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Tajobsindia (Senior Partner )     05 October 2010

Should a concubine get maintenance? SC to examine the que.

News item:  "Should a concubine get maintenance? SC to examine the question"


NEW DELHI: The Supreme Court on Monday decided to examine whether a live-in partner, concubine or a girlfriend is entitled to maintenance even though under existing Indian laws she is not eligible for the same.

 


The apex court passed the direction while chiding a man for having intimate relationship with a woman for 14 years but refusing to pay her maintenance on the ground that she was not legally entitled to it.

 


A Bench of Justices Markandeya Katju and T S Thakur appointed senior counsel Jayant Bhushan to assist the court on the issue and posted the matter for further hearing on Wednesday.

 


The Bench said though Indian laws may not permit it yet, there was no reason why such benefit should not be extended to a live-in-partner and cited the ruling of a Californian court in the US which had ordered similar relief by invoking the doctrine of "palimony."

 


"You had spent 14 years with her. She lost her youth but you do not want to pay anything to her. She might not have been legally married to you but you have an obligation," Justice Katju, heading the Bench, told counsel Harish Kumar T appearing for D Velusamy.

 


Velusamy moved the Supreme Court after a matrimonial court in Tamil Nadu had ordered him to pay an alimony (maintenance) of Rs 500 to D Patchaiammal who insists she was married to Velusamy in 1986.

 


Counsel for Veluswamy said Patchaiammal's claim was false as he was already married in 1980 and any so-called marriage in 1986 was invalid in the eyes of the law.

 


Veluswamy's lawyer submitted that the matrimonial court and the High Court had taken an erroneous view that Patchaimmal was entitled to maintenance under Section 125 Cr PC. Under the law, an estranged wife, besides, aged parents and children of a man are entitled to maintenance from the latter.

 


The counsel pointed out that there was no provision for providing maintenance to a woman who is not legally married.

 


"It may be true that under Section 125 Cr PC she may not be entitled to maintenance but you had spent time with her for 14 years. There was a ruling by a Californian court in the Marwin Vs Marwin case where the court ordered that 'palimony" should be paid even if the woman is not legally married," the Bench said.

 


The apex court pointed out that the term 'palimony" emanated from the word "Pals" under which such relationship was a sort of contract even if it was an "oral agreement."

 


The Bench then proceeded to appoint the amicus curiae to assist the court on determining the issue in the light of the ruling of the Californian court.

 


Source:
https://timesofindia.indiatimes.com/india/Should-a-concubine-get-maintenance-SC-to-examine-the-question/articleshow/6685247.cms



Now a early bird take:


1. These ‘examinations’ are farce.


2. International Jurisprudence lawyers in the forum may not like to discuss it further (probably).


3. Since the case is of ‘Indian women’ so ignore what is precedent here in India and/or could be poped as gender neutral precedent with Application of an Indian Judicial Wisdom; but had it been ‘Indian Men’s’ case all hue and cry would have erupted in this forum. This is called the height of hypocrisy and silence attitude adopted by most knowledgeable lawyers to share family law knowledge and yet we say this forum is for knowledge sharing, I see the fine line missing sometimes!

However, I stand by my comment as in para 3.


Reasoning:-

A. They (SC) say they are looking at a California Court ruling.


B. Well they (SC) do not look at California Court rulings during child custody cases, divorce cases or other wise? Why? I mean again WHY?


C. With respect to Indian Judiciary (SC), are we so incompetent to look at California Court decision to make our decision when we are not even member of Hague Conviction and so many other International Laws?


D. Each State in
USA
has its own Supreme Court and then there is a superior Supreme Court. Is this so in Indian context, where we have one Supreme Court and talks of its Bench in few of the Metros (to help far off litigants) is still on drawing board so why look at a lone California Court Ruling in isolation and design (examine) a Law for India?


I mean this is fun in Judiciary I will say for
India
that means! You pick up what happened in blah blah Country / County Court and force Indian Judiciary to apply (examine) that and make it a Law in India so why have a Constitution for India ??????? 


Some flip take:

1. In
India that means only women are capable to do that, bravo and yet we say women are down trodden I mean you members who support women are 100% false people here then!


2. Without shame or causing a stir to align controversies here in family law forum; I say suppose a Man visits a brothel for years (he is un-married let us corelate him to be that way) and picks services of same girl for years together then how Hon'ble SC will coin the word if that girl approaches SC and now will it be referred as 'brothilomy' said it in the light of early definition being attempted to coin by Hon'ble SC and I quote the wordings of then Lordships "The apex court pointed out that the term 'palimony" emanated from the word "Pals" under which such relationship was a sort of contract even if it was an "oral agreement."

Now a healthy call to Arup to participate in this discussion and other members to;


3.
So that is why I also said some time back here that Hindu Marriage is a "Contract" which you Arup and et all then challenged me, now you see the early wisdom I was trying to emphasis Arup ! You don’t believe me when I said so, it is 100% nothing but a contract Sir, now start believing. Sex in marriage is also a contract provided by a wife to her husband. Preparing food and rearing child is also a contract that is why all these "...mony" word getting coined !!!!!!!! PERIOD



Learning

 11 Replies

Tajobsindia (Senior Partner )     05 October 2010

Here are (early) crude remark on this topic of discussion:


Genesis to make below secondary remarks:

1. Intimate / Intimacy words are used to define "relationships" between man and a women. Right ! How to further define such words say; while holding hands by a man and a women for years together is one pointer, while providing emotional / financial support by a man to a women for years together is another such pointer and by having s*x out of such nature of being -in years together thus they create the intimate / intimacy nature of a man and a women and then these delves into the arena of ‘relationship’ is my view.


So what Hon’ble SC is probably exploring is to bring "such relationships" into the fold of Indian Family laws and then probably take it forward.


Now here are some early takes on Indian men’s point of view. Here a man is nothing but a Husband whereas in above genesis quote / unquote I talked mostly about nature of un-married persons and the sine quo non of a ‘relationship’ of a man and women.


Illustration with reasoning basis:

1. A wife files for maint. saying she is on roads. Agreed (benefit of doubt given), let us wait for decision of the
Ld. Court. Ok


2. Husband files for RCR. Agreed, let us wait for decision of the
Ld. Court. Ok.


3. Wife gets a maint. Order. Fine, Ok


4. Husband gets a RCR Order in his favor. Fine, Ok


5. Well Husband pays regularly the maint. Fine, good, Ok.


6. Husband’s RCR Execution fails as no act of God can ask a warring couple (I mean here wife) to perform 'conjugal rights'. Right!. Ok


7. Mind it the couple have not been decreed here so they are still a couple which also means they are still under a CONTRACT being married, in the light of recent examination by SC on relationship of ‘concubine’ with a man / male Indian.


I (hope I) mean so far we may be comfortable with above corallites, are we not?


Now here pops the blunt remarks (observations):


A. I say, Hon'ble SC should help the husband to bind a wife to provide s*xual services as it is a part of marriage till their issues are decreed? There are catena of decisions from County Courts in USA where a soon to be ex-wife as part of child visitation norms visits the house of soon to be ex Husband to fill in her visitation hours and yet there are further decisions from USA State Courts which further says some of the soon ex wife’s are Ordered upon to visit soon to be ex Husbands to cook food / help in daily chores of child which is with Husband as part of a soon to be ex Wife’s visitation program binding upon her. Here in such illustrations a soon to be ex wife feels herself to be in so precarious position but she is bound by the Orders of Court.


B. Hence, Hon'ble SC should now help the Indian husband to bind a wife to provide making of meals services as it is a part of marriage till their issues are decreed? Be it verbal/oral and or be it conjugal rights and/or be it a CONTRACT as in a marriage as from above "examination" expressions clubbed with Court decisions of USA the Indian side of Hon’ble SC is trying to say so and /or could be very well applied. I mean why not! Only thing needed is a prudent husband approaching before Hon’ble SC with such emerging issues he is facing when he is separately living during decree in proceedings.


C. So raise yours hands who are in conformity to above para A and speak up your wisdom who say Nays with blunt reasoning (minus bearable remarks so that the thread post shall not be deleted with some members resorting to so called parliamentary or otherwise wordings) why it could not be so and/or why someday a husband should not raise this "examination' point before Hon'ble SC by showing not only blah blah Country / County court decisions but the above present 'examination' as pointer???????????????? 


E. And then we talk about Hindu Marriage being sacred. Marriage in
India has lost its charm just due to pervading Western thoughts which are nothing but family breaking scenarios. 

1 Like

Parth Chandra (none)     05 October 2010

tajofindia,

Consider below scenario...

If a man (married or unmarried) was being physically satisfied by a women (married or unmarried) for many years and later on that women refuse Sex with that man.....then in that case also .... man can go confidently till SC suggesting restitution of her s*xual rights against that women who has been satisfying him all these years and compel her!!!!!

This is a million dollar question even in case of husband wife when husband is having all the duties...wife doesn't have one!!!!!!!

Jamai Of Law (propra)     05 October 2010

A Good discussion.....


(Guest)

Only concubines should get maintanence as they don't use 498a section and give more fun to the man. Thats why in California couples live together and marry when they are about to die.

Tajobsindia (Senior Partner )     05 October 2010

The Marvin decision under implicit examination in Indian Family Law Context by Hon'ble SC:-

 


In Marvin, 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 equally any and all property accumulated as a result of their efforts whether individual or combined."Marvin, supra, 18 Cal.3d at 666. The parties allegedly further agreed that Michelle would "render her services as a companion, homemaker, housekeeper and cook." Id. Michelle sought a judicial declaration of her contract and property rights, and sought to impose a constructive trust upon one half of the property acquired during the course of the relationship.

 

 

The trial court granted a judgment on the pleadings in favor of the defendant, holding that the alleged agreement was unenforceable. The California Supreme Court reversed, stating that "a contract between nonmarital partners is unenforceable only to the extent that it explicitly rests upon the immoral and illicit consideration of meretricious s*xual services." Id. at 668-669 (emphasis in original.) The Court held:

 

 

“In summary, we base our opinion on the principle that adults who voluntarily live together and engage in s*xual relations are nonetheless as competent as any other persons to contract respecting their earnings and property rights . . . . So long as the agreement does not rest upon illicit meretricious consideration, the parties may order their economic affairs as they choose, and no policy precludes the courts from enforcing such contracts. Id. at 674.

 

 

Although the plaintiff's complaint alleged only an express contract, the Supreme Court went on to address the issue of "the property rights of a nonmarital partner in the absence of an express contract." Id. Here, the Supreme Court made new law. Prior California cases had refused to enforce implied contracts between nonmarital cohabitants. The Court overruled that line of cases, holding that in the absence of an express agreement the plaintiff might be able to establish an implied contract or implied partnership, and might be able to invoke such remedies as constructive trust, resulting trust, and quantum meruit

 

 

In a footnote, the Court stated that its opinion did not "preclude the evolution of additional equitable remedies to protect the expectations of the parties to a nonmarital relationship in cases in which existing remedies prove inadequate." Id. at 684, n. 25. Notwithstanding this suggestive footnote the Marvin decision did not create any new legal theories or causes of action. Rather, the express intention of the Court's opinion was simply to treat nonmarital cohabitants "as we do any other unmarried persons." Id. at 682 (emphasis supplied).

 

 

"Palimony":

 


The term "palimony" implicitly analogizes the rights of a nonmarital partner to the right of a spouse to receive alimony. However, a Marvin action is in no way analogous to an action for dissolution of marriage.

 

 

The Supreme Court in Marvin expressly declined to treat unmarried cohabitants like married persons, overruling two prior decisions of the Court of Appeal which had applied the Family Law Act to unmarried cohabitants. Id. at 681. Since Marvin, California courts have been scrupulous in separating Marvin actions from domestic relations actions. The courts have held:

 

 

Trial courts in divorce proceedings do not have jurisdiction over Marvin claims arising out of premarital cohabitation. In re Marriage of Johnson (1983) 143 Cal.App.3d 57 [191 Cal.Rptr. 545]. (A Marvin claim filed in a civil action may, however, be consolidated with a dissolution proceeding. Id.)

 

 

An award of spousal support may not be based on the parties' cohabitation before marriage. In re Marriage of Bukaty (1986) 180 Cal.App.3d 143 [225 Cal.Rptr. 492].

 

 


A Marvin case may not be processed in the superior court under the special family law rules. Schafer v. Superior Court (1986) 180 Cal.App.3d 305 [225 Cal.Rptr. 513].

 

 

Jurisdiction standards applicable to domestic relations cases do not apply to Marvin actions. Kroopf v. Guffey (1986) 183 Cal.App.3d 1351, 1357-1358 [228 Cal.Rptr. 807].

 

 

The obligation to pay support pursuant to a stipulated judgment in a Marvin action is - unlike an order for spousal support - dischargeable in bankruptcy. In re James P. Doyle (9th Cir. BAP 1986) 70 B.R. 106.


 

A former unmarried partner is not entitled to an award of pendente lite support. Friedman v. Friedman 20 Cal.App.4th 876 (1993).

 

 

Accordingly, the term "palimony" is inaccurate insofar as it implicitly compares a "pal's" rights with the rights of a divorcing spouse. A spouse's right to receive alimony and to share in marital property is based on his or her status as a spouse. A "pal" does not have any comparable automatic right to property or support based only on his or her status as a nonmarital partner. Rather, a Marvin plaintiff must prove some other underlying basis for his or her claim, such as an express or implied contract.

 

 

This point was greatly clarified in the sequel to the Marvin case, "Marvin II" (Marvin v. Marvin (1981) 122 Cal.App.3d 871 [176 Cal.Rptr. 555]). The Supreme Court's decision in the first Marvin case reversed a judgment on the pleadings and remanded the case for further proceedings. Thereafter, Michelle Marvin's claims were tried in the Superior Court without a jury. The trial court found that the parties never agreed to share their property and that Lee Marvin did not agree to support Michelle. Nevertheless, the trial court awarded Michelle $104,000 for the purpose of allowing her to be rehabilitated or to learn new employable skills. [India does not have such employable skills in place as of date]

 

 

The Court of Appeal reversed, holding that the award was improper because "there is nothing in the trial court's findings to suggest that such an award is warranted to protect the expectations of both parties." Id. at 876 (emphasis in original). Importantly, the court noted that while footnote 25 of the Marvin decision spoke of the evolution of additional equitable remedies, a court of equity "may not create totally new substantive rights under the guise of doing equity." Id.

 

 

A similar "rehabilitative" award was reversed in Taylor v. Polackwich (1983) 145 Cal.App.3d 1014, 1021 [194 Cal.Rptr. 8], in which the court of appeal stated: "[W]hile a rehabilitative award is a proper means of enforcing rights which cannot otherwise be adequately enforced, an equitable remedy may not be employed to grant rehabilitation to one who has no underlying right to relief on any theory."

 

 

Marvin II and Polackwich should have eliminated any lingering belief that Marvin might have created some new right whereby a "pal" could collect "palimony" based on mere status as a cohabitant and nothing more. The primary "right" granted by Marvin is simply the right every person has to seek enforcement of his or her lawful contracts.

 

 

Marvin II notwithstanding, there is still some confusion about just what Marvin stands for. That confusion is manifested, for example, in the aberrant opinion of the Court of Appeal for the Second District in Taylor v. Fields (1986) 178 Cal.App.3d 653 [224 Cal.Rptr. 186].

 

 

In Taylor v. Fields, the plaintiff, Taylor, had a relationship with a married man, Leo, for 42 years. After Leo died Taylor sued his widow, alleging breach of an agreement by Leo to take care of Taylor financially.

 

 

As the Court of Appeal correctly pointed out, the relationship alleged by Taylor was "nothing more than that of a legally married man and his mistress." Id. at 658. The alleged contract rested on meretricious consideration and was unenforceable. That was, in fact, one of the alternative holdings in support of the decision. The analysis could have begun and ended there.

 

 

Inexplicably, however, the Court of Appeal seized on the fact that the parties did not live together as its primary basis for denying Taylor recovery. First, the Court of Appeal noted that in Marvin, and the cases cited therein, the courts "upheld agreements where the parties lived together and relied on agreements not based on meretricious consideration." Id. at 661. The court then launched into a discussion of cases involving claims by cohabitants for loss of consortium or wrongful death, noting one case which had extended the right to sue for loss of consortium to cohabitants who engaged in "stable and significant" relationships.

 

 

In an insupportable leap of logic, the Fields court then held that cohabitation is a prerequisite to recovery in a Marvin-type action and that "Taylor's contract with Leo is unenforceable because there is no showing of stable and significant cohabitation . . . ." Id. at 666. In so holding, the court stated:

 

 

             "While Taylor avers she and Leo occasionally spent weekends together and 
             registered as husband and wife, such claims are inadequate to bring their
             relationship within Marvin principles.
Id. at 663."

 

 

The above statement demonstrates a profound misunderstanding of Marvin. After all, what are "Marvin principles?" The only true "Marvin principle" is to treat nomarital cohabitants "as we do any other unmarried persons" - principally, by enforcing their contracts. In effect, then, the Fields court illogically held that one must be a cohabitant to be treated like a non-cohabitant (i.e., like "other unmarried persons"). The loose language in Fields, if taken literally, would lead to the reductio ad absurdum that no contract is enforceable unless the contracting parties live together.

 

 


The Court of Appeal for the Second District purported to follow Fields in
Bergen v. Wood (1993) 14 Cal.App.4th 854 [18 Cal.Rptr.2d 75]. However, the Bergen court backed away from the absolutist language in Taylor v. Fields, stating:

 

 

"Cohabitation is necessary not in and of itself, but rather, because from cohabitation flows the rendition of domestic services, which services amount to lawful consideration for a contract between the parties." Id. at 858.

 


Bergen
paves the way for a future case repudiating the Second District's cohabitation "requirement," and holding that the only requirement is that the contract be supported by some lawful consideration severable from the s*xual relationship (whether or not that consideration takes the form of "domestic services").

 

 


The correct rule on cohabitation was stated by the Court of Appeal for the Fourth District in Milian v. De
Leon (1986)181 Cal.App.3d 1185, 1193 [226 Cal.Rptr. 831] as follows:

 

 

"[C]ohabitation is not a prerequisite to the finding of an implied agreement between unmarried persons concerning their property."

 

 


Despite some lingering confusion exemplified by Fields, Marvin did not create a unique cause of action - rather, it simply extended existing causes of action to unmarried cohabitants. However, there are some unusual defenses which are sometimes available in Marvin - type cases.


I per se am glad that Lordship Katju and Lordship Thakur have taken this unusual case as reference to set Rules in Indian Family Law jurisprudence.


However before parting I am forced to say following which may be benchmark here for and against but bear the legal “perceptions” of mine which you call philosophies !


Typical views of s*x starved ALFA MALE MECHANIST!!
They think women shun s*x. Men always long for s*x.
While Men enjoy s*x, Women feel a big nail being hammered into them!!


So they want money to be paid by men for enjoying s*x !!

During debates here in the forums I raise the question why Money from husband when marriage fails?????????????????

The feminist do not have any qualms in saying;
 
Have you not enjoyed!! and now read down feminists lawyer in the forum and feminists saying in unison - typical quote and unquote
======================================
""You had spent 14 years with her. She lost her youth but you do not want to pay anything to her. She might not have been legally married to you but you have an obligation,""
======================================


Well I say hey,
The man has also lost his youth!


Most respected Lordship Katju is famous for his comments but if you look at his deep thoughts then they are basis for well read wisdoms actually which we all miss in a hurry like (some of his comments)

What hurry for Divorce? It is 15 years only!”

”Hang all dowry seekers in the lamp post!!”


So a prudent mind turns back and say;

This is total bullsh*t if we are Indians and we live in
India !!!!!!


1. If she spent her youth with him it was her choice, the choice of an adult woman. She was never forced to do so in the first place. When the court said she could have got into marriage it meant that she could have gotten a donkey to carry her weight.



2. If the
Apex Court wants to refer to California law then use it in its entirety and not by cherry picking judgments and citations according to one parties convenience.


A. California law says that a divorce cannot take longer than a marriage as per USA Laws. Implement that first in
India
.


B. Maintenance is restricted to one half if the time of the marriage as per USA Laws. Implement that first in
India.


C. Child custody is always shared not only in
California State but in rest of the States in great USA. Implement that first in India.



D. Divorce MUST be granted no matter who petitions for it as per USA Laws. Implement that first in
India and why tail it with IrBM which even in USA is 99.8% acknowledged reason for Divorce there.


E. Alimony is TAX DEDUCTIBLE on giver and TAXABLE on the receiver as per USA Laws. Implement that first in
India.


Any one wants citations of any of any of the paras A till E then whistle me and then analysise what we are getting into in longer run.


If we say we are prudent thinking wise as per our Constitutional Law guaranteed to free democratic Indians then we should not allow these Petitioning concubine side’s idiots (Lawyers) to cherry picking laws (USA) according to their convenience without paying attention to sub para A till E.

1 Like

(Guest)

 

Although the couple is not married but they have spent 14 years together ,so there is no reason why women is not getting entitle maintenance.

That’s means that if couple many spent many years together and not married, they are entitle for maintenance..

And what about the marriage registration act? Child related issue etc.  So there is exception.

I agree with the bench but is there any term or period like 5 years,10 years, or 14 years? And lana said that the couple should get maintenance as they don't use 498a section and give more fun to the man.

 


(Guest)

wat about maintenance to prostitutes , they have also satisfied men part time. whether they shud be paid part time maintenance by men they satisfied in propotionate amount or they shud be given govt. pension is million dollar question.

N.K.Assumi (Advocate)     06 October 2010

Prostitutes should get subsidy from the Government.

2 Like

(Guest)

Prostitues take advance payments through pimpms. High class or very high class charge much more for one hour than the entire maintainence of a legal wife. Mistresses give free service and take what a man has to give from stones to diamonds. They are true pals.

Roshni B.. (For justice and dignity)     06 October 2010

the courts give maintenance to such women which are illegal relations,esp. when the man is married,only becoz it's a domestic relationship.

then why these very courts deny maintenance to a wife if marriage is annulled by husband,even though relation with the ex-wife was also a domestic one?

do  the concubines have a higher staus than the wife in eyes of the law?

 


(Guest)

Property share is 50:50 if the developer spent his money,unless in an agreement with him that he takes all and gives one appt to you exists.


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