Yajnavalkya Smriti classifies concubines into two types: (1) Avaruddha and (2) Bhujasya. An Avaruddha Stree operates under an injunction to stay at the master’s home whereas a Bhujasya is not kept in the house but elsewhere. There is some protection for an Avaruddha Stree in modern India. There is a presumption in favor of a lawful marriage where there has been a “prolonged and continued cohabitation as husband and wife”. In Mohabhat Ali v. Md. Ibrahim Khan, AIR 1929 PC 135 Lordships of Privy Council held, “law presumes in favour of a marriage and against concubinage when a man and woman have cohabited continuously for a number of years.” But the presumption which maybe drawn from long co-habitation is rebuttable and if there are circumstances which weaken and destroy that presumption, Court cannot ignore them. Recently, in Dhannulal v. Ganeshram, [Civil Appeal Nos. 3410-3411 of 2007], decided this month, it has been held nonetheless, “a heavy burden lies on a party, who seeks to deprive the relationship of legal origin”.

An already-married man, applying designs on a vulnerable woman, pretends to marry her with ceremonies et al. For the man, the marriage is a falsity to start with, whether or not he is aware of it; For the woman, it is as true as God’s own word. If that false marriage were to lose its way in the dreary desert sand of dead habit, can the at-once-true-and-at-once-false husband negative the claim of the almost-wife/concubine, for grant of maintenance under Section 125 of the Cr.P.C., on the specious plea that he was already married? Hon’ble Justice Gyan Sudha Misra lamented once, “Court would insist on the strict proof of the earlier marriage” [See, (2011) 12 SCC 189]. Urmila Badshah Godse, (2014) 1 SCC 188 held, in such a case, even though shunned to concubinage, “at least for the purposes of Section 125 of the Cr.P.C.”, the woman would be treated as a wife. But what if this at-once-wife-and-at-once-concubine woman knew about the first marriage of the already-married man and was not as vulnerable as she appeared at first glance? That question stands Referred to a Larger Bench by Singhvi and Ganguly JJ in Chanmuniya v. Virendra Kumar Singh, (2011) 1 SCC 141. Did she, the Avaruddha Stree, know or not know? That is the question.

It is to note in Indra Sarma, 2014 (14) SCALE 448 Hon’ble Justice Radhakrishnan considered that a relationship, where an unmarried adult woman knowingly lives in with a married adult male, is not a “domestic relationship” within the meaning of The Protection of Women from Domestic Violence Act, 2005. The real wife can in fact battle the unmarried adult woman/concubine in an “Alienation of Affection Tort Action” [See, (2013) 10 SCC 48].