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Manjeet kumar sahu (Student)     30 November 2013

Whether concubine have any right for maintenance.

Indra Sarma v. VKV Sarma (CRIMINAL APPEAL NO. 2009 OF 2013)

                                             Judgement Dated: 26th November, 2013

Coram : K.S. Radhakrishnan .J &  Pinaki Chandra Ghose.J

Subject: All live-in-relationships are not relationships in the nature of marriage.”

 

Facts: The Appellant entered into a live-in-relationship with the respondent in the year 1992 knowing that he was married person having wife and two children. The Respondent’s family member opposes the same but the appellant did not paid heed to them and continued to stay at the respondent’s residence. The Appellant later filed case seeking for maintenance from the respondent.

Issue Involved:

1)      Whether a “live-in relationship” would amount to a “relationship in the nature of marriage” falling within the definition of “domestic relationship” under Section 2(f)[1] of the Protection of Women from Domestic Violence Act, 2005

Observation:

The Judge stated that “relationship in the nature of marriage” means a relationship which has some inherent or essential characteristics of a marriage though not a marriage legally recognized.

The judge also drew out a Distinction between the Relationship in the nature of marriage and Marital Relationship:

·         Relationship of marriage continues, notwithstanding the fact that there are differences of opinions, marital unrest etc., even if they are not sharing a shared household, being based on law. But live-in relationship is purely an arrangement between the parties unlike, a legal marriage. Once a party to a live in- relationship determines that he/she does not wish to live in such a relationship, that relationship comes to an end.

·         In a relationship in the nature of marriage, the party asserting the existence of the relationship, at any stage or at any point of time, must positively prove the existence of the identifying characteristics of that relationship, since the legislature has used the expression “in the nature of”.

The Court finally held that the appellant was aware that the respondent was a married person even before the commencement of their relationship, hence the status of the appellant is that of a concubine or a mistress, who cannot enter into relationship in the nature of a marriage.

INFERENCE

The Division Bench of Supreme Court vehemently stated that Live-in-relationship is neither sin nor crime. The Apex court rightly decided the issues of societal concern. The issue raised in the matter is a burning topic at the moment. It is to be noticed that still among various section of society Live-in-relationship is treated as an evil practice and hence, the apex court with their logic and prudent approach tried to draw a line between the marital status and Live-in-relationship of the two person.

To some extent, the judgement has reflected the sign of positivity for live-in-relationship but at the same time made the society aware about the normal problem that may strike in continuance of live-in-relationship.

In the present matter, though the appellant could not succeed in establishing her case but had there been any procreation of children, the matter would have taken a U-turn. Hence, The apex court apart from basic ingredient that are performed for maintaining domestic relationship also took concern of the children while delivering the judgement.

According to my opinion, the present judgement has not done complete justice to the appellant.

 

1. The apex court has left no stone un-turn in alleging the appellant as concubine. As, the apex court identified her as concubine, it was the responsibility of the court to reflect upon the rights and liabilities of a concubine under such circumstances. Even, Concubines are the part of society who earns their livelihood by sacrificing their flesh repeatedly to the same person.

 

2. One important aspect which is completely indigestible is that the Apex Court has completely ignored the liability of the respondent. It was the respondent who entered into a bigamous relationship for continuous long period. He also enjoyed the companionship of appellant for more than a decade. These were the matters which were needed to be taken into consideration.

 

 



[1] "domestic relationship" means a relationship between two persons who live or have at any point of time lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family



Learning

 17 Replies

great india (manager)     01 December 2013

Wats the verdict of the court then..... Did the concubine get maintenance under pwdv act Was responded tried for bigamy...

Hardeep (Business)     01 December 2013

Interesting case. However, there are precedents which the Court seems to have followed. One is :

https://indiankanoon.org/doc/628875/

Ramanarasu vs Buchamma on 28 November, 1899

- held that a discarded concubine was not entitled to claim maintenance.

====

The case now decided was a mutually consensual relationship, with no hiding of facts over a very long period of time, with no " complications  " such as children or death of the respondent  while keeping the concubine. Since the Appellant persevered with full knowledge,  presumably she got something out of the relationship, howsoever harsh / little/ unfair it may seem now.

Just my thoughts.

Tajobsindia (Senior Partner )     01 December 2013

@ Manjeet Kumar Sahu

Partially you may be right in your sharp observations ref. to recent SLP. However it is for the Legislatures to amend-delete a clumsily drafted Act (i.e. Bharat Ratna PWDVA, 2006) and is not job of Hon’ble SC. However the SLP in question if carefully read is an progressive step to be carried forward by next Lordship(s). 

In instance SLP Hon’ble SC touched all fancies of feminists except pointing to historical perspective of Asian cultures down mythological times where
'keeps' are way of married men's life etc. which are left for another progressive Lordship(s) to delve upon at length, until then let us cheer up the SLP outcome as SHE (point b question which Appellant raised therein) cannot afterall bake and eat the cake too after her more than a decade old THE ‘relationship’.

PS.:
Silently ask the Appellant did she not enjoy THE ‘relationship’ breathing in same culture which you are now showing soft corner
aka cribbing about stating THEY should be inclusive and is infact acceptable way of life in India now-a-days with rising divorce costs poor married men are facing!  Afterall you cannot be more populist in one go I mean......

@ Hardeep

Once, ways of religious life are ‘codified’ as was done for the Hindus by introducing HMA, 1955 the case law (of then presidency Hon’ble Madras HC) you referred to herein becomes redundant. Otherwise so I can too refer to erstwhile Pakistan's and Punjab’s several similar case laws of then Hindus dating from 1830's!!

1 Like

Manjeet kumar sahu (Student)     01 December 2013

@ Tajobsindia :

Thank you sir .... Your comment are worth reading. But still, i believe there is a need to expand Feminism Jurisprudence.

Had there been a child of concubine in this case , would they be able to claim for right of maintenance irrespective of them being so called "illegitimate" in common parlance?

 

@greatindia :

The Apex Court in the instant matter have not touched  the intricacies of concubine's right. However, PWDV ACT  and any other legislation is also silent about it.

Tajobsindia (Senior Partner )     01 December 2013

1.    A child is not said to be ‘illegitimate’ in asked que. and for the same ref. is placed for you to read down Savitaben Somabhai Bhatiya Vs. State of Gujarat and Others - Appeal (Crl.) 399 of 2005 a SC Judgment of date 10-03-2005. Such children are well protected by various Indian (codified) Family Laws.

2.    Indian concubines who are kept in the home purely for s*xual intercourse do not have the same rights to alimony as a legal wife or live-in lover. Women 'kept' for s*x in Indian homes are equivalent in status to domestic servants. Alimony to concubines is only necessary where the relationship was "in the nature of marriage".  It is common in India for middle-class families to have a number of domestic staff living in 'servant’s quarters' within the home. This is our culture when you make ‘marriage; as most Sacrosanct deal’ unlike the West which has kept ‘marriage; just as an open deal’ and then it raises confusions in Indian’s minds and all sorts of INDIAN METRO WOMENS RIGHTS whether relevant to our culture or not creeping up. Try assimilating first history of Western jurisprudence and how feminism evolved in West vis-à-vis Indian progressive jurisprudence which is catching up indeed as Indian urbane society moves aping Western familial lifestyle in backdrop of our recent progressive Legislations to find answers to your such confused question and then let us debate further.

3.    ‘Feminism’ in India is already well sponsored by the West based on Western ethos that is why you have Western Laws creeping into Asian cultures to make our marriages – divorce most expensive compared to any other Jurisprudence. Illustration is placed on IrBM law which is in the making and Sexual Harassment at Workplace which are all gender biased including PWDVA. Even Burma, Bangladesh, China and Pakistan have made these reference laws gender neutral so what Feminist Rights you are talking here before us? Current more than 5 dozen Indian laws for our metro womens are quite adequate and only their implementation remains faulty. Educate readers and legislatures on how better implementation of present day's social laws can be achived instead of demanding - introducing more and more Family Laws in here.

2 Like

Hardeep (Business)     01 December 2013

@ Tajobsindia

1) Curious about your comment  ( Once, ways of religious life are ‘codified’ a..... ) .. in the subject case itself ,clauses 25,26,30,43,44,46,47 and many more cite not even Indian but foreign laws to elaborate/ explain a stance. If HMA 1955 codifies everything to the extent that even Indian case ( although before HMA 1955 ) cannot be cited,why does the Hon'ble court cite those which are not even Indian Law  ?

After Codification, does a precedent - even if supporting - loose its value ? I can understand that cases which are contradictory to settled, codified law cannot be cited as precedent. However, does that bar apply to even cases which support the stance now being taken by the Court ? And does that apply only to Indian Cases ( else how come foreign Judgements are being quoted ? )

Any case law on this ?

2) Your comment clause ( Indian concubines who are kept in the home.. ) of course sets the position clear. Judgement citation ?

Appreciate your / others views with sections / case law elaborations on this.......

 

 

Manjeet kumar sahu (Student)     01 December 2013

@ Tajobsindia:

Once again , i would like to thank you for your valuable input in the post.

 

1.  Although, It has already been settled that the term "illegitimate" is not to be used for child, but  technically  what i feel.......it is not yet completely outcasted ... In this regard , i would like to draw your attention towards ...Hindu Succession act. Sec. 3.(1)Definitions and interpretation: Proviso

"......that illegitimate children shall be deemed to be related to their mother......"

 

2. With regard to Right of Concubine, i am really  elated by your words.

Manjeet kumar sahu (Student)     01 December 2013

@ Tajobsindia:

Once again , i would like to thank you for your valuable input in the post.

 

1.  Although, It has already been settled that the term "illegitimate" is not to be used for child, but  technically  what i feel.......it is not yet completely outcasted ... In this regard , i would like to draw your attention towards ...Hindu Succession act. Sec. 3.(1)Definitions and interpretation: Proviso

"......that illegitimate children shall be deemed to be related to their mother......"

 

2. With regard to Right of Concubine, i am really  elated by your words.

Ranee....... (NA)     01 December 2013

Originally posted by : Tajobsindia

@ Manjeet Kumar Sahu

Partially you may be right in your sharp observations ref. to recent SLP. However it is for the Legislatures to amend-delete a clumsily drafted Act (i.e. Bharat Ratna PWDVA, 2006) and is not job of Hon’ble SC. However the SLP in question if carefully read is an progressive step to be carried forward by next Lordship(s). 

 

I am very much confused whether DV Act was in 2006 or 2005 

Hardeep (Business)     01 December 2013

@Tajobsindia

In continuation to your comment that after HMA 1955, cases decided earlier are redundant and do not carry precedentiary value, please see- for eg . :

Chanmuniya vs Virendra Kumar Singh Kushwaha & ... on 7 October, 2010

on :

https://indiankanoon.org/doc/1949767/

where the Hon'ble Court has cited -  amongst others :

clause 15: A. Dinohamy v. W.L. Balahamy [AIR 1927 P.C. 185],- Privy Council Case

clause 16 : Mohabbat Ali Khan v. Muhammad Ibrahim Khan and Ors. [AIR 1929 PC 135]- Privy Council case

Clause 17 : Gokal Chand v. Parvin Kumari [AIR 1952 SC 231],

all of which are obviously before the HMA 1955...

As said earlier, would request yours / any one else's clarification on this point : After promulgation of HMA 1955, do the cases decided earlier become redundant and loose their precedentiary value ?

 

 

 

alia_alian (journalism)     01 December 2013

Tajobsindia was absent in the forum for long time...he came back when live-in relation and concubine was in discussion.So thing is that he comes here just to reply the topic of his choice and interest!

1 Like

Tajobsindia (Senior Partner )     02 December 2013

@ Alia_Alian

1. Even matters that happens in ‘lifts’ interest me. Do you want the trial to conclude or want me to discuss what really happened in 'that lift' as I too belong to Tejpal’s apologist group.  

2. So it is time you shut up here if you have no value addition to make to any or all topics under discussions in LCI.

Tajobsindia (Senior Partner )     02 December 2013

1 To do complete justice to an appeal matter Hon’ble SC used several external sources of interpretation as well as quoted Sections. Nothing wrong so far as Law of interpretation goes.

2. Codification of religious Laws and Precedence by way of its usage meanings and usage carries two differences and should not be mixed up while replying to me. Illustration; the word ‘wife’ is not codified in Hindu Laws of 1955 it is mentioned under definition elsewhere.

3. “Illegitimate’ child rights have been upheld under various Laws i.e. Acts, Codes and Sections therein.

4. On you exhibiting delight on explanation on concubines all one can conclude by saying; till there is un-codified demand the supply should continue as it is virtue as age old as history of civilization-society !    

5. On your question about precedent value in Law, I stand by my earlier comment. Reason being Law is meant for society and society shapes Law, meaning thereby, Law follows progress in a society and just imagine how a Law that dates back to 30’s can carry social value in today’s context?. However if few Lordship(s) in their wisdom have quoted in a Judgment or several thereof as pointed by you then constructive comment if any by a member of society is not by any chance Contempt of Court is also my view.

{Last reply}

Hardeep (Business)     02 December 2013

My purpose for asking was not to malign anyone or to start a flame war. as far as I am concerned, I  believe  we all can learn and no one is prefect.

For sure any constructive comment is most welcome, as long as - to the best of anyone's abilities - if it ( apparently ) does not confuse. The comments earlier did confuse me, which is why the query was raised.

Neither did I express any delight - or otherwise on anything, AFAIK, if that has got upset anyone - for whatsoever reason ! All interested can see my original comment and conclude themselves.

Now that clarification is there that the comment on which I had sought clarification was the commenter's own personal opinion and not settled law (which is what I thought it was ) , I have learnt. Thanks !

If any else wishes to correct  me / add/ subtract to the subject that I wanted clarification on  - which is :

 After promulgation of HMA 1955, do the cases decided earlier become redundant and loose their precedentiary value ?

on basis not of their opinions but settled law I'd appreciate that.


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