S. 125 is, in a way, rigid provision and will not providet the relief of all classes of women, who are suffering from vagrancy and destitution. It has expressly used the word "wife" for getting the benefit of this provision. Wife is defined - "wife includes a woman who has been divorced by, or has obtained a divorce from her husband and has not been remarried". But in case of children, it has been expressly mentioned "legitimate" or "illegitimate". Had the legislature intended to extend the benefit to the female in "live-in" relationship, it could have found place in the provision. So, to get benefit for a woman in this provision, the first requirement is solemnization of marriage and the relationship of husband and wife between the parties. "live-in" relationship is not equivalent to marriage relationship and the parties in "live-in" relationship consciously have chosen, for the reasons best known to them, that they shall not give the colour of marriage to their relationship. Hence, a female in "live-in" is not equivalent to wife and is not entitled to maintenance under Section 125 Cr.P.C. But, if you investigate, certainly you can find some judgments including S.C. judgment (I think in this year itself), where maintenance under Section 125 is granted by saying that this provision is a social justice measure.
Now, women in "live-in" relationship have nothing to worry as after passing of the Domestic Violence Act, 2005, they have been expressly allowed to get maintenance under the Act. So, the aggrieved female, who wants to get maintenance, must invoke the provisions of DV Act instead of Section 125 Cr.P.C. as the result is the same in both the cases. If she proves vagrancy and destitution, without proving the factum of marriage, but by proving "live-in" relationship, can get maintenance in DV Act.
My questions are
# Jurisdiction of the High Court?
1) is there any other alternate remedy before filing a petition?
Yes. S. 125 order can be challenged in revision before the Sessions Court and later on in appeal before the High Court and vice-versa. Hence, in view of alternative remedy, High Court may decline to invoke its writ jurisdiction.
2) is a live-in relation at par with marriage?
No. But in DV Act, this status has been recognised and some relief, especially maintenance, is available to the women.
3) is a live-in partner a dependent under section 125 of code of criminal procedure?
No.
4) can a child born out of live-in relationship enjoy right to ancestral property?
If I am correct, the matter is before the Supreme Court in a referral case.
5) can a living in partner be included as a legal heir in their respective personal laws?
Needs a lot of debate. I refrain to answer to this question.
6) does Ms. Y need to approach to an NGO before filing a writ?
No need. If she is the aggrieved person, she can directly file the writ petition as an Indian citizen. But in the given facts of the case, there is little hope to get writ admitted.
