By John B Monteiro

May 13: Even as the government recently turned down the proposal for law on marital rape as unsuitable for Indian culture, low literacy and marriage being considered a sacrament, the higher judiciary has been consistently coming to the rescue of wives in distress from errant husbands, as reflected in two recent judgment of the Supreme court of India.

In the latest instance, reported in The Times of India and excerpted here, the Supreme Court on May 5, 2015 said if a live-in relationship breaks down, the man is bound to pay maintenance to the woman and the children born from the relationship. A bench of Justices Vikramajit Sen and A M Sapre dismissed a petition by a man who claimed that since he was already married before entering into the live-in relationship, his partner could not claim the status of a wife to be legally entitled to maintenance under Hindu Marriage Act.

The petition was filed by 'Z', who works in Bollywood, challenging an order of the Bombay High Court, which had held that his live-in partner of nine years and the child were entitled to maintenance after their relationship ended. 'Z' argued that he was legally married to another woman for the last 49 years, hence his live-in partner was not entitled to maintenance as she was well aware of his marital status. He said his live-in partner was a 'call girl' and alleged that she had decided to live with him on her own wish since 1986. They lived together for nine years and a child was born to them in 1988.

Justices Sen and Sapre slammed 'Z' for referring to his erstwhile live-in partner as a 'call girl' and said he was a philanderer as he was living with another woman despite being married. "How absurd is your argument. You yourself went for the live-in relationship but now you are branding the poor lady as call girl. You are such an idiot that you went for a relationship. You are yourself a philanderer as you got into a relationship despite being married," the bench said.

In this case, the woman had first approached the family court in Bandra for declaration of their relationship as husband and wife. The court, however, refused her plea after 'Z' told the court that he was already married to someone else. She then approached the HC which had said she was eligible to claim maintenance for herself and her daughter. 'Z' challenged the HC order in the apex court.

The court in its various orders has recognized the concept of live-in relationship in society. It has gone to the extent of saying that if a man and woman "lived like husband and wife" for a long period and had children, the judiciary would presume that the two were legally married. In April 2015, the apex court had said continuous cohabitation of a couple would give rise to the presumption of a valid marriage and it would be for the opposite party to prove that they were not legally married. "It is well settled that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a long time. However, the presumption can be rebutted by leading unimpeachable evidence. A heavy burden lies on a party who seeks to deprive the relationship of legal origin," it had said.

In the second case, in which the Supreme Court delivered its judgment on April 5, 2015,an application by a Muslim lady for an increase in quantum of maintenance awarded to her under Section 125 of the Criminal Procedural Code by the family court was the occasion for a Bench of the Supreme Court, comprising Justices Dipak Misra and Prafulla Pant to analyse the purpose and principles underlying Section 125. Justice Misra, speaking for the Bench in the opening part, said in colourful language: “Chivalry, a perverse sense of human egotism, and clutching of feudal megalomanic ideas have no room and should be sent to the ancient woods, and in the new horizon people should proclaim their own ideas and authority… ideas of today’s ‘Bharat’. Any other idea floated or any song sung in the invocation of male chauvinism is the proposition of an alien, a total stranger, an outsider. That is the truth in essentiality.”

The Bench narrated the anguish suffered by the wife, which made it unbearable for her to stay at the matrimonial home and she had to seek the help of her parents who took her to the parental home in Lucknow. Thereafter, the wife filed an application for grant of monthly maintenance of Rs 4,000. The family court directed that a sum of Rs 2,500 be paid as monthly maintenance allowance from the date of application till the date of judgment and thereafter Rs 4,000 per month till the date of remarriage.

The husband approached the high court in revision in which the maintenance allowance was reduced to Rs 2,000 from April 1, 2012, that is the day of the order, till remarriage of the wife. The wife appealed to the Supreme Court. It allowed the wife’s appeal.

The Bench ruled that Section 125 commands there has to be some acceptable arrangements so that the wife can sustain herself. The principle of sustenance gets more heightened when the children are with the wife. The Bench clarified that “sustenance does not mean and can never allow to mean a mere survival, and maintenance has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar.”

The court ruled that grant of maintenance to the wife is a measure of social justice and that “it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning.” Justice Misra poignantly observed that “when the woman leaves the matrimonial home she is deprived of many a comfort. Sometimes, the faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her the misfortune. At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing legal balm, for she cannot be allowed to resign to destiny.” In the result, the Supreme Court set aside the high court order and restored that of the family court.
Commenting on the judgment, Soli Sorabjee, eminent jurist and ex-Attorney General of India, said: “Thanks to our chivalrous Supreme Court, well-to-do husbands who are capable of earning yet prefer to be idle cannot now deprive the wife of her legitimate monthly maintenance.”

These judgments bring down male arrogance, as noted by William Shakespeare, English dramatic poet (1564-1616) in Taming the Shrew, by many notches:

I will be master of what is mine own;
She is my goods, my chattel; she is my house,
My household stuff, my field, my barn

My horse, my ox, my ass, my anything;
And here she stands, touch her whoever dare.

Veteran journalist and author, John B Monteiro now concentrates on Editorial Consultancy, having recently edited the autobiography of a senior advocate, history and souvenir to mark the centenary of Catholic Association of South Canara and currently working on the history/souvenir to mark the platinum jubilee of Kanara Chamber of Commerce & Industry.