Levirate Marriage Validated By Custom Must Be Treated As Valid In Law For The Purposes Of Section 125 Cr.P.C: Patna High Court

The Patna High Court observed that the marriage, being validated by custom, cohabitation, social acceptance, and the birth of children, must be treated as valid in law for the purposes of Section 125 Cr.P.C.

A maintenance petition was filed under Section 125 CrPC by a pardanashin lady seeking maintenance for herself and her two sons.

The Bench of Justice Bibek Chaudhuri observed, “Therefore, this Court is of the firm view that the marriage, being validated by custom, cohabitation, social acceptance, and the birth of children, must be treated as valid in law for the purposes of Section 125 Cr.P.C. Disregarding such a union would not only be legally unsound but would also send a regressive message to society, undermining the dignity of women and the security of children born from such relationships.”

Advocates Parth Gaurav represented the Petitioner, while Advocate Pankaj Kumar Singh represented the Respondents.

Case Brief

It was the contention of the wife that she married her husband in 2010 and out of the wedlock two sons were born. However, for the last six years her husband had abandoned her and she has been surviving with the aid of her aged and ailing father, who is now unable to support her. Thus, the wife filed a maintenance petition under Section 125 Cr.P.C.

It was the contention of the husband that the lady is in fact his brother’s widow and hence, the marriage, if any, falls within the prohibited degrees of relationship under Hindu Law and is void ab initio.

However, it was averred by the wife that the marriage was solemnized as per long-standing Hindu customs prevailing in their community, where it is acceptable for a widow to marry the younger brother of the deceased husband.

Court’s Analysis

The Court opined that in proceedings under Section 125 Cr.P.C, strict proof of marriage is not necessary, and a person who has lived with the opposite party as wife may be granted maintenance even if the marriage is disputed, especially when children are born out of the said relationship and their welfare is at stake.

While dealing with the legality of levirate marriage, the Court observed that if a recognized, longstanding, and reasonable custom exists in a particular community that allows levirate marriage (a widow marrying her deceased husband’s brother), such a marriage may be legally valid despite otherwise being within a prohibited relationship.

“The Hindu Marriage Act, under Section 5(iv), clearly allows for a valid marriage within prohibited degrees if backed by custom. In the present case, such a custom has not only been pleaded but is evident in practice-acknowledgment by the family, cohabitation, and parenthood. The denial of the wife’s status in this context is an unjust act disguised as a legal technicality, and if accepted, would set a dangerous precedent where a woman who has fulfilled the role of a wife and mother is discarded without remedy, solely due to patriarchal convenience”, the Court said.

Thereafter, the Court observed that the Petitioner, having lived as wife, borne children, and been deserted without support, falls within the protective umbrella of Section 125 CrPC. The technical plea of invalidity of marriage, in this case, cannot be a valid ground to deny her maintenance.

“The existence of children born out of the union further strengthens the presumption of valid marriage, or at minimum, a relationship akin to marriage, entitling the petitioner to maintenance under Section 125 Cr.P.C”, the Court added.

Accordingly, the criminal revision was allowed.

Cause Title:Sangeeta Devi V. Pawan Kumar Singh

Appearance:

Petitioner: Advocates Parth Gaurav, Manogya Singh, G. R. Shahi, Ashutosh Kumar Pandey

Respondents: Advocate Pankaj Kumar Singh

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