Repercussions of the Velusamy Judgement.

Published on Thursday, 02 June 2011 18:44
Written by Radical Socialist

Repercussions of the Velusamy Judgement.

After two decades of litigating on behalf of over 50,000 women across Maharashtra, our experience has been, that when a destitute Hindu woman approaches a court for a meager sum of maintenance under S.125 Cr.PC, the common ploy adopted by the husband (under the guidance of his lawyer) is to deny the validity of the marriage by pleading that he has an earlier valid marriage  subsisting  and hence the woman is not entitled to maintenance.

It is an irony that while it is the man who has flouted the law of monogamy as prescribed by the Hindu Marriage Act, it is the woman, who is called upon to pay the price. She is denied the crucial and basic right to maintenance. This is indeed a travesty of justice.

Over the years, several judges of various High Courts and the Supreme Court, have tried to give some respite to women  by invoking the principle of ‘beneficial legislation’. In an important ruling in 2005 in Daga v. Daga, the  Supreme Court had commented that bigamous marriages, though illegal, are not ‘immoral’ and maintenance cannot be denied on this basis rendering the woman a destitute.   Way back in 1976, Justice Kania of the Bombay High Court (who later became the Chief Justice of India), while upholding the rights of a woman in a bigamous marriage under the Hindu Marriage Act had held that

“Since the Act is a social legislation, it could not have been the intention of the legislature to deprive a Hindu woman, who was duped into contracting a bigamous marriage, her right to claim maintenance.

Several other rulings have held that the right of maintenance under S.125 Cr.PC is a beneficial provision enacted for the purpose of providing a summary remedy to a wife to prevent vagrancy and destitution. It does not finally determine rights and obligations of 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.

But the recent ruling, D. Velusamy v. D. Patchaiammal in October, 2010 which denied maintenance to women in marriage like relationships with men who are already married seems to have undone  the  positive impact of all the earlier judgements. In this ruling, Justice Markandey Katju termed such women as ‘mistresses’ and ‘keeps’ undeserving of maintenance. He discussed  in great detail, how a married man is not free to contract with another woman and hence is not liable to pay maintenance, even if he is living with this other woman. Not once in the judgement is a word of reprimand to the man who has duped both his first wife and then the second woman. Subsequently, the review petition filed by some concerned groups before the same bench pleading the court to expunge the  derogative comments has also been dismissed.

It appears that instead of moving forward we seem to be moving backwards into regressive spaces by placing ourselves on a moral high ground by endorsing a fallacious belief in the monogamous nature of Hindu marriages. Today the ground level reality is that, because of the adverse publicity that the judgement received, trial courts are rejecting petitions of women who are unable to ‘prove’ a valid marriage, at the time of filing under S.125 Cr.PC.

The ruling has also blocked the remedy under PWDVA which was supposed to bring redressal to precisely this category of women. PWDVA uses a broad (and presumably Western) term ‘live in’ relationships in order to cover the widest range of relationships, it does not specifically address the  situation which is most common in India,  of women who are in marriages which are accepted by the community as valid, despite the fact that the woman is the ‘second wife’.  Hence, after the Velusamy ruling a need has arisen to address this concern frontally.

It is common knowledge that despite the codification which brought in monogamy, Hindu marriages have continued to be bigamous. The question that we need to ask is NOT whether they ‘ought’ to be monogamous, but whether we are bound by a  constitutional duty and obligation to protect the basic and fundamental  rights of a large number of both rural and urban women, the citizens of India, who wittingly or unwittingly, are entrapped within technically defective marriages.

We at Majlis are planning to launch a campaign to undo the harm caused by theVelusamy ruling. We are looking forward to your support to strengthen this campaign. We will also appreciate if you would share with us  cases that are dealt by your group / organisation, where women have been denied maintenance on the sole ground that the marriage is invalid as she is the second wife. This will help us to take the campaign forward.

We thank you in anticipation of your support.

With warm regards,

Flavia Agnes and the Majlis Team.

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Judgements that have upheld the rights of women in technically defective marriages.