Restitution of Conjugal Rights Meaning
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This article is written by Harshita Sukhija. 

“Chains do not hold a marriage together. It is threads, hundreds of tiny threads, which sew people together through the years.”

Simone Signoret

Black’s Law Dictionary defines marriage as “the civil status of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex”[1]. Marital relationship means the legally protected marital interest of one spouse to another which include marital obligation to another like companionship, living under the same roof, sexual relation and the exclusive enjoyment of them, to have children, their up-bringing, services in the home, support, affection, love, liking and so on.[2] In Hindu law, marriage is considered to be sacrosanct, a holy union of two persons.

Before the enactment of Hindu Marriage Act, 1955, polygamy among Hindu men was common and enjoyed social acceptance. But this position changed with Hindu Marriage Act coming into force in the year 1955. Section 5(i) of the said Act stipulates that marriage can be solemnised between any two Hindus if neither party has a spouse living at the time of the marriage”[3], and Section 11 declares a marriage void if it is in contravention of section 5(i)[4]. Further, Section 17 provides that the provisions of Sections 494 and 495 of the Indian Penal Code shall apply where either of the parties has a spouse living at the time of the marriage.[5]

Section 494 of the Indian Penal Code, 1860 states- “Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”[6]

The above-mentioned Section also provides that the Section does not apply where:

  1. any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction
  2. where the spouse has been continually absent for a period of 7 years and not heard to be alive within such period.

Thus, a combined reading of Sections 17 of Hindu Marriage Act and Section 494 of the Indian Penal Code require that to make out a case for bigamy the following essential ingredients must be established as laid down in Nagalingam v. Sivagami [7]:

  1. The accused must have contracted the first marriage
  2. Whilst the first marriage was subsisting, the accused must have contacted a second marriage
  3. Both the marriages must be valid.

What is important to keep in mind is that not only the first but the second marriage must also be a valid marriage in accordance with the Hindu Marriage Act. So what is meant by second marriage to be a ‘valid marriage’?

SECTION 7 OF THE HINDU MARRIAGE ACT AND THE BURDEN TO PROVE SOLEMNISATION OF SECOND MARRIAGE WITH NECESSARY CEREMONIES

Section 7(1) of the Hindu Marriage Act says-“A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.”[8]

Therefore, for the second marriage to be valid it must fulfil the requirement of Section 7.

In the case of Bhaurao Shankar Lokhande v. State of Maharashtra[9] , the Hon’ble Supreme Court held- “Prima facie, the expression ‘whoever…. marries’ must mean ‘whoever marries-validly’ or ‘whoever…. marries and whose marriage is a valid one’. If the marriage is not a valid one, according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises. If the marriage is not a valid marriage, it is no marriage in the eye of law.”[10]

The Court, further, continued- “The word ‘solemnize’ means, in connection with a marriage, ‘to celebrate the marriage with proper ceremonies and in due form’, according to the Shorter Oxford Dictionary. It follows, therefore, that unless the marriage is ‘celebrated or performed with proper ceremonies and due form’ it cannot be said to be ‘solemnized’. It is therefore essential, for the purpose of s. 17 of the Act, that the marriage to which s. 494 I.P.C. applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to be married, will not make them ceremonies Prescribed by law or approved by any established custom.[11]

JUDICIAL INTERPRETATION – AN ESCAPE ROUTE FOR OFFENDING SPOUSES

The provisions against bigamy have bred injustice over the years by allowing the erring spouses to escape the clutches of law. They conveniently fail to perform some ritual or ceremony as required by law for solemnisation of marriage, and failing to prove that the second marriage was ‘valid’ the law paves the way for the offenders to escape justice.

In Bhaurao Shankar Lokhande’s case[12], the accused husband was acquitted merely because the complainant could not prove the existence of a custom prevalent in their community which dispensed with the performance of two ceremonies- invocation before the sacred fire and satpadi, and since these two ceremonies were not performed the offence of bigamy was held to be not made out.

The Hon’ble Karnataka High Court in the case of Ram Singh v. R. Susila Bai And Anr.[13] relied on the afore-mentioned judgement and gave the accused husband benefit of doubt on the ground that the performance of two essential ceremonies- invocation before the sacred fire and satpadi- were not proved  by reliable evidence.

In Santi Deb Berma v. Smt. Kanchan Prava Devi[14], the Hon’ble Supreme Court reversed the conviction order of the Hon’ble Guwahati High Court which relied on the three letters and oral evidence which clearly showed that the accused husband and his alleged second wife were leading a marital wife. The Court held that the High Court’s decision was erroneous in the absence of any reliable evidence proving the performance of satpadi.

In Kanwal Ram And Ors. v. Himachal Pradesh Admn.[15], the Hon’ble Supreme Court, relying on Empress v. Kallu[16] and Morris v. Miller[17], held- it is clear that in law such admission is not evidence of the fact of the second marriage having, taken place. In a bigamy case, the second marriage as a fact, that is to say, the ceremonies constituting it, must be proved”. [18]

The decision of Kanwal Ram’s case was reiterated by Hon’ble Supreme Court in Priya Bala Ghosh v. Suresh Chandra Ghosh[19]. The Court held that “the admission cannot in law be treated as evidence of the second marriage having taken place in an adultery or bigamy case: and that in such cases it must be proved by the prosecution that the second marriage as a fact has taken place after the performance of the essential ceremonies.”[20] Thus, even admission of second marriage on part of the accused is not sufficient to prove the offence of bigamy.

Thus, the loophole in law has given the renegade spouse an easy escape route. This disproportionate burden on the complainant spouse to prove the performance of essential ceremonies is going to aggravate injustice and confusion in today’s changing concept of marriage and growing prevalence of live-in relationship among the millennials.

LIVE IN RELATIONSHIP

Generally speaking, live in relationship means an arrangement wherein a man and a woman live together without getting married and conduct themselves as husband and wife for all practical purposes. Such arrangement is ordinarily called as cohabitation. Collins English Dictionary defines ‘cohabitation’ as “the state or condition of living together in a conjugal relationship without being married”[21]; and the man and the woman cohabitating are called as live-in partners or many countries recognise them as conjugal partners.

A study conducted by Dr. Arielle Kuperberg, an assistant professor of sociology at the University of North Carolina, showed that  the trend of living together before marriage or ‘cohabitation’ in USA have skyrocketed over the past 50 years, increasing by almost 900% since the 1960s.[22] A survey by The Office of National Statistics in its Families and Households in the UK 2017 report has revealed that the numbers of cohabitating families has more than doubled from 1.5 million in 1996 to 3.3 million in 2017.[23] In India, though live-in relationships have not gained social acceptance yet, more and more young individuals are opting for cohabitation before marriage.

ACCEPTANCE OF LIVE IN RELATIONSHIP IN INDIA- A LONG JUDICIAL JOURNEY

Neither the Hindu Marriage Act, nor Special Marriage Act, nor any other law in India recognises live-in relationships. But judiciary has played a significant role in acting as a catalyst in initiating the process of social acceptance of live-in relationships and safeguarding the rights of individuals entering into such relationship.

The acceptance of live-in relationship by Indian courts can be traced back to pre-independence judgment of the Privy Council in A. Dinohamy v. W.L.Blahamy[24], in which it took the stand that, “where a man and a woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved that they were living together in consequence of a valid marriage, and not in a state of concubinage”[25].

The same was restated by the Privy Council in Mohabhat Ali v. Mohammad Ibrahim Khan[26] that- “The law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for a number of years”[27].

After independence, Hon’ble Justice Krishna Iyer in Badri Prasad v. Dy. Director of Consolidation[28], wherein a man and a woman lived together as husband and wife for over 50 years, stated- “A strong presumption arises in favour of wed-lock where the partners have lived together for a long spell as husband and wife”[29]. But in the same judgement he observed that “The presumption was rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place. Law leans in favour of legitimacy and frowns upon a bastard”[30].

The Hon’ble Supreme Court in Tulsa v. Durghatiya[31] reiterated its decision of Gokal Chand v. Pravin Kumara[32], that- “continuous co-habitation of (sic man and) woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage, but the presumption which may be drawn from long co-habitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore it”.[33] The Court held that the continuous living together of defendants has been established and the presumption of marriage is justified under Section 114 of the Indian Evidence Act, 1872.

Similarly, relying on the above-mentioned judgments of Mohabhat Ali Vs Mohammad Ibrahim Khan and Gokal Chand v Pravin Kumara, the Hon’ble Supreme Court in Sobha Hymavathi Devi v. Setti Gangadhara Swamy & Ors.[34] held that a long period of cohabitation of the appellant’s parents raises the presumption of marriage.

In Payal Sharma v. Superintendent, Nari Niketan[35], Hon’ble Justices M Katju and R.B. Mishra stated- “In our opinion, a man and a woman, even without getting married, can live together f they wish to. This may be regarded as immoral by society, but is not illegal. There is a difference between law and morality”.[36]

Similarly, the three judge bench of Hon’ble Supreme Court consisting of Hon’ble Justices K.G. Balakrishnan, Deepak Verma, B.S. Chauhan in Khushboo v. Kanniammal & Anr.[37]observed that “While it is true that the mainstream view in our society is that sexual contact should take place only between marital partners, there is no statutory offence that takes place when adults willingly engage in sexual relations outside the marital setting, with the exception of ‘adultery’ as defined under Section 497 IPC”.[38] The same view was expressed in Lata Singh v. State of U.P. & Anr.[39]., that “A major girl is free to marry anyone she likes or live with anyone she likes”.[40]

However, the landmark judgment which has bestowed live in relationship the status of ‘relationship in the nature of marriage’ is the 2010 judgement of Hon’ble Supreme Court in D. Velusamy v. D. Patchaiammal[41].

After appraising the provisions of The Protection of Women from Domestic Violence Act, 2005, Hon’ble Justices Markandey Katju and T.S. Thakur pointed out that the expression ‘domestic relationship’ also includes a relationship ‘in the nature of marriage’. The question, therefore, arises as to what is the meaning of the expression ‘a relationship in the nature of marriage’. They interpreted the expression a ‘relationship in the nature of marriage’ as akin to a common law marriage and laid down the following criteria for live-in relationship:

  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.

In addition to the above requirements the parties must have lived together in a ‘shared household’ as defined in Section 2(s) of the Act.

Further, the Hon’ble Supreme Court in Indra Sarma v. VKV Sarma[42], laid down following guidelines for determining whether a live-in relationship will fall within the expression ‘relationship in the nature of marriage’:

“1) Duration of period of relationship – Section 2(f) of the DV Act has used the expression “at any point of time”, which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the factual situation.

(2) Shared household – The expression has been defined under Section 2(s) of the DV Act and, hence, needs no further elaboration.

 (3) Pooling of Resources and Financial Arrangements supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long term investments in business, shares in separate and joint names, so as to have a long standing relationship, may be a guiding factor.

 (4) Domestic Arrangements – Entrusting the responsibility, especially on the woman to run the home, do household activities like cleaning, cooking, maintaining or up keeping the house, etc. is an indication of a relationship in the nature of marriage.

(5) Sexual Relationship – Marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also marital affection, caring etc.

(6)Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long standing relationship. Sharing the responsibility for bringing up and supporting them is also a strong indication.

(7) Socialization in Public – Holding out to the public and socializing with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.

(8) Intention and conduct of the parties – Common intention of parties as to what their relationship is and to involve and as to their respective roles and responsibilities, primarily determines the nature of that relationship.”[43]

In this context, the recent judgment of the nine judge bench of the Hon’ble Supreme Court on right to privacy is also significant. The Hon’ble Court proclaimed that the right to privacy is constitutionally protected right under Article 21 of the Constitution of India.[44] Hon’ble Justice Chandrachud observed that- “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy”[45]. Therefore, it follows that the every unmarried adult is free to cohabit with another and the choice of live-in relationship is protected under Article 21.

APPLICABILITY OF LAWS AGAINST BIGAMY IN LIVE-IN RELATIONSHIPS

The afore-mentioned judgments have, keeping in tune with the changes in society, provided protection to the rights and interests of live-in partners and have tried to secure justice to aggrieved and deceived partner. However, the problem arises when a married person starts cohabitating with an unmarried person; the dilemma before the courts is- whose rights it should protect, the spouse or the live in partner. The question before the law-makers and judiciary is that in such circumstances whose rights will take precedence.

Although the courts in India have upheld the right to maintenance of women in live in relationship[46], right to palimony[47] as well as inheritance rights of children born in such relationships[48], but this is not sufficient to act as deterrent to erring spouse and ensure justice specially to the other spouse.

As already discussed above, non-performance of essential ceremonies allows the defaulting spouse to escape the provisions of Section 494 of the Indian Penal Code. Thus, the law against bigamy is not applicable to live-in relationships as there is no ‘valid’ marriage properly performed with essential ceremonies.

When the courts in India have equated live in relationship to the status of relationship in the nature of marriage, conferred them with the status of husband and wife and vested the female partners the rights which are available to a wife like that of maintenance, then there is no reason why a proceeding for bigamy cannot be brought against the defaulting spouse. A valid marriage does not necessarily mean performance of customary rites pertaining to married couple, but the intention of parties, their conduct and cohabitation are more relevant factors in today’s changing concepts of marriage. Take example of USA where several states like Georgia has not only prohibited second marriage during subsistence of first marriage but has also made co-habitation illegal.[49]

CONCLUSION

The Justice Malimath Committee recommended that “Section 494 of the IPC be suitably amended to the effect that if the man and woman were living together as husband and wife for a reasonably long period the man shall be deemed to have married the woman according to the customary rites of either party”[50].

Law cannot remain static and must adapt itself to changes in society. Since the Hon’ble Supreme Court has recognised the institution of live-in relationship, it is necessary to amend bigamy and other laws and also to legislate upon the same so as to clearly define the rights and duties of live-in partners. The requirement of performance of essential ceremonies to prove valid marriage under Section 494 of the Indian Penal Code should be relaxed and an amendment to the effect that continuous cohabitation for a number of years will raise the presumption of marriage will go a long way in securing justice to the wronged spouse. Hence, even cohabitation with another person during the subsistence of first marriage should be explicitly declared illegal.

The law must balance and protect the interests of live-in partners on one hand and those of the betrayed spouse on the other hand. The loophole existing in bigamy provisions have been shamelessly abused by the erring spouses and a failure to rectify the position of law will only inbred injustice.

REFRENCES

[1] Marriage, Black’s Law Dictionary Online (2nd ed.), https://thelawdictionary.org/marriage/.

[2] Pinakin Mahipatray Rawal v. State of Gujarat, (2013) 2 SCALE 198.

[3] The Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955.

[4] Id.

[5] Id.

[6] The Indian Penal Code, 1860, No. 45, Acts of Legislative Council,1860.

[7] Nagalingam v. Sivagami, (2001) 7 SCC 487.

[8] The Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955.

[9] Bhaurao Shankar Lokhande v. State of Maharashtra, 1965 AIR 1564.

[10] Id., ¶ 3.

[11] Id., ¶ 4.

[12] Bhaurao Shankar Lokhande, supra note 8.

[13] Ram Singh v. R. Susila Bai And Anr., AIR 1970 Mys 201.

[14] Santi Deb Berma v. Smt. Kanchan Prava Devi, AIR 1991 SC 816.

[15] Kanwal Ram And Ors. v. Himachal Pradesh Admn., AIR 1966 SC 614.

[16] Empress v. Kallu, (1882) I.L.R. 5 All. 233.

[17] Morris v. Miller, 4 Burr 2057: 98 E.R. 73.

[18] Kanwal Ram, supra note 15.

[19] Priya Bala Ghosh v. Suresh Chandra Ghosh, 1971 AIR 1153.

[20] Id., ¶23.

[21] Cohabitation, Collins English Dictionary, https://www.collinsdictionary.com/dictionary/english/cohabitation.

[22] Arielle Kuperberg, Cohabiting isn’t what it used to be , The Society Pages ( Oct. 1, 2014), https://thesocietypages.org/ccf/2014/10/01/cohabiting-isnt-what-it-used-to-be/.

[23] ONS statistics show cohabiting couple families are on the rise, LexisNexis (Nov. 9, 2017), https://www.familylaw.co.uk/news_and_comment/ons-statistics-show-cohabiting-couple-families-are-on-the-rise#.WyZsuVUzbIV.

[24] A. Dinohamy v. W.L.Blahamy, AIR 1927 PC 185.

[25] Id., at 681.

[26] Mohabhat Ali v. Mohammad Ibrahim Khan, AIR 1929 PC 135.

[27] Id., at 733.

[28] Badri Prasad v. Dy. Director of Consolidation, (1978) 3 SCC 527.

[29] Id., at 527.

[30] Id.

[31] Tulsa v. Durghatiya, (2008) 4 SCC 520.

[32] Gokal Chand v. Pravin Kumara, AIR 1952 SC 231.

[33] Id., ¶ 16.

[34] Sobha Hymavathi Devi v. Setti Gangadhara Swamy & Ors., (2005) 2 SCC 244.

[35] Payal Sharma v. Superintendent, Nari Niketan, 2001 SCC OnLine All 332.

[36] Id., ¶ 1.

[37] Khushboo v. Kanniammal & Anr., (2010) 5 SCC 600.

[38] Id., ¶ 31.

[39] Lata Singh v. State of U.P. & Anr., (2006) 5 SCC 475.

[40] Id., ¶ 14.

[41] D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469.

[42] Indra Sarma v. VKV Sarma, 2013 SCC OnLine SC 1042.

[43] Id., ¶ 56.

[44] Justice K S Puttaswamy (Retd.) & Anr v. Union of India & Ors, (2017) 10 SCC 1.

[45] Id., ¶323.

[46] K.Vimal v. K.Veeraswamy, 1991 SCC (2) 375; Dwarika Prasad Satpathy v. Bidyut Prava Dixit And Anr., (1999) 7 SCC 675; Chanmuniya v. Virendra Kumar Singh Kushwaha (2011) 1 SCC 141.

[47] D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469.

[48] Jinia Keotin and Ors. v. Kumar Sitaram Manjhi and Ors., (2003) 1 SCC 730; Revansiddappa & Ors. v. Mallikarjuna & Ors.,  (2011) 11 SCC 1; S.P.S Balasubramanyam v. Sruttayan,  1994 AIR 133; Tulsi v. Darghatiya, (2008) 4 SCC 520; Madan Mohan Singh and Ors. v. Rajni Kant & Anr, AIR 2010 SC 631; Vidyadhari v. Sukhrana Bai, AIR 2008 SC 1420.

[49] GA Code § 16-6-20.

[50] Committee on Reforms of Criminal Justice System, Ministry of Home Affairs, Government of India ( Mar. 2003), https://mha.gov.in/sites/default/files/criminal_justice_system_2.pdf.

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