Pylamutyalamma @ Satyavathi Vs Pylasuridemudu & Anr

Hon'ble Supreme Court of India on 09.08.11 observed as "
Under the law, a second wife whose marriage is void on account of survival of the previous marriage of her husband with a living wife is not a legally wedded wife and she is, therefore, not entitled to maintenance under Section 125 Cr.P.C. for the sole reason that “law leans in favour of legitimacy and frowns upon bastardy1”. But, the law also presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for a long number of years and when the man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage and not in a pronouncements state of concubinage. Several judicial right from the Privy Council up to this stage, have considered the scope of the presumption that could be drawn as to the relationship of marriage between two persons living together. But, when an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage and this is intended to protect women and children from living as destitutes and this is also clearly the object of incorporation of Section 125 of the Code of Criminal Procedure providing for maintenance.
If the evidence led in a proceeding under Section 125 Cr.P.C. raises a presumption that the applicant was the wife of the respondent, it would be sufficient for the Magistrate to pass an order granting the proceeding. But if the husband maintenance under wishes to impeach the validity of the marriage, he will have to bring a declaratory suit in the civil court where the whole questions may be gone into wherein he can contend that the marriage was not a valid marriage or was a fraud or coercion practiced upon him. Fortifying this view, it was further laid down by the Supreme Court in the matter of Rajathi vs. C. Ganesan9 also, that in a case under Section 125 Cr.P.C., the Magistrate has to take prima facie view of the matter and it is not necessary for the Magistrate to go into matrimonial disparity between the parties in detail in order to deny maintenance to the claimant wife. Section 125, Cr.P.C. proceeds on de facto marriage and not marriage de jure. Thus, validity of the marriage will not be a ground for refusal of maintenance if other requirements of Section 125 Cr.P.C. are fulfilled."

Ex.Constable Shiv ... Vs Union Of India & Ors on 1 March, 2011 Delhi High Court

A customary divorce took place when a panchayati decision was arrived at requiring the petitioner to pay alimony to Kalo Devi. Both of them remarriages somewhere else without formal decree of Court. Departmental action was taken against appellant for second marriage. Proceeding quashed.
Hon'ble Court observed, "Another instance of conflict between India and Bharat. The social norms in Rural India are not accepting the changes which the legislature intends to bring. Hindu Marriage Act 1955! It is observed more in breach rather than in compliance in rural areas. The reason appears to be that the rural society is not in sync with the modern ethos which the city bred propagates...

Suffice would it be to state that intention plays a very important part in every wrong. Needless to state an act becomes a wrong if backed with the requisite intention. Lacking an intention, an act would not be an offence."

D Velusamy Vs D Patchaiammal, CRIMINAL APPEAL NOS. 2028-2029 OF 2010

we may point out that the expression `domestic relationship' includes not only the relationship of marriage but also 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'. Unfortunately this expression has not been defined in the Act. Since there is no direct decision of this Court on the interpretation of this expression we think it necessary to interpret it because a large number of cases will be coming up before the Courts in our country on this point, and hence an authoritative decision is required…..
In our opinion a `relationship in the nature of marriage' is akin to a common law marriage. Common law marriages require that although not being formally married :-
(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.(see `Common Law Marriage' in Wikipedia on Google)
In our opinion a `relationship in the nature of marriage' under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a `shared household' as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a `domestic relationship'….
In our opinion not all live in relationships will amount to a relationship in the nature of marriag8e to get the benefit of the Act of 2005.To get such benefit the conditions mentioned by us above must be satisfied, No doubt the view we are taking would exclude many women who have had a live in relationship from the benefit of the 2005 Act, but then it is not for this Court to legislate or amend the law. Parliament has used the expression `relationship in the nature of marriage' and not `live in relationship'. The Court in the grab of interpretation cannot change the language of the statute.
Read full Judgment at http://judis.nic.in/supremecourt/helddis3.aspx

In Mangala Bhivaji Lad Bombay High Court on 29.03.2010

Court observed that“Rameshchandra Daga Vs Rameshwari Daga (2005) 2 S.C.C. 33 In that case, Apex Court confirmed the order of grant of maintenance to the second wife passed at the time of decree under Section 11 of the Hindu Marriage Act…..According to Delhi High Court, (Smt. Narinder Pal Kaur Chawla Vs Manjit Singh Chawla reported in AIR 2008 Delhi 7) a Hindu husband is estoped from challenging validity of the second marriage in view of the wrong committed by him in not disclosing to the second wife the factum of his first marriage, otherwise it would amount to giving premium to the husband for defrauding the second wife….We fully agree with the view expressed by the Andhra Pradesh High Court (Abbayolla M. Subba Reddy Vs Padmamma, reported in AIR 1999 Andhra Pradesh 19) that the expression Hindu ”wife used in Section 18 of the Hindu Adoption and Maintenance Act, means legally wedded Hindu wife and no less. The appellant not being the legally wedded wife of the respondent cannot resort to Section 18 of the Hindu Adoption and Maintenance Act to claim maintenance.”