Live-In Relation A 'Stigma' In Indian Culture; Apathy Towards Matrimonial Duties Gave Rise To This Concept: Chhattisgarh HC

Noting that "apathy" towards matrimonial duties has given rise to the concept of a Live-in Relationship, a bench of Justice Goutam Bhaduri and Justice Sanjay S. Agrawal observed that a live-in relationship never provides the security, social acceptance, progress, and stability that the institution of marriage provides.

Importantly, the Court also observed that while it is "very easy" for the married man to walk out of a live-in relationship, it becomes a duty of the courts to rescue the vulnerable condition of the survivor of such a distressful live-in relationship and the children born out of such a relationship.

The division bench made these observations while dismissing one Abdul Hameed Siddiqui's appeal against a Family Court's order dismissing his application for custody of his child at the threshold.

The case in brief

The appellant's case was that he follows Muslim rituals, and the non-applicant/respondent's Hindu law governs them. They both were in a relationship for three years; thereafter, in 2021, without conversion, they married.

According to the averments, the non-applicant/respondent was his second wife, as he had been married earlier. He had three children from his first wife. The appellant contended that the child (whose custody the appellant claimed) was born out of their relationship in August 2021.

However, he claimed that in August 2023, he discovered that the non-applicant had moved with the child to her parents' home.

Therefore, seeking the child's custody, he moved before the Family Court, Dantewada; however, his suit was dismissed, so he moved the instant appeal.

It was the primary contention of the appellant's counsel that both parties performed marriage under the Special Marriage Act, 1954, and since the appellant, governed by the Mahomedan law, is allowed to perform a second marriage, his marriage with the respondent was legal.

It was also contended that the appellant would be the natural guardian of the child born out of such marriage, and thus, he is entitled to custody of the ward.

On the other hand, the respondent (alleged wife) claimed that a second marriage was not permissible in the facts of the case as the appellant's first wife was living.

Therefore, under admitted facts, it was argued that the appellant could not claim to be a legal guardian for a child born out of a relationship.

High Court's observations

At the outset, the Court took exception to the appellant's submission that he is entitled to solemnise a second marriage as per Muslim Law.

The Division bench noted that the provisions relating to more than one marriage of a Muslim male under their personal law “cannot be invoked before any Court of law unless and until the same is pleaded and proved”.

"There is no pleading as to how the second marriage of the like nature is saved by the custom and if we peruse the Article 13 of the Constitution of India, it shows that unless a law is passed by ordinance, bye-law, rule, regulation, notification and the custom or usage having the territory in India will have a force of law, it cannot be considered as such."

In this regard, the Court referred to the Apex Court's verdict in Ahmedabad Women Action Group vs. Union of India 1997, wherein the top court said that personal laws (Hindu Law, Muslim Law, and Christian Law) are not part of the definition of Law under Article 13.

The Court further observed that even in principle, as laid down in the Muslim Law, marriage could be between Mahomedans, and since, in the instant case, one of the parties (alleged wife/respondent) did not change her religion. Hence, the Court said, “It cannot cloth the live-in relationship of such continuation to say that marriage was under the Mahomedan rituals.”

The Court also noted that when one of the parties was Hindu and did not change her religion, as per the petition's averments, it was an interfaith marriage; hence, it would be governed by the Act of 1954.

Referring to Section 4 of the 1954 Act, the Court said that to perform marriage under the Special Marriage Act, 1954, neither party must not have a spouse living, however, in the instant case, the appellant admittedly had a living wife, and hence, such marriage was void ab initio

“…section 4 (a) of the Act of 1954 lays down a condition that marriage between two persons may be solemnized under the Act, if at the time of marriage neither party has a spouse living. Therefore, the contradictory statement which have been pleaded by the appellant before the family court itself goes to show that despite the fact he has a spouse living at the time of the second marriage, under the Act of 1954, he performed the second marriage which was ab initio void,” the Court remarked.

The Court further observed that the Punjab and Haryana High Court had disapproved of such a relationship in the case of Reena Devi vs. State of Punjab 2023 LiveLaw (PH) 234 wherein it was observed that living together with another woman, without dissolving the marriage from an earlier spouse may amount to offence of bigamy under Sections 494, 495 of the IPC.

Against the backdrop of these observations and in view of the “contradictory statement on the face of the petition” seeking custody of the child, the petition was found to be not tenable before the Family Court, and hence, it was dismissed.

Case title - Abdul Hameed Siddiqui vs. Kavita Gupta

Citation:

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