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The Concubine and Notions of Constitutional Justice

A recent Supreme Court ruling, which denied maintenance to women in marriage-like relationships with married men, has undone gains made by landmark rulings that attempted to provide constitutional justice for these women. The ruling has also exposed the weakness of the Protection of Women against Domestic Violence Act in such situations.











The Concubine and Notions of Constitutional Justice

Flavia Agnes

A recent Supreme Court ruling, which denied maintenance to women in marriage-like relationships with married men, has undone gains made by landmark rulings that attempted to provide constitutional justice for these women. The ruling has also exposed the weakness of the Protection of Women against Domestic Violence Act in such situations.

Flavia Agnes ( is a women’s rights lawyer and is with the Mumbai-based Majlis which provides legal help to women.

he Supreme Court ruling in D Velusamy vs D Patchaiammal (hereafter Velusamy),1 which denied maintenance to women who are in marriage-like relationships with married men, has been a cause of concern for all women’s rights activists. To add insult to injury, delivering this judgment, Justice Markandey Katju termed women in such relationships as “mistresses” and “keeps”; this invoked a great deal of adverse publicity in the media. Subsequently, a review petition filed by concerned groups before the same bench, pleading to the court to expunge the derogative comments, was also dismissed.

The cause of greater concern is not just the terminology, but the denial of rights to a large number of women who need these rights the most. Since this ruling, it has become extremely difficult for women to

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claim maintenance under Section 125 of the Criminal Procedure Code (hereafter, S125 CrPC), unless they are able to prove a valid marriage. We all are well aware that it is extremely difficult to prove the legal validity of a Hindu marriage, rooted as it is in pluralistic traditions and diverse cul

tural practices, according to the rules laid down by a modernist state. Hindu law thrives despite all attempts by lawmakers to straitjacket Hindu cultural practices.2 The challenge is to protect women’s rights within this cultural diversity.

When a deserted Hindu wife approaches a court for a meagre sum of maintenance under S125 CrPC, the most common ploy adopted by the husband, on the advice of a lawyer, is to deny the validity of the marriage by pleading that he has an earlier valid marriage subsisting. These manipulative tactics adopted by husbands and their lawyers cause women immense mental trauma and economic hardship during litigation.

Several judges had come to the rescue of women who find themselves in this predicament. In an important ruling in 2005

– Ramesh Chand Daga vs Rameshwari Bai3


the Supreme Court awarded maintenance to a woman whose husband had challenged the validity of their marriage, conceding that despite codification and introduction of monogamy, ground realities had not changed much and Hindu marriages, like Muslim marriages, continued to be bigamous. The court further commented that though such marriages are illega l as per the provisions of the codified Hindu law, they are not immoral and hence a financially dependent woman cannot be denied maintenance on these grounds.

Contradictory Verdict

But another bench of the Supreme Court, without any reference to the above ruling, gave a contradictory verdict and held that the term “wife” can be applied only to a legally married woman; it was inconsequential whether the man was treating the woman as his wife.4 The claimant Savitaben pleaded that she and her husband were married two decades earlier and had lived together as husband and wife, before he got involved with another woman, Veenaben, and deserted her. The husband denied his marriage with Savitaben and pleaded that he had married Veenaben 22 years in the past and that she was his legally wedded wife.

There are several similar rulings by the various high courts where the battle for l egitimacy is fought between two women and only one can succeed at the cost of the other. Saddled with a daunting task, several judges expanded the scope of the provisions under which the term “wife” and marriage are l egally defined, by applying humanitarian principles to protect the rights of women who could not prove the legal validity of their marriage.5 Since a strict interpretation would result in injustice to women in nonmonogamous but marriage-like relationships, the courts started providing a wider definition to the term “wife” while granting maintenance under S125 CrPC to women in such situations, on the grounds that this is a beneficial legislation enacted to prevent destitution and vagrancy, and hence the strict interpretation of the term “wife” should apply in upholding the right to maintenance of such women.

Recently, in October 2010 (the same month as the Velusamy ruling discussed above), in Chanmuniya vs Virendra Kumar Singh Kushwaha,6 another bench of the S upreme Court upheld the right of women in technically defective marriages, holding that the term “wife” must be given a broad and expansive interpretation. This bench recommended that cases where a man and woman have been living together for a reasonable period of time should be brought within the scope of S125 CrPC. A strict proof of marriage should not be a precondition for maintenance to fulfil the true spirit and essence of the beneficial provision of maintenance under that section of the code.

Rather unfortunately, this ruling did not get as much publicity as the Velusamy ruling; it was overshadowed by the latter’s derogative comments about women. In view of the contradictory verdicts of the various division benches, the proper course in Velusamy ought to have been a reference to a larger bench. But that would require a measure of restraint, which the Velusamy ruling seems to lack.

In view of the contradictory rulings, the issue is still wide open. But the adverse publicity given to the Velusamy ruling is causing great harm to women in trial courts because trial judges are acting in accordance with this ruling, disregarding the ambiguity which still persists around this issue. Among judges, as well as some


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women’s organisations, there appears to be an apprehension that upholding the right of maintenance of women in such relationships will give a boost to bigamy in our society. But on the contrary, it is the denial of maintenance to such women which will embolden men, as merely by pleading that they have an earlier subsisting marriage, they will be absolved of the responsibility of any financial liability towards their live-in partners in marriagelike relationships. The irony is that while it is the man who has flouted the law of monogamy as prescribed by the Hindu Marriage Act, it is the woman, the non-erran t partner, who is asked to pay the price by being denied the crucial and basic rights to life and dignity; the man is let off the hook. This is indeed a travesty of justice.

Landmark Rulings

There are several landmark rulings that have held that the right of maintenance under S125 CrPC is a measure of social justice, enacted for the purpose of providing summary remedy to wives and preventvagrancy and destitution, and that it does not finally determine the status, rights and obligations of the parties to a marriage. It is a well-settled principle in law that beneficial legislation must be liberally interpreted



in order to benefit the very class of people for whom it was enacted. Thus, the section must include within its purview a wife whose marriage suffers from some technical defect. Such a wife cannot be deprived of her right to maintenanc e on the grounds of such a defect . This has become all the more relevan t afte r the recent Supreme Court rulin g in Revanasiddappa vs Mallikarjun, which uphel d the right of inheritance of illegitimate children.7

Several rulings lend credence and support to the position set out above. In 1978, in Captain Ramesh Chandra Kaushal vs Veena Kaushal, Justices V R Krishna Iyer and D A Desai observed:8

The brooding presence of the Constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause – the cause of the derelicts.

Even earlier, in 1976, in Govindrao vs Andandibai, Justice Kania of the Bombay High Court (later to become the Chief Justice of India), upheld the rights of a woman in a bigamous marriage under the Hindu Marriage Act, holding that since the Act is a social legislation, it could not have been the intention of the legislature that even in a case where a Hindu woman was duped into contracting a bigamous marriage, she should be deprived of her right to claim maintenance.9 In 2008, Justices A K Sikri and Aruna Suresh of the Delhi High Court in Suresh Khullar vs Vijay Kumar Khullar commented, while deciding on a similar issue:10

If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation should be avoided. We should avoid a construction which would reduce the legislation to futility and should accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.

The Velusamy ruling, with the stroke of a pen, seems to have undone the gains laboriously amassed by various legal stalwarts who attempted to provide constitutional justice to a vulnerable section of destitute women. Instead of moving forward, we seem to be moving into regressive spaces by placing ourselves on a moral high ground and endorsing a fallacious belief in the m onogamous nature of Hindu marriages. Same-sex relationships have been decriminalised, women in non- marriage live-in relationships are awarded protection under the Protection of Women against Domestic Violence Act (PWDVA), and the difference between legitimate and illegitimate children has been done away with in terms of maintenance and inheritance. There seems therefore to be no justification for punishing women in technically defective marriages by denying them their economic rights and attributing derogative adjectives to them.

Hindu marriages are not, and never have been, monogamous. The oft-used term in judicial discourse – “concubine” – reeks of brahminical patriarchy of a bygon e era. While denying such women the protection awarded to them under shastric law, this discourse uses an archaic Christian notion of monogamy, which the west itself has discarded. It justifies this by virtual and illusory references such as Wikipedia, which are devoid of legal validity.

The ruling has also blocked the remedy under PWDVA, which was supposed to bring redress to precisely this category of women. The PWDVA uses the broad and presumably western term of “live-in relationship”, or “relationship in the nature of marriage”, in order to bring within its purview the widest range of non-marriage marriage-like relationships. But PWDVA does not specifically address the situation most prevalent in India, where a deserted woman, after years of marriage accepted by the community as valid, is rendered destitute and then deprived of her economic right to a meagre maintenance dole on the grounds that she is the second wife. After the Velusamy ruling, a need has arisen to address this concern frontally.

Constitutional Duty

The question that we need to ask is not whether Hindu marriages ought to be mono gamous, or even, serially monogamous, but rather, whether we are bound by a constitutional duty and obligation to protect the rights of a large number of poor and destitute women who, wittingly or unwittingly, are trapped within technically defective marriages.

The primary responsibility of a constitutional authority is to deliver constitutional justice and not to issue whimsical edicts. The notion of morality that must prevail is constitutional morality and not an elitist morality distant from the Indian reality.11 Governed by a constitutional scheme of checks and balances, perhaps it is time for the legislature to intervene and set right this wrong.


1 2010 (10) SCC 469. Supreme Court (2010): D Velusamy vs D Patchaiammal, Criminal Appeal 20282029 of 2010, arising out of Special Leave Petition (SLP) (Criminal) No 2273-2274/2010, 21 October. This judgment can be accessed from http://judis.

2 Mensky, Werner (2003): Hindu Law Beyond Tradition and Modernity (Delhi: Oxford University Press).

3 I (2005) DMC 1 SC. Supreme Court (2005): Ramesh Chand Daga vs Rameshwari Bai, Civil Appeal 1780 of 2005, arising out of SLP (Civil) No 8339 of 2004, 16 March. This judgment can be accessed from

4 AIR 2005 SC 1809. Supreme Court of India (2005): Savitaben Somabhai Bhatiya vs State of Gujarat and Others, Criminal Appeal 399 of 2005, SLP (Criminal) No 4688 of 2004, 10 March. This judgment can be accessed from http://judis.nic. in/supremecourt/chejudis.asp

5 For Hindus, the relevant definition for a woman in a legally valid marriage is stipulated under Section 5 of the Hindu Marriage Act which validates only monogamous marriages.

6 2011(1) SCC 141. Supreme Court of India (2010):

Chanmuniya vs Virendra Kumar Singh Kushwaha,

Civil appeal of 2010, arising out of SLP (Civil) No 15071 of 2009, 7 October. This judgment can be accessed from

7 Judgment delivered by Justices G S Singhvi and A K Ganguly. Supreme Court of India (2011):

Revanasiddappa and Another vs Mallikarjun and Others, Civil Appeal 2844 of 2011, arising out of SLP (Civil) No 12639/09, 31 March. This judgment can be accessed from See also Flavia Agnes (2011): “The Mother, the Child and the Marriage”, Indian Express, 8 April, accessed 25 May 2011:

8 1978 AIR 1807; 1978 SCR (3) 782; 1978 SCC (4)70. Supreme Court of India (1978): Captain Ramesh Chander Kaushal vs Mrs Veena Kaushal and Others, 27 April. This judgment can be accessed from

9 AIR 1976 Bom 433; (1977) 79 BOMLR 73. Bombay High Court (1976): Govindrao Ranoji Musale vs Anandibai and Anr, 24 March.

10 AIR 2008 Delhi 1, 148 (2008) DLT 68. Delhi High Court (2008): Suresh Khullar vs Vijay Kumar Khulla r, RFA No 350/2007, 27 August.

11 For an explanation of constitutional morality, see Justice A P Shah’s comments in Naz Foundation vs Government of NCT, 2010 Criminal Law Journal 94, 160 (2009) Delhi Law Times 277. Delhi High Court (2009): Naz Foundation vs Government of National Capital Territory and Others, WP(C) No 7455/2001, 2 July.






Economic Political Weekly

june 11, 2011 vol xlvi no 24

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