Divorce

advocate

one of my friend who is a christian lady, was staying in a living together relationship with a man in Delhi from last few years and as a result of this she gave birth a baby boy. But now they dont want to stay together. For that, she came back to her house i.e in Nagaland with the baby. now, the man use to threaten her that he'll take his baby away from her who is 1 yr old. now the question is, can she can file for protection order or mainetainence?

 
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Partner/Advocate

Greetings,

 

SC has laid down conditions for women seeking maintenance in live-in relationships. A woman in a live-in relationship is not entitled to maintenance unless she fulfils certain parameters, the Supreme Court has held while observing that merely spending weekends together or a one night stand would not make it a domestic relationship.


A bench comprising Justices Markandey Katju and T S Thakur said that in order to get maintenance, a woman, even if not married, has to fulfil the following four requirements:

(1) The couple must hold themselves out to society as being akin to spouses

(2) They must be of legal age to marry

(3) They must be otherwise qualified to enter into a legal marriage including being unmarried

(4) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.


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Senior Partner

@ Author

1.
If you friend is a Christian, she can claim maintenance from him through criminal proceeding (S. 125 CrPC). Interested Christian female's who were at one point of time in a live-in relationship may pursue criminal proceedings U/S. 125 CrPC as it is the only secular maint. Law of the land (however I personally highly differ that it should be applicable to Hindues which however is besides the point here in this reply to your query) as there is no legal bar to it. In criminal proceedings, the religion of the parties does not matter at all, unlike in civil proceedings however Indian Divorce Act as well as DV act is not applicable to your friends case for protection Order / maint. Order.


2. Christians and Parsis have no custody and adoption laws and have to approach the concerned jurisdiction Court under the Guardians and Wards Act, 1890. however, such a child does have the legal right of inheritance. In case of illegitimate children, the mother has a better claim than the putative father for retaining the custody. The Act makes no distinction between the person of the minor and his property and therefore Guardianship implies control over both.


3. Further Illegitimate children are entitle to inherit property of parents only and not of others like grand father G mother, uncle cousin or other relatives. The most famous case was that of Re. Jane Antony, Wife Of Antony vs V.M.Siyath, Vellooparambil on 25 September, 2008, HC of Kerala and that of Re. Vidhyadhari and Others v. Sukhrana Bai and Others reported in 2008(2) S.C.C


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Senior Partner

@ Ld. Jacob,

I agree and clarify that a Live in lady under Bharat Ratna DV Act canot be allowed to claim Maint. or any sorts of Orders (protection). However, like D HC which allowed the said Orders which was later turned down by above re. Bench of Lordships, I quote for refreshing women writers memory here that much before this SC Judgment came a trial Court under Bharat Ratna DV Act in Borivili, Mumbai in Bani Roy (he was a businessman from Kolkatta who came to Mumbai) Vs. Jayantilal Jain (she was a Bar Dancer then) awarded under DV Act in March 2010 Rs. 10 K as maint. ! Later it was quashed at Mumbai HC under Appeal quoting the above re. SC Judgment which came after 6 months!.

 
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Partner/Advocate

@ Mr. Tajobsindia,

The above said Hon'ble Apex Court - Division Bench judement was to entitle women in live-in relationship to get maintenance under DV Act. But in order to get maintainance under DV Act, the above said 4 conditions must be fulfiled. This has been the most recent SC ruling in this matter to my knowledge. Kindly post if there are any recent judgment.

 
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NA

Dear Peenaz, 

Your friend has lived with the man in a live in relationship for a few years, so it is not a few weekends' affair. The important thing is to establish that people around them have known them to be living together all these years in the nature of marital relationship. 

Now apply other parameters of the SC judgement quoted here by Advocate Kal Jacob and see if your friend is eligible for protection and maintenance order.

If yes, then under DV act she can secure maintenance, child support, child custody and protection order, as DV act protects women in live- in relationship also.   

Go through the Protection of women from Domestic Violence Act 2005, and most importantly ask your friend to engage a very capable advocate. 


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practicing advocate

yes she can claim maintenance subject to proof that she was live in relationship.

 
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advocate

thnx everyone!!!!!!!!!

 
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UNEMPLOYED

fir at nagaland makes him difficult to face the case.

at nagaland innerline necessary, therefore it will not be easy to enter the nagaland.

one year age - therefore the baby will naturally be stayed with his mother.

however he is the father of the baby. hope there shall be a soft corner for father also.

---  subject to, he should approach in gandhian way. 

 
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advocate

Live-in relationship is a tight rope walk for men - that's the verdict of the SC. Live-in relationship is now accepted in the law and famales are entitled to maitenance. When male and female live together for more than one or two months and the people in the neighbourhood see them as a couple enjoying all luxuries of a wedded man and woman, it goes to prove that both of them have conjugal relatioship which goes beyond one-night stand. So Adv. Jacob's citation of the SC conditions is out of place here in this case. Again in case of a mariage between tpersons of different religions, Special Marriage Act applies. As a thumb rule, upto 7 years of age, generally custody lies with the mother. These are some of the grounds one must know before going into litigation.


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