Delhi District Court
Yogesh Kumar vs State on 30 July, 2018
IN THE COURT OF DR. NEERA BHARIHOKE,
ADDITIONALSESSIONS JUDGE06, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL No.148/2018
Yogesh Kumar
S/o Shri Onkar Singh
R/o RZ190/2, Gali No.13,
Durga Park, Palam,
New Delhi . . . . . . . Appellant
Versus
1. State
2. Ms. Renu
W/o Shri Yogesh
3. Baby Mahi (Minor)
Both r/o H. No. C85, BlockC,
Pocket11, Janta Flats, Village Jasola,
Delhi
. . . . . . . Respondents
Date of Institution : 23.03.2018
Date of Arguments : 13.07.2018
Date of Judgment : 30.07.2018
JUDGMENT
1. Vide this Judgment, I shall decide the appeal filed against order dated 20.01.2016 whereby Ld. Trial Court held the application of the CA No.148/18 Page No. 1 of 14 complainants/respondent no. 2 and 3 filed under Section 12 and 23 of Protection of Domestic Violence Act (hereinafter referred to as "DV Act") against the appellant herein to be maintainable and after recording the said finding/order, allowed the application for issuing the order to the concerned authorities for DNA test of the appellant to determine the paternity of respondent no. 3.
2. Respondent No.2 and 3 did not appear despite being served. However, respondent No.2 filed the written submissions on 23.07.2018 after the matter was reserved for orders wherein she desnied all the submissions made in the appeal and submitted that there is no merit in the present appeal and the appeal as well as application for stay of the proceedings deserves to be dismissed.
3. Perusal of the impugned order reveals that maintainability of the complaint case before learned trial court was challenged by the appellant on the ground that the parties were never married to each other and did not even have any relationship which was in the nature of marriage. It was also argued by the appellant before the learned trial court that complainant/respondent was his tenant and that was the only relationship of the complainant with the appellant herein. He denied marriage or other domestic relationship with the complainant/respondent no. 2. It was also argued on behalf of the appellant that complainant/respondent no. 2 was married to one Rohtash Kumar on 06.12.2000 and from this marriage she had 2 children. Appellant had also stated that since 2004, Rohtash Kumar CA No.148/18 Page No. 2 of 14 went missing.
4. Learned trial court has observed in the impugned order that the fact of previous marriage of complainant/respondent no. 2 has been admitted by her during the course of arguments. Learned trial court has observed that the complainant/respondent no. 2 stated that she had only one child namely Mahi with appellant. Appellant filed copy of aadhar card of complainant/respondent no. 2 where she had given the name of the said Rohtash Kumar as her husband. Appellant also relied upon photographs of his actual marriage with some other woman in which respondent no. 2 is seen to be attending the said function.
5. On the other hand, learned counsel for respondent no. 2 argued before learned trial court that on account of absence of first husband of complainant/respondent no. 2, relationship developed between the parties out of which a child Mahi was born. Copy of birth certificate of child Mahi was filed where the name of the appellant has been mentioned as the father of child. Respondent no. 2 also relied upon some photographs of her and appellant performing some puja together on the occasion of birth of their child. Some photographs showing the parties residing in domesticity and going on trips was also relied upon by the respondent no. 2.
6. Learned trial court observed that both the parties have relied on documents to support the respective claims regarding relationship of CA No.148/18 Page No. 3 of 14 the parties. The said issue is triable issue which cannot be decided without leading of evidence. It was further observed that at this stage without any evidence for the court to weigh, it cannot be decided if the parties are married or have any relationship in the nature of marriage which is required for DV Act. Learned trial court observed that this issue can be decided only after leading of evidence at the final stage of judgment. After giving these observations, learned trial court observed that the petition is maintainable.
7. Respondent No.2 and 3 filed the written submissions on 23.07.2018 after the matter was reserved for orders.
8. It has been argued on behalf of the appellant that all the submissions made by the appellant before learned trial court were correct and for that no evidence is required as the respondent no. 2 in her petition has already admitted the facts that lead to only one conclusion that there is no relationship of marriage or any relationship in the nature of marriage between the parties and thus leading of evidence is not required to prove the sustainability of the objections. It has been argued that the petition is not maintainable under DV Act.
9. Respondent no. 2 and 3 did not appear despite being served. However the complaint under section 12 read with section 17, 18, 19, 20 and 22 of DV Act filed by the respondent no. 2 and 3 is perused.
10. In para 1 of the said complaint, respondent no. 2 has admitted CA No.148/18 Page No. 4 of 14 that she had solemnized marriage with one Rohtash on 06.12.2000 and also the fact of birth of 2 children out of the said wedlock. She has also admitted that since 2004 her husband, Rohtash, went missing leaving her and her children alone. She has also stated in para2 of the said complaint that through her counsel she published a public notice in Delhi newspaper Rashtriya Sahara dated 14.04. 2010 of severing her relationship with her husband who was missing and had never contacted since November 2004.
11. It is pertinent to note that in para 1 in para2 of the complaint she had specifically referred to the said Rohtash as her husband. It is a settled law that missing of a spouse for 7 years is a ground of divorce under Hindu Marriage Act available to the other spouse. However missing of husband for 7 years in itself does not lead to automatic divorce of the husband with the wife and giving of such public notice has no effect on relation of respondent no. 2 with the said Rohtash and they continue to be husbandandwife.
12. In para 3 of the complaint, respondent no. 2 has admitted that she started residing at the address Om Enclave, Faridabad along with her both children from 20.12.2006.
13. She has stated that the appellant started taking care of her and trapped her and assured her that she would be taken care by the appellant and on 05.03.2007, she and the appellant solemnized marriage in the temple.
CA No.148/18 Page No. 5 of 1414. However, in view of the respondent no. 2 being already married to the said Rohtash, her socalled alleged marriage with the appellant is no marriage in the eyes of law. This conclusion does not require any evidence.
15. In para 8 of the complaint, Respondent No. 2 has also admitted that the appellant solemnized second marriage with a lady. Again there is no force in the said submission of respondent no. 2 as the appellant was not a married man when he married the said lady about which the respondent no. 2 has stated in para no. 8 of her complaint before learned trial court. Thus, no evidence is required for reaching that conclusion and thus his marriage with the said lady was his first marriage.
16. As regards giving of birth of respondent no. 3, namely Mahi, on 17.08. 2013 out of the said alleged relationship of the appellant with Respondent No. 2, the same becomes significant if only the complaint is held to be maintainable.
17. For claiming any relief under the provisions of DV Act, respondent no. 2 has to prove that she is having a relationship of marriage or relationship in the nature of marriage with the appellant.
18. So far the admitted facts are that respondent no. 2 married one Rohtash on 06.12.2000 and 2 children were born out of the said wedlock. Respondent no. 2 in her complaint has also admitted that CA No.148/18 Page No. 6 of 14 there has been no divorce between two of them and that appellant is married to another woman. Thus both the parties were aware of these facts. Deeming the submissions of the respondent no. 2 in the said complaint to be correct, at best it can be said that the appellant and respondent no. 2 were in a live in relationship as alleged by respondent no. 2 in her complaint.
19. In D. Velusamy versus D Patchaimmal 2010 (4) LRC 133 (SC), it was observed that "a relationship in the nature of marriage" is akin to a commonlaw marriage. In the said matter it was observed as: "Common law marriage requires that although not being formally married:
a) The couple must hold themselves out to society of 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."
20. In the matter of D Velusamy, it was observed as: ".. In our opinion, 'a relationship in the nature of marriage' under the 2005 Act must also fulfil the above requirements and in addition, the parties must have lived together in a 'shared household' as defined in section 2(s) of the Act. Merely spending CA No.148/18 Page No. 7 of 14 weekends together or of a nightstand would not make it a domestic relationship.
In our opinion not all live in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005. To get such benefit the conditions mentioned by us above must be satisfied and this has to be proved by evidence. If a man has a 'keep' whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage. 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 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."
21. The complainant, i.e. the respondent no. 2 herein was not legally qualified to enter into a valid marriage. In the matter of Indra Sarma vs V.K.V.Sarma on 26 November, 2013 while deciding Criminal Appeal no. 2009 OF 2013, SLP (CRL.) No.4895 of 2012, Hon'ble Supreme Court observed as: "56. 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 CA No.148/18 Page No. 8 of 14 wife may raise the presumption of marriage, but the presumption which may be drawn from long cohabitation 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.
CA No.148/18 Page No. 9 of 1458. Velusamy case (supra) stated that instances are many where married persons 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.
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.
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 CA No.148/18 Page No. 10 of 14 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 livein 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 relationship would not fall within the definition of "domestic relationship" under Section 2(f) of the DV Act. If we hold that the CA No.148/18 Page No. 11 of 14 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 livein 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."
CA No.148/18 Page No. 12 of 1422. The observations of Hon'ble Supreme Court cited above are self speaking. In the aforecited judgment, appellant had entered into live in relationship knowing well that the respondent was a married person and encouraged bigamous relationship and in the facts of the complaint case filed by respondent no. 2, if the facts alleged by her are taken to be true and correct, respondent no. 2 continued her relationship with appellant knowing well that he was a married person and encouraged bigamous relationship, the law laid down in the aforecited judgment would apply i.e. Appellant's and the respondent no.2'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 it is held that the relationship between the appellant and the respondent is a relationship in the nature of a marriage, it would be an injustice to the legally wedded wife of appellant. In view of these observations, it is held that the relationship between the parties i.e. appellant and respondent no. 2 cannot be held to be a relationship of marriage or a relationship in the nature of marriage and accordingly the complaint case before the learned trial court is not maintainable and therefore in view of the same, the 2nd part of the impugned order directing for conducting of DNA tests to determine eternity of minor child namely Mahi is not sustainable.
CA No.148/18 Page No. 13 of 1423. In view of these observations, the appeal is allowed and complaint case bearing no.1650/2017 is dismissed for being non maintainable and impugned order directing for conducting of DNA tests to determine eternity of minor child namely Mahi is set aside. It is made clear that wherever in the present order, the submissions of respondent no. 2 in her complaint before learned trial court, the same have been deemed to be correct only for deciding this appeal without actually adverting to their correctness/truthfulness.
24. A true copy of the Judgment be sent to learned trial court alongwith the trial court record.
25. Appeal file be consigned to record room.
Announced in the open court on 30.07.2018 (Dr. Neera Bharihoke) Additional Sessions Judge06, South East,Saket Courts, New Delhi Digitally signed by NEERA BHARIHOKE NEERA BHARIHOKE Date:
2018.07.31 19:49:56 +0530 CA No.148/18 Page No. 14 of 14