Karnataka High Court
Sri Bhaskar vs T Prema Tangavelu on 10 February, 2020
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL REVISION PETITION NO.503 OF 2012
BETWEEN
SRI BHASKAR
S/O LATE BASAVARAJAPPA,
AGED ABOUT 58 YEARS,
RESIDING AT D.No.9, 5TH CROSS,
OPP:BENAKA ITI TRAINING COLLEGE,
KAVERI MAIN ROAD,
RAGHAVENDRA NAGAR,
MYSORE-570 011.
... PETITIONER
(BY SRI DYLAN DOMINIC, ADV., FOR
SRI KEMPEGOWDA, ADV.)
AND
T.PREMA TANGAVELU
W/O TANGAVELU,
MAJOR, RESIDING AT
D.No.146, EWS,
3RD STAGE, BANNI MANTAP,
MYSORE.
... RESPONDENT
(BY SMT. P.V.KALPANA, ADV.)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 OF THE CODE OF CRIMINAL PROCEDURE, 1973,
PRAYING TO SET ASIDE THE ORDER EXAMINING THE LEGALITY,
PROPRIETY AND CORRECTNESS OF THE ORDERS PASSED IN
CRL.A.No.109/2011 DATED 10.02.2012 BY THE V ADDITIONAL
DISTRICT AND SESSIONS JUDGE, AT MYSORE.
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THIS CRIMINAL REVISION PETITION COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed by the petitioner under Section 397 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') assailing the order passed by the Judicial Magistrate First Class-III, Mysore in Crl.Mis.No.10/2009 dated 13.11.2009 (hereinafter referred to as 'trial Court') for having allowed the petition in part and granting maintenance to the respondent under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short 'D.V.Act') and the same was upheld by the V Additional District and Sessions Judge, Mysore (hereinafter referred to as 'First Appellate Court') in Crl.A.No.109/2011 dated 10.02.2012.
2. Heard the argument of the learned counsel for the petitioner as well as learned counsel for the respondent.
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3. The rank of the parties before the trial Court is retained for the sake of convenience.
4. The case of the petitioner is that the petition under Section 12 'D.V.Act' came to be filed before the trial Court through the Child Development Project Officer, Mysore alleging that the petitioner T.Prema Tangavelu has contended that she has married to the respondent on 25.08.2005 at Sri Manjunatha Temple at Dharmastala with the presence of elders and well wishers. Prior to that, the petitioner was married to one Tangavelu and obtained the decree of Divorce and thereafter got married to the respondent. The petitioner is having one male child and one female child from her 1st husband. After marriage with the respondent, the petitioner taken the respondent to her parent's house and they were living happily for sometime. Later, the respondent started to visit the house of the petitioner once in a month and not shown any interest to set up a separate matrimonial home at his place and not provided house-hold articles and basic necessities. 4 He never spent his quality time and income for the welfare of the family. The petitioner approached the Mahila Sangha on 17.05.2008 and she approached Women Protection Officer and the respondent is also said to have given undertaking and later not shown any interest. Hence, the said application came to be filed seeking maintenance of Rs.20,000/- per month towards food, clothing, children's education and treatment.
5. The respondent appeared through his counsel before the trial Court and filed objection by denying the averments made in the petition as false and stated that the petitioner approached the respondent seeking financial help and the respondent helped the petitioner two times only on humanitarian ground and by taking advantage of this, the petitioner came up with the false story and tried to gain illegally. The respondent is a reputed person having wife, three children and also grand children and hence, prayed for dismissing of the petition. 5
6. On behalf of the petitioner, petitioner herself examined as PW.1 and got marked 17 documents and on behalf of the respondent, he himself examined as RW.1 and got marked two documents. After considering the evidence on record, the trial Court allowed the petition in part and directed the respondent to pay Rs.20,000/- per month as maintenance to the petitioner. Assailing the same, the petitioner filed an appeal before the First Appellate Court in Crl.A.No.109/2011 under Section 29 of the D.V.Act which came to be dismissed and up held the order of the trial Court. Assailing the same, the petitioner is before this Court by way of revision petition.
7. The learned counsel for the petitioner has strenuously contended that the order under revision passed by the trial Court is unsustainable in the law. The respondent has not at all proved the marriage with the petitioner and further contended that the petitioner/alleged wife failed to prove the marriage with the respondent. Even otherwise, if the alleged marriage is admitted, the 6 respondent is a married man having wife and three children, grand children, such being the case, the marriage itself is a void marriage under the Hindu Marriage Act. Though, the petitioner is a divorcee, she has to take care of her family by herself. The petitioner and respondent lived together for sometime that cannot be considered as legal marriage and also the husband and wife in the eye of law. Therefore, granting maintenance to the petitioner by the trial Court cannot be sustainable in law. In support of his contention, the learned counsel for the respondent has relied upon the judgment of the Hon'ble Supreme Court in the cases of Indra Sarma vs. V.K.V.Sarma reported in LAWS(SC) 2013 11 42 in Crl.A.No.2009 of 2013, dated 26.11.2013 and D.Velusamy vs. D.Patchaiammal reported in 2010 AIR SCW 6731.
8. Per contra, the learned counsel for the petitioner has supported the order passed by the both the court below and has contended that the petitioner has succeeded on proving the marriage between the petitioner 7 and the respondent at Sri Manjunatha Temple, Dharmastala. Therefore, the respondent used to visit the house of the petitioner and stayed together as per the photographs. Apart from that, in the cross-examination, the respondent himself admitted about the marriage of the petitioner with the respondent. Once they lived together as husband and wife, then it is deemed to be a valid marriage. In support of his contention, the learned counsel has relied upon the judgment of the Hon'ble Supreme Court in the case of Chanmuniya vs. Virendra Kumar Singh Kushwaha and another in Civil Appeal No.--of 2019 (arising out of SLP (Civil) No.15071 of 2009). Hence, prayed for dismissing the revision petition.
9. Upon hearing the argument of learned counsel for both the parties and on perusal of the records, the point that arise for my consideration is:
"Whether the order passed by the trial Court awarding maintenance and upheld by the First Appellate Court call for interference."8
10. On perusal of the record, the petitioner is alleged to be the wife of the respondent and the marriage is said to be held on 25.08.2005 at Dharmastala. To prove her marriage, she has produced some photographs as per Exs.P8 to 13 and also a passbook, Election ID card and out patient card of the hospital. On the other hand, the case of the respondent is one of the total denial. However, in the cross-examination, it reveals that, both of them were residing together for sometime which has not been seriously disputed by the respondent.
11. Before considering the grounds urged by both the counsels, it is worth to mention some of the admitted facts. It is an admitted fact that the petitioner was already married to Tangavelu and out of the said wedlock, she is having one male child and one female child aged more than 9 to 10 years and she is also said to have obtained divorce against her first husband. It is also not in dispute that the respondent is having wife, three children and also grand children. The petitioner has contended that she 9 married the respondent on 25.08.2005 and lived together for sometime. Thereafter, the respondent used to visit the petitioner's house once in a month. He was not looking after the maintenance of their family. The learned counsel for the petitioner has contended that once the respondent admitted the fact that he was residing with the petitioner in a house as husband and wife for a long period, they should be deemed to be husband and wife and even otherwise, the petitioner produced a valid documents to prove that the marriage is a valid marriage.
12. In support of his contention, the learned counsel has relied upon the judgment of the Hon'ble Supreme Court in the case of Chanmuniya (supra), wherein at paragraph Nos.12, 13, 14 and 15 it is held as under:
12. On the question of presumption of marriage, we may usefully refer to a decision of the House of Lords rendered in the case of Lousia Adelaide Piers & Florence A.M. De Kerriguen v. Sir Henry Samuel Piers [(1849) II 10 HLC 331], in which their Lordships observed that the question of validity of a marriage cannot be tried like any other issue of fact independent of presumption. The Court held that law will presume in favour of marriage and such presumption could only be rebutted by strong and satisfactory evidence.
13. In Lieutenant C.W. Campbell v. John A.G.Campbell [(1867) Law Rep. 2 HL 269] also known as the Breadalbane case, the House of Lords held that cohabitation, with the required repute, as husband and wife, was proof that the parties between themselves had mutually contracted the matrimonial relation. A relationship which may be adulterous at the beginning may become matrimonial by consent.
This may be evidenced by habit and repute. In the instant case both the appellant and the first respondent were related and lived in the same house and by a social custom were treated as husband and wife. Their marriage was solemnized with Katha and Sindur. Therefore, following the ratio of the decisions 11 of the House of Lords, this Court thinks there is a very strong presumption in favour of marriage. The House of Lords again observed in Captain De Thoren v. The Attorney-General [(1876)1 AC 686], that the presumption of marriage is much stronger than a presumption in regard to other facts.
14. Again in Sastry Velaider Aronegary & his wife v. Sembecutty Viagalie & Others [(1881) 6 AC 364], it was held that where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.
15. In India, the same principles have been followed in the case of A.Dinohamy v.
W.L.Belahamy [AIR 1927 P.C.185], in which the Privy Council laid down the general proposition that where a man and woman are proved to have lived together as man and wife, the law will presume, unless, the contrary is clearly proved, that they were living together 12 in consequence of a valid marriage, and not in a state of concubinage."
13. The Hon'ble Supreme Court in the case of Chanmuniya (supra) has relied upon the judgment in the case of Vimala (K) vs. Veeraswamy (K) reported in 1991 2 SCC 375 at paragraph Nos.25 and 26 held as follows:
25. A three-Judge Bench of this Court held that Section 125 of the Code of 1973 is meant to achieve a social purpose and the object is to prevent vagrancy and destitution.
Explaining the meaning of the word 'wife' the Court held:
"..The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage. The term 'wife' in Section 125 of the Code of Criminal Procedure, 13 includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term 'wife' consistent with the objective..."
26. Thus, in those cases where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay the woman maintenance if he deserts her. The man should not be allowed to benefit from the legal loopholes by enjoying the advantages of a de facto marriage without undertaking the duties and obligations. Any other interpretation would lead the woman to vagrancy and destitution, which the provision of maintenance in Section 125 is meant to prevent."
14. The Hon'ble Supreme Court has framed three points and referred the matter to the larger Bench at paragraph No.45 is as follows:
45. We, therefore, request the Hon'ble Chief Justice to refer the following, amongst other, 14 questions to be decided by a larger Bench.
According to us, the questions are:
1. Whether the living together of a man and woman as husband and wife for a considerable period of time would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under Section 125 Cr.P.C.?
2. Whether strict proof of marriage is essential for a claim of maintenance under Section 125 Cr.P.C. having regard to the provisions of Domestic Violence Act, 2005?
3. Whether a marriage performed according to customary rites and ceremonies, without strictly fulfilling the requisites of Section 7(1) of the Hindu Marriage Act, 1955, or any other personal law would entitle the woman to maintenance under Section 125 Cr.P.C.?"
15. On the other hand, the learned counsel for the respondent relied upon the judgment of Hon'ble Supreme Court in the case of D.Velusamy (supra) wherein at paragraph Nos.33, 35, 36 held as under: 15
"33. In our opinion a 'relationship in the nature of marriage' is akin to a common law marriage. Common law marriages require that although not being formally married:-
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry:
(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
In our opinion a 'relationship in the nature of marriage' under the 2005 Act must also fulfill the above requirement, and in addition the parties must have lived together in a 'shared household' as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a 'domestic relationship'.
35. No doubt the view we are taking would exclude many women who have had a live-in relationship from the benefit of the 2005 Act, but then it is not for this Court to legislate or 16 amend the law. Parliament has used the expression 'relationship in the nature of marriage' and not 'live in relationship'. The Court in the garb of interpretation cannot change the language of the statute.
36. In feudal society sexual relationship between man and woman outside marriage was totally taboo and regarded with disgust and horror, as depicted in Leo Tolstoy's novel 'Anna Karenina', Gustave Flaubert's novel 'Madame Bovary' and the novels of the great Bengali writer Sharat Chandra Chattopadhyaya."
16. In another judgment in the case of Indra Sarma (supra), the Hon'ble Supreme Court has held at paragraph Nos.55, 56, 57, 58 and 65 as under:
"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, 17 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.18
(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.
19(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-in-relationship 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, 1927 AIR (PC) 185 that where a man and a woman are proved to have lived together as husband and wife, the law presumes that 20 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 1952 AIR(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 21 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. 22
58. Velusamy case 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."
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 live-in relationship in the nature of marriage. All live-in- relationships 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 23 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."
17. On perusal of paragraph No.55 of Indra Sarma's case (supra), which is applicable to the case on hand, the respondent is said to have married person having wife, three children and also grand children, which is a known fact to the petitioner. Even the said alleged marriage between the petitioner and the respondent is said to be held at Sri Manjunatha Temple, Dharmastala. Though, no valid proof is required as per Section 7 of the Hindu Marriage Act, in order to prove their marriage, Even otherwise, as per the judgment relied upon by the 24 respondent's counsel, the first marriage of the petitioner has not been proved but in the case on hand, it is an admitted fact that both of them are married persons prior to the alleged marriage. As the respondent is a married man, having wife, children and grand children, marriage with the petitioner at Dharmastala is nothing but a void marriage under Section 5 of the Hindu Marriage Act and it is required to be declared as void as per the provisions under Section 11 of the Hindu Marriage Act. Such being the case, even if they live together in a house as husband and wife without a divorce by the respondent from his wife that cannot be said to be a valid marriage.
18. As per the view taken by the Hon'ble Supreme Court at Paragraph No.57 in Indra Sarma's case (supra), the petitioner cannot be considered as legally wedded wife and their marriage is not valid marriage in order to claim the maintenance from the petitioner. Considering the evidence on record, merely the production of voter ID card which was obtained subsequent to the dispute between the 25 parties prior to filing of the case before the trial Court. Therefore, those documents cannot be considered. On the other hand, the documents produced by the petitioner goes to show that father name of the children of the petitioner is shown as Tangavelu and even otherwise, the name of the petitioner continued with the surname of her first husband as T. Prema Tangavelu. If at all she was legally married to the respondent, the question of continuing her name with surname as Tangavelu does not arise after marrying the respondent. Therefore, the contention raised by the petitioner's counsel cannot be acceptable that the marriage between the petitioner and respondent is a valid marriage or they should be deemed to be wife and husband under the provision of the D.V.Act.
19. Therefore, the trial Court and First Appellate Court has committed error in holding that the petitioner and respondent are wife and husband which is not correct in view of the judgment of the Hon'ble Supreme Court in the case of Indra Sarma (supra). Therefore, the petitioner 26 has failed to prove that she is a legally wedded wife of the respondent and therefore, she is not entitled for any maintenance under the D.V.Act. Therefore, the order of maintenance passed by the trial Court and upheld by the First Appellate Court is required to be set aside. Accordingly, I pass the following order:
Criminal Revision Petition is allowed.
The order passed by the both the Court below are hereby set aside.
Any amount deposited is directed to be refunded to the petitioner with due identification.
In view of disposal of main petition, I.A.No.1/2020 does not survive for consideration and the same is disposed of.
Sd/-
JUDGE GBB