Indra Sarma Vs. V.K.V. Sarma

 

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Indra Sarma Vs. V.K.V. Sarma

 (2013) 41 SCD 007

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

K.S. Radhakrishnan and Pinaki Chandra Ghose, JJ.

November 26, 2013

CRIMINAL APPEAL NO. 2009 OF 2013

(@ SPECIAL LEAVE PETITION (CRL.) NO.4895 OF 2012)

Indra Sarma … Appellant

Versus

V.K.V. Sarma … Respondent

J U D G M E N T

K.S. Radhakrishnan, J.

Leave granted.

2. Live-in or marriage like relationship is neither a crime nor a sin though socially unacceptable in this country. The decision to marry or not to marry or to have a heterosexual relationship is intensely personal.

3. We are, in this case, concerned with the question whether a “live-in relationship” would amount to a “relationship in the nature of marriage” falling within the definition of “domestic relationship” under Section 2(f) of the Protection of Women from Domestic Violence Act, 2005 (for short “the DV Act”) and the disruption of such a relationship by failure to maintain a women involved in such a relationship amounts to “domestic violence” within the meaning of Section 3 of the DV Act.

FACTS:

4. Appellant and respondent were working together in a private company. The Respondent, who was working as a Personal Officer of the Company, was a married person having two children and the appellant, aged 33 years, was unmarried. Constant contacts between them developed intimacy and in the year 1992, appellant left the job from the above-mentioned Company and started living with the respondent in a shared household. Appellant’s family members, including her father, brother and sister, and also the wife of the respondent, opposed that live-in-relationship. She has also maintained the stand that the respondent, in fact, started a business in her name and that they were earning from that business. After some time, the respondent shifted the business to his residence and continued the business with the help of his son, thereby depriving her right of working and earning. Appellant has also stated that both of them lived together in a shared household and, due to their relationship, appellant became pregnant on three occasions, though all resulted in abortion. Respondent, it was alleged, used to force the appellant to take contraceptive methods to avoid pregnancy. Further, it was also stated that the respondent took a sum of Rs.1,00,000/- from the appellant stating that he would buy a land in her name, but the same was not done. Respondent also took money from the appellant to start a beauty parlour for his wife. Appellant also alleged that, during the year 2006, respondent took a loan of Rs.2,50,000/- from her and had not returned. Further, it was also stated that the respondent, all along, was harassing the appellant by not exposing her as his wife publicly, or permitting to suffix his name after the name of the appellant. Appellant also alleged that the respondent never used to take her anywhere, either to the houses of relatives or friends or functions. Appellant also alleged that the respondent never used to accompany her to the hospital or make joint Bank account, execute documents, etc. Respondent’s family constantly opposed their live-in relationship and ultimately forced him to leave the company of the appellant and it was alleged that he left the company of the appellant without maintaining her.

5. Appellant then preferred Criminal Misc. No. 692 of 2007 under Section 12 of the DV Act before the III Additional Chief Metropolitan Magistrate, Bangalore, seeking the following reliefs:

1) Pass a Protection Order under Section 18 of the DV Act prohibiting the respondent from committing any act of domestic violence against the appellant and her relatives, and further prohibiting the respondent from alienating the assets both moveable and immoveable properties owned by the respondent;

2) Pass a residence order under Section 19 of the DV Act and direct the respondent to provide for an independent residence as being provided by the respondent or in the alternative a joint residence along with the respondent where he is residing presently and for the maintenance of Rs.25,000/- per month regularly as being provided earlier or in the alternative to pay the permanent maintenance charges at the rate of Rs.25,000/- per month for the rest of the life;

3) Pass a monetary order under Section 20 of the DV Act directing the respondent to pay a sum of Rs.75,000/- towards the operation, pre and post operative medication, tests etc and follow up treatments;

4) Pass a compensation order under Section 22 of the DV Act to a sum of Rs.3,50,000/- towards damages for misusing the funds of the sister of the appellant, mental torture and emotional feelings; and

5) Pass an ex-parte interim order under Section 23 of the DV Act directing the respondent to pay Rs.75,000/- towards the medical expenses and pay the maintenance charges @ Rs.25,000/- per month as being paid by the respondent earlier.

6. Respondent filed detailed objections to the application stating that it was on sympathetical grounds that he gave shelter to her in a separate house after noticing the fact that she was abandoned by her parents and relatives, especially after the demise of her father. She had also few litigations against her sister for her father’s property and she had approached the respondent for moral as well as monetary support since they were working together in a Company. The respondent has admitted that he had cohabited with the appellant since 1993. The fact that he was married and had two children was known to the appellant. Pregnancy of the appellant was terminated with her as well as her brother’s consent since she was not maintaining good health. The respondent had also spent large amounts for her medical treatment and the allegation that he had taken money from the appellant was denied. During the month of April, 2007, the respondent had sent a cheque for Rs.2,50,000/- towards her medical expenses, drawn in the name of her sister which was encashed. Further, it was stated, it was for getting further amounts and to tarnish the image of the respondent, the application was preferred under the DV Act. Before the learned Magistrate, appellant examined herself as P.W.1 and gave evidence according to the averments made in the petition. Respondent examined himself as R.W.1. Child Development Project Officer was examined as R.W.2. The learned Magistrate found proof that the parties had lived together for a considerable period of time, for about 18 years, and then the respondent left the company of the appellant without maintaining her. Learned Magistrate took the view that the plea of “domestic violence” had been established, due to the non-maintenance of the appellant and passed the order dated 21.7.2009 directing the respondent to pay an amount of Rs.18,000/- per month towards maintenance from the date of the petition.

7. Respondent, aggrieved by the said order of the learned Magistrate, filed an appeal before the Sessions Court under Section 29 of the DV Act. The Appellate Court, after having noticed that the respondent had admitted the relationship with appellant for over a period of 14 years, took the view that, due to their livein relationship for a considerable long period, nonmaintenance of the appellant would amount to domestic violence within the meaning of Section 3 of the DV Act. The appellate Court also concluded that the appellant has no source of income and that the respondent is legally obliged to maintain her and confirmed the order passed by the learned Magistrate.

8. The respondent took up the matter in appeal before the High Court. It was contended before the High Court that the appellant was aware of the fact that the respondent was a married person having two children, yet she developed a relationship, in spite of the opposition raised by the wife of the respondent and also by the appellant’s parents. Reliance was also placed on the judgment of this Court in D. Velusamy v. D. Patchaiammal (2010) 10 SCC 469 and submitted that the tests laid down in Velusamy case (supra) had not been satisfied. The High Court held that the relationship between the parties would not fall within the ambit of “relationship in the nature of marriage” and the tests laid down in Velusamy case (supra) have not been satisfied. Consequently, the High Court allowed the appeal and set aside the order passed by the Courts below. Aggrieved by the same, this appeal has been preferred.

9. Shri Anish Kumar Gupta, learned counsel appearing for the appellant, submitted that the relationship between the parties continued from 1992 to 2006 and since then, the respondent started avoiding the appellant without maintaining her. Learned counsel submitted that the relationship between them constituted a “relationship in the nature of marriage” within the meaning of Section 2(f) of the DV Act, which takes in every relationship by a man with a woman, sharing household, irrespective of the fact whether the respondent is a married person or not. Learned counsel also submitted that the tests laid down in Velusamy case (supra) have also been satisfied.

10. Ms. Jyotika Kalra, learned amicus curiae, took us elaborately through the provisions of the DV Act as well as the objects and reasons for enacting such a legislation. Learned amicus curiae submitted that the Act is intended to provide for protection of rights of women who are victims of violence of any type occurring in the family. Learned amicus curiae also submitted that the various provisions of the DV Act are intended to achieve the constitutional principles laid down in Article 15(3), reinforced vide Article 39 of the Constitution of India. Learned amicus curiae also made reference to the Malimath Committee report and submitted 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, even under Section 125 CrPC. Learned amicus curiae also referred to a recent judgment of this Court in Deoki Panjhiyara v. Shashi Bhushan Narayan Azad and Another (2013) 2 SCC 137 in support of her contention.

11. Mr. Nikhil Majithia, learned counsel appearing for the respondent, made extensive research on the subject and made available valuable materials. Learned counsel referred to several judgments of the Constitutional Courts of South Africa, Australia, New Zealand, Canada, etc. and also referred to parallel legislations on the subject in other countries. Learned counsel submitted that the principle laid down in Velusamy case (supra) has been correctly applied by the High Court and, on facts, appellant could not establish that their relationship is a “relationship in the nature of marriage” so as to fall within Section 2(f) of the DV Act. Learned counsel also submitted that the parties were not qualified to enter into a legal marriage and the appellant knew that the respondent was a married person. Further, the appellant was not a victim of any fraudulent or bigamous marriage and it was a live-in relationship for mutual benefits, consequently, the High Court was right in holding that there has not been any domestic violence, within the scope of Section 3 of the DV Act entitling the appellant to claim maintenance.

12. We have to examine whether the non maintenance of the appellant in a broken live-in-relationship, which is stated to be a relationship not in the nature of a marriage, will amount to “domestic violence” within the definition of Section 3 of the DV Act, enabling the appellant to seek one or more reliefs provided under Section 12 of the DV Act.

13. Before examining the various issues raised in this appeal, which have far reaching consequences with regard to the rights and liabilities of parties indulging in live-in relationship, let us examine the relevant provisions of the DV Act and the impact of those provisions on such relationships.

D.V. ACT

14. The D.V. Act has been enacted to provide a remedy in Civil Law for protection of women from being victims of domestic violence and to prevent occurrence of domestic violence in the society. The DV Act has been enacted also to provide an effective protection of the rights of women guaranteed under the Constitution, who are victims of violence of any kind occurring within the family.

15. “Domestic Violence” is undoubtedly a human rights issue, which was not properly taken care of in this country even though the Vienna Accord 1994 and the Beijing Declaration and Platform for Action (1995) had acknowledged that domestic violence was undoubtedly a human rights issue. UN Committee on Convention on Elimination of All Forms of Discrimination Against Women in its general recommendations had also exhorted the member countries to take steps to protect women against violence of any kind, especially that occurring within the family, a phenomenon widely prevalent in India. Presently, when a woman is subjected to cruelty by husband or his relatives, it is an offence punishable under Section 498A IPC. The Civil Law, it was noticed, did not address this phenomenon in its entirety. Consequently, the Parliament, to provide more effective protection of rights of women guaranteed under the Constitution under Articles 14, 15 and 21, who are victims of violence of any kind occurring in the family, enacted the DV Act.

16. Chapter IV is the heart and soul of the DV Act, which provides various reliefs to a woman who has or has been in domestic relationship with any adult male person and seeks one or more reliefs provided under the Act. The Magistrate, while entertaining an application from an aggrieved person under Section 12 of the DV Act, can grant the following reliefs:

(1) Payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for injuries caused by the acts of domestic violence committed by the adult male member, with a prayer for set off against the amount payable under a decree obtained in Court;

(2) The Magistrate, under Section 18 of the DV Act, can pass a “protection order” in favour of the aggrieved person and prohibit the respondent from:

(a) committing any act of domestic violence;

(b) aiding or abetting in the commission of acts of domestic violence;

(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;

(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;

(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;

(f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;

(g)committing any other act as specified in the protection order.

(3) The Magistrate, while disposing of an application under Section 12(1) of the DV Act, can pass a “residence order” under Section 19 of the DV Act, in the following manner:

“19. Residence orders.- (1) While disposing of an application under sub-section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order-

(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;

(b) directing the respondent to remove himself from the shared household;

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require: Provided that no order under clause (b) shall be passed against any person who is a woman.

xxx xxx xxx xxx xxx xxx”

(4) An aggrieved person, while filing an application under Section 12(1) of the DV Act, is also entitled, under Section 20 of the DV Act, to get “monetary reliefs” to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but is not limited to,-

“20. Monetary reliefs.- (1) While disposing of an application under sub- section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,-

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974 ) or any other law for the time being in force.

xxx xxx xxx xxx xxx xxx”

The monetary reliefs granted under the above mentioned section shall be adequate, fair, reasonable and consistent with the standard of living to which an aggrieved person is accustomed and the Magistrate has the power to order an appropriate lump sum payment or monthly payments of maintenance.

(5) The Magistrate, under Section 21 of the DV Act, has the power to grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent.

(6) The Magistrate, in addition to other reliefs, under Section 22 of the DV Act, can pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by the respondent.

17. Section 26 of the DV Act provides that any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a Civil Court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act. Further, any relief referred to above may be sought for in addition to and along with any other reliefs that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. Further, if any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.

18. Section 3 of the DV Act deals with “domestic violence” and reads as under:

“3. Definition of domestic violence.- For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it-

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Explanation I.- For the purposes of this section,-

(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;

(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

(iii) “verbal and emotional abuse” includes

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

(iv) “economic abuse” includes-

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any,stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

Explanation II.- For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes” domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.”

19. In order to examine as to whether there has been any act, omission, or commission or conduct so as to constitute domestic violence, it is necessary to examine some of the definition clauses under Section 2 of the DV Act.

Section 2(a) of the DV Act defines the expression “aggrieved person” as follows:

“2(a). “Aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.”

Section 2(f) defines the expression “domestic relationship” as follows:

“2(f). “Domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.”

Section 2(q) defines the expression “respondent” as follows:

“2(q). “Respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.”

Section 2(s) defines the expression “shared household” and reads as follows:

“2(s). “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.”

20. We are, in this case, concerned with a “live-in relationship” which, according to the aggrieved person, is a “relationship in the nature of marriage” and it is that relationship which has been disrupted in the sense that the respondent failed to maintain the aggrieved person, which, according to the appellant, amounts to “domestic violence”. The respondent maintained the stand that the relationship between the appellant and the respondent was not a relationship in the nature of marriage but a live-in-relationship simplicitor and the alleged act, omission, commission or conduct of the respondent would not constitute “domestic violence” so as to claim any protection orders under Section 18, 19 or 20 of the DV Act.

21. We have to first examine whether the appellant was involved in a domestic relationship with the respondent. Section 2(f) refers to five categories of relationship, such as, related by consanguinity, marriage, relationship in the nature of marriage, adoption, family members living together as a joint family, of which we are, in this case, concerned with an alleged relationship in the nature of marriage.

22. Before we examine whether the respondent has committed any act of domestic violence, we have to first examine whether the relationship between them was a “relationship in the nature of marriage” within the definition of Section 3 read with Section 2(f) of the DV Act. Before examining the term “relationship in the nature of marriage”, we have to first examine what is “marriage”, as understood in law.

MARRIAGE AND MARITAL RELATIONSHIP:

23. Marriage is often described as one of the basic civil rights of man/woman, which is voluntarily undertaken by the parties in public in a formal way, and once concluded, recognizes the parties as husband and wife. Three elements of common law marriage are (1) agreement to be married (2) living together as husband and wife, (3) holding out to the public that they are married. Sharing a common household and duty to live together form part of the ‘Consortium Omnis Vitae” which obliges spouses to live together, afford each other reasonable marital privileges and rights and be honest and faithful to each other. One of the most important invariable consequences of marriage is the reciprocal support and the responsibility of maintenance of the common household, jointly and severally. Marriage as an institution has great legal significance and various obligations and duties flow out of marital relationship, as per law, in the matter of inheritance of property, successionship, etc. Marriage, therefore, involves legal requirements of formality, publicity, exclusivity and all the legal consequences flow out of that relationship.

24. Marriages in India take place either following the personal Law of the Religion to which a party is belonged or following the provisions of the Special Marriage Act. Marriage, as per the Common Law, constitutes a contract between a man and a woman, in which the parties undertake to live together and support each other. Marriage, as a concept, is also nationally and internationally recognized. O’Regan, J., in Dawood and Another v. Minister of Home Affairs and Others 2000 (3) SA 936 (CC) noted as follows:

“Marriage and the family are social institutions of vital importance. Entering into and sustaining a marriage is a matter of intense private significance to the parties to that marriage for they make a promise to one another to establish and maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one another, to live together and to be faithful to one another. Such relationships are of profound significance to the individuals concerned. But such relationships have more than personal significance at least in part because human beings are social beings whose humanity is expressed through their relationships with others. Entering into marriage therefore is to enter into a relationship that has public significance as well. The institutions of marriage and the family are important social institutions that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children. The celebration of a marriage gives rise to moral and legal obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage. These legal obligations perform an important social function. This importance is symbolically acknowledged in part by the fact that marriage is celebrated generally in a public ceremony, often before family and close friends….”

25. South African Constitutional Court in various judgments recognized the above mentioned principle. In Satchwell v. President of the Republic of South Africa and Another 2002 (6) SA 1 (CC), Du Toit and Another v. Minister of Welfare and Population Development and Others (Lesbian and Gay Equality Project as Amicus Curiae) 2003 (2) SA 198 (CC), the Constitutional Court of South Africa recognized the right “free to marry and to raise family”. Section 15(3)(a)(i) of the Constitution of South Africa, in substance makes provision for the recognition of “marriages concluded under the tradition, or a system of religious, personal or family law.” Section 9(3) of the Constitution of South Africa reads as follows:

“The State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

26. Article 23 of the International Covenant on Civil and Political Rights, 1966 (ICCPR) provides that:

“1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized.

3. No marriage shall be entered into without the free and full consent of the intending spouses.

4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.”

27. Article 16 of the Universal Declaration of Human Rights, 1948 provides that:

“1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at it dissolution.

2. Marriage shall be entered into only with the free and full consent of the intending spouses.

3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”

28. Parties in the present case are Hindus by religion and are governed by the Hindu Marriage Act, 1955. The expression “marriage”, as stated, is not defined under the Hindu Marriage Act, but the “conditions for a Hindu marriage” are dealt with in Section 5 of the Hindu Marriage Act and which reads as under:

“5. Conditions for a Hindu marriage - A marriage may be solemnized between any two hindus, if the following conditions are fulfilled, namely:-

(i) neither party has a spouse living at the time of the marriage

(ii) at the time of the marriage, neither party-

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity;

(iii) the bridegroom has completed the age of twenty- one years and the bride the age of eighteen years at the time of the marriage;

(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.”

29. Section 7 of the Hindu Marriage Act deals with the “Ceremonies for a Hindu marriage” and reads as follows:

“7. Ceremonies for a Hindu marriage. - (1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.”

30. Entering into a marriage, therefore, either through the Hindu Marriage Act or the Special Marriage Act or any other Personal Law, applicable to the parties, is entering into a relationship of “public significance”, since marriage being a social institution, many rights and liabilities flow out of that legal relationship. The concept of marriage as a “civil right” has been recognised by various courts all over the world, for example, Skinner v. Oklahoma 316 US 535 (1942), Perez v. Lippold 198 P.2d 17, 20.1 (1948), Loving v. Virginia 388 US 1 (1967).

31. We have referred to, in extenso, about the concept of “marriage and marital relationship” to indicate that the law has distinguished between married and unmarried people, which cannot be said to be unfair when we look at the rights and obligations which flow out of the legally wedded marriage. A married couple has to discharge legally various rights and obligations, unlike the case of persons having live-in relationship or, marriage-like relationship or defacto relationship.

32. Married couples who choose to marry are fully cognizant of the legal obligation which arises by the operation of law on solemnization of the marriage and the rights and duties they owe to their children and the family as a whole, unlike the case of persons entering into live-in relationship. This Court in Pinakin Mahipatray Rawal v. State of Gujarat (2013) 2 SCALE 198 held that marital relationship means the legally protected marital interest of one spouse to another which include marital obligation to another like companionship, living under the same roof, sexual relation and the exclusive enjoyment of them, to have children, their up-bringing, services in the home, support, affection, love, liking and so on.

RELATIONSHIP IN THE NATURE OF MARRIAGE:

33. Modern Indian society through the DV Act recognizes in reality, various other forms of familial relations, shedding the idea that such relationship can only be through some acceptable modes hitherto understood. Section 2(f), as already indicated, deals with a relationship between two persons (of the opposite sex) who live or have lived together in a shared household when they are related by:

(a) Consanguinity

(b) Marriage

(c) Through a relationship in the nature of marriage

(d) Adoption

(e) Family members living together as joint family.

34. The definition clause mentions only five categories of relationships which exhausts itself since the expression “means”, has been used. When a definition clause is defined to “mean” such and such, the definition is prima facie restrictive and exhaustive. Section 2(f) has not used the expression “include” so as to make the definition exhaustive. It is in that context we have to examine the meaning of the expression “relationship in the nature of marriage”.

35. We have already dealt with what is “marriage”, “marital relationship” and “marital obligations”. Let us now examine the meaning and scope of the expression “relationship in the nature of marriage” which falls within the definition of Section 2(f) of the DV Act. Our concern in this case is of the third enumerated category that is “relationship in the nature of marriage” which means a relationship which has some inherent or essential characteristics of a marriage though not a marriage legally recognized, and, hence, a comparison of both will have to be resorted, to determine whether the relationship in a given case constitutes the characteristics of a regular marriage.

36. Distinction between the relationship in the nature of marriage and marital relationship has to be noted first. Relationship of marriage continues, notwithstanding the fact that there are differences of opinions, marital unrest etc., even if they are not sharing a shared household, being based on law. But live-inrelationship is purely an arrangement between the parties unlike, a legal marriage. Once a party to a livein- relationship determines that he/she does not wish to live in such a relationship, that relationship comes to an end. Further, in a relationship in the nature of marriage, the party asserting the existence of the relationship, at any stage or at any point of time, must positively prove the existence of the identifying characteristics of that relationship, since the legislature has used the expression “in the nature of”.

37. Reference to certain situations, in which the relationship between an aggrieved person referred to in Section 2(a) and the respondent referred to in Section 2(q) of the DV Act, would or would not amount to a relationship in the nature of marriage, would be apposite. Following are some of the categories of cases which are only illustrative:

(a) Domestic relationship between an unmarried adult woman and an unmarried adult male:

Relationship between an unmarried adult woman and an unmarried adult male who lived or, at any point of time lived together in a shared household, will fall under the definition of Section 2(f) of the DV Act and in case, there is any domestic violence, the same will fall under Section 3 of the DV Act and the aggrieved person can always seek reliefs provided under Chapter IV of the DV Act.

(b) Domestic relationship between an unmarried woman and a married adult male:

Situations may arise when an unmarried adult women knowingly enters into a relationship with a married adult male. The question is whether such a relationship is a relationship “in the nature of marriage” so as to fall within the definition of Section 2(f) of the DV Act.

(c) Domestic relationship between a married adult woman and an unmarried adult male:

Situations may also arise where an adult married woman, knowingly enters into a relationship with an unmarried adult male, the question is whether such a relationship would fall within the expression relationship “in the nature of marriage”.

(d) Domestic relationship between an unmarried woman unknowingly enters into a relationship with a married adult male:

An unmarried woman unknowingly enters into a relationship with a married adult male, may, in a given situation, fall within the definition of Section 2(f) of the DV Act and such a relationship may be a relationship in the “nature of marriage”, so far as the aggrieved person is concerned.

(e) Domestic relationship between same sex partners (Gay and Lesbians):

DV Act does not recognize such a relationship and that relationship cannot be termed as a relationship in the nature of marriage under the Act. Legislatures in some countries, like the Interpretation Act, 1984 (Western Australia), the Interpretation Act, 1999 (New Zealand), the Domestic Violence Act, 1998 (South Africa), the Domestic Violence, Crime and Victims Act, 2004 (U.K.), have recognized the relationship between the same sex couples and have brought these relationships into the definition of Domestic relationship.

38. Section 2(f) of the DV Act though uses the expression “two persons”, the expression “aggrieved person” under Section 2(a) takes in only “woman”, hence, the Act does not recognize the relationship of same sex (gay or lesbian) and, hence, any act, omission, commission or conduct of any of the parties, would not lead to domestic violence, entitling any relief under the DV Act.

39. We should, therefore, while determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence”, have a common sense/balanced approach, after weighing up the various factors which exist in a particular relationship and then reach a conclusion as to whether a particular relationship is a relationship in the “nature of marriage”. Many a times, it is the common intention of the parties to that relationship as to what their relationship is to be, and to involve and as to their respective roles and responsibilities, that primarily governs that relationship. Intention may be expressed or implied and what is relevant is their intention as to matters that are characteristic of a marriage. The expression “relationship in the nature of marriage”, of course, cannot be construed in the abstract, we must take it in the context in which it appears and apply the same bearing in mind the purpose and object of the Act as well as the meaning of the expression “in the nature of marriage”. Plight of a vulnerable section of women in that relationship needs attention. Many a times, the women are taken advantage of and essential contribution of women in a joint household through labour and emotional support have been lost sight of especially by the women who fall in the categories mentioned in (a) and (d) supra. Women, who fall under categories (b) and (c), stand on a different footing, which we will deal with later. In the present case, the appellant falls under category (b), referred to in paragraph 37(b) of the Judgment.

40. We have, therefore, come across various permutations and combinations, in such relationships, and to test whether a particular relationship would fall within the expression “relationship in the nature of marriage”, certain guiding principles have to be evolved since the expression has not been defined in the Act.

41. Section 2(f) of the DV Act defines “domestic relationship” to mean, inter alia, a relationship between two persons who live or have lived together at such point of time in a shared household, through a relationship in the nature of marriage. The expression “relationship in the nature of marriage” is also described as defacto relationship, marriage – like relationship, cohabitation, couple relationship, meretricious relationship (now known as committed intimate relationship) etc.

42. Courts and legislatures of various countries now began to think that denying certain benefits to a certain class of persons on the basis of their marital status is unjust where the need of those benefits is felt by both unmarried and married cohabitants. Courts in various countries have extended certain benefits to heterosexual unmarried cohabitants. Legislatures too, of late, through legislations started giving benefits to heterosexual cohabitants.

43. In U.K. through the Civil Partnership Act, 2004, the rights of even the same-sex couple have been recognized. Family Law Act, 1996, through the Chapter IV, titled ‘Family Homes and Domestic Violence’, cohabitants can seek reliefs if there is domestic violence. Canada has also enacted the Domestic Violence Intervention Act, 2001. In USA, the violence against woman is a crime with far-reaching consequences under the Violence Against Women Act, 1994.

44. The Interpretation Act, 1984 (Australia) has laid down certain indicators to determine the meaning of “de facto relationship”, which are as follows:

“13A . De facto relationship and de facto partner, references to

(1) A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage-like relationship.

(2) The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential —

(a) the length of the relationship between them;

(b) whether the 2 persons have resided together;

(c) the nature and extent of common residence;

(d) whether there is, or has been, a sexual relationship between them;

(e) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(f) the ownership, use and acquisition of their property (including property they own individually);

(g) the degree of mutual commitment by them to a shared life;

(h) whether they care for and support children;

(i) the reputation, and public aspects, of the relationship between them.

xxx xxx xxx xxx xxx xxx”

45. The Domestic and Family Violence Protection Act, 2012 (Queensland) has defined the expression “couple relationship” to mean as follows”:

“18. Meaning of couple relationship

(1) xxx xxx xxx

(2) In deciding whether a couple relationship exists, a court may have regard to the following –

(a) the circumstances of the relationship between the persons, including, for example–

(i) the degree of trust between the persons; and

(ii) the level of each person’s dependence on, and commitment to, the other person;

(b) the length of time for which the relationship has existed or did exist;

(c) the frequency of contact between the persons;

(d) the degree of intimacy between the persons.

(3) Without limiting sub-section (2), the court may consider the following factors in deciding whether a couple relationship exists-

(a) Whether the trust, dependence or commitment is or was of the same level;

(b) Whether one of the persons is or was financially dependent on the other;

(c) Whether the persons jointly own or owned any property;

(d) Whether the persons have or had joint bank accounts;

(e) Whether the relationship involves or involved a relationship of a sexual nature;

(f) Whether the relationship is or was exclusive.

(4) A couple relationship may exist even if the court makes a negative finding in relation to any or all of the factors mentioned in subsection (3).

(5) A couple relationship may exist between two persons whether the persons are of the same or a different gender.

(6) A couple relationship does not exist merely because two persons date or dated each other on a number of occasions.”

46. The Property (Relationships) Act, 1984 of North South Wales, Australia also provides for some guidelines with regard to the meaning and content of the expression “de facto relationship”, which reads as follows:

“4 De facto relationships

(1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:

(a) who live together as a couple, and

(b) who are not married to one another or related by family.

(2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:

(a) the duration of the relationship,

(b) the nature and extent of common residence,

(c) whether or not a sexual relationship exists,

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,

(e) the ownership, use and acquisition of property,

(f) the degree of mutual commitment to a shared life,

(g) the care and support of children,

(h) the performance of household duties,

(i) the reputation and public aspects of the relationship.

(3) No finding in respect of any of the matters mentioned in subsection (2) (a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of ade facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

(4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship.”

47. “In Re Marriage of Lindsay, 101 Wn.2d 299 (1984), Litham v. Hennessey 87 Wn.2d 550 (1976), Pennington 93 Wash.App. at 917, the Courts in United States took the view that the relevant factors establishing a meretricious relationship include continuous cohabitation, duration of the relationship, purpose of the relationship, and the pooling of resources and services for joint projects. The Courts also ruled that a relationship need not be “long term” to be characterized as meretricious relationship. While a long term relationship is not a threshold requirement, duration is a significant factor. Further, the Court also noticed that a short term relationship may be characterized as a meretricious, but a number of other important factors must be present.

48. In Stack v. Dowden [2007] 2 AC 432, Baroness Hale of Richmond said:

“Cohabitation comes in many different shapes and sizes. People embarking on their first serious relationship more commonly cohabit than marry. Many of these relationships may be quite short-lived and childless. But most people these days cohabit before marriage….. So many couples are cohabiting with a view to marriage at some later date – as long ago as 1998 the British Household Panel Survey found that 75% of current cohabitants expected to marry, although only a third had firm plans: John Ermisch, Personal Relationships and Marriage Expectations (2000) Working Papers of the Institute of Social and Economic Research: Paper 2000- 27. Cohabitation is much more likely to end in separation than is marriage, and cohabitations which end in separation tend to last for a shorter time than marriages which end in divorce. But increasing numbers of couples cohabit for long periods without marrying and their reasons for doing so vary from conscious rejection of marriage as a legal institution to regarding themselves ‘as good as married’ anyway: Law Commission, Consultation Paper No 179, Part 2, para 2.45.”

49. In MW v. The Department of Community Services [2008] HCA 12, Gleeson, CJ, made the following observations:

“Finn J was correct to stress the difference between living together and living together ‘as a couple in a relationship in the nature of marriage or civil union’. The relationship between two people who live together, even though it is a sexual relationship, may, or may not, be a relationship in the nature of marriage or civil union. One consequence of relationships of the former kind becoming commonplace is that it may now be more difficult, rather than easier, to infer that they have the nature of marriage or civil union, at least where the care and upbringing of children are not involved.”

50. In Lynam v. The Director-General of Social Security (1983) 52 ALR 128, the Court considered whether a man and a woman living together ‘as husband and wife on a bona fide domestic basis’ and Fitzgerald, J. said:

“Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.”

51. Tipping, J. in Thompson v. Department of Social Welfare (1994) 2 SZLR 369 (HC), listed few characteristics which are relevant to determine relationship in the nature of marriage as follows:

“(1) Whether and how frequently the parties live in the same house.

(2) Whether the parties have a sexual relationship.

(3) Whether the parties give each other emotional support and companionship.

(4) Whether the parties socialize together or attend activities together as a couple.

(5) Whether and to what extent the parties share the responsibility for bringing up and supporting any relevant children.

(6) Whether the parties share household and other domestic tasks.

(7) Whether the parties share costs and other financial responsibilities by the pooling of resources or otherwise.

(8) Whether the parties run a common household, even if one or other partner is absent for periods of time.

(9) Whether the parties go on holiday together. (10) Whether the parties conduct themselves towards, and are treated by friends, relations and others as if they were a married couple.”

52. Live-in relationship, as such, as already indicated, is a relationship which has not been socially accepted in India, unlike many other countries. In Lata Singh v. State of U.P. [AIR 2006 SC 2522] it was observed that a live-in relationship between two consenting adults of heterosexual sex does not amount to any offence even though it may be perceived as immoral. However, in order to provide a remedy in Civil Law for protection of women, from being victims of such relationship, and to prevent the occurrence of domestic violence in the society, first time in India, the DV Act has been enacted to cover the couple having relationship in the nature of marriage, persons related by consanguinity, marriages etc. We have few other legislations also where reliefs have been provided to woman placed in certain vulnerable situations.

53. Section 125 Cr.P.C., of course, provides for maintenance of a destitute wife and Section 498A IPC is related to mental cruelty inflicted on women by her husband and in-laws. Section 304-B IPC deals with the cases relating to dowry death. The Dowry Prohibition Act, 1961 was enacted to deal with the cases of dowry demands by the husband and family members. The Hindu Adoptions and Maintenance Act, 1956 provides for grant of maintenance to a legally wedded Hindu wife, and also deals with rules for adoption. The Hindu Marriage Act, 1955 refers to the provisions dealing with solemnization of marriage also deals with the provisions for divorce. For the first time, through, the DV Act, the Parliament has recognized a “relationship in the nature of marriage” and not a live-in relationship simplicitor.

54. We have already stated, when we examine whether a relationship will fall within the expression “relationship in the nature of marriage” within the meaning of Section 2(f) of the DV Act, we should have a close analysis of the entire relationship, in other words, all facets of the interpersonal relationship need to be taken into account. We cannot isolate individual factors, because there may be endless scope for differences in human attitudes and activities and a variety of combinations of circumstances which may fall for consideration. Invariably, it may be a question of fact and degree, whether a relationship between two unrelated persons of the opposite sex meets the tests judicially evolved.

55. We may, on the basis of above discussion cull out some guidelines for testing under what circumstances, a live-in relationship will fall within the expression “relationship in the nature of marriage” under Section 2(f) of the DV Act. The guidelines, of course, are not exhaustive, but will definitely give some insight to such relationships.

(1) Duration of period of relationship Section 2(f) of the DV Act has used the expression “at any point of time”, which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation.

(2) Shared household The expression has been defined under Section 2(s) of the DV Act and, hence, need no further elaboration.

(3) Pooling of Resources and Financial Arrangements Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long term investments in business, shares in separate and joint names, so as to have a long standing relationship, may be a guiding factor.

(4) Domestic Arrangements Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or upkeeping the house, etc. is an indication of a relationship in the nature of marriage.

(5) Sexual Relationship Marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring etc.

(6) Children Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long standing relationship. Sharing the responsibility for bringing up and supporting them is also a strong indication.

(7) Socialization in Public Holding out to the public and socializing with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.

(8) Intention and conduct of the parties Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship. 

STATUS OF THE APPELLANT

56. Appellant, admittedly, entered into a live-inrelationship with the respondent knowing that he was married person, with wife and two children, hence, the generic proposition laid down by the Privy Council in Andrahennedige Dinohamy v. Wiketunge Liyanapatabendage Balshamy, AIR 1927 PC 185, that where a man and a woman are proved to have lived together as husband and wife, the law presumes that they are living together in consequence of a valid marriage will not apply and, hence, the relationship between the appellant and the respondent was not a relationship in the nature of a marriage, and the status of the appellant was that of a concubine. A concubine cannot maintain a relationship in the nature of marriage because such a relationship will not have exclusivity and will not be monogamous in character. Reference may also be made to the judgments of this Court in Badri Prasad v. Director of Consolidation 1978 (3) SCC 527 and Tulsa v. Durghatiya 2008 (4) SCC 520. In Gokal Chand v. Parvin Kumari AIR 1952 SC 231 this Court held that the continuous cohabitation of man and woman as husband and wife may raise the presumption of marriage, but the presumption which may be drawn from long cohabition is a rebuttable one and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them. Polygamy, that is a relationship or practice of having more than one wife or husband at the same time, or a relationship by way of a bigamous marriage that is marrying someone while already married to another and/or maintaining an adulterous relationship that is having voluntary sexual intercourse between a married person who is not one’s husband or wife, cannot be said to be a relationship in the nature of marriage.

57. We may note, in the instant case, there is no necessity to rebut the presumption, since the appellant was aware that the respondent was a married person even before the commencement of their relationship, hence the status of the appellant is that of a concubine or a mistress, who cannot enter into relationship in the nature of a marriage. Long standing relationship as a concubine, though not a relationship in the nature of a marriage, of course, may at times, deserves protection because that woman might not be financially independent, but we are afraid that DV Act does not take care of such relationships which may perhaps call for an amendment of the definition of Section 2(f) of the DV Act, which is restrictive and exhaustive.

58. Velusamy case (supra) stated that instances are many where married person maintain and support such types of women, either for sexual pleasure or sometimes for emotional support. Woman, a party to that relationship does suffer social disadvantages and prejudices, and historically, such a person has been regarded as less worthy than the married woman. Concubine suffers social ostracism through the denial of status and benefits, who cannot, of course, enter into a relationship in the nature of marriage.

59. We cannot, however, lose sight of the fact that inequities do exist in such relationships and on breaking down such relationship, the woman invariably is the sufferer. Law of Constructive Trust developed as a means of recognizing the contributions, both pecuniary and non-pecuniary, perhaps comes to their aid in such situations, which may remain as a recourse for such a woman who find herself unfairly disadvantaged. Unfortunately, there is no express statutory provision to regulate such types of live-in relationships upon termination or disruption since those relationships are not in the nature of marriage. We can also come across situations where the parties entering into live-inrelationship and due to their joint efforts or otherwise acquiring properties, rearing children, etc. and disputes may also arise when one of the parties dies intestate.

60. American Jurisprudence, Second Edition, Vol. 24 (2008) speaks of Rights and Remedies of property accumulated by man and woman living together in illicit relations or under void marriage, which reads as under:

“Although the courts have recognized the property rights of persons cohabiting without benefit of marriage, these rights are not based on the equitable distribution provisions of the marriage and divorce laws because the judicial recognition of mutual property rights between unmarried cohabitants would violate the policy of the state to strengthen and preserve the integrity of marriage, as demonstrated by its abolition of common-law marriage.”

61. Such relationship, it may be noted, may endure for a long time and can result pattern of dependency and vulnerability, and increasing number of such relationships, calls for adequate and effective protection, especially to the woman and children born out of that live-in-relationship. Legislature, of course, cannot promote pre-marital sex, though, at times, such relationships are intensively personal and people may express their opinion, for and against. See S. Khushboo v. Kanniammal and another (2010) 5 SCC 600.

62. Parliament has to ponder over these issues, bring in proper legislation or make a proper amendment of the Act, so that women and the children, born out of such kinds of relationships be protected, though those types of relationship might not be a relationship in the nature of a marriage.

63. We may now consider whether the tests, we have laid down, have been satisfied in the instant case. We have found that the appellant was not ignorant of the fact that the respondent was a married person with wife and two children, hence, was party to an adulterous and bigamous relationship. Admittedly, the relationship between the appellant and respondent was opposed by the wife of the respondent, so also by the parents of the appellant and her brother and sister and they knew that they could not have entered into a legal marriage or maintained a relationship in the nature of marriage. Parties never entertained any intention to rear children and on three occasions the pregnancy was terminated. Having children is a strong circumstance to indicate a relationship in the nature of marriage. No evidence has been adduced to show that the parties gave each other mutual support and companionship. No material has been produced to show that the parties have ever projected or conducted themselves as husband and wife and treated by friends, relatives and others, as if they are a married couple. On the other hand, it is the specific case of the appellant that the respondent had never held out to the public that she was his wife. No evidence of socialization in public has been produced. There is nothing to show that there was pooling of resources or financial arrangements between them. On the other hand, it is the specific case of the appellant that the respondent had never opened any joint account or executed any document in the joint name. Further, it was also submitted that the respondent never permitted to suffix his name after the name of the appellant. No evidence is forthcoming, in this case, to show that the respondent had caused any harm or injuries or endangered the health, safely, life, limb or well-being, or caused any physical or sexual abuse on the appellant, except that he did not maintain her or continued with the relationship.

ALIENATION OF AFFECTION

64. Appellant had entered into this relationship knowing well that the respondent was a married person and encouraged bigamous relationship. By entering into such a relationship, the appellant has committed an intentional tort, i.e. interference in the marital relationship with intentionally alienating respondent from his family, i.e. his wife and children. If the case set up by the appellant is accepted, we have to conclude that there has been an attempt on the part of the appellant to alienate respondent from his family, resulting in loss of marital relationship, companionship, assistance, loss of consortium etc., so far as the legally wedded wife and children of the respondent are concerned, who resisted the relationship from the very inception. Marriage and family are social institutions of vital importance. Alienation of affection, in that context, is an intentional tort, as held by this Court in Pinakin Mahipatray Rawal case (supra), which gives a cause of action to the wife and children of the respondent to sue the appellant for alienating the husband/father from the company of his wife/children, knowing fully well they are legally wedded wife/children of the respondent..

65. We are, therefore, of the view that the appellant, having been fully aware of the fact that the respondent was a married person, could not have entered into a livein relationship in the nature of marriage. All live-inrelationships are not relationships in the nature of marriage. Appellant’s and the respondent’s relationship is, therefore, not a “relationship in the nature of marriage” because it has no inherent or essential characteristic of a marriage, but a relationship other than “in the nature of marriage” and the appellant’s status is lower than the status of a wife and that relationship would not fall within the definition of “domestic relationship” under Section 2(f) of the DV Act. If we hold that the relationship between the appellant and the respondent is a relationship in the nature of a marriage, we will be doing an injustice to the legally wedded wife and children who opposed that relationship. Consequently, any act, omission or commission or conduct of the respondent in connection with that type of relationship, would not amount to “domestic violence” under Section 3 of the DV Act.

66. We have, on facts, found that the appellant’s status was that of a mistress, who is in distress, a survivor of a live-in relationship which is of serious concern, especially when such persons are poor and illiterate, in the event of which vulnerability is more pronounced, which is a societal reality. Children born out of such relationship also suffer most which calls for bringing in remedial measures by the Parliament, through proper legislation.

67. We are conscious of the fact that if any direction is given to the respondent to pay maintenance or monetary consideration to the appellant, that would be at the cost of the legally wedded wife and children of the respondent, especially when they had opposed that relationship and have a cause of action against the appellant for alienating the companionship and affection of the husband/parent which is an intentional tort.

68. We, therefore, find no reason to interfere with the judgment of the High Court and the appeal is accordingly dismissed.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Venugopalan Vs. Jayasree V. Nair

 (2012) 261 KLR 454

IN THE HIGH COURT OF KERALA AT ERNAKULAM

 

K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ. 

—————————————————- 

F.A.O. NO. 50 OF 2012 

—————————————————-

AGAINST THE ORDER IN I.A.NO.180 OF 2012 IN I.A.NO.171 OF 2012 IN OP.NO.74/2012 OF FAMILY COURT, MALAPPURAM 

 

Dated this the 17th day of July, 2012 

Head Note:-

Protection of Women from Domestic Violence Act, 2005 – Section 17 – Shared Household - The right conferred on the wife for residence cannot be defeated by granting an order of injunction restraining her from entering into the shared household. The Civil Court or Family Court could not grant such an injunction, so long as the right of the wife is either admitted or proved or not disputed. Even if a dispute arises as to the right of the wife in the shared household, normally, the Courts would be reluctant to grant an injunction restraining the wife from entering into the house (the shared household) unless it is established that there is no domestic relationship or that the house in question is not a shared household. 

FOR APPELLANT/RESPONDENT/PETITIONER: 

———————————- 

• BY ADVS.SRI.S.SREEKUMAR (SR.) 
• SRI.A.BALAGOPALAN 
• SRI.A.RAJAGOPALAN 
• SRI.M.S.IMTHIYAZ AHAMMED 
• SRI.M.N.MANMADAN 

 

FOR RESPONDENT: PETITIONER: RESPONDENT: 

————– 

• BY ADV. SRI.A.C. SANKARA VARMA 

J U D G M E N T 

K.T.Sankaran, J. 

The order dated 1.2.2012 in I.A.No.180 of 2012 in I.A.No.171 of 2012 in O.P.No.74 of 2012 on the file of the Family Court, Malappuram is under challenge in this appeal filed by the husband of the respondent. Hereinafter, the appellant is referred to as `the husband’ and the respondent is referred to as `the wife’. 

 

2. In the marital relationship between the appellant and the respondent, two children were born. They were staying in the house situated in the property in the name of the husband. The wife has a case that the said property was purchased utilising her funds. The relationship between the husband and the wife became stained. There are allegations of assault and cruelty against each other. On 16.1.2012, the wife filed O.P.No.61 of 2012 before the Family Court, Malappuram against the husband and others for realisation of money and ornaments belonging to the wife and which were allegedly misappropriated by the respondents. On an application filed by the wife, the immovable property belonging to the husband was attached before judgment. O.P. No. 61 of 2012 is pending. The attachment was effected on 17.1.2012. On 18.1.2012, the wife filed M.C.No.25 of 2012 on the file of the Court of the Judicial Magistrate of the First Class, Malappuram against the husband claiming maintenance. In that M.C., on 18.1.2012 itself, the wife filed C.M.P.No.298 of 2012 for granting a protection order as well as a residence order. Notice was served on the husband on 19.1.2012. The husband entered appearance on 21.1.2012 in M.C.No.25 of 2012 as well as in C.M.P.No.298 of 2012 and he prayed for time to file counter. He also raised a contention that an order of interim injunction was passed in his favour in O.P.No.74 of 2012 on the file of the Family Court, Malappuram, restraining the wife from entering into the residential property. 

 

3. O.P.No.74 of 2012, Family Court, Malappuram was filed by the husband on 20.1.2012 against the wife and others for an injunction restraining them from trespassing upon the plaint schedule property or the house therein and from obstructing the husband from possessing and enjoying the said property. The property scheduled to the plaint is the residential property, in respect of which the order of residence was sought for by the wife in M.C.No.25 of 2012. The Family Court granted an ad interim order of injunction in favour of the husband in O.P.No.74 of 2012. The husband contended in C.M.P.No.298 of 2012 that in view of the ad interim order of injunction granted by the Family Court, the learned Magistrate was not justified in granting the residence order. The learned Magistrate, by the order dated 28.1.2012 in C.M.P.No.298 of 2012 (Annexure R5) held thus: 

“6. It is contended by the respondents that a temporary prohibition order of the Family Court is in force restraining the petitioner from entering into the shared house. Though no document was produced before me to that effect, Mr.A.C.Shankaravarma, the learned counsel for the petitioner fairly conceded in his submission that there is such an order in force. He submitted that a petition is being filed to get that order vacated. When an order passed by a Court of law having jurisdictional competence, restraining the petitioner from entering into the shared house is in force, it is not feasible and practicable to pass another order by me contrary to such existing order. Hence, I am not inclined to entertain the prayer of the petitioner to allow her to reside in the shared house. It is clarified that this finding will not fetter the petitioner from moving an application u/s 25(2) of the Act to this Court for appropriate legal remedy, on the basis of change of circumstances.” 

However, the learned Magistrate partly allowed the petition in favour of the children.

4. The wife filed I.A.No.180 of 2012 in O.P.No.74 of 2012 to vacate the order of interim injunction. The Family Court held that the husband suppressed the fact that an order of attachment was passed in O.P.No.61 of 2012 and that the wife filed M.C.No.25 of 2012 and C.M.P.No.298 of 2012 in the Court of the Judicial Magistrate of the First Class, Malappuram. On the ground that the husband suppressed material facts before Court and he did not approach the Court with clean hands, the Family Court vacated the interim order of injunction granted in O.P.No.74 of 2012. The Family Court also held that the marital relationship being in subsistence, no injunction can be granted against the wife from entering into the house. The order passed by the Family Court vacating the order of injunction is under challenge in this appeal filed by the husband. 

 

5. From the facts narrated above, it is fairly clear that the husband was aware of the order of attachment in O.P.No.61 of 2012 and the filing of M.C.No.25 of 2012 and C.M.P. No.298 of 2012 by the wife. On 19.1.2012, the husband received notice in C.M.P.No.298 of 2012 filed by the wife for a protection order and a residence order under the provisions of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as `PWDV Act’). On the next day of receipt of notice, the husband filed O.P.No.74 of 2012 before the Family Court against the wife and others for injunction and obtained an ad interim order of injunction. On the basis of the interim order of injunction granted by the Family Court, the learned Magistrate did not grant residence order in favour of the wife. From Annexure R5 order passed by the learned Magistrate, it is clear that the learned Magistrate would have granted a residence order in favour of the wife, but for the order of interim injunction granted by the Family Court in favour of the husband restraining the wife from entering into the house. Learned Magistrate also clarified in Annexure R5 order that the wife would be entitled to move an application under Section 25(2) of PWDV Act for modification of the order on the basis of change of circumstances. 

 

6. The Parliament thought that domestic violence is undoubtedly a human rights issue and serious deterrent to development. Keeping pace with the recommendations of the United Nations Committee on Convention and Elimination of All forms of Discrimination Against Women (CEDAW), and being aware that the civil laws of the land do not address the phenomenon of domestic violence in its entirety, the Parliament enacted the PWDV Act. Keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution, the PWDV Act was enacted to protect the women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.

 

7. Sub Section (1) of Section 17 of the PWDV Act provides that notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. In view of sub-section (2) of Section 17 of the PWDV Act, the wife (aggrieved person) shall not be evicted or excluded from the shared household or any part of it by the husband except in accordance with the procedure established by law. The right conferred on the wife under Section 17 of the PWDV Act cannot be defeated by granting an order of injunction restraining her from entering into the shared household. The Civil Court or Family Court could not grant such an injunction, so long as the right of the wife is either admitted or proved or not disputed. Even if a dispute arises as to the right of the wife in the shared household, normally, the Courts would be reluctant to grant an injunction restraining the wife from entering into the house (the shared household) unless it is established that there is no domestic relationship or that the house in question is not a shared household. Section 26 of the PWDV Act provides that any relief available under Sections 18 (protection order), 19 (residence order), 20 (monetary reliefs), 21 (custody orders) and 22 (compensation orders) may also be sought for in any legal proceeding, before a Civil Court, Family Court or a Criminal Court. Any such relief may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a Civil or Criminal Court. Section 26 definitely indicates that the PWDV Act guarantees larger rights in favour of the wife. The nature of the proceedings pending between the parties is quite immaterial and the aggrieved person can seek any of the reliefs under Sections 18 to 22 in any such proceedings. Section 36 of PWDV Act, which provides that the provisions of the Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force, supports Section 17. The aforesaid conclusion is fortified by the decision of the Supreme Court in Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and others ((2008) 4 SCC 649), wherein it was held thus: 

“26. The Domestic Violence Act provides for a higher right in favour of a wife. She not only acquires a right to be maintained but also thereunder acquires a right of residence. The right of residence is a higher right. The said right as per the legislation extends to joint properties in which the husband has a share.” 

8. As held by the court below, the petitioner/husband suppressed material facts. Had it been mentioned in O.P.No.74 of 2012 and the application for the temporary injunction that the wife had filed M.C.No.25 of 2012 and an application under the PWDV Act, the Family Court would not have granted an order of ad interim injunction in favour of the husband. The right of the wife to get a residence order under the PWDV Act was seriously affected by the order of interim injunction granted in O.P.No.74 of 2012 filed by the husband. The conduct of the plaintiff has been such as to disentitle him to the assistance to the Court, as provided under clause (i) to Section 41 of the Specific Relief Act. The court below was justified in allowing the application for vacating the order of injunction. No interference is called for. The FAO is, accordingly, dismissed with costs. 

(K.T.SANKARAN) Judge 

(M.L.JOSEPH FRANCIS) Judge 

ahz/ 

 

 

 

 

 

V.D. Bhanot Vs. Savita Bhanot, (2012) 3 SCC 183 : 2012 AIR SCW 1515

 (2012) 39 SCD 71

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION

ALTAMAS KABIR AND J. CHELAMESWAR, JJ.

Dated:07.02.2012

SPECIAL LEAVE PETITION (Crl.) NO. 3916 OF 2010

Head Note:-

Protection of Women from Domestic Violence Act, 2005 – Section 12 – Even if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the PWD Act, 2005. 

Protection of Women from Domestic Violence Act, 2005 – Section 12 – In looking into a complaint under Section 12 of the PWD Act, 2005, the conduct of the parties even prior to the coming into force of the PWD Act, could be taken into consideration while passing an order under Sections 18, 19 and 20 thereof.

O R D E R 

ALTAMAS KABIR, J.

1. The Special Leave Petition is directed against the judgment and order dated 22nd March, 2010, passed by the Delhi High Court in Cr.M.C.No.3959 of 2009 filed by the Respondent wife, Mrs. Savita Bhanot, questioning the order passed by the learned Additional Sessions Judge on 18th September, 2009, dismissing the appeal filed by her against the order of the Metropolitan Magistrate dated 11th May, 2009.

2. There is no dispute that marriage between the parties was solemnized on 23rd August, 1980 and till 4th July, 2005, they lived together. Thereafter, for whatever reason, there were misunderstandings between the parties, as a result whereof, on 29th November, 2006, the Respondent filed a petition before the Magistrate under Section 12 of the Protection of Women from Domestic Violence Act, 2005, hereinafter referred to as the “PWD Act”, seeking various reliefs. By his order dated 8th December, 2006, the learned Magistrate granted interim relief to the Respondent and directed the Petitioner to pay her a sum of Rs.6,000/- per month. By a subsequent order dated 17th February, 2007, the Magistrate passed a protection/residence order under Sections 18 and 19 of the above Act,protecting the right of the Respondent wife to reside in her matrimonial home in Mathura. The said order was challenged before the Delhi High Court, but such challenge was rejected.

3. In the meantime, the Petitioner, who was a member of the Armed Forces, retired from service on 6th December, 2007, and on 26th February, 2008, he filed an application for the Respondent’s eviction from the Government accommodation in Mathura Cantonment. The learned Magistrate directed the Petitioner herein to find an alternative accommodation for the Respondent who had in the meantime received an eviction notice requiring her to vacate the official accommodation occupied by her. By an order dated 11th May, 2009, the learned Magistrate directed the Petitioner to let the Respondent live on the 1st Floor of House No.D-279, Nirman Vihar, New Delhi, which she claimed to be her permanent matrimonial home. The learnedMagistrate directed that if this was not possible, a reasonable accommodation in the vicinity of Nirman Vihar was to be made available to the Respondent wife. She further directed that if the second option was also not possible, the Petitioner would be required to pay a sum of Rs.10,000/- per month to the Respondent as rental charges, so that she could find a house of her choice.

4. Being dissatisfied with the order passed by the learned Metropolitan Magistrate, the Respondent preferred an appeal, which came to be dismissed on 18th September, 2009, by the learned Additional Sessions Judge, who was of the view that since the Respondent had left the matrimonial home on 4th July, 2005, and the Act came into force on 26th October, 2006, the claim of a woman living in domestic relationship or living together prior to 26th October, 2006, was not maintainable. The learned Additional Sessions Judge was of the viewthat since the cause of action arose prior to coming into force of the PWD Act, the Court could not adjudicate upon the merits of the Respondent’s case.

5. Before the Delhi High Court, the only question which came up for determination was whether the petition under the provisions of the PWD Act, 2005, was maintainable by a woman, who was no longer residing with her husband or who was allegedly subjected to any act of domestic violence prior to the coming into force of the PWD Act on 26th October, 2006. After considering the constitutional safeguards under Article 21 of the Constitution, vis-à-vis, the provisions of Sections 31 and 33 of the PWD Act, 2005, and after examining the statement of objects and reasons for the enactment of the PWD Act, 2005, the learned Judge held that it was with the view of protecting the rights of women under Articles 14, 15 and 21 of theConstitution that the Parliament enacted the PWD Act, 2005, in order to provide for some effective protection of rights guaranteed under the Constitution to women, who are victims of any kind of violence occurring within the family and matters connected therewith and incidental thereto, and to provide an efficient and expeditious civil remedy to them. The learned Judge accordingly held that a petition under the provisions of the PWD Act, 2005, is maintainable even if the acts of domestic violence had been committed prior to the coming into force of the said Act, notwithstanding the fact that in the past she had lived together with her husband in a shared household, but was no more living with him, at the time when the Act came into force. The learned Judge, accordingly, set aside the order passed by the Additional Sessions Judge and directed him to consider the appeal filed by the Respondent wife on merits.

6. As indicated hereinbefore, the Special Leave Petition is directed against the said order dated 22nd March, 2010, passed by the Delhi High Court and the findings contained therein.

7. During the pendency of the Special Leave Petition, on 15th September, 2011, the Petitioner appearing in-person submitted that the disputes between him and the Respondent had been resolved and the parties had decided to file an application for withdrawal of the Special Leave Petition. The matter was, thereafter, referred to the Supreme Court Mediation Centre and during the mediation, a mutual settlement signed by both the parties was prepared so that the same could be filed in the Court for appropriate orders to be passed thereupon. However, despite the said settlement, which was mutually arrived at by the parties, on 17th January, 2011, when the matter was listed for orders to be passed on the settlement arrived atbetween the parties, an application filed by the Petitioner was brought to the notice of the Court praying that the settlement arrived at between the parties be annulled. Thereafter, the matter was listed in-camera in Chambers and we had occasion to interact with the parties in order to ascertain the reason for change of heart. We found that while the wife was wanting to rejoin her husband’s company, the husband was reluctant to accept the same. For reasons best known to the Petitioner, he insisted that the mutual settlement be annulled as he was not prepared to take back the Respondent to live with him.

8. The attitude displayed by the Petitioner has once again thrown open the decision of the High Court for consideration. We agree with the view expressed by the High Court that in looking into a complaint under Section 12 of the PWD Act, 2005, the conduct of the parties even prior to the cominginto force of the PWD Act, could be taken into consideration while passing an order under Sections 18, 19 and 20 thereof. In our view, the Delhi High Court has also rightly held that even if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the PWD Act, 2005.

9. On facts it may be noticed that the couple has no children. Incidentally, the Respondent wife is at present residing with her old parents, after she had to vacate the matrimonial home, which she had shared with the Petitioner at Mathura, being his official residence, while in service. After more than 31 years of marriage, the Respondent wife having no children, is faced with the prospect of living alone at the advanced age of 63 years, without any proper shelter or protection and without any means of sustenance except for a sum ofRs.6,000/- which the Petitioner was directed by the Magistrate by order dated 8th December, 2006, to give to the Respondent each month. By a subsequent order dated 17th February, 2007, the Magistrate also passed a protection-cum-residence order under Sections 18 and 19 of the PWD Act, protecting the rights of the Respondent wife to reside in her matrimonial home in Mathura. Thereafter, on the Petitioner’s retirement from service, the Respondent was compelled to vacate the accommodation in Mathura and a direction was given by the Magistrate to the Petitioner to let the Respondent live on the 1st Floor of House No.D-279, Nirman Vihar, New Delhi, and if that was not possible, to provide a sum of Rs.10,000/- per month to the Respondent towards rental charges for acquiring an accommodation of her choice.

10. In our view, the situation comes squarely within the ambit of Section 3 of the PWD Act, 2005,which defines “domestic violence” in wide terms, and, accordingly, no interference is called for with the impugned order of the High Court. However, considering the fact that the couple is childless and the Respondent has herself expressed apprehension of her safety if she were to live alone in a rented accommodation, we are of the view that keeping in mind the object of the Act to provide effective protection of the rights of women guaranteed under the Constitution, who are victims of violence of any kind occurring within the family, the order of the High Court requires to be modified. We, therefore, modify the order passed by the High Court and direct that the Respondent be provided with a right of residence where the Petitioner is residing, by way of relief under Section 19 of the PWD Act, and we also pass protection orders under Section 18 thereof. As far as any monetary relief is concerned, the same has already been provided by the learned Magistrate andin terms of the said order, the Respondent is receiving a sum of Rs.6,000/- per month towards her expenses.

11. Accordingly, in terms of Section 19 of the PWD Act, 2005, we direct the Petitioner to provide a suitable portion of his residence to the Respondent for her residence, together with all necessary amenities to make such residential premises properly habitable for the Respondent, within 29th February, 2012. The said portion of the premises will be properly furnished according to the choice of the Respondent to enable her to live in dignity in the shared household. Consequently, the sum of Rs.10,000/- directed to be paid to the Respondent for obtaining alternative accommodation in the event the Petitioner was reluctant to live in the same house with the Respondent, shall stand reduced from Rs.10,000/- to Rs.4,000/-, which will be paid to the Respondent in addition to the sum ofRs.6,000/- directed to be paid to her towards her maintenance. In other words, in addition to providing the residential accommodation to the Respondent, the Petitioner shall also pay a total sum of Rs.10,000/- per month to the Respondent towards her maintenance and day-to-day expenses.

12. In the event, the aforesaid arrangement does not work, the parties will be at liberty to apply to this Court for further directions and orders. The Special Leave Petition is disposed of accordingly.

13. There shall, however, be no order as to costs.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

P.T. Hamza Vs. State of Kerala

2012 (1) KHC 718

 IN THE HIGH COURT OF KERALA AT ERNAKULAM 

 

P.S.GOPINATHAN, J. 

= = = = = = = = = = 

Crl. M. C. No. 4507 OF 2011 

= = = = = = = = = = = = = 

Dated this the 1st day of February, 2012 

Head Note:-

Code of Criminal Procedure, Section 482 - Protection of Women from Domestic Violence Act, 2005 - Section 12 – Plea that the petition is not in the Form-II as contemplated under Rule 6 and it was filed suppressing the lodging of complaint alleging offence under Section 498A IPC –  Held, As regards the first ground urged the matter is covered by the  decision in Preceline George v. State of Kerala, 2011 (4) KLT 657. As regards the second count of allegation, it is not at all specified as to what all are the particulars omitted and how it has prejudicially affected the right of the petitioner in defending the petition. No material to come to a conclusion that there is any omission in the petition in respect of any material particular or that the petitioner was anyway prejudiced because of that omission. Bonafide omissions in the pleadings can be cured by amendments. Proceedings before the trial court can no way be interfered under Section 482 Cr.P.C. on vague plea of omissions which is disputed.

For Petitioner:-

• BY ADV. SRI.C.M.MOHAMMED IQUABAL 

For Respondents:-

• BY SRI.K.K.MOHAMED RAVUF PUBLIC PROSECUTOR 
• SRI. RAJESH VIJAYAN. 

O R D E R 

~~~~~~~ 

 

In this petition under Section 482 of the Code of Criminal Procedure, the respondent in M.C.No.323/2011 on the file of the Judicial Magistrate of the 1st Class, Parappanangadi, a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005, seeks an order to quash all further proceedings in the above petition. The plea is that the above petition is not in the Form-II as contemplated under Rule 6. The 2nd ground urged is that the above petition was filed suppressing the lodging of complaint alleging offence under Section 498A IPC. 

 

2. Per contra, the learned counsel for the 2nd respondent, who is the petitioner before the trial court, would submit that though the application is not in the prescribed form, necessary particulars are there in the complaint to proceed with and that Rule 6 is not mandatory but directory. It was also submitted that there is no suppression of any material facts. 

 

3. As regards the first ground urged, I find that the matter is covered by the  decision of this Court in Preceline George v. State of Kerala, 2011 (4) KLT 657. At para 5 the learned Single Judge held as follows: 

“It is not the form that has to be looked into in determining the reliefs canvassed under the Act, but as to whether the allegations set out in such application make out a case for commencement of a proceeding under the Act, which is intended to prevent domestic violence. No prejudice has been caused to the revision petitioner in meeting the claim of maintenance is borne out in the case where it is conceded that the interim maintenance awarded ex parte, on his challenge, had been set aside by this Court. …..” 

Having gone through the argument advanced and the ruling referred, I find no reason to diverge with the above ruling. Therefore, following the said ruling, the first objection raised by the petitioner is over ruled. 

 

4. As regards the second count of allegation, it is not at all specified as to what all are the particulars omitted and how it has prejudicially affected the right of the petitioner in defending the petition. Therefore, I find no material to come to a conclusion that there is any omission in the petition in respect of any material particular or that the petitioner was anyway prejudiced because of that omission. Adding to that, bonafide omissions in the pleadings can be cured by amendments for which opportunity is to be given to the second respondent. Proceedings before the trial court can no way be interfered under Section 482 Cr.P.C. on vague plea of omissions which is disputed. Therefore, I find that this petition is devoid of any merit. In the result, this petition is dismissed. 

 

P.S. GOPINATHAN, JUDGE. Knc/- 

 

 

 

 

 

 

 

 

 

 

Chitrangathan Vs. Seema C.

 

 (2012) 261 KLR 879 : 1 (2008) DMC 365

IN THE HIGH COURT OF KERALA AT ERNAKULAM

K. HEMA, J. 

—————————————— 

Crl.M.C.No. 2998 of 2007 

——————————————- 

CC.159/2007 of C.J.M.,KOLLAM

 

Dated this the 14th day of October, 2009. 

Head Note:-

Protection of Woman from Domestic Violence Act, 2005 - The provisions of the Act introduced for protecting women from acts of domestic violence committed against her by a person who is in domestic relationship with her. But, while protecting the rights of a woman, the court has to be careful and cautious in not violating the rights of the male also.  

Protection of Woman from Domestic Violence Act, 2005 – Wrong Order - It is to be borne in mind that any wrong order passed in haste without looking into the provisions of the Act will harm the woman herself, since by such wrong order passed, it is likely that the relationship between the parties may become more strained and it will lead to disastrous consequences in the family relationship. If the court is not cautious in passing orders under the Act, the woman herself may be victim of the wrong order and that is not what the legislature has intended by the Act. 

Protection of Woman from Domestic Violence Act, 2005 - Section 31 - Penalty for breach of protection order by respondent. 

Held:- Merely because an aggrieved person mounts the box and states that the person shown as respondent in the cause title committed breach of protection order and thereby he committed the offence, the court cannot proceed against him. 

Protection of Woman from Domestic Violence Act, 2005 - Section 2(q) – Respondent – Meaning of. 

Held:- A plain reading of the definition of “respondent” in Section 2(q) will show that a respondent is not a person who is shown as a respondent in the cause title or against whom an order is passed under the provisions of the Act. There is a definite meaning given to the expression “respondent”. A person can be proceeded against under Section 31 of the Act only if there is breach of the particular order passed by the court by the respondent.  

Protection of Woman from Domestic Violence Act, 2005 - Section 2(f) – Respondent – Domestic Relationship – Meaning of. 

Held:- The “respondent” means any adult male who is, or has been, in a ‘domestic relationship’ with the aggrieved person and against whom the aggrieved person has sought for relief under the Act. The expression ‘domestic relationship’ is also defined under the Act. A reading of Section 2(f) shows that there is definite meaning given to said expression,”domestic relationship”. It is a relationship between two person who “live” or at any point of time have “lived together” in a shared household when they are related by consanguinity, marriage etc. It is clear from a reading of Section 2(f) that it is not sufficient if parties are wife or husband or father or daughter etc. to proceed against a male person under the provisions of the Act. But what is most relevant under Section 2(f) is that such persons who are related by consanguinity, marriage etc. must live or must have lived together at any point of time. Merely because the applicant and the respondent stated in the petition have a relationship by consanguinity or marriage, the court cannot conclude that there is any domestic relationship as defined under the said Section. The court must confirm that they lived or have lived together at any point of time in a shared household. So, for the mere reason that the parties to the petition filed under the provisions of the Act are father or the daughter or husband and wife, court cannot conclude that there is domestic relationship as defined under the Act. The court must find out from the materials available whether the accused satisfies the requirements under Section 2(q) of the Act and he “is” or “has been” in domestic relationship with the aggrieved person. The expressions “is” and “has been” are also relevant and those denote present tense.  

Protection of Woman from Domestic Violence Act, 2005 - Section 2(s) – Shared Household – Meaning of. 

Held:- The definition domestic relationship also refers to “shared household”. The shared household has also specific meaning under Section 2(s) of the Act. A plain reading of Section 2(s) shows that ‘shared household’ is a ‘household’, but ‘household’ does not mean a ‘house’. The ‘household’ is not defined under the Act. As per Oxford Concise Dictionary (7th Edn.) the word “household” means “occupants of house; domestic establishment, all the people living together in a house”. As per Co Build English Language Dictionary, the word “household” means, all the people in a family or group who live together in a house. The word “household” means “a family living together; (2) a group of people who dwell under the same roof”( vide Black’s Law Dictionary). Learned counsel for petitioner pointed out that it is laid down by the Supreme Court in Oswal Asro Mills Ltd. v. C.C.E. ((1993) Suppl. 3 SCC 716) that the word “household” signifies a family living together. Therefore, shared household cannot be confined to a house where they live together. It implicates a living together of people in a family in a domestic establishment. Going by the dictionary meaning, the word “household” means occupants of the house or the people who live together in a house of the people in a family. Therefore, a house where the aggrieved persons reside alone, strictly speaking, cannot be treated as a household. 

Protection of Woman from Domestic Violence Act, 2005 - Sections 2(s), 12(1) and 31 -  Respondent - Domestic Relationship – Shared Household - To constitute a shared household, there must be a living together by the aggrieved person and the respondent against whom a relief is sought for.

Held:- Having gone through the meaning given to “domestic relationship” and “respondent” under the Act, it is evident that “shared household” as stated in Section 2(s) cannot be a mere house which is taken on rent by the wife or the husband or the parties to the petition. To constitute a shared household, there must be a living together by the aggrieved person and the respondent against whom a relief is sought for. Interestingly, there are no averments in the petition under Section 12(1) or in the affidavit from which the court can infer that the petitioner herein is “respondent” as defined under the Act. There are absolutely no allegations or averments made either in the petition under Section 12(1) or in the affidavit in Form-III from which the court can conclude that there was ‘domestic relationship’ or ‘shared household’ or that the petitioner is a ‘respondent’ as stated in the Section. The trial court has passed the impugned order against petitioner even without confirming whether averments in the petition disclose that petitioner is a person who falls under the definition of “respondent”. He is proceeded against under Section 31 of the Act and restrained from doing certain acts against the first  respondent even without confirming whether he is a “respondent” as defined under the Act. At any rate, the petitioner cannot be proceeded for offence under Section 31 of the Act, since no protection order is passed against him. The order allegedly breached is a “residence order” and hence no offence under Section 31 will be attracted. When the matter came up for revision before this Court, another Bench of this Court held that Annexure-B order is only a residence order. Therefore, for this sole reason itself petitioner ought not to have been proceeded against under Section 31 of the Act. The proceedings initiated under Section 31 of the Act against petitioner is illegal. 

FOR PETITIONER(S)/ACCUSED: 

——————— 

• BY ADVS.SRI.M.BALAGOVINDAN 
• SRI.M.R.SASITH 

FOR COMPLAINANT(S)/COMPLAINANT & STATE: 

———————————– 

• BY PUBLIC PROSECUTORS (SRI.B.VINOD & SRI.P.A.SALIM) 

O R D E R 

 

A petition was filed by first respondent herein (daughter) against petitioner (father) under Section 31 of the Protection of Woman from Domestic Violence Act, 2005 (‘the Act’ for short), alleging that petitioner violated a protection order issued by the court etc. The petitioner filed a written objection to the petition and, after hearing both sides, the Magistrate court found that, prima facie, there is a breach of “protection order” passed by the court by the petitioner herein and hence, a case was taken on file as C.C.No.159/2007 under Section 31 of the Act, by virtue of Annexure-D order. 

 

2. This petition is filed to quash Annexure-D order and also further proceedings initiated against petitioner, pursuant to such order. The relevant facts, which are necessary to dispose of this petition can be briefly narrated as follows:- 

 

A lady Advocate filed a petition against her father before Magistrate Court seeking reliefs under the Act. In the main petition, she also filed a petition (C.M.P.No.1523/07) under Section 12(1) of the  Act and sought for an order under Section 19 of the Act to restrain her father from dispossessing or throwing her out from the shared household and from entering that portion of the shared household in which she resides. An affidavit was also filed under Section 23(2) of the Act stating that she had been living with the respondent at “Sreepadma” since 1.1.2007 and that she apprehended repetition of the acts of domestic violence from her father and that he had threatened her that at any costs he would evict her from the shared household. 

 

3. The Magistrate passed Annexure-B order ex parte under Section 23 of the Act by which petitioner is restrained from evicting his daughter from the premises (which is described in paragraph 8 of the affidavit). Notice was issued to petitioner. Petitioner entered appearance. In the meantime, on 14.3.2007, the daughter had also filed another petition under Section 23(2) of the Act which is taken on file as C.M.P.1706/07 seeking an order under Section 19(d) of the Act. Petitioner-father, on appearance, filed a counter affidavit denying the allegations made in the petition stating that the application filed under the Act is not maintainable, since as per the averments made by first respondent-daughter, she was residing in the house under the strength of a rent deed. Hence, only the civil courts will have jurisdiction to grant the relief. 

 

4. It is also stated in the counter affidavit that the house in respect of which an order is sought by the applicant is in possession, occupation and enjoyment of the petitioner’s wife. The said property was purchased by the wife of the petitioner. Petitioner and his wife are permanently residing in Thiruvananthapuram whereas the house referred to in this case is in Kollam. Petitioner’s wife is a retired Professor. The respondent herein had approached petitioner and his wife demanding Rs. 5 lakhs to settle some of her liabilities. When the petitioner informed his inability to raise the amount, the respondent and her husband, who is also an advocate, started harassing petitioner and his wife in several ways. She started residing in the house constructed in the property of petitioner’s wife, after looting the articles in the household and keeping her own articles in the house. 

 

5. Thereafter, a petition was filed by the respondent herein as Crl.M.P.No.1769/07 alleging that petitioner manhandled her for forcibly evicting her from the shared household on 13.2.2007 and she was rescued by her husband, who is also a lawyer. A complaint was also filed in respect of the incidents before the police and on the same day, she was allegedly staying in the relatives house and when she came to the shared household on the next day afternoon, the respondent allegedly found her household articles being kept outside by petitioner’s men and the house was also found looted and that immediately, the matter was reported to the police etc. 

 

6. It is also alleged that she was directed to remove all the household articles from the compound and hence, she was forced to take away household articles on 14.3.2007 afternoon. Thus, she was forcibly evicted from the shared household, in violation of the order granted by the Court in C.M.P.No.1523/07. The cause of action arose on 13.3.2007 on the date on which complainant was evicted from the shared household. Therefore, the respondent asserts that no action be taken for the breach of the “protection order” under Section 31 of the Act. 

 

7. Petitioner herein filed a detailed counter-affidavit denying all the allegations made therein stating that from 13.3.2007 onwards, petitioner was admitted in District Hospital, Kollam as inpatient and he was discharged only on 19.3.2007. The respondent was not dispossessed from the house but the complaint was filed only to escape from the legal proceedings initiated against first respondent’s husband for manhandling petitioner, by violating the order of the court. Petitioner also initiated proceedings against first respondent’s husband and obtained an order. According to petitioner, his daughter, in collusion with her husband, had fabricated some documents purporting to be the rent deed etc. but no action can be taken against petitioner on the strength of the petition filed under Section 31 of the Act. 

 

8. This case was heard on more than one day. First respondent was represented by her counsel Sri.B.S.Sivaji and he was heard in the matter in detail but yesterday, he reported that he got instruction from first respondent that she did not want to engage him to argue the matter any more and hence, he reported no instruction. I heard learned counsel for petitioner and learned Public Prosecutors Sri.B.Vinod and Sri. P.A. Salim, who also helped this court in taking a decision in this case. There is no representation for respondent when the case was called today. 

 

9. Learned counsel for petitioner argued that there is no protection order in this case. Annexure-B order is only an order passed under Section 19 of the Act and it is a “residence order” and hence no action can be taken under Section 31 of the Act. As per Section 31 of the Act, only a breach of protection or interim protection order by the respondent would be punishable under Section 31. Considering the same matter, in Crl.R.P.No.1216 of 2007, a learned single Judge of this Court, as per order dated 4.9.2007 in paragraph 5 of the order held that the relevant order (Annexure-C herein) is a “residence order” passed under Section 19 read with Section 23(2) of the Act. The said order has become final. 

 

10. It is also pointed out that even as per the allegations made by first respondent herself, the house in respect of which she has sought the reliefs under the Act, is occupied by first respondent as a “tenant” under the petitioner’s wife. The fact that she took the house on rent is specifically alleged in the affidavit filed by respondent. She had also filed a written statement in a civil suit filed by petitioner’s wife as O.S.220/07 seeking prohibitory injunction against first respondent herein and she raised specific contentions that with effect from 1.1.2007, she along with her husband shifted their residence to the house involved in this case on the strength of rent deed executed in favour of petitioner’s wife. 

 

11. The civil court has considered the dispute between first respondent and petitioner’s wife and after considering rival contentions, passed an order on 23.8.2008 restraining first respondent and her husband from causing any sort of nuisance or interference to the peaceful living of petitioner’s wife in the house etc. The said decree has become final and it is not challenged by the respondent herein or her husband. In such circumstances, the first respondent is not entitled to get any order against the petitioner under the provisions of the Act, it is argued. 

 

12. On hearing petitioner’s counsel and learned Public Prosecutors in detail, the first question to be considered is whether petitioner can be proceeded against under Section 31 of the Act. Section 31 reads as follows. 

“Penalty for breach of protection order by respondent:- (1) A breach of protection order, or of any interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both. 

(2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused. 

(3) While framing charges under sub- section (1), the Magistrate may also frame charges under Section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1906 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.” 

13. A reading of Section 31 shows that if there is a breach of the protection order, or interim protection order by the respondent, it will amount to an offence under the Act and is punishable with imprisonment of either description for a term which may extend one year or with fine which may extend Rs.20,000/- or both. The said offence shall, as far as possible, be tried by the Magistrate who passed the order, the breach of which is alleged to have been caused by the accused. 

 

14. It is clear from Section 32(2) that upon the sole testimony the court “may” conclude the commission of the offence by the accused. But on a close reading of the various provisions in the Act, I find that merely because an aggrieved person mounts the box and states that the person shown as respondent in the cause title committed breach of protection order and thereby he committed the offence, the court cannot proceed against him. 

 

15. The person, who is shown in the cause title as respondent, cannot be proceeded against under Section 31 of the Act. Only if the court finds that such person falls within the definition of “respondent” in Section 2(q) of the Act, he can be proceeded against under Section 31. To constitute offence under Section 31 of the Act there has to be breach of protection order or interim protection order by “respondent”. “Respondent” is defined in Section 2(q) of the Act. Section 2(q) reads as follows: 

“Respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: 

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner”. 

16. A plain reading of the definition of “respondent” in Section 2(q) will show that a respondent is not a person who is shown as a respondent in the cause title or against whom an order is passed under the provisions of the Act. There is a definite meaning given to the expression “respondent”. A person can be proceeded against under Section 31 of the Act only if there is breach of the particular order passed by the court by the respondent. 

 

17. The “respondent” means any adult male who is, or has been, in a ‘domestic relationship’ with the aggrieved person and against whom the aggrieved person has sought for relief under the Act. The expression ‘domestic relationship’ is also defined under the Act. A reading of Section 2(f) shows that there is definite meaning given to said expression,”domestic relationship”. It is a relationship between two person who “live” or at any point of time have “lived together” in a shared household when they are related by consanguinity, marriage etc. 

 

18. It is clear from a reading of Section 2(f) that it is not sufficient if parties are wife or husband or father or daughter etc. to proceed against a male person under the provisions of the Act. But what is most relevant under Section 2(f) is that such persons who are related by consanguinity, marriage etc. must live or must have lived together at any point of time. Merely because the applicant and the respondent stated in the petition have a relationship by consanguinity or marriage, the court cannot conclude that there is any domestic relationship as defined under the said Section. 

 

19. The court must confirm that they lived or have lived together at any point of time in a shared household. So, for the mere reason that the parties to the petition filed under the provisions of the Act are father or the daughter or husband and wife, court cannot conclude that there is domestic relationship as defined under the Act. The court must find out from the materials available whether the accused satisfies the requirements under Section 2(q) of the Act and he “is” or “has been” in domestic relationship with the aggrieved person. The expressions “is” and “has been” are also relevant and those denote present tense.

 

20. The definition domestic relationship also refers to “shared household”. The shared household has also specific meaning under Section 2(s) of the Act. A plain reading of Section 2(s) shows that ‘shared household’ is a ‘household’, but ‘household’ does not mean a ‘house’. The ‘household’ is not defined under the Act. As per Oxford Concise Dictionary (7th Edn.) the word “household” means “occupants of house; domestic establishment, all the people living together in a house”. As per Co Build English Language Dictionary, the word “household” means, all the people in a family or group who live together in a house. The word “household” means “a family living together; (2) a group of people who dwell under the same roof”( vide Black’s Law Dictionary). 

 

21. Learned counsel for petitioner pointed out that it is laid down by the Supreme Court in Oswal Asro Mills Ltd. v. C.C.E. ((1993) Suppl. 3 SCC 716) that the word “household” signifies a family living together. Therefore, shared household cannot be confined to a house where they live together. It implicates a living together of people in a family in a domestic establishment. Going by the dictionary meaning, the word “household” means occupants of the house or the people who live together in a house of the people in a family. Therefore, a house where the aggrieved persons reside alone, strictly speaking, cannot be treated as a household. 

 

22. Having gone through the meaning given to “domestic relationship” and “respondent” under the Act, it is evident that “shared household” as stated in Section 2(s) cannot be a mere house which is taken on rent by the wife or the husband or the parties to the petition. To constitute a shared household, there must be a living together by the aggrieved person and the respondent against whom a relief is sought for. Interestingly, there are no averments in the petition under Section 12(1) or in the affidavit from which the court can infer that the petitioner herein is “respondent” as defined under the Act. 

 

23. There are absolutely no allegations or averments made either in the petition under Section 12(1) or in the affidavit in Form-III from which the court can conclude that there was ‘domestic relationship’ or ‘shared household’ or that the petitioner is a ‘respondent’ as stated in the Section. The trial court has passed the impugned order against petitioner even without confirming whether averments in the petition disclose that petitioner is a person who falls under the definition of “respondent”. He is proceeded against under Section 31 of the Act and restrained from doing certain acts against the first  respondent even without confirming whether he is a “respondent” as defined under the Act. 

 

24. At any rate, the petitioner cannot be proceeded for offence under Section 31 of the Act, since no protection order is passed against him. The order allegedly breached is a “residence order” and hence no offence under Section 31 will be attracted. When the matter came up for revision before this Court, another Bench of this Court held that Annexure-B order is only a residence order. Therefore, for this sole reason itself petitioner ought not to have been proceeded against under Section 31 of the Act. The proceedings initiated under Section 31 of the Act against petitioner is illegal. 

 

25. The trial court passed a hasty order under Section 31 of the Act without even confirming whether the person against whom the order is passed falls under the definition of “respondent” who is in “domestic relationship” and “lives” or “has lived” in shared household. The provisions of the Act introduced for protecting women from acts of domestic violence committed against her by a person who is in domestic relationship with her. But, while protecting the rights of a woman, the court has to be careful and cautious in not violating the rights of the male also.

 

26. It is to be borne in mind that any wrong order passed in haste without looking into the provisions of the Act will harm the woman herself, since by such wrong order passed, it is likely that the relationship between the parties may become more strained and it will lead to disastrous consequences in the family relationship. If the court is not cautious in passing orders under the Act, the woman herself may be victim of the wrong order and that is not what the legislature has intended by the Act. 

 

27. In the result, Annexure-D order passed against petitioner and the proceedings initiated against him, consequent to the said order under Section 31 of the Act are illegal and those are hereby quashed. This Crl.M.C. is allowed. 

 

Sd/- K. HEMA, JUDGE. 

krs.