Interpreting the term “relationship in the nature of marriage”

Interpreting the term “relationship in the nature of marriage”

The Supreme Court in one of its recent decision has interpreted the expression “relationship in the nature of marriage” occurring in Section 2 (f) of the Protection of Women from Domestic Violence Act, 2005. The judgment has also triggered a controversy by the feminist vigilante for using the word “keep” to refer certain women in relationship with man.

The background

The occasion to interpret and decide on the conditions to qualify a relation as ‘in the nature of marriage’ had arisen in a petition filed by D. Patchaiammal for a relief under Section 125 Cr.P.C. in the year 2001 before the Family Court at Coimbatore. The petitioner alleged that she has been married to the appellant herein in 1986 and lived together for two or three years.

The appellant herein denied this claim and alleged that he is already married (in 1981) and have a son in that relationship. Since he is already married there is no possibility of Patchiammal being his wife. No relief under Section 125 therefore could be granted to the petitioner therein as per the definition of `wife' in Explanation (b) to Section 125(1) of the Cr.P.C.

Though the court echoes the object of Section 125 as to prevent vagrancy and destitution, holds that “there is no scope to include a woman not lawfully married within the expression of `wife”.

Search for solution in the Protection of Women from Domestic Violence Act

The court then widens its net in search of answers and captures the potential of the Protection of Women from Domestic Violence Act, 2005. Section 2 (f) of the Act defines domestic relationship as follows:-

"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"

The exploration here is to find whether any relief is possible to be given under The Protection of Women from Domestic Violence Act, 2005, though at the time of petition the Act has not taken life. The court does not discuss and rule on this issue.

Concept and ingredients of Common Law Marriage

Though there is an argument that people in ‘living in’ relationship should get the benefit of the Act, the court dissected the expression ‘a relationship in the nature of marriage” in Section 2 (f) and equated it with ‘common law marriage’ or ‘de facto marriage’. The court list the ingredients of common law marriages using the aid of Wikipedia, which are

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

(b) They must be of legal age to marry.

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

(d) 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 these, the parties must have lived together in a `shared household' as defined in Section 2(s) of the Act. The court clarifies that a weekend relationships, one night stands and adds the part that created furor, “[i]f a man has a `keep' whom he maintains financially and uses mainly for sexual purpose and/or as a servant, would not, … , be a relationship in the nature of marriage”

The court clarifies that not all ‘live in’ relations qualify to be a ‘relationship in the nature of the marriage’, but only those that satisfies the conditions specified. In the light of this judgment the court remanded the matter back to the lower court to establish whether there was a live in relationship that could qualify under section 2 (f) between the petitioner and respondent.

Thoughts after

Apart from the gender insensitivity in the selection of expression, the case raises certain important issues.

The relief of maintenance under Protection of Women against Domestic Violence Act is under section 20 (1) (d) to be granted on an application to the magistrate under section 12. It is a very acceptable proposition that the court thought of extending the benefit of an Act which was not in existence at the time of original petition even without such a pleading in the original petition. It but certainly require an amendment on the original petition. The concern here is the absence of the petitioner/respondent in the current proceedings. It is ominous that the long wait of nine years on a plea of maintenance of Rs. 500/- per month has made the petitioner lose its value. The cases of this nature should be determined in a time bound manner, that it does not lose its relevance and misplace the objectives behind the Act. More than the benevolence shown by the court after nine years to enlarge its exploration for relief in other legislations, a judgment in time determining the right or no right would have saved the petitioner from misery.

In the process but the court gave a verdict for the later courts to interpret the expression “relationship in the nature of marriage”.

A mention about the research tools and approach used in the judgment will not be out of place as it is alarming. It uses Google to explain the concept of Common Law Marriage and Wikipedia to lay down the conditions of it. Treating information from the internet as authentic would not be a correct approach in judicial decision making. May be the information in the internet is correct but the best source is expected to be cited in the judgment not just the easily available one.