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Legal Needs [This Network is not currently active and cannot accept new posts] | | Topics
[Info] On legalising Live-InsViews: 165
Oct 10, 2008 10:23 am re: re: [Info] On legalising Live-Ins

Vijay Nair

I may take this opportunity to reproduce the relevant extracts from Justice Maliamath Committee's report:

"16. OFFENCES AGAINST WOMEN There are several shortcomings or aberrations in dealing with the offences against women which need to be addressed. The Committee feels that a man who marries a second wife during the subsistence of the first wife should not escape his liability to maintain his second wife under Section 125 of the Code on the grounds that the second marriage is neither lawful nor valid. The Supreme Court has held that, for proving bigamy, it is to be established that the second marriage was performed in accordance with the customary rites of either parties under the personal laws which is not easy to prove. Therefore the Committee feels that evidence regarding a man and woman living together for a reasonably long period should be sufficient to draw the presumption that the marriage was performed according to the customary rites of the parties. 


16.1.1 Section 125 of the Code provides for giving maintenance to the neglected wife, child etc. The object is to prevent starvation and vagrancy by compelling the person to perform the obligation which he owes in respect of his wife, child, father or mother who are unable to support themselves. 

16.1.2 A woman in a second marriage is not entitled to claim maintenance as in law a second marriage during the subsistence of the first marriage is not legal and valid. Such a woman though she is de facto the wife of the man in law she is not his wife. Quite often the man marries the second wife suppressing the earlier marriage. In such a situation the second wife can’t claim the benefit of Section 125 for no fault of hers. The husband is absolved of his responsibility of maintaining his second wife. This is manifestly unfair and unreasonable. The man should not be allowed to take advantage of his own illegal acts. Law should not be insensitive to the suffering of such women. Therefore the Committee suggests that the definition of the word ‘wife’ in Section 125 should be amended so as to include a woman who was living with the man as his wife for a reasonably long period, during the subsistence of the first marriage. 



16.2.1 Bigamy is made an offence under Section 494 IPC. The second marriage is void by reason of it taking place during the subsistence of the first marriage. In other words it would be bigamy only when the marriage is otherwise valid. In AIR 1965 S.C. 1564 Bhan Rao Shankar Lokhande vs. State of Maharashtra and AIR 1966 S.C. 619 Kunwal Ram Vs. State of Himachal Pradesh, the Supreme Court has held that in order to attract Section 494 IPC the prosecution has to prove that the second marriage was validly performed as per the customary rights of either party under their personal laws. If there is any lapse in following the customary rules, the second marriage would be regarded as void. It is not always easy to prove long after the marriage that all the rituals were duly performed. Thus the second wife will be denied the right to receive maintenance. To overcome these practical difficulties a suitable provision be incorporated to the effect that if the man and the wife were living as husband and wife for a reasonably long period they shall be deemed to have married in accordance with customary rites of either party thereto. This shall be rebuttable presumption and the finding shall not be binding in civil proceedings."


While I agree with Jayant on the subjectiveness of "reasonable period" and the exploitation of the ambiguity that may surround the phrase. Legalising "Living in" as sought by Justice Maliamath is to include a woman who was living with the man as his wife for a reasonably long period, during the subsistence of the first marriage in the definition of wife, for the purposes of "maintenance".  In my honest opinion, even if there is no consistent "physical" living-in period, the very fact that they represent themselves to the Society at large as husband and wife would be sufficient to draw the presumption.

And, this was merely a press-report I posted. For the correct legal definitions, one has to refer to the amended Act, whenever it comes out.

Private Reply to Vijay Nair (new win)

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