Nata Vivah (Marriage) and Maintenance related issues under Section 125 CrPC
What is Nata Vivah
According to this custom, in some tribes the woman (wife) can leave her husband and live with another man. This is called Nata. No formal rituals have to be done in this. There is only mutual consent. This practice is prevalent even today in many tribal communities in Rajasthan. This practice is quite similar to the live-in relationship of the modern society. It is said that Nata Pratha was created to give recognition to widows and abandoned women to lead a social life, which is still believed today.
Under this system, no formal marriage ceremony is required to live together. Couple can perform all obligations of husband and wife without entering into wedlock. According to the practice, man has to pay money to live a modern day live-in relationship with a woman of his choice, after the woman’s first husband walks out of the marriage and pass on his wife to other man in return for money. This money, the “bride price” is fixed by members of the community, or middlemen, who may receive a cut for doing so. The sum may range from a few thousand bucks to even a few lakhs depending upon the paying capacity of the person concerned.[i]
For ex. If a man wants to live with a woman who is already married than he has to pay some amount of money to the woman’s husband. After satisfied with the amount the husband of the woman releases her and then the lady can live with the other man who paid the price. This is called Nata.
The problem that arises in Nata cases is that of Maintenance. Since the woman has left her legally wedded husband and started to live with another man, is she entitled to claim maintenance from him?
Introduction-Object and Scope of Section 125 CrPC
There are different statutes providing for making an application for grant of maintenance/ interim maintenance, if any person having sufficient means neglects, or refuses to maintain his wife, children, parents. The different enactments provide an independent and distinct remedy framed with a specific object and purpose. Maintenance laws have been enacted as a measure of social justice to provide recourse to dependant wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy.
Article 15(3) of the Constitution[ii] of India provides that: “Nothing in this article shall prevent the State from making any special provision for women and children.” Article 15 (3) reinforced by Article 39 of the Constitution of India[iii], which envisages a positive role for the State in fostering change towards the empowerment of women, led to the enactment of various legislations from time to time.
Justice Krishna Iyer in his judgment in Captain Ramesh Chander Kaushal v Mrs. Veena Kaushal & Ors[iv]. held that the object of maintenance laws is:
“9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause- the cause of the derelicts.”
The legislations which have been framed on the issue of maintenance are the Special Marriage Act 1954 (“SMA”), Section 125 of the Cr.P.C. 1973; and the Protection of Women from Domestic Violence Act, 2005 (“D.V. Act”) which provide a statutory remedy to women, irrespective of the religious community to which they belong, apart from the personal laws applicable to various religious communities.
In Badshah v Urmila Badshah Godse[v], the Supreme Court was considering the interpretation of Section 125 CrPC. The Court held:
“13.3. …purposive interpretation needs to be given to the provisions of Section 125 CrPC. While dealing with the application of a destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalised sections of the society. The purpose is to achieve “social justice” which is the constitutional vision, enshrined in the Preamble of the Constitution of India. The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the courts to advance the cause of the social justice. While giving interpretation to a particular provision, the court is supposed to bridge the gap between the law and society.”
Maintenance in cases of Nata Vivah
The main issue that arises in cases of maintenance out of Nata Vivah is whether woman who has solemnised Nata Marriage falls under the definition of wife as given under Section 125 of CrPC.
In Roopsi @ Roop Singh vs State of Rajasthan[vi] it was held that Section 7 of the Hindu Marriage Act, 1955 provides that Hindu Marriage can be solemnised in accordance with the customary rites and ceremonies of either party thereto. It is thus obvious that a marriage Solemnised following the customary rites and ceremonies of either party constitute a valid marriage. By virtue of Sub-section (1) of Section 7 of the Hindu Marriage Act, a Hindu marriage can be solemnised in accordance with the customs and ceremonies of either party. So there is no dispute in this position that a ‘Nata’ marriage is permissible in the community to which the parties belong, then the wife of such a marriage is a legally weeded wife.
In Boli Narayan vs Shiddheswari Morang[vii] it was stated that Section 125 of the CrPC makes it clear that it is a measure of social justice to ensure protection to wives, children and parents. It falls within the sweep of Articles 15(3) and 39 of the Constitution and is the core of the fundamental duties enshrined in Article 51A and the legislative inspiration is drawn from the Preamble to the Constitution which provides for securing social justice to all. The code words printed must be explicated to enable the provision to fulfil its social function which is the generating force for enacting the provision. The constitutional compassion for the weaker sections calls for an interpretation having social relevance. When alternative meanings may be advanced in interpreting a word and both are reasonable, the meaning which promotes or proffers the cause of the derelicts should be accepted. Wives as well as divorcees are entitled to maintenance. The entitlement is obtainable when the bonds of marriage are still there as well as when it is snapped by divorce where the marriage link is ruptured. Existence of a marriage knot is, therefore, not the condition precedent for such entitlement. A wife and an ex-wife are equally entitled to maintenance subject to the limitation contained in Section 125. To discern the question posed, it is necessary to ponder why the Legislature applied the term “wife” and not the expressions “legally married wife” or a married wife.
A woman who comes in the life of a man, gives herself to the man, takes the family-life of the man and the man uses her as such, recognises her as his wife, must come within the fold of the term “wife”, absence of ceremonial marriage notwithstanding. Acceptance of a woman as a wife, declaration of the status directly or indirectly and acceptance of status by the woman are enough to bring her within the purview of Section 125. The view serves “the social purpose’ for which the Section has been enacted. To reject it would exclude woman living as wife, giving her life for the man but not validly married to be excluded from the scope of the section.
In Saudamini Dei vs Bhagirathi[viii] it was observed that to decide as to whether a relationship of husband and wife exists for the purposes of Section 125 CrPC, it is not necessary to insist on the strict proof of all the formalities of a particular form of legal marriage as is necessary in civil proceedings where the question of the legality of marriage is a primary issue.
In the scheme of Chapter IX of the Code of Criminal Procedure, 1973, Section 125 provides a swift and summary remedy for providing maintenance to neglected wives, parents and children by compelling the man to perform his moral’ obligation. In such a summary proceeding, it is not necessary to go into intricacies of law. The facts and circumstances of this case indicated that the man and the woman lived together as husband and wife and were treated as such by the community and the man treated the woman as his wife. The Panchayati Patra was his unequivocal declaration. So for the limited propose of Section 125, it may be inferred that there was marriage.
Strict Proof of Marriage is not required to claim maintenance
In Chanmuniya vs Virender Kumar Singh Kushwaha[ix] it was held that while construing the term ‘wife’ broad and expansive interpretation should be given to term ‘wife’ to include even those cases where man or woman have been living together as husband and wife for a reasonably long period of time; strict proof of marriage shouldn’t be a pre-condition for maintenance under Section 125 CrPC so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125.
In Dwarika Prasad Satpathy vs Bidyut Prava Dixit[x], Hon’ble Apex Court stated that:
“Unlike matrimonial proceedings where strict proof of marriage is essential, in the proceedings under Section 125 CrPC, such strict standard proof is not necessary as it is summary in nature meant to prevent vagrancy.”
Relationship in the Nature of Marriage
From the above discussion it can inferred that Nata Vivah as such doesn’t require rites and ceremonies in the strict sense. Moreover rulings of superior courts says that in order to claim maintenance no strict proof of marriage is required under Section 125 CrPC. So we can say that Nata Marriage somewhat resembles modern day Live-In Relationships. But it has to be noted that merely living in Live-In is not sufficient to claim maintenance. It has to be proved that the setup in which male and female is living amounts to Relationship in the Nature of Marriage.
In D. Velusamy vs. D. Patchaiammal[xi], while referring to Domestic Violence Act the court noted that the definition of Domestic relationship in Section 2(f) of the Act includes not only the relationship of marriage but also a relationship in the nature of marriage.
As the expression ‘relationship in the nature of marriage’ has not been defined under the Act, the bench explained its meaning. The bench said that not all live in relationships will amount to a relationship in the nature of marriage and only those which must fulfil the below mentioned requirements (common law marriage requirements):
- The couple must hold themselves out to society as being akin to spouses.
- They must be of legal age to marry.
- They must be otherwise qualified to enter into a legal marriage, including being unmarried.
- They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
It was further held that merely spending weekends together or a one night stand would not make it a domestic relationship. If a man has a keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, be a relationship in the nature of marriage.
Entering Nata Vivah without getting divorce amounts to Adultery
In Bhanwari vs Bhanwaria[xii], it was stated that if a husband marries a woman by way of Nata Vivah, without giving divorce to his first wife then it will amount to adultery.
In Vishnu Prasad vs Smt. Durga Bai[xiii], while referring towards Brahmin community it was stated that there was no such custom of nata vivah in Brahmin community. So it amounts to adultery if a Brahmin Man enters into Nata Vivah without getting divorce from his first wife.
Conclusion
On the basis of above discussion it can be concluded that in order to claim maintenance the woman who entered into Nata Marriage has to establish that:
- That the custom of Nata Vivah is followed in their community (Mandatory to Prove)
- Whatever essential Rites and Ceremonies for Solemnization of Nata Vivah are followed in either of Husband-wife’s community were followed. These essential rites and ceremonies differs across the communities. (Either this has to be proved or the next one) or;
- Woman has to prove that she has been living into a setup that amounts relationship in the nature of marriage.
