Marriage under Hindu law is ‘sacrament’, not contract: Delhi High Court

Marriage under the Hindu law is “sacrament” and “not a contract” which can be entered into by executing a deed, Delhi High Court has observed while dismissing a plea by a woman who had challenged an order refusing to declare her as the legally-wedded wife. The woman had approached the court seeking her appointment for job on compassionate ground after the death of her alleged husband, a former sanitation staff in a city government hospital, and a direction to the medical superintendent to release consequential benefits and allow her to join duties.

The high court noted in its judgement that the petitioner had contended that she had married the man by way of execution of a marriage deed in June 1990 without disputing the fact that he was living with his earlier wife, who had died in May 1994. “Since inception, the contention of the appellant (woman) had been that her marriage with the man on June 2, 1990 was performed by way of execution of a marriage deed and an affidavit. It is not disputed by her that the man had a living spouse on June 2, 1990 and she expired on May 11, 1994.

“Under Hindu Law, marriage is a ‘sacrament’ (solemn pledge) and not a contract which can be entered into by execution of a marriage deed. On June 2, 1990 the man was having a living spouse,” Justice Pratibha Rani said. The high court said the lower court had rightly held that the woman cannot claim the status of a legally wedded wife of the man on the strength of the alleged marriage and its order cannot be termed illegal. The woman had claimed she was the man’s widow and after his death, she had applied for appointment on compassionate ground after which she was offered appointment as ‘safai karamchari’ on temporary basis in the hospital.

Later, a show cause notice was served on her asking her to explain the legality and validity of her marriage with the man. She had replied that on the date of death of her husband in February 1997, she was his only wife. The woman’s plea before the trial court was contested by the Delhi government and medial superintendent of the hospital who said that she had misrepresented about being the legally wedded wife of the man. The court, in its verdict, noted that the trial court in its judgement had referred to the earlier order passed by the high court in which it was held that issuance of succession certificate in favour of the petitioner without impleading the legal heirs of the man was of hardly any value.

“It is settled legal position that in second appeal, high court cannot set aside concurrent finding of fact given by the courts below. The second appeal can be entertained only if a substantial question of law is raised. The rationale behind is that appreciation and reappreciation of an evidence must come to an end with the first appeal,” the court noted. “It has been consistent view that high court has no jurisdiction to entertain second appeal merely on the plea that another view is possible on appreciation of relevant evidence available on record,” it said.

http://indianexpress.com/article/india/marriage-under-hindu-law-is-sacrament-not-contract-delhi-high-court-4496819/

Supreme Court Vs Traditional Norms. Live-In Relationships Ruled As Marriage Under Law

Supreme Court ruled that domestic relationships where a couple lives together, outside of marriage, will be considered as marriage under the law. Such relationships, also known as live-ins have over time become increasingly popular. They allow individuals the freedom of getting to know one another without the burden of a legally binding relationship.

These easy-in easy-out relationships exclude the abhorrent mess of family drama and prolonged legal battles in case the couple decides to break up. Expectedly so, these relationships are considered a taboo in Indian social culture. It is therefore even more surprising that the Supreme Court now considers them to be marriage.

But before we pursue deciphering the legal argument, let us try to understand what constitutes a live-in relationship based on the following court judgments.

Defining 'live-in':

Indira Sarma vs VKV Sarma

The judgement of Indira Sarma vs VKV Sarma by the Supreme Court, came in as a breath of fresh air. Amidst the lack of specific legislation on the subject, the apex court made an important decision to discuss live-in relationships under the pretext of the Domestic Violence Act. The court stated, "Live-in or marriage-like relationship is neither a crime nor a sin though socially unacceptable in this country. The decision to marry or not to marry or to have a heterosexual relationship is intensely personal".

It was the task of the court to determine whether this live-in relationship fell under the definition of "domestic relationship" under section 2(f) of the Protection of Women from Domestic Violence Act, 2005. Thus the court had to determine if this relationship amounted to a "relationship in the nature of marriage".

There is no legal definition for a live-in relationship. It is understood to be a domestic relationship between two people in a romantic relationship. Sexual intimacy is popularly accepted, although not mandatory.

A bench of Justice MY Eqbal and Justice Amitava Roy said continuous cohabitation of a couple would raise the presumption of valid marriage and the burden of proof would fall on the opposite party to prove that they were not legally married.

The Supreme Court since 2010 has consistently ruled in favour of couples living together as husband and wife, giving the woman the rights of a wife. These rights include protection from domestic violence, the right to inherit property, the legitimacy of her children and the maintenance of woman after split.

Live-in and domestic violence, nature of relationship:

D.Velusamy vs D.Patchaiammal

The Supreme Court in this case allowed a live-in relationship to come within the purview of the Domestic Violence Act (DV Act), 2005, subject to fulfillment of some additional criterion.

A woman under DV Act can request compensation in case of physical, mental, verbal or economic abuse. The victim has been granted several rights and protections under this legislation. The woman is allowed custody of her children and a right to claim compensation for any harm caused.

In the Velusamy case the relationship was considered as a "relationship in the nature of marriage". There are certain pre-requisites of such a relationship, for instance, the couple must be of legal marriageable age, they must present themselves in society as akin to spouses, they must have voluntarily cohabited, they must be qualified to marry, therefore be unmarried.

If these guidelines are met, then the relationship is considered to be a marriage, and a complaint can be filed under the DV Act. In the Velusamy case the guidelines were quite vague, however, there are cases where the court suggests specific guidelines for the couple. Such as 'Domestic Arrangement', in which case the relationship will only be considered in the nature of marriage if the woman is bearing the responsibility of 'running the household'. She must do the household activities of cleaning, cooking and maintenance.

So, according to the Supreme Court, a woman's role in a marriage is restricted only to household activities. Could one suggest then, that a woman who does not fulfil this role is unmarried?

Live-in and inheritance:

Grandfather's mistress vs Rest of the family

The recent SC decision was taken during a property dispute case. A family contested that their grandfather, who was living with a woman for 20 years after the death of his wife, was not married to her and therefore she was not entitled to inherit the property after his death. They contended that she was their grandfather's mistress.

Despite the woman failing to provide proof that she was legally wedded, the court ruled in her favour after the family members admitted she was living with their grandfather in the joint family. She was therefore able to inherit any property of the deceased.

Live-in and having children:

SPS Balasubramanyam vs Suruttayan

In this case, the court suggested that since the relationship extended over a long period of time, any child born out of this union will be considered legitimate. There are however, certain complexities in this matter. The Hindu Marriage Act, 1955 considers all children born even out of a wedlock to be legitimate and therefore entitled to any inheritance. Thus inheritance rights have been granted to children of live-in relationships, with respect to both ancestral and self-acquired property.

The problem here, is that in some cases courts have relayed back to the Hindu Marriage Act, and in some they have considered the time the couple has lived together. Thus raising questions of equal judgement in the courts. Recently though, most courts have considered children born out of wedlock to be legitimate.

The argument

Calling a live-in relationship a marriage, is a lot like painting a horse black and white and calling it a Zebra - It's just not true.

That being said, legitimising a live-in relationship as a marriage does have its perks. Women have the right to sue under the DV Act, children born of the union can inherit property, women have the right to maintenance and/or property if they split, etc. These are all aspects of marriage that would not exist for couples in a live-in relationship had it not been for the Supreme Court's recent ruling.

However, how fair is it for the State to intervene in one's private relationships? Yes, the ruling provides safeguards for those who enter a relationship like this. Yes, it is particularly beneficial for women and children. But even so, what of the couples that have chosen not to be married and are happily living in a consensual union?

It is definitely a problematic ruling and one that is sure to be feverishly debated on social media and traditional media alike.

http://www.scoopwhoop.com/news/sc-rules-live-in-relationships-are-marriage/

Alimony to husband by wife

In recent divorce cases, courts, deviating from the norm, have been denying maintenance to the wife if she is capable of earning or was earning in the past. There are also cases of the wife being asked to pay maintenance to the husband.

The husband paying maintenance to the wife is the textbook model for divorce proceedings. However, in a recently developed trend, the courts have been denying maintenance to the wife if she is capable of earning or was earning in the past. There have also been cases where the court, instead of going the conventional way, has told the wife to pay maintenance to the husband. Even the wives, in a hurry to end the marriage as soon as possible, are opting for out-of-court settlements and paying the husbands a permanent alimony.

Maintenance Plea by the wife rejected

In a recent judgement, a trial court in Delhi denied the plea of a woman seeking maintenance from her husband. It was reported that the trial court dismissed the woman's plea seeking residential maintenance from her estranged husband, and observed that no financial assistance can be provided to a woman if she earns as much as her husband. Anuradha Shukla Bharadwaj, additional sessions judge, observed, "In the era of gender equality, bias cannot be shown to one gender and discretionary relief of financial assistance cannot be granted to wives despite their capability to earn as much as their husbands."

The court, reportedly, said that rental maintenance would have been awarded to the wife had she proved that she was incapable of arranging an accommodation for herself. However, in this case, she was living with her mother.

Although uncommon, it is not the first time that a court has denied maintenance to the wife. There have been several cases where the court has supported the husband and denied the wife's plea for maintenance. In a case, "The husband was an NRI from the UK and the wife was working with a multinational bank here in Delhi, and she was drawing a salary of `60,000-70,000. They had a troubled marriage so the wife filed for divorce. She asked for maintenance under Section 125 of the Code of Criminal Procedure, 1973, from her husband, stating that he was quite rich. However, her plea for maintenance was rejected and the court ruled that since she was earning well, she didn't need her husband's money to survive, despite the fact that he was quite well-off."

"A trend has developed recently wherein the court is denying maintenance to the wife if she has capability, capacity and past employment." Citing a case, he says, "There was a case in which the wife was a dentist by profession and used to be employed. However, at the time of divorce, she wasn't working and asked for maintenance from her husband. But the court denied her maintenance because, in this case, she had the capability and capacity, and was working in the past. So, she could work again to support herself."

Family resource cake

It is not necessary that either of the party has to pay maintenance to the other in divorce cases. "In 2004, Justice Vikramjeet Sen of the Delhi High Court (as he then was) worked out a formula involving a 'family resource cake' in order to provide maintenance to even working wives. Justice Sen, in the said judgment, combined the income of both the spouses, calling it the 'family resource cake.' Half of the 'cake' was allocated to the husband to meet his expenses, and the other half to the wife and children, for their maintenance. This method has been widely followed by other courts in Delhi when awarding maintenance to either spouse."

Maintenance in favour of the husband

Although in most cases, the wife is awarded maintenance to enjoy the same lifestyle as that of the husband, there are also instances where the reverse happens. Not only is the wife refused maintenance, in many cases, she is also asked to pay maintenance to the husband.  In a case where the court granted maintenance to the husband, the Court granted maintenance in favour of the husband, who was suffering from a mental disorder, while the wife had a government job. The wife earned about `20,000, and the husband was granted a maintenance of `2,000." 

There was another case in which a court passed a judgment supporting the plea of a husband who, under Section 24 of the HMA, wanted maintenance from his wife. The trial court directed the wife to pay the husband `20,000 per month as maintenance, `10,000 as litigation expenses and also to provide a car for him. This judgment was later challenged in the High Court by the wife, but the HC also supported the judgment of the trial court. The wife was running a paying guest facility while the husband was unemployed.

The law which allows the husband to seek maintenance from his wife

Husband can only seek maintenance under Section 24 of the Hindu Marriage Act. "Section 24 of the Hindu Marriage Act, 1955, provides that the court, in case of either the wife or the husband having no independent income sufficient for her or his support, may, on the application of either of the spouses, order to pay to the petitioner the expenses of the proceedings and monthly expenses during the proceedings such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable. So, under this section, even the husband can file an application claiming maintenance pendent elite in the pending divorce case. But the only pre-requisite is that he should not have sufficient income to maintain and support self in consonance with the lifestyle and income of the wife. Assuming the wife is earning much more than the husband, the husband only in that eventuality shall have the locus to file for maintenance."

http://timesofindia.indiatimes.com/life-style/relationships/man-woman/Rich-wives-pay-alimony-to-hubbies-to-end-marriage-asap/articleshow/35114784.cms

Madras HC clarifies pre-marital sex verdict, objects to criticism

http://www.hindustantimes.com/India-news/TamilNadu/Madras-HC-clarifies-pre-marital-sex-verdict-objects-to-criticism/Article1-1079206.aspx