Can a woman living in live-in-relationship claim maintenance?

Dated: 2021-11-28 15:05:34

Can a woman living in live-in-relationship claim maintenance? And if yes then where can it's proceedings be filed?

Answers by Lawyers

Although the legal status of live-in-relationships in India is unclear, the Supreme Court has ruled that any couple living together for a long term will be presumed as legally married unless proved otherwise. Thus, the aggrieved live-in partner can also take shelter under the Domestic Violence Act 2005, which provides protection and maintenance and thereby grant the right of alimony.

 

The Apex Court in case of Chanmuniya Vs. Chanmuniya Virendra Kumar Singh Kushwaha & another (2011) contended that a woman, who is party to a live-in relationship, would have the status of a wife, should be awarded maintenance and the partner could not derive any benefit from denying maintenance on the ground that there was no valid marriage. This right is given to woman under Section 125 of Criminal Procedure Code, 1973.

 

The court upheld the family court’s decision in a case to grant interim maintenance holding that: “Section 125 CrPC was incorporated in order to avoid vagrancy and destitution for a wife/minor children/old age parents, and the same has now been extended by judicial interpretation to partners of a live-in relationship.”

 

The Hon'ble Apex Court in D. Velusamy v. D. Patchaiammal, 2010(4) gave certain findings with regard to holding a live in relationship to be valid.

So, to prove a live-in-relationship for claiming maintenance under Sec. 125 of Criminal Procedure Code, a woman need to prove the following essentials:

  1. The couple held themselves out to society as being akin to spouses;
  2. They are of legal age to marry;
  3. They are otherwise qualified to enter into a legal marriage, including being unmarried; and
  4. They have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

 

Where Can Maintenance Proceedings be Filed?

 As per Sec. 126 of Criminal Procedure Code,

1. Proceedings under section 125 may be taken against any person in any district-

  1. where he is, or
  2. where he or his wife, resides, or
  3. where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.

 

Who has Jurisdiction to try the cases under Sec. 125 of Criminal Procedure Code?

A Magistrate of the First Class has jurisdiction to try and give orders under Sec 125 of Criminal Procedure Code.

 

Enforcement of Maintenance Order

Sec. 128 Criminal Procedure Code states:

A copy of the order of maintenance or interim maintenance and expenses of proceeding, as the case may be shall be given without payment to:

  • the person in whose favour it is made, or
  • to his guardian, if any, or
  • to the person to whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be is to be paid;

and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance or as the case may be expenses, due.

 

The application for enforcement of maintenance must be filed within 1 year from the date on which it became due, otherwise the application will be dismissed.

 

Legal Implications in case of failure to pay maintenance

Sec. 125(3) of Criminal Procedure Code states that the failure to pay maintenance without sufficient reason will result in issuance of court warrant by the Magistrate for collecting the amount due. The court warrant can attach any immovable property or salary of the person. If the person does not pay maintenance even after the warrant is executed, the person is liable to imprisonment for a maximum period of 1 month or until the amount is paid, whichever is earlier.

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