REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
*CRIMINAL APPEAL NOS. 2028-2029__OF 2010*
[Arising out of Special Leave Petition (Crl.) Nos.2273-2274/2010]
D. Velusamy .. Appellant
-versus-
D. Patchaiammal .. Respondent
*
J U D G M E N T*
*Markandey Katju, J.*
1. Leave granted.
2. Heard learned counsel for the appellant. None has appeared for the
respondent although she has been served notice. We had earlier requested Mr.
Jayant Bhushan, learned Senior counsel to assist us as Amicus Curiae in the
case, and we record our appreciation of Mr. Bhushan who was of considerable
assistance to us.
3. These appeals have been filed against the judgment of the Madras High
Court dated 12.10.2009.
4. The appellant herein has alleged that he was married according to the
Hindu Customary Rites with one Lakshmi on 25.6.1980. Out of the wedlock with
Lakshmi a male child was born, who is now studying in an Engineering college
at Ooty. The petitioner is working as a Secondary Teacher in Thevanga
Higher Secondary
School, Coimbatore.
5. It appears that the respondent-D. Patchaiammal filed a petition under
Section 125 Cr.P.C. in the year 2001 before the Family Court at Coimbatore
in which she alleged that she was married to the appellant herein on
14.9.1986 and since then the appellant herein and she lived together in her
father’s house for two or three years. It is alleged in the petition that
after two or three years the appellant herein left the house of the
respondent’s father and started living in his native place, but would visit
the respondent occasionally.
6. It is alleged that the appellant herein (respondent in the petition under
Section 125 Cr.P.C.) deserted the respondent herein (petitioner in the
proceeding under Section 125 Cr.P.C.) two or three years after marrying her
in 1986. In her petition under Section 125 Cr.P.C. she alleged that she did
not have any kind of livelihood and she is unable to maintain herself
whereas the respondent (appellant herein) is a Secondary Grade Teacher
drawing a salary of Rs.10000/- per month. Hence it was prayed that the
respondent (appellant herein) be directed to pay Rs.500/- per month as
maintenance to the petitioner.
7. In both her petition under Section 125 Cr.P.C. as well as in her
deposition in the case the respondent has alleged that she was married to
the appellant herein on 14.9.1986, and that he left her after two or three
years of living together with her in her father’s house.
8. Thus it is the own case of the respondent herein that the appellant left
her in 1988 or 1989 (i.e. two or three years after the alleged marriage in
1986). Why then was the petition under Section 125 Cr.P.C. filed in the year
2001, i.e. after a delay of about twelve years, shall have to be
satisfactorily explained by the respondent. This fact also creates some
doubt about the case of the respondent herein.
9. In his counter affidavit filed by the appellant herein before the Family
Court, Coimbatore, it was alleged that the respondent (appellant herein) was
married to one Lakshmi on 25.6.1980 as per the Hindu Marriage rites and
customs and he had a male child, who is studying in C.S.I. Engineering
college at Ooty. To prove his marriage with Lakshmi the appellant produced
the ration card, voter’s identity card of his wife, transfer certificate of
his son, discharge certificate of his wife Lakshmi from hospital,
photographs of the wedding, etc.
10. The learned Family Court Judge has held by his judgment dated 5.3.2004
that the appellant was married to the respondent and not to Lakshmi. These
findings have been upheld by the High Court in the impugned judgment.
11. In our opinion, since Lakshmi was not made a party to the proceedings
before the Family Court Judge or before the High Court and no notice was
issued to her hence any declaration about her marital status vis-àvis the
appellant is wholly null and void as it will be violative of the rules of
natural justice. Without giving a hearing to Lakshmi no such declaration
could have validly be given by the Courts below that she had not married the
appellant herein since such as a finding would seriously affect her rights.
And if no such declaration could have been given obviously no declaration
could validly have been given that the appellant was validly married to the
respondent, because if Lakshmi was the wife of the appellant then without
divorcing her the appellant could not have validly married the respondent.
12. It may be noted that Section 125 Cr.P.C. provides for giving maintenance
to the wife and some other relatives. The word `wife’ has been defined in
Explanation (b) to Section 125(1) of the Cr.P.C. as follows :
“Wife includes a woman who has been divorced by, or
has obtained a divorce from, her husband and has not
remarried.”
13. In *Vimala (K) *vs. *Veeraswamy (K) *[(1991) 2 SCC 375], a three - Judge
Bench of this Court held that Section 125 of the Code of 1973 is meant to
achieve a social purpose and the object is to prevent vagrancy and
destitution. Explaining the meaning of the word ‘wife’ the Court held:
“..the object is to prevent vagrancy and destitution. It
provides a speedy remedy for the supply of food,
clothing and shelter to the deserted wife. 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. The
term ‘wife’ in Section 125 of the Code of Criminal
Procedure, includes a woman who has been divorced by
a husband or who has obtained a divorce from her
husband and has not remarried. The woman not having
the legal status of a wife is thus brought within the
inclusive definition of the term ‘wife’ consistent with the
objective. However, under the law a second wife whose
marriage is void on account of the survival of the first
marriage is not a legally wedded wife, and is, therefore,
not entitled to maintenance under this provision.”
14. In a subsequent decision of this Court in *Savitaben Somabhat Bhatiya *
vs*. State of **Gujarat** and others*, AIR 2005 SC 1809, this Court held
that however desirable it may be to take note of the plight of an
unfortunate woman, who unwittingly enters into wedlock with a married man,
there is no scope to include a woman not lawfully married within the
expression of ‘wife’. The Bench held that this inadequacy in law can be
amended only by the Legislature.
15. Since we have held that the Courts below erred in law in holding that
Lakshmi was not married to the appellant (since notice was not issued to her
and she was not heard), it cannot be said at this stage that the respondent
herein is the wife of the appellant. A divorced wife is treated as a wife
for the purpose of Section 125 Cr.P.C. but if a person has not even been
married obviously that person could not be divorced. Hence the respondent
herein cannot claim to be the wife of the appellant herein, unless it is
established that the appellant was not married to Lakshmi.
16. However, the question has also be to be examined from the point of view
of The Protection of Women from Domestic Violence Act, 2005. Section 2(a) of
the Act states :
“*2(a) *“aggrieved person” means any woman who is, or
has been, in a domestic relationship with the respondent
and who alleges to have been subjected to any act of
domestic violence by the respondent”;
Section 2(f) states :
“*2(f) *“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”;
Section 2(s) states :
“*2(s) *“shared household” means a household where the
person aggrieved lives or at any stage has lived in a
domestic relationship either singly or along with the
respondent and includes such a household whether
owned or tenanted either jointly by the aggrieved person
and the respondent, or owned or tenanted by either of
them in respect of which either the aggrieved person or
the respondent or both jointly or singly have any right,
title, interest or equity and includes such a household
which may belong to the joint family of which the
respondent is a member, irrespective of whether the
respondent or the aggrieved person has any right, title or
interest in the shared household.”
Section 3(a) states that an act will constitute domestic violence in case
it-
“*3(a) *harms or injures or endangers the health, safety,
life, limb or well-being, whether mental or physical, of
the aggrieved person or tends to do so and includes
causing physical abuse, sexual abuse, verbal and
emotional abuse and economic abuse;” or
(emphasis supplied)
17. The expression “economic abuse” has been defined to include :
“(a) deprivation of all or any economic or financial
resources to which the aggrieved person is entitled
under any law or custom whether payable under an
order of a court or otherwise or which the aggrieved
person requires out of necessity including, but not
limited to, household necessities for the aggrieved
person and her children, if any, *stridhan, *property,
jointly or separately owned by the aggrieved person,
payment of rental related to the shared household
and maintenance”.
(emphasis supplied)
18. An aggrieved person under the Act can approach the Magistrate under
Section 12 for the relief mentioned in Section 12(2). Under Section 20(1)(d)
the Magistrate can grant maintenance while disposing of the application
under Section 12(1).
19. Section 26(1) provides that the relief mentioned in Section 20 may also
be sought in any legal proceeding, before a civil court, family court or a
criminal court.
20. Having noted the relevant provisions in The Protection of Women from
Domestic Violence Act, 2005, 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.
21. In our opinion Parliament by the aforesaid Act has drawn a distinction
between the relationship of marriage and a relationship in the nature of
marriage, and has provided that in either case the person who enters into
either relationship is entitled to the benefit of the Act.
22. It seems to us that in the aforesaid Act of 2005 Parliament has taken
notice of a new social phenomenon which has emerged in our country known as
live-in relationship. This new relationship is still rare in our country,
and is sometimes found in big urban cities in India, but it is very common
in North America and Europe. It has been commented upon by this Court in *S.
Khushboo *vs. *Kanniammal & Anr. *(2010) 5 SCC 600 (vide para 31).
23. When a wife is deserted, in most countries the law provides for
maintenance to her by her husband, which is called alimony. However, earlier
there was no law providing for maintenance to a woman who was having a
live-in relationship with a man without being married to him and was then
deserted by him.
24. In USA the expression `palimony’ was coined which means grant of
maintenance to a woman who has lived for a substantial period of time with a
man without marrying him, and is then deserted by him (see ‘palimony’ on
Google). The first decision on palimony was the well known decision of the
California Superior Court in *Marvin *vs. *Marvin *(1976) 18 C3d660. This
case related to the famous film actor Lee Marvin, with whom a lady Michelle
lived for many years without marrying him, and was then deserted by him and
she claimed palimony. Subsequently in many decisions of the Courts in USA,
the concept of palimony has been considered and developed. The US Supreme
Court has not given any decision on whether there is a legal right to
palimony, but there are several decisions of the Courts in various States in
USA. These Courts in USA have taken divergent views, some granting palimony,
some denying it altogether, and some granting it on certain conditions.
Hence in USA the law is still in a state of evolution on the right to
palimony.
25. Although there is no statutory basis for grant of palimony in USA, the
Courts there which have granted it have granted it on a contractual basis.
Some Courts in USA have held that there must be a written or oral agreement
between the man and woman that if they separate the man will give palimony
to the woman, while other Courts have held that if a man and woman have
lived together for a substantially long period without getting married there
would be deemed to be an implied or constructive contract that palimony will
be given on their separation.
26. In *Taylor** *vs. *Fields *(1986) 224 Cal. Rpr. 186 the facts were that
the plaintiff Taylor had a relationship with a married man Leo. After Leo
died Taylor sued his widow alleging breach of an implied agreement to take
care of Taylor financially and she claimed maintenance from the estate of
Leo. The Court of Appeals in California held that the relationship alleged
by Taylor was nothing more than that of a married man and his mistress. It
was held that the alleged contract rested on meretricious consideration and
hence
was invalid and unenforceable. The Court of Appeals relied on the fact that
Taylor did not live together with Leo but only occasionally spent weekends
with him. There was no sign of a stable and significant cohabitation between
the two.
27. However, the New Jersey Supreme Court in *Devaney *vs. *L’ Esperance *195
N.J., 247 (2008) held that cohabitation is not necessary to claim palimony,
rather “it is the promise to support, expressed or implied, coupled with a
marital type relationship, that are indispensable elements to support a
valid claim for palimony”. A law has now been passed in 2010 by the State
legislature of New Jersey that there must be a written agreement between the
parties to claim palimony.
28. Thus, there are widely divergent views of the Courts in U.S.A. regarding
the right to palimony. Some States like Georgia and Tennessee expressly
refuse to recognize palimony agreements.
29. Written palimony contracts are rare, but some US Courts have found
implied contracts when a woman has given up her career, has managed the
household, and assisted a man in his business for a lengthy period of time.
Even when there is no explicit written or oral contract some US Courts have
held that the action of the parties make it appear that a constructive or
implied contract for grant of palimony existed.
30. However, a meretricious contract exclusively for sexual service is held
in all US Courts as invalid and unenforceable.
31. In the case before us we are not called upon to decide whether in our
country there can be a valid claim for palimony on the basis of a contract,
express or implied, written or oral, since no such case was set up by the
respondent in her petition under Section 125 Cr.P.C.
32. Some countries in the world recognize common law marriages. A common law
marriage, sometimes called de facto marriage, or informal marriage is
recognized in some countries as a marriage though no legally recognized
marriage ceremony is performed or civil marriage contract is entered into or
the marriage registered in a civil registry (see details on Google).
33. 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’.
34. 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, and this has to be proved by evidence. If a man has a ‘keep’ whom
he maintains financially and uses mainly for sexual purpose and/or as a
servant it would not, in our opinion, be a relationship in the nature of
marriage’
35. 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.
36. In feudal society sexual relationship between man and woman outside
marriage was totally taboo and regarded with disgust and horror, as depicted
in Leo Tolstoy’s novel `Anna Karenina’, Gustave Flaubert’s novel `Madame
Bovary’ and the novels of the great Bengali writer Sharat Chandra
Chattopadhyaya.
37. However, Indian society is changing, and this change has been reflected
and recognized by Parliament by enacting The Protection of Women from
Domestic Violence Act, 2005.
38. Coming back to the facts of the present case, we are of the opinion that
the High Court and the learned Family Court Judge erred in law in holding
that the appellant was not married to Lakshmi without even issuing notice to
Lakshmi. Hence this finding has to be set aside and the matter remanded to
the Family Court which may issue notice to Lakshmi and after hearing her
give a fresh finding in accordance with law. The question whether the
appellant was married to the respondent or not can, of course, be decided
only after the aforesaid finding.
39. There is also no finding in the judgment of the learned Family Court
Judge on the question whether the appellant and respondent had lived
together for a reasonably long period of time in a relationship which was in
the nature of marriage. In our opinion such findings were essential to
decide this case. Hence we set aside the impugned judgment of the High Court
and Family Court Judge, Coimbatore and remand the matter to the Family Court
Judge to decide the matter afresh in accordance with law and in the light of
the observations made above. Appeals allowed.
……………..……………….J.
(MARKANDEY KATJU)
.…………………………..….J.
(T. S. THAKUR)
NEW DELHI;
21st OCTOBER, 2010
http://www.indiankanoon.org/doc/1521881/
***********************************************************
‘Offensive’ SC judgment cites Wikipedia to define legal term
A Supreme Court of India judgment, while defining “Common Law Marriage”, cited as a source Wikipedia, the online encyclopaedia anyone can edit. The same judgment on live-in relationships was also slammed by additional solicitor general Indira Jaisingh for using gender biased terms “one night stand” and “keep”.
In the criminal appeal of D. Velusamy v D. Patchaiammal (arising out of Special Leave Petition (Crl.) Nos.2273-2274/2010) Justice Markandey Katju ruled on Thursday (21 October) in a landmark case that determined the ambit of “live-in relationships” for the purpose of falling under the Domestic Violence Act 2005.
Katju said in the judgment, which is available on Indiankanoon.org: “If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage.”
He added in paragraph 33 of the judgment: “Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’.”
Jaisingh, who was one of the architects of the Domestic Violence Act, objected to the use of “keep” and “one night stand”, which she said were derogatory of women, reported the Times of India.
Jaisingh told the court: “Supreme Court judgments are cited across the world. But this one possibly will tell the world that in India, women are regarded as `keep' or `rakhels'. I strongly object to the use of these words in your judgment. I do not expect this from the Supreme Court in the 21st century. I feel offended by it.”
Katju’s also cited Wikipedia for the definition of “Common Law Marriage”. Wikipedia is an online encyclopaedia that anyone can edit any time and content can therefore not be guaranteed to always be accurate or properly sourced. A Mint editorial from yesterday noted: “Wikipedia is mutable, easily changed by its users; the Wikipedia page seen by judges when preparing a verdict can be different from that seen by readers 10 minutes or six months or seven years hence. A court that can quote Flaubert and Tolstoy should surely be able to call up more lasting, reliable resources than Wikipedia.”
According to a search for the word Wikipedia on Indiankanoon.org, the online encyclopaedia has been cited as a source at least 63 times by Indian courts, which was first posted on Twitter by @gkjohn. US courts too have cited Wikipedia in the past, according to the New York Times, although apparently not to define legal terms.
The Wikipedia entry on Common Law Marriage has not been edited since 13 October. Katju’s judgment only paraphrased parts of the Wikipedia article but did not appear to have copied and pasted any wording.
Excerpt from judgment:
“33. 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)”
***********************************************************
When Is It Appropriate to Cite to Wikipedia?
When Is It Appropriate to Cite to Wikipedia?
posted by Daniel Solove
Wikipedia, the online encyclopedia that anybody can edit, is frequently getting cited by courts and academics. The New York Times reports:
A simple search of published court decisions shows that Wikipedia is frequently cited by judges around the country, involving serious issues and the bizarre — such as a 2005 tax case before the Tennessee Court of Appeals concerning the definition of “beverage” that involved hundreds of thousands of dollars, and, just this week, a case in Federal District Court in Florida that involved the term “booty music” as played during a wet T-shirt contest.
More than 100 judicial rulings have relied on Wikipedia, beginning in 2004, including 13 from circuit courts of appeal, one step below the Supreme Court. (The Supreme Court thus far has never cited Wikipedia.)
“Wikipedia is a terrific resource,” said Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit, in Chicago. “Partly because it so convenient, it often has been updated recently and is very accurate.” But, he added: “It wouldn’t be right to use it in a critical issue. If the safety of a product is at issue, you wouldn’t look it up in Wikipedia.”
Paul Caron writes:
I asked my crack research assistant, Drew Marksity, to determine how many times law professors have cited Wikipedia in law review articles. Using Westlaw’s JLR database, Drew found that 545 articles cite Wikipedia. (An additional 125 articles mention Wikipedia but do not cite it as authority.)
Brian Leiter writes:
[Caron] discreetly, does not list the names of the authors of these articles, all of whom should presumably be blacklisted from scholarly careers (unless, of course, the citation was in the context of, “Wikipedia reflects the popular prejudice that…” or “Wikipedia records this error as though it were fact, proving yet again the unreliability of the Internet…” or “In this instance, actual scholarly sources confirm what Wikipedia reports…”).
Inside Higher Ed reports that some schools are barring students from citing to Wikipedia:
While plenty of professors have complained about the lack of accuracy or completeness of entries, and some have discouraged or tried to bar students from using it, the history department at Middlebury College is trying to take a stronger, collective stand. It voted this month to bar students from citing the Web site as a source in papers or other academic work. All faculty members will be telling students about the policy and explaining why material on Wikipedia — while convenient — may not be trustworthy.
When is it appropriate to cite to Wikipedia?
I am generally against categorical bans, as the issue really depends upon the context. I did a search of some of the Westlaw citations, and below the fold I’ll list a few.
1. From 59 Stan. L. Rev. 257, in a footnote: “For an overview of the use of modification or “mod” software in computer gaming, see generally Mod (Computer Gaming), WIKIPEDIA, http:// en.wikipedia.org/wiki/Mod_%28computer_gaming%29.”
2. From 116 Yale L.J. 226, in a footnote: “Between 1965 and 1974, the government of Sweden, a nation of roughly 4 million households, supervised the construction of 1 million housing units (the “Million Programme”), a majority of which were subsidized apartments. See Christopher Caldwell, Islam on the Outskirts of the Welfare State, N.Y. Times Mag., Feb. 5, 2006, at 55, 56; Wikipedia, Million Programme, http://en.wikipedia.org/wiki/Million_Programme (last visited Sept. 1, 2006).”
3. From 41 Ga. L. Rev. 1, in a footnote: “Spyware is malicious software that takes control of a user’s computer for the benefit of a third party and can be used to surreptitiously monitor the user’s online activity. Wikipedia, Spyware, http:// en.wikipedia.org/wiki/Spyware (last visited Aug. 25, 2006).”
4. From 10 Lewis & Clark L. Rev. 673, in a footnote: “For example, after premature and unverifiable claims of cold fusion by Stanley Pons and Martin Fleischmann were discredited, both Pons and Fleischmann were driven from their academic positions. See, e.g., Wikipedia, Stanley Pons, http://en.wikipedia.org/wiki/Stanley_Pons (last visited Apr. 11, 2006) (noting that both Pons and Fleischmann moved to France and accepted jobs for the Toyota Corporation after their cold fusion work was discredited).”
5. From 4 Ohio St. J. Crim. L. 223, in the text: “Ridgway, the most prolific serial killer in American history, pleaded guilty to forty-eight charges of aggravated first degree murder. King County Prosecuting Attorney Norm Maleng then congratulated himself: ‘This agreement was the avenue to the truth. And in the end, the search for the truth is still why we have a criminal justice system.’ [FN]” From the footnote: “See Wikipedia entry on Gary Ridgway, at http:// en.wikipedia.org/wiki/Gary_Ridgway (last visited Mar. 23, 2006).”
6. From 37 Loy. U. Chi. L.J. 753, in a footnote: “Ebert & Roeper gives a “Thumbs Up” (favorable review) or a “Thumbs Down” (unfavorable review). Wikipedia: Ebert & Roeper, http://en.wikipedia.org/wiki/Ebert_&_ Roeper (last visited Feb. 6, 2006).”
7. From 79 S. Cal. L. Rev. 945, defining the term “netizen”: “See Wikipedia, Netizen, http://en.wikipedia.org/wiki/Netizen (last visited May 19, 2006). A Netizen (a portmanteau of Internet and citizen), also known as a cybercitizen, is a person actively involved in online communities for the purpose of giving and receiving viewpoints, furnishing information, fostering the Internet as an intellectual and a social resource, and making choices for self-assembled communities. See id.”
8. From 115 Yale L.J. 1699, in the text: “So perhaps he won’t take offense if I call him a bricoleur, defined by Wikipedia as “a person who creates things from scratch, is creative and resourceful: a person who collects information and things and then puts them together in a way that they were not originally designed to do. [FN]” From the footnote: “Bricolage, in Wikipedia, http://en.wikipedia.org/wiki/Bricolage (last visited Dec. 7, 2005).”
The examples above include several by well-known law professors and a judge. I’m curious which citations readers find appropriate or inappropriate and why.
UPDATE: Mary Dudziak (law, USC) weighs in over at Legal History Blog about Wikipedia’s accuracy in history articles.
http://www.concurringopinions.com/archives/2007/02/when_is_it_appr.html
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