Introduction
Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) provides for maintenance of wives, children and parents if any person having sufficient means neglects or refuses to maintain them.[1] Under the previous code (“Cr.P.C.”), it was dealt with under Section 125.[2] The primary justification for this provision, which is in fact a civil matter, is a need for a speedy, effective and inexpensive remedy than the one which is generally available through the civil courts.[3] Besides this, the provision is also aimed at preventing starvation and vagrancy of a person’s wife, child or parents if they are unable to support themselves.[4]
The term “wife” is further explained in the provision as including ‘a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.’[5] Under the Hindu Marriage Act, 1956, the precondition to divorcing a person is the existence of a valid marriage.[6] Therefore, the explanation, read strictly, implies that there are only two ways a woman can claim maintenance from her partner—(i) if she is the legally wedded wife of the man, or (ii) if she was a legally wedded wife but has been divorced by, or has obtained divorce from him. The explanation did not exist in the original Cr.P.C. of 1898, and so the addition was a welcome change as it now included divorced women under the provision’s ambit too.[7] However, there remains a huge problem in the practical application of this provision. It places deserted women who were in live-in relationships or whose marriages were not legally recognized, in a difficult position, leaving them vulnerable to destitution and vagrancy—the very issue which the Section seeks to prevent.
In this article, the author examines the evolution of judicial interpretations and legislative efforts concerning the right to maintenance under Section 144 of the BNSS (formerly Section 125 of the Cr.P.C.). By analyzing key judgments, such as Yamunabai,[8] Chanmuniya,[9] Savitaben,[10] and Velusamy,[11] the author also explores the inconsistencies in judicial approaches to women in live-in relationships or bigamous marriages, and the resulting vulnerabilities these women might face. Additionally, the author discusses the critical recommendations of the Malimath Committee[12] and argues for necessary legal reforms that would expand the scope of Section 144 to better reflect the realities of non-traditional relationships. Through this, the author aims to highlight the urgent need for a more inclusive interpretation of the law that addresses the socio-economic vulnerabilities of women and ensures that the purpose of preventing destitution and vagrancy is fulfilled in practice.
Moreover, this article seeks to uncover the intricate fallacies within the provision itself, particularly in addressing non-traditional relationships such as live-in relationships. By doing so, it aims to highlight the pressing need for a more inclusive interpretation of the law that aligns with its fundamental purpose of preventing destitution and protecting vulnerable individuals across various relationship contexts.
Judicial Interpretations
Maintenance Denied
In the 1988 judgment of Yamunabai, the Supreme Court held that the marriage of a woman in accordance with Hindu rites where the man already has a living spouse is void.[13] As a result, the woman in such a marriage is not entitled to claim the benefit under Section 125 of the Cr.P.C.[14] The Court observed, “It is the intention of the legislature which is relevant and not the attitude of the party.”[15] This set a dangerous precedent. The denial of maintenance to such women allows men to actively seek out women, fool them into believing that they are unmarried, establish marriage-like relationship with them, and then simply desert them even when the women have no way to subsist themselves.[16] The man faces no consequence as he gets absolved from his financial obligations due to him being already married. The woman on the other hand ends up being a destitute. This interpretation of law carries within itself an inherent irony: although it is the man who has violated the law of monogamy under the Hindu Marriage Act, it is the woman—the innocent suffering party—who is asked to pay the price by being denied the crucial and basic rights to life and dignity.[17]
There also exists a very evident contradiction in this position of the Court. The Court rejected the maintenance plea of a woman who was unable to maintain herself on the grounds that the man was already married before, rendering the second marriage void.[18] But then also asserted that only the legislative intent should be relevant and not the attitude of the party.[19] The Court uses legislative intent hereto mean that the explanation of the term “wife” in Section 125 of the Cr.P.C. indicates that the provision would apply only to legally wedded/divorced wives. This is, however, a shallow and narrow reading of the provision, as its primary aim is to provide a speedy and economical remedy so that the suffering party does not face starvation and vagrancy.[20] The exclusion of deserted de-facto wives (even if not in law) unable to maintain themselves from this provision defeats its very purpose. Law is intended to protect destitute and harassed women, and rigid interpretation given to the word ‘wife’ goes against the primary legislative intent. Live-in relationships, intentional or otherwise, possess every quality a legal marriage possesses except only it has no recognition in the eyes of law. Therefore, it would be highly unjust to prevent them from claiming maintenance under Section 125 of the Cr.P.C. (now s. 144, BNSS) when their legally wedded counterparts can.
There are several similar rulings by various High Courts. For example, in the Himachal Pradesh HC judgment of Rattan Devi,[21] the respondent who had been working in a village married a local woman (the appellant). He lived with her for 9 years as her husband and they had a son together. However, after his transfer, he left the wife and refused to maintain her. The Court held that this marriage was void, because the accused was already married before contracting the second marriage and therefore rejected her claim, leaving her destitute and helpless.[22]
In the 2005 judgment of Savitaben,[23] the Supreme Court even recognized the ‘inadequacy of the law in protecting a woman who unwittingly entered into relationships with a married man’. The Court nonetheless dismissed the maintenance claim of the second wife on the same grounds as mentioned in previous cases asserting that ‘this may be an inadequacy in law, which only the legislature can undo.’[24] By acknowledging the inadequacy of the law and yet refusing to provide any relief, the Supreme Court effectively reinforced a rigid interpretation of the law failing to consider the socio-economic vulnerability of such women. The Court’s decision to deflect responsibility on the legislature reflects the court’s neglect of the important role it is expected to play in evolving interpretation of law to serve justice.
Maintenance Granted
Despite a myriad of detrimental and unfortunate rulings, several judges have come to the rescue of women. Even as far back as 1978, the Court in Ramesh Chander Kaushal[25] was conscious of the importance of interpreting this particular provision for social upkeep of the weaker sections. Although the facts were slightly different in this case as it did not involve a second marriage or a live-in partner, the Court’s observation regarding the interpretation of the provision is important. The Court observed:
“The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of the two alternatives which advance the cause—the cause of the derelicts.”[26]
The honorable Justices in this case were evidently conscious of the real legislative intent behind the provision, which is to prevent vagrancy and destitution. They also recognize that this measure of social justice was ‘specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39.’[27] Article 15(3) provides for the State to make any special provision for women and children.[28] Article 39 directs the State’s policy towards securing that men and women equally have the right to an adequate means of livelihood.[29]
Earlier in 1976, the Bombay High Court in Govindrao[30] had affirmed the entitlements of a woman who unknowingly entered into a bigamous union, as defined by the Hindu Marriage Act. Justice Kania reasoned that given the Act’s nature as social legislation, lawmakers likely did not intend to strip a Hindu woman of her right to seek financial support, especially in cases where she was deceived into a bigamous marriage.[31]
The Supreme Court in the 1999 judgment of Dwarika Prasad[32] ruled that in proceedings related to maintenance claims, the level of evidence needed to prove a marriage is less strict than what is required in criminal trials for bigamy under Section 494 of the IPC. When seeking support under Section 125 of the Cr.P.C., if the claimant can demonstrate that she and the respondent have cohabited as a married couple, then the Court may presume that they are legally married.[33] In such cases, the burden then shifts to the party contesting the marriage to rebut this presumption. The Court also commented, “The provision under Section 125 is not to be utilized for defeating the rights conferred by the Legislature to the destitute women, children or parents who are victims of their social environment.”[34] This judgment was an important step towards establishing a fair interpretation of the provision. By lowering the standard of proof required to establish a marriage in maintenance proceedings, it provided crucial protection for vulnerable women who may be in informal or disputed unions.
Consequently, in October 2010, the Supreme Court delivered another important judgment on the issue. In Chanmuniya v Virendra,[35] the appellant had been married off to her first husband’s brother after his death. This was done according to the prevalent custom of the community.[36] The couple lived together as husband and wife and discharged all marital obligations towards each other.[37] However, after some time the respondent stopped maintaining his wife and refused to discharge his marital obligations towards her.[38] The Court in this case determined that a man who cohabits with a woman for a long time should be obligated to provide financial support if he abandons her, even if their union lacks the legal formalities of a valid marriage.[39] The man shouldn’t be permitted to exploit legal loopholes to enjoy the benefits of a de facto marriage while evading its responsibilities and obligations.[40] The Court reasoned that interpreting the law differently would risk leaving the woman vagrant and destitute, which the provision of maintenance in Section 125 (Cr.P.C.) is meant to prevent.[41]
The honorable Justices further stated: “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 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.”[42]
This was an important judgment as it acknowledged the reality of informal unions in the Indian society and was a positive step towards closing a loophole that previously allowed partners to benefit from de facto marriages without shouldering the corresponding responsibilities.
The Velusamy Judgment
The rulings in Chanmuniya[43] could positively influence future cases across India. However, Chanmuniya’s significance and acknowledgement were dwarfed by the popularity of another case that came in the latter half of the same month—Velusamy v. Patchaiammal.[44]
In this case, it was alleged that Velusamy had married Patchaiammal in 1986 and since then lived together for two or three years in Patchaiammal’s father’s house.[45] He then allegedly deserted her and started living in his native place but would visit the respondent occasionally.[46] In the filed petition, she claimed that she was unable to maintain herself and prayed that some maintenance be paid to her.[47] The appellant claimed that he already had a wife from a previous marriage, thus technically rendering his marriage with Patchaimal void.[48] The Court tried to determine whether Patchaimal was eligible to claim the maintenance even if she was not the legally-wedded wife. The judges therefore looked at the definition of the term ‘domestic relationship’ in The Protection of Women from domestic Violence Act, 2005 to ascertain the scope of relationships that could be considered for maintenance claims.[49] Section 2(f) of the Act defines ‘domestic relationship,’ encompassing various living arrangements.[50] It includes relationships between people who currently live together or have lived together in the past in a shared household.[51] These relationships can be based on blood relations, marriage, or a marriage-like arrangement.[52]
It was noted that the expression ‘domestic relationship’ includes not only the relationship of marriage but also a relationship ‘in the nature of a marriage.’ So, the pertinent question that arose was the meaning of the expression ‘a relationship in the nature of marriage’. The Court opined that a ‘relationship in the nature of marriage’ is akin to a common law marriage.[53] They formulated four preconditions for the existence of common law marriage, one of which asserted that the couple ‘must be otherwise qualified to enter into a legal marriage, including being unmarried’.[54] This strange condition cited bizarrely from ‘Wikipedia on Google’ contradicts the very purpose of recognizing relationships outside formal marriage. The purpose of recognizing relationships ‘in the nature of marriage’ is obviously to extend legal protections to non-traditional relationships, which may not strictly meet the criteria of formal marriage. By imposing a requirement that the parties be unmarried, the Court created a paradox, excluding those in de facto relationships where one party is legally married a common situation the law should address. Furthermore, the reference to a source as informal as ‘Wikipedia on Google’ is extremely concerning in a legal context, where the reliance on credible, well-established jurisprudence and legal scholarship is important.
The Court acknowledged that its interpretation would exclude many women in live-in relationships from the protection of the Act, yet deflected responsibility by stating that ‘it is not for this Court to legislate or amend the law.’ This reflects the same reluctance and formalistic approach that the Court adopted in Savitaben, where it recognized legal inadequacies but failed to take any steps actively to address them.[55]
The Velusamy judgment, due to its controversial nature and use of derogatory language towards women, overshadowed the progressive stance taken in Chanmuniya. This ruling effectively undid the hard-won progress achieved by the Courts extending constitutional protections to a vulnerable and destitute group of women.
The inconsistencies in judicial interpretations of Section 144 reveal critical fallacies in addressing the complexities of modern relationships. Courts often struggle to reconcile the legal definition of ‘wife’ with the realities of diverse relationship structures, eading to the exclusion of vulnerable women from protection. The overemphasis on formal marriage overlooks the socio-economic dependencies that develop in long-term, marriage-like relationships. Moreover, the inconsistent application of social justice principles, with some judgments recognizing the need for a broad, purposive interpretation while others revert to narrow, textual readings, undermines the provision’s social welfare objectives. These shortcomings highlight the need for a more flexible approach to interpreting Section 144, one that balances legal formalities with the provision’s core purpose of preventing destitution and protecting vulnerable individuals.
Malimath Committee Report
The 2003 Malimath Committee report on Reforms of Criminal Justice System focused on this very issue of women formerly in live-in relationships being left vulnerable to destitution.[56] The disputed interpretation of Section 125, which aims to prevent vagrancy and destitution, paradoxically fails to protect a significant number of vulnerable women. The legal invalidity of second marriages during the subsistence of a first marriage creates a situation where women in such relationships, often entered into without knowledge of the man’s prior marriage, are left without legal recourse for maintenance.[57] This legal loophole effectively rewards deception by allowing men to evade their responsibilities. It creates a perverse structure where a man can benefit from his own illegal act of bigamy, while the woman bears the entire burden of relationship’s illegality.
The committee suggested therefore to amend the explanation to Section 125 so as ‘to include a woman who was living with the man as his wife for a reasonably long period, during the subsistence of the first marriage.’[58] This suggestion does raise further questions such as to how will this ‘reasonably long period’ be defined? Or how will the nature of this relationship be proved? But it was nonetheless an exceedingly pragmatic approach to this complex issue. The committee’s recommendation was a necessary step towards aligning the law with social realities of the world and ensuring justice for vulnerable women.[59] It is unfortunate, however, that the recommendations were never taken into consideration and the law remained the same even with creation of the new Criminal Procedure Code, i.e., BNSS.
Conclusion
Section 144 of the BNSS is a provision that exists as a measure of social justice and therefore needs to be construed liberally. In 2014, the Supreme Court too emphasized the need for a purposive reading of this section.[60] When addressing application from destitute wives, children or dependent parents under this provision, the Court is directly engaging with one of the most marginalized groups in society. Therefore, there is a need for a compassionate and expansive interpretation of Section 144 that prioritizes the welfare of vulnerable individuals over strict legal technicalities. Courts must approach these cases with sensitivity to the socio-economic realities faced by marginalized groups, recognizing that traditional legal constructs may not adequately address their unique circumstances. This necessitates a flexible application of the law that considers factors such as power imbalances, societal prejudices, and economic vulnerabilities that often disproportionately affect women, children, and elderly dependents.
Over the years there have been several contradictory rulings of 2-judge benches of the Supreme Court on the issue, and so in Chanmuniya, the Court urged the Hon’ble Chief Justice to refer the matter to a larger bench which can rule a much more authoritative judgment on the issue.[61] Unfortunately, this never came to fruition. The Malimath Committee too had recommended to amend the provision so that it includes within its ambit women who are in a marriage-like relationship with the man. This, if adopted, would have left no scope for the judiciary to misinterpret the legislative intent of the law and would have secured the rights of women. This was, however, not adopted even in BNSS.
There is an immediate need for legal reforms in Section 144 (BNSS) that reflect the diverse nature of real-life relationships. A comprehensive legislative amendment to explicitly include women in non-legal unions would provide much needed clarity and prevent further judicial misinterpretation. Such reform should consider a multifaceted approach, combining legislative amendments with judicial guidelines and social awareness initiatives.
Potential reforms could include expanding the definition of ‘wife’ to encompass long-term live-in relationships, introducing a rebuttable presumption of marriage for couples who have cohabited for a specified period, and developing clear criteria for determining the existence and nature of live-in relationships. Additionally, implementing relaxed evidentiary standards for maintenance claims and establishing dedicated family courts specializing in such cases could ensure faster resolution and consistent interpretation of the law.
Furthermore, integrating maintenance provisions with broader economic empowerment programs for women, including skill development and employment assistance, could help reduce long-term dependency and align with the law’s objective of preventing destitution.
In conclusion, by adopting a more inclusive, and comprehensive approach to maintenance rights, the legal system can better serve the needs of a changing society and uphold the principles of justice and equality that underpin the Indian Constitution. Without these changes, the system continues to fail those it was designed to protect, perpetuating inequality and hardship for marginalized women. The proposed reforms offer a pathway to not only address the current inadequacies in the law but also to create a more robust and responsive legal framework capable of adapting to future societal changes.
[1] Bharatiya Nagarik Suraksha Sanhita 2023, s 144.
[2] Code of Criminal Procedure 1973, s 125.
[3] Law Commission, The Code of Criminal Procedure, 1898(41st Report, 1969) para 36.1.
[4] ibid.
[5] BNSS (n 1).
[6] Hindu Marriage Act, s 13.
[7] Code of Criminal Procedure 1898, s 488.
[8] Yamunabai (n 1).
[9] Chanmuniya (n 2).
[10] Savitaben (n 3).
[11] Velusamy (n 4).
[12] Malimath Committee, Reforms of Criminal Justice System(vol. 1, 2003).
[13] Yamunabai (n 1) para 8.
[14] ibid.
[15] ibid para 7.
[16] Flavia Agnes, ‘The Concubine and Notions of Constitutional Justice’ (2011) 46 (24) EPW < http://www.jstor.org/stable/23018240 > accessed 7 August 2024.
[17] ibid.
[18] Yamunabai (n 1) para 8.
[19] Yamunabai (n 1) para 7.
[20] (n 7).
[21] Smt. Rattan Devi v. Padam Singh Kapoor (1981) SCC OnLine HP 39, 1981 Cri LJ 1422.
[22] ibid.
[23] Savitaben (n 3) para, 3.
[24] ibid para 8.
[25] Ramesh Chander Kaushal v Veena Kaushal (1978) 4 SCC 70.
[26] ibid para 9.
[27] ibid para 9.
[28] Constitution of India, a 15(3).
[29] Constitution of India, a 39.
[30] Govindrao Ranoji Musale v Anandibai Govindrao Musale AIR 1976 Bom 433.
[31] ibid.
[32] Dwarika Prasad Satpathy v Bidyut Praya Dixit (1999) 7 SCC 675, [6].
[33] ibid.
[34] ibid para 10.
[35] Chanmuniya v Virendra Kumar Singh Kushwaha (2011) 1 SCC 141.
[36] ibid.
[37] ibid.
[38] ibid.
[39] ibid para 26.
[40] ibid para 26.
[41] ibid para 26.
[42] ibid para 46.
[43] Chanmuniya (n 2).
[44] D. Velusamy v D. Patchaiammal (2010) 10 SCC 469.
[45] ibid.
[46] ibid.
[47] ibid.
[48] ibid.
[49] ibid para 16.
[50] The Protection of Women from Domestic Violence Act, 2005. Section 2(f).
[51] ibid.
[52] ibid.
[53] Velusamy (n 4) para 33.
[54] ibid para 33.
[55] Savitaben (n 3).
[56] Malimath Committee, Reforms of Criminal Justice System(vol. 1, 2003) para 16.1.
[57] ibid.
[58] ibid para 16.1.2.
[59] Anuja Agarwal, ‘Law and ‘Live-in’ Relationships in India’ (2012) 47 (39) EPW <https://www.jstor.org/stable/41720191> accessed 7 August 2024.
[60] Badshah v Urmila Badshah Godse (2014) 1 SCC 188.
[61] Chanmuniya (n 2) para 45.
This article is a part of the DNLU-SLJ (Online) series, for submissions click here.
Student, National Law School of India University, Bengaluru
