following, amongst other, questions to be decided by
H a larger Bench. The questions are:
     CHANMUNIYA v. VIRENDRA KUMAR SINGH                227
             KUSHWAHA & ANR.
    (a) Whether the living together of a man and woman        A
    as husband and wife for a considerable period of time
    would raise the presumption of a valid marriage
    between them and whether such a presumption
    would entitle the woman to maintenance under
    Section 125 Cr.P.C?                                       B

    (b) Whether strict proof of marriage is essential for a
    claim of maintenance under Section 125 Cr.P.C.
    having regard to the provisions of the Protection of
    Women from Domestic Violence Act, 2005?
                                                              c
    (c) Whether a marriage performed according to
    customary rites and ceremonies, without strictly
    fulfilling the requisites of Section 7(1) of the Hindu
    Marriage Act, 1955, or any other personal law would
    entitle the woman to maintenance under Section 125        D
    Cr.P.C.? [Para 45] [239-H; 240-A-B]

     1.9 A broad and expansive interpretation should be
given to the term 'wife' to include even those cases
where a man and woman have been living together as
                                                              E
husband and wife for a reasonably long period of time,
and strict proof of marriage should not be pre-condition
for maintenance under section 125 of the CrPC, so as to
fulfill the true spirit and essence of the beneficial
provision of maintenance under section 125. It is believed
that such an interpretation would be a just application of    F
the principles enshrined in the Preamble to the
Constitution, namely social justice, and upholding the
dignity of the individual. [Paras 46 and 47] [240-E-G]

     A. Dinohamy v. W.L. Balahamy AIR 1927 P.C. 185;          G
Mohabbat Ali Khan v. Muhammad Ibrahim Khan and Ors.
AIR 1929 PC 135; Gokal Chand v. Parvin Kumari AIR 1952
           ...
SC 231; Badri Prasad v. Dy. Director of Consolidation and
Ors. (1978) 3 SCC 527; Tulsa and Ors. v. Durghatiya and
                                                              H
    228    SUPREME COURT REPORTS               [2010] 12 S.C.R.


A Ors. 2008 (4) SCC 520; Jagir Kaur and Anr. v. Jaswant Singh
  AIR 1963 SC 1521; Nanak Chand v. Chandra Kishore
  Aggarwal and Ors. 1969 (3) SCC 802; Captain Ramesh
  ChanderKaushal v. Veena Kaushal and Ors. AIR 1978 SC
  1807; Vimala (K) v. Veeraswamy (K) (1991) 2 SCC 375;
B Mohammad Ahmed Khan v. Shah Bano Begum and Ors.
  (1985) 2 SCC 556; Dwarika Prasad Satpathy v. Bidyut Prava
  Dixit and Anr. (1999) 7 SCC 675, referred to.

         Lousia Adelaide Piers and Florence A. M. De Kerriguen
    v. Sir Henry Samuel Piers (1849) II HLC 331; C. W Campbell
c   v. John A.G. Campbell (1867) Law Rep. 2 HL 269; Captain
    De Thoren v. The Attorney-General (1876) 1 AC 686; Sastry
    Ve/aider Aronegary andhis wife v. Sembecutty Viaga/ie and
    Ors. (1881) 6 AC 364, referred to.

D                        Case Law Reference:
     (1849) II HLC 331          Referred to.          Para 12
     (1867) Law Rep. 2 HL 269 Referred to.            Para 13
     (1876) 1 AC 686            Referred to.          Para 13
E
     (1881) 6 AC 364            Referred to.          Para 14
     AIR 1927 P.C. 185          Referred to.          Para 15
     AIR 1929 PC 135            Referred to.          Para 16
F
     AIR 1952 SC 231            Referred to.          Para 17
     (1978) 3 sec 527           Referred to.          Para 18
     2008 (4) sec 520           Referred to.          Para 19
G    AIR 1963 SC 1521           Referred to.          Para 22
     1969 (3) sec 802           Referred to.          Para 23
     AIR 1978 SC 1807           Referred to.          Para 24

H    (1991) 2 sec 375           Referred to.          Para 25
      CHANMUNIYA v. VIRENDRA KUMAR SINGH                  229
              KUSHWAHA & ANR.

  (1985) 2 sec 556             Referred to.         Para 28      A

  (1999) 1 sec 675             Referred to.         Para 29

  AIR 1988 SC 644              Referred to.         Para 30

  AIR ·2005 SC 1809            Referred to.         Para 31      B
  (1976) 18 Cal.3d 660         Referred to.         Para 34

     CIVIL APPELLATE JURISDICTION : Civil Appeal No.
 8866 of 2010.

      From the Judgment & Order dated 28.11.2007 of the High     C
  Court of Judicature at Allahabad in First Appeal No. 110 of
;20.04 and order dated 23.01.2009 in Review Application No.
  54098 of 2008 (in F.A. No. 110 of 2004).

      Altaf Ahmad, P.S. Patwalia, Sibo Sankar Mishra, M.         D
 lndrani for the Appellant.

     Mona K. Rajvanshi, Anurag Kashyap, B.K. Shahi for the
 Respondents.

     The Judgment of the Court was delivered by                  E

     GANGULY, J. 1. Leave granted.

      2. One Sarju Singh Kushwaha had two sons, Ram Saran
 (elder son) and Virendra Kumar Singh Kushwaha (younger son
                                                                 F
 and the first respondent). The appellant, Chanmuniya, was
 married to Ram Saran and had 2 daughters-Asha, the first one,
 was born in 1988 and Usha, the second daughter, was born in
 1990. Ram Saran died on 7.03.1992.

     3 .. Thereafter, the appellant contended that she was       G
 married off to the first respondent as per the customs and
 usages prevalent in the Kushwaha community in 1996. The
 custom allegedly was that after the death of the husband, the
 widow was married off to the younger brother of the husband.
 The appellant was married off in accordance with the local      H
    230      SUPREME COURT REPORTS                [2010] 12 S.C.R.


A custom of Katha and Sindur. The appellant contended that she
  and the first respondenTwere living together as husband and
  wife and had discharged all marital obligations towards each
  other. The appellant further contended that after some time the
  first respondent started harassing and torturing the appellant,
s stopped her maintenance and also refused to discharge his
  marital obligations towards her.

      4. As a result, she initiated proceedings under Section
  125 of the Cr.P .C. for maintenance (No.20/1997) before the 1st
C Additional Civil Judge, Mohamadabad, Ghazipur. This
  proceeding is pending.

         5. She also filed a suit (No.42/1998) for the restitution of
    conjugal rights under Section 9 of the Hindu Marriage Act, 1955
    in the Court of 1st Additional District Judge, Ghazipur.
D
       6. The Trial Court decreed the suit for restitution of conjugal
  rights in favour of the appellant on 3.1.2004 as it was of the
  opinion that the appellant had remarried the first respondent
  after the death of Ram Saran, and the first respondent had
E deserted the appellant thereafter. Thus, it directed the first
  respondent to live with the appellant and perform his marital
  duties.

       7. Hence, the first respondent preferred a first appeal
  (No.110/2004) under Section 28 of the Hindu Marriage Act. The
F main issue in appeal was whether there was any evidence on
  record to prove that the appellant was the legally wedded wife
  of the first respondent. The High Court in its judgment dated
  28.11.2007 was of the opinion that the essentials of a valid
  Hindu marriage, as required under Section 7 of the Hindu
G Marriage Act, had not been performed between the first
  respondent and the appellant and held that the first respondent
  was not the husband of the appellant and thus reversed the
  findings of the Trial Court.

          8. Aggrieved by the aforesaid judgment of the High Court,
H
   CHANMUNIYA v. VIRENDRA KUMAR SINGH                          231
 KUSHWAHA & ANR. [ASOK KUMAR GANGULY, J.]

the appellant sought a review of the order dated 28.11.2007.          A
The review petition was dis.missed on 23.01.2009 on the
ground that there was no error apparent on the face of the
record of the judgment dated 28.11.2007.

     9. Hence, the appellant approached this Court by way of          8
a special leave petition against the impugned orders dated
28.11.2007 and 23.01.2009.

     10. One of the major issues which cropped up in the
present case is whether or not presumption of a marriage
arises when parties live together for a long time, thus giving rise   C
to a claim of maintenance under Section 125 Cr.P.C. In other
words, the question is what is meant by 'wife' under Section
125 of Criminal Procedure Code especially having regard to
explanation under clause (b) of the Section.
                                                                      D
     11. Thus, the question that arises is whether a man and
woman living together for a long time, even without a valid
marriage, would raise as in the present case, a presumption
of a valid marriage entitling such a woman to maintenance.

     12. On the question of presumption of marriage, we may           E
usefully refer to a decision of the House of Lords rendered in
the case of Lo'usia Adelaide Piers & Florence A.M. De
Kerriguen v. Sir Henry Samuel Piers [(1849) II HLC 331], in
which their Lordships observed that the question of validity of
a marriage cannot be tried like any other issue of fact               F
independent of presumption. The Court held that law will
presume in favour of marriage and such presumption could only
be rebutted by strong and satisfactory evidence.

     13. In Lieutenant C.W. Campbell v. John A.G. Campbell            G
[(1867) Law Rep. 2 HL 269], also known as the Breadalbane
case, the House of Lords held that cohabitation, with the
required repute, as husband and wife, was proof that the
parties between themselves had mutually contracted the
matrimonial relation. A relationship which may be adulterous          H
    232     SUPREME COURT REPORTS                [2010] 12 S.C.R.


A at the beginning may become matrimonial by consent. This
  may be evidenced by habit and repute. In the instant case both
  the appellant and the first respondent were related and lived in
  the same house and by a social custom were treated as
  husband and wife. Their marriage was solemnized with Katha
B and Sindur. Therefore, following the ratio of the decisions of the
  House of Lords, this Court thinks there is a very strong
  presumption in favour of marriage. The House of Lords again
  observed in Captain De Thoren v. The Attorney-General
  [(1876) 1 AC 686], that the presumption of marriage is much
c stronger than a presumption in regard to other facts.

      14. Again in Sastry Ve/aider Aronegary & his wife v.
  Sembecutty Viagalie & Ors. [(1881) 6 AC 364], it was held that
  where a man and woman are proved to have lived together as
  man and wife, the law will presume, unless the contrary is clearly
D proved, that they were living together in consequence of a valid
  marriage, and not in a state of concubinage.

       15. In India, the same principles have been followed in the
  case of A. Dinohamy v. W.L. Ba/ahamy [AIR 1927 P.C. 185],
E in which the Privy Council laid down the general proposition that
  where a 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.
F        16. In Mohabbat Ali Khan v. Muhammad Ibrahim Khan
    and Ors. [AIR 1929 PC 135], the Privy Council has laid down
    that the law presumes in favour of marriage and against
    concubinage when a man and woman have cohabited
    continuously for number of years.
G
      17. In the case of Gokal Chand v. Parvin Kumari [Al R
  1952 SC 231], this Court held that continuous co-habitation of
  man and woman as husband and wife may raise the
  presumption of marriage, but the presumption which may be
H drawn from long co-habitation is rebuttable and if there are
   CHANMUNIYA v. VIRENDRA KUMAR SINGH                         233
 KUSHWAHA & ANR. [ASOK KUMAR GANGULY, J.]
circumstances which weaken and destroy that pre$umption, the         A
Court cannot ignore them.

     18. Further, in the case of Badri Prasad v. Dy. Director of
Consolidation & Ors. [(1978) 3 SCC 527], the Supreme Court
held that a strong presumption arises in favour of wedlock           8
where the partners have lived together for a long spell as
husband and wife. Although the presumption is rebuttable, a
heavy burden lies on him who seeks to deprive the relationship
of legal origin.

     19. Again, in Tulsa and Ors. v. Durghatiya & Ors. [2008         C
(4) SCC 520], this Court held that where the partners lived
together for a long spell as husband and wife, a presumption
would arise in favour of a valid wedlock.

     20. Sir James Fitz Stephen, who pilotea the Crimin~!            o
Procedure Code of 1872, a legal member of Viceroy's Council,
described the object of Section 125 of the Code (it was Section
536 in 1872 Code) as a mode of preventing vagrancy or at
least preventing its consequences.

     21. Then came the 1898 Code in which the same provision         E
was in Chapter XXXVI Section 488 of the Code. The exact
provision of Section 488(1) of the 1898 Code runs as follows:
                                /

    "488. (1) If any person having sufficient means neglects or
    refuses to maintain his wife or his legitimate or illegitimate   F
    child unable to maintain itself, the District Magistrate, a
    Presidency Magistrate, a Sub-divisional Magistrate or a
    Magistrate of the first class may, upon proof of such neglect
    or refusal, order such person to make a monthly allowance
    for the maintenance of his wife or such child, at such           G
    monthly rate, not exceeding five hundred rupees in the
    whole as such Magistrate thinks fit, and to pay the same
    to sue~. person as th~, Magistrate from time to time
    directs.".
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    234      SUPREME COURT REPORTS                  [2010] 12 S.C.R.


A       22. In Jagir Kaur & Anr. v. Jaswant Singh [AIR 1963 SC
  1521], the Supreme Court observed with respect to Chapter
  XXXVI of Cr.P.C. of 1898 that provisions for maintenance of
  wives and children intend to serve a social purpose. Section
  488 prescribes forums for a proceeding to enable a deserted
B wife or a helpless child, legitimate or illegitimate, to get urgent
  relief.

        23. In Nanak Chand v. Chandra Kishore Aggarwal & Ors.
  [1969 (3) SCC 802], the Supreme Court, discussing Section
C 488 of the older Cr.P.C, virtually came to the same conclusion
  that Section 488 provides a summary remedy and is applicable
  to all persons belonging to any religion and has no relationship
  with the personal law of the parties.

        24. In Captain Ramesh Chander Kaushal v. Veena
D Kaushal and Ors. [AIR 1978 SC 1807], this Court held that
  Section 125 is a reincarnation of Section 488 of the Cr.P.C.
  of 1898 except for the fact that parents have also been brought
  into the category of persons entitled for maintenance. It
  observed that this provision is a measure of social justice
E specially enacted to protect, and inhibit neglect of women,
  children, old and infirm and falls within the constitutional sweep
  of Article 15(3) reinforced by Article 39. Speaking for the Bench
  Justice Krishna Iyer observed that- "We have no doubt that
  sections of statutes calling for construction by courts are not
F petrified print but vibrant words with social functions to fulfill. The
  brooding presence of the constitutional empathy for the weaker
  sections like women and children must inform interpretation if
  it is to have social relevance. So viewed, it is possible to be
  selective in picking out that interpretation out of two alternatives
G which advance the cause- the cause of the derelicts." (Para 9
  on pages 1809-10)

         25. Again in Vimala (K) v. 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
H
    CHANMUNIYA v. VIRENDRA KUMAR SINGH                        235
  KUSHWAHA & ANR. [ASOK KUMAR GANGULY, J.]
 the object is to prevent vagrancy and destitution. Explaining the   A
 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
                                                                     8
       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 · C
       who has been divorced by a husband or who has obtained
       a divorce from her 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 ... "
                                                                     D
       26. Thus, in those cases where a man, who lived with a
  woman for a long time and even though they may not have
  undergone legal necessities of a valid marriage, should be
  made liable to pay the woman maintenance if he deserts her.
  The man should not be allowed to benefit from the legal E
  loopholes by enjoying the advantages of a de facto marriage
  without undertaking the duties and obligations. Any other
  interpretation would lead the woman to vagrancy and
. destitution, which the provision of maintenance in Section 125
  is meant to prevent.                                               F

     27. The Committee on Reforms of Criminal Justice
System, headed by Dr. Justice V.S. Malimath, in its report of
2003 opined that evidence regarding a man and woman living
together for a reasonably long period should be sufficient to
draw the presumption that the marriage was performed                 G
according to the customary rites of the parties. Thus, it
recommended that the word 'wife' in Section 125 Cr.P.C.
should be amended to include a woman who was living with
the man like his wife for a reasonably long period.
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    236     SUPREME COURT REPORTS                 [2010] 12 S.C.R.


A      28. The Constitution Bench of this Court in Mohammad
  Ahmed Khan v. Shah Bano Begum & Ors. reported in [(1985)
  2 sec 556], considering the provision of Section 125 of the
  1973 Code, opined that the said provision is truly secular in
  character and is different from the personal law of the parties.
B The Court further held that such provisions are essentially of a
  prophylactic character and cut across the barriers of religion.
  The Court further held that the liability imposed by Section 125
  to maintain close relatives, who are indigent, is founded upon
  the individual's obligation to the sc:;iety to prevent vagrancy and
C destitution.                                                    ·

       29. In a subsequent decision, in Owarika Prasad Satpathy
  v. Bidyut Prava Dixit & Anr. [(1999) 7 SCC 675], this Court
  held that the standard of proof of marriage in a Section 125
  proceeding is not as strict as is required in a trial for an offence
D under Section 494 of IPC. The learned Judges explained the
  reason for the aforesaid finding by holding that an order passed
  in an application under Section 125 does not really determine
  the rights and obligations of parties as the section is enacted
  with a view to provide a summary remedy to neglected wives
E to obtain maintenance. The learned Judges held that
  maintenance cannot be denied where there was some evidence
  on which conclusions of living together could be reached. (See
  para 9)

F      30. However, striking a different note, in Yamunabai
  Anantrao Adhav v. Anantrao Shivram Adhav and another,
  reported in AIR 1988 SC 644, a two-Judge Bench of this Court
  held that an attempt to exclude altogether personal law of the
  parties in proceedings under Section 125 is improper. (See
  para 6). The learned Judges also held (paras 4 & 8) that the
G expression 'wife' in Section 125 of the Code should be
  interpreted to mean only a legally wedded wife.

        31. Again in a subsequent decision of this Court in
    Savitaben Somabhat Bhatiya v. State of Gujarat and others,
H
    CHANMUNIYA v. VIRENDRA KUMAR SINGH                          237
  KUSHWAHA & ANR. [ASOK KUMAR GANGULY, J.]

reported in AIR 2005 SC 1809, this Court held however                  A
desirable it may be to take note of 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.              B
While coming to the aforesaid finding, the learned Judges
relied on the decision in the Yamunabai case (supra).

     32. It is, therefore, clear from what has been discussed
above that there is a divergence of judicial opinion on the            C
interpretation of the word 'wife' in Section 125.

     33. We are inclined to take a broad view of the definition
of 'wife' having regard to the social object of Section 125 in
the Code of 1973. However, sitting in a two-Judge Bench, we
cannot, we are afraid, take a view contrary to the views               D
expressed in the abovementioned two cases.

      34. However, law in America has proceeded on a slightly
different basis. The social obligation of a man entering into a
live-in relationship with another woman, without the formalities
                                                                       E
of a marriage, came up for consideration in the American
courts in the leading case of Marvin v. Marvin [(1976) 18
Cal.3d 660]. In that context, a new expression of 'palimony' has
been coined, which is a combination of 'pal' and 'alimony', by
the famous divorce lawyer in the said case, Mr. Marvin
Mitchelson.
                                                                       F

     35. In the Marvin case (supra), the plaintiff, Michelle Marvin,
alleged that she and Lee Marvin. entered into an oral
agreement which provided that while "the parties lived together
they would combine their efforts and earnings and would share          G
equally any and all property accumulated as a result of their
efforts whether individual or combined." The parties allegedly
further agreed that Michelle would "render her services as a
companion, homemaker, housekeeper and cook." Michelle
sought a judicial declaration of her contract and property rights,     H
    238       SUPREME COURT REPORTS                [2010] 12 S.C.R.


A   and sought to impose a constructive trust upon one half of the
    property acquired during the course of the relationship. The
    Supreme Court of California held as follows:

          (1) The provisions of the Family Law Act do not govern the
          distribution of property acquired during a non-marital
B
          relationship; such a relationship remains subject solely to
          judicial decision.

          (2) The courts should enforce express contracts between
          non-marital partners except to the extent that the contract
c         is explicitly founded on the consideration of meretricious
          sexual services.

          (3) In the absence of an express contract, the courts should
          inquire into the conduct of the parties to determine
D         whether that conduct demonstrates an implied contract,
          agreement of partnership or joint venture, or some other
          tacit understanding between the parties. The courts may
          also employ the doctrine of quantum meruit, or equitable
          remedies such as constructive or resulting trusts, when
          warranted by the facts of the case.
E
       36. Though in our country, law has not developed on the
  lines of the Marvin case (supra), but our social context also is
  fast changing, of which cognizance has to be taken by Courts
  in interpreting a statutory provision which has a pronounced
F social content like Section 125 of the Code of 1973.

       37. We think the larger Bench may consider also the
  provisions of the Protection of Women from Domestic Violence
  Act, 2005. This Act assigns a very broad and expansive
G definition to the term 'domestic abuse' to include within its
  purview even economic abuse. 'Economic abuse' has been
  defined very broadly in sub-explanation (iv) to explanation I of
  Section 3 of the said Act to include deprivation of financial and
  economic resources.
H
   CHANMUNIYA v. VIRENDRA KUMAR SINGH                           239
 KUSHWAHA & ANR. [ASOK KUMAR GANGULY, J.]
     38. Further, Section 20 of the Act allows the Magistrate to        A
direct the respondent to pay monetary relief to the aggrieved
person, who is the harassed woman, for expenses incurred and
losses suffered by her, which may include, but is not limited to,
maintenance under Section 125 Cr.P.C. [Section 20(1)(d)].
                                                                        B
     39. Section 22 of the Act confers upon the Magistrate, the
power to award compensation to the aggrieved person, in
addition to other reliefs granted under the Act.

    40. In terms of Section 26 of the Act, these reliefs
mentioned above can be sought in any legal proceeding,                  C
before a civil court, family court or a criminal court, affecting the
aggrieved person and the respondent.

      41. Most significantly, the Act gives a very wide
interpretation to the term 'domestic relationship' as to take it        0
outside the confines of a marital relatrOrlship, and even includes
                                   of
live-in relationships in the nature marriage within the definition
of 'domestic relationship' under Section 2(f) of the Act.

      42. Therefore, women in live-in relationships are also
entitled to all the reliefs given in the said Act.                      E

    . 43. We are thus of the opinion that if the abovementioned
monetary relief and compensation can be awarded in cases
of live-in relationships under the Act of 2005, they should also
be allowed in a proceedings under Section 125 of Cr.P,.C. It            F
seems to us that the same view is confirmed by Section 26 of
the said Act of 2005.

      44. We believe that in light of the constant change in social
attitudes and values, which have been incorporated into the             G
forward-looking Act of 2005, the same needs to be considered
with respect to Section 125 of Cr.P.C. and accordingly, a broad
interpretation of the same should be taken.

     45. We, therefore, request the Hon'ble Chief Justice to
                                                                        H
    240           SUPREME COURT REPORTS               [2010] 12 S.C.R.


A   refer the following, amongst other, questions to be decided by
    a larger Bench. According to us, the questions are:

            1.      Whether the living together of a man and woman
                    as husband and wife for a considerable period of
                    time would raise the presumption of a valid
B
                    marriage between them and whether such a
                    presumption would entitle the woman to
                    maintenance under Section 125 Cr.P.C?

           . 2.     Whether strict proof of marriage is essential for a
c                   claim of maintenance under Section 125 Cr.P.C.
                    having regard to the provisions of Domestic
                    Violence Act, 2005?

            3.      Whether a marriage performed according to
D                   customary rites and ceremonies, without strictly
                    fulfilling the requisites of Section 7(1) of the Hindu
                    Marriage Act, 1955, or any other personal law
                    would entitle the woman to maintenance under
                    Section 125 Cr.P.C.?

E      46. We are of the opinion that a broad and expansive
  interpretation should be given to the term 'wife' to include even
  those cases where a man and woman have been living together
  as husband and wife for a reasonably long period of time, and
  strict proof of marriage should not be a pre-condition for
F maintenance under Section 125 of the Cr.P.C, so as to fulfil
  the true spirit and essence of the beneficial provision of
  maintenance under Section 125.

       47. We also believe that such an interpretation would be
G a just application of the principles enshrined in the Preamble
  to our Constitution, namely, social justice and upholding the
  dignity of the individual.

    N.J.                          Matters referred to the larger Bench.