Bangalore District Court
Marry @ Pushpa Ramesh vs Sri P. Ramesh Raj on 1 August, 2016
1 Crl.Ap.No.291/2014
IN THE COURT OF THE LIX ADDL.CITY CIVIL
& SESSIONS JUDGE, BANGALORE CITY
Dated this the 1st day of August 2016
PRESENT
************
Sri B. B. Jakati, B.A., LL.B., (Spl.)
LIX ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY
Crl. Appeal No.291/2014
APPELLANT: 1. Marry @ Pushpa Ramesh.
W/o Sri P. Ramesh Raj,
Aged about 36 years.
R/at No.7, 16th cross,
4th Main, Dollars colony
R.M.V. 2nd stage,
Bangalore - 94.
2. Sri Ganesh,
S/o Sri P. Ramesh Raj,
Aged about 11 years,
R/at No.7, 16th cross,
4th Main, Dollars colony
R.M.V. 2nd stage,
Bangalore - 94.
Since minor Represented by
Mother and natural guardian
Appellant no.1
3. Sri Vaibhav,
S/o Sri P. Ramesh Raj,
Aged about 9 years,
R/at No.7, 16th cross,
4th Main, Dollars colony
R.M.V. 2nd stage,
2 Crl.Ap.No.291/2014
Bangalore - 94.
Since minor Represented by
Mother and natural guardian
Appellant no.1.
-Vs-
RESPONDENT: Sri P. Ramesh Raj,
S/o Papanna,
Aged about 52 years,
Occ.business,
R/at No.8, 10th cross,
Mayur Beedi,
Papanna Bhadrappa Layout,
R.M.V. 2nd Stage,
Nagashettyhalli,
Bengaluru.
JUDGMENT
Being aggrieved by the Order dated 28.02.2014 passed in Crl.Misc.No.196/2011 by the Learned Metropolitan Magistrate, Traffic - VI, Bengaluru City, the present Appeal has been filed under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as D.V. Act)
2. The appellants are the petitioners and the opponent is the respondent before the court below and the same rank will be referred to herein for the sake of brevity and convenience.
3. The petitioners filed the petition under Section 12(1) of D.V. Act against the respondent for monthly maintenance of 3 Crl.Ap.No.291/2014 Rs.30,000/-, a sum of Rs.15,000/- for separate residence, for Rs.10,000/- towards miscellaneous expenses and Rs.75,000/- as compensation for the domestic violence committed by the respondent on them.
4. In the petition the petitioners have contended that marriage of first petitioner was solemnized with the respondent on 16.01.2000 and through the marriage the 2nd and 3rd petitioners were born on 22.08.2002 and on 22.04.2004. The marriage was love marriage and the members of the family of the respondent opposed the marriage. Therefore, the respondent not taken the first petitioner to his house and the first petitioner was residing with her parents' house. In 2005 June, the first petitioner came to know that respondent had married and through his marriage he had two daughters by name Bindu and Chandana. Thereafter, the first wife of the respondent died on 25.04.2006. In August 2008 the respondent taken the petitioners to his house and the petitioners were residing with the respondent in a shared household and therefore there was a domestic relationship. In July 2009, the respondent quarreled with the first petitioner at the instigation of his first daughter - Bindu, assaulted and driven out all the petitioners 4 Crl.Ap.No.291/2014 from his house. Then the respondent given many cruelty to the first petitioner and lastly filed O.S.5071/2009 and got the order of permanent injunction against the first petitioner restraining her from entering into the shared household. The first petitioner has challenged the said decree by filing MFA.6141/2009 which is pending. Even the respondent has filed two criminal cases against the first petitioner and in this way the respondent has committed domestic violence. On these grounds the petitioner sought for the relief stated above.
5. The respondent appeared through his counsel and filed his objection by denying his relationship with the petitioners and interalia contended that the first petitioner is not his wife and the petitioners No.2 and 3 are not his children. The petitioners are not aggrieved persons within the meaning of D.V. Act. He has pleaded that he married R. Kalyani on 13.05.1990 and from said marriage he has got two children by name Bindu and Chandana. All of them are residing together. R. Kalyani died on 25.04.2006. After her death, the first petitioner approached the respondent requesting to provide job as she was working in NGO by name M/s. Chaithanya Mahila Samaja. On humanitarian ground and as 5 Crl.Ap.No.291/2014 there was a need of maid servant to look after the daughters, the respondent appointed the first petitioner as housemaid. After sometime the first petitioner started to visit frequently to the house of respondent and therefore, he has removed the first petitioner from service. Thereafter, at the intervention of above said NGO, again in August 2008 the respondent allowed the first petitioner to work in his house as maidservant and the petitioners were residing in the house of respondent in such status. The respondent was taking care of education expenses of 2nd and 3rd petitioners. Then the first petitioner claiming herself as wife of the respondent and quarreling with the daughters of the respondent and hence, the respondent driven out the petitioners from his house. The first petitioner and her relatives were quarrelling with the respondent and therefore, the respondent obtained decree in O.S.5071/2009 and such decree is in force. Even the respondent has filed two criminal cases against the first petitioner and her relatives which are pending before the court. On these contentions, the respondent has pleaded that there is no domestic relationship between himself and the petitioners and therefore, the petitioners 6 Crl.Ap.No.291/2014 are not entitled for any of the reliefs. Accordingly, prayed to reject the petition.
6. To prove the claim, the first petitioner examined herself as PW.1 and got marked documents at Ex.P.1 to Ex.P.12. The respondent entered into the witness-box and deposed as RW.1 and got marked documents at Ex.D.1 to Ex.D.21. He has not submitted for cross-examination and therefore, his evidence was discarded. Both parties filed written arguments before the trial court. The trial court on the basis of the material on record held that the first petitioner is not the wife, 2nd and 3rd petitioners are not the children of respondent and therefore, there is no domestic relationship. It has been held that the first petitioner is not the aggrieved person within the meaning of D.V.Act and therefore, the petition under Section 12 of D.V.Act is not at all maintainable. The trial court placed reliance on the decision reported in 2010(1) SCC 469 and 2011(6) KLJ 3545 to give such finding and accordingly, rejected the petition. Against such order, the petitioners have preferred the present appeal.
7. The respondent appeared through his counsel after service of notice of the appeal. The lower court records have been 7 Crl.Ap.No.291/2014 secured. The petitioners filed I.A.No.I under Section 45 of The Evidence Act read with Section 391 of Cr.P.C. for DNA test of the petitioners and the respondent to ascertain the fact whether the petitioners No.2 and 3 are the children of respondent or not. The petitioners have also filed I.A.No.II under Section 391 of Cr.P.C. for production of additional evidence in the form of documents. Both the applications have been opposed by the respondent by filing objections. Both applications are taken along with main matter for disposal.
8. The learned counsel for the petitioners has argued that the petitioners filed application under Section 45 of The Indian Evidence Act read with Section 53 of Cr.P.C. before the trial court for DNA test and the trial court has passed an order that said application has to be heard and decided only after recording the evidence of both sides. But after recording the evidence of both sides, the trial court without deciding the application under Section 45 of The Evidence Act and Section 53 of Cr.P.C. proceeded to pass judgment holding that there is no domestic relationship which is contrary to law. He has further argued that there is ample evidence produced by the petitioner to show that there is domestic 8 Crl.Ap.No.291/2014 relationship between the petitioners and the respondent and such evidence has not been rebutted by the respondent either through oral or documentary evidence. As the evidence of PW.1 was struck sown, then also the trial court has not believed the evidence of PW.1 and her records without any reason and given erroneous finding on the relationship. He has argued that now the petitioners intending to produce the School Certificates of the 2nd and 3rd petitioners which are necessary to decide whether the petitioners No.2 and 3 are the children of respondent. Those records are to be accepted as additional evidence which will throw light on the dispute between the parties and it will enable the court to pass judgment in accordance with law. On these main grounds, the learned counsel for the petitioner prayed to set-aside the order challenged in this Appeal.
9. The learned counsel for the respondent has argued that the petitioners themselves have admitted in the petition as ell as in the evidence of PW.1 to the effect that the respondent married R. Kalyani, he had daughters by name Bindu and chandana and such admissions are sufficient to hold that prior to the alleged marriage of first petitioner with the respondent, there 9 Crl.Ap.No.291/2014 was a legal marriage of respondent with R. Kalyani. The alleged marriage between the respondent and the first petitioner is void under Section 5 of Hindu Marriage Act. There is no evidence on record to show that there was live-in relationship between the petitioner and the respondent and therefore, there was no relation in the character of a marriage and hence, there is no domestic relationship between the petitioners and the respondent. Such fact has been accepted by the trial court based on the evidence on record and by relying the decisions quoted in the judgment and hence, there is no necessity to interfere with the judgment. In support of his arguments he placed reliance on the decision reported in 2010 AIR SCW 6731 (D.Veluswamy V.D.Patchaiammal), 2013 AIR SCW 6783 (Indra Sarma Vs. K.V.Sarma) , ILR 2014 Kar 2899 (Sri Ningappa and others V/s. Sri Shankar, since dead Rep. by his LRs.) and (2015)1 SCC 365 (Dipanwita Roy V/s. Ronobroto Roy). He has also argued that there is no necessity to conduct DNA test. Even if it is conducted, no purpose would be served as the marriage between the first petitioner and the respondent is hit by the provisions of Hindu 10 Crl.Ap.No.291/2014 Marriage Act. Accordingly, prayed to reject both applications and to dismissal the appeal.
10. In the light of the submissions made by both the parties and the material evidence on record, the following points arise for determination:
1. Whether the trial court has committed any error in law in not deciding the application filed under Section 45 of The Evidence Act and Section 53 of Cr.P.C. which has resulted into mis-
carriage of justice?
2. Whether the additional evidence in the form of documents produced by the petitioners along with I.A. No.I filed under Section 391 of Cr.P.C. are necessary to decide the controversy between the parties?
3. What Order?
7. My finding to the above points are as under:-
POINT Nos.1 & 2 :- In the Affirmative POINT No.3 :- As per final order, for the following:-
REASONS 11 Crl.Ap.No.291/2014
8. POINT Nos.1 AND 2 :- The petitioners have categorically contended that the marriage of respondent was solemnized with first petitioner on 16.01.2000 and through such marriage, the 2nd and 3rd petitioners born to the respondent. This allegation has been specifically denied by the respondent. Therefore, whether the first petitioner is the wife, 2nd and 3fd petitioners are the children of the respondent is the fact in issue. If the petitioners are able to prove their relationship with the respondent, then only the alleged domestic violence comes into picture. The petitioners in the petition as well as in the evidence of PW.1 have admitted that the respondent suppressed his marriage with R. Kalyani and birth of two daughters by name Bindu and Chandana and such fact has been subsequently discovered and known to the petitioners. However, the petitioners have admitted that the first wife of the respondent is R. Kalyani, Bindu and Chandana are the daughters of respondent born through the first wife. In the background of these admitted facts, whether there was relationship between the first petitioner and the respondent in the nature of the marriage has to be decided. If the petitioners establish that there was relationship between the first petitioner and the respondent in the 12 Crl.Ap.No.291/2014 nature of the marriage, they may succeed in proving the domestic relationship with the respondent and in that event, the first petitioner falls within the definition of aggrieved person defined under D.V.Act.
9. The Hon'ble Supreme Court in D.Veluswamy V.D.Patchaiammal decision in Para Nos.33 and 34 held as under:
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 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 weekends together or a one night stand would not make it a 'domestic relationship'.13 Crl.Ap.No.291/2014
34. In our opinion no 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'.
10. The Hon'ble Supreme Court in the case of Indira Sarma in para No.55 laid down the 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 D.V.Act which reads 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, 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 14 Crl.Ap.No.291/2014 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., 15 Crl.Ap.No.291/2014
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 determine the nature of that relationship.
11. In the later judgment the Hon'ble Supreme Court has held that 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., It is further held that having the children is a strong indication of a relationship in 16 Crl.Ap.No.291/2014 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 of marriage.
12. The decisions referred above clearly show that if there was live-in relationship between man and woman irrespective of their previous marriage which is in the nature of the marriage, that amounts to marriage like relationship and in that event the aggrieved person can seek protection under D.V.Act. In the present case admittedly the respondent married R. Kalyani and through her he has got two children. The respondent in the objection has admitted that he allowed the petitioners to stay in his house for some period. Having regard to these facts, whether there was marriage like relationship between the first petitioner and the respondent has to be decided. If the petitioners are able to prove that there was marriage like relationship, then they would succeed in this petition.
13. To prove the domestic relationship the petitioners have produced the Birth Certificate of 2nd petitioner and 3rd petitioner at Ex.P.6 and Ex.P.7. In Ex.P.6, the name of respondent is not mentioned, whereas the name of first petitioner has been mentioned as Pushpa Ramesh S. In Ex.P.7 the name of the respondent has 17 Crl.Ap.No.291/2014 been shown as father of 3rd petitioner. The PW.1 has deposed that she is the wife of respondent, 2nd and 3rd petitioners are the children of respondent. Such evidence has been denied by the respondent. No rebuttal documentary evidence has been produced by the respondent to discard Ex.P.6 and P.7. The trial court has not accepted Ex.P.6 and Ex.P.7 without giving any reasons.
14. The petitioners after filing of the objections by the respondent, filed application under Section 45 of The Evidence Act read with Section 53 of Cr.P.C. for DNA test. The trial court has kept that application in abeyance till completion of evidence from both the sides. But after completion of evidence of both sides, the trial court not decided the said application and proceeded to pass the judgment holding that there is no domestic relationship. If the application was allowed by the trial court, DNA test was conducted, then there would be expert opinion on the fact in issue. Such opportunity has not been used by the trial court. Even the trial court has not rejected the application. If the application was rejected, the petitioners would have taken the matter to Appellate Courts for their remedy. Therefore, it is very clear that the non-disposal of application filed under Section 45 of Evidence Act deprived the 18 Crl.Ap.No.291/2014 opportunity of the petitioners to prove their domestic relationship with the respondent.
15. In the appeal also the petitioners have filed similar application under Section 45 of Evidence Act for DNA test. When the trial court has not disposed of such application and when there is no finding of the trial court on such application, it is very difficult for the Appellate Court to give its finding on the application. Apart from that, if the Appellate Court allows the application filed under Section 45 of Evidence Act, subjected the parties for DNA test and in the event the DNA test is positive, then opportunity has to be given to the parties to lead evidence on such report.
16. The petitioners intending to produce the School records of 2nd and 3rd petitioners. In these School records, the name of the father of the petitioners No.2 and 3 have been shown as Ramesh Raja and the name of the respondent is also Ramesh Raja. Therefore, these records are material records to ascertain the relationship between the parties to the proceedings. Such records would help the court to give proper finding on the relationship between the parties. Having regard to these aspects of the matter, I hold that the trial court has committed error in not disposing of the 19 Crl.Ap.No.291/2014 application filed under Section 45 of Evidence Act read with Section 53 of Cr.P.C. which has resulted into mis-carriage of justice. Further, I hold that the document sought to be produced are necessary to give proper finding on the relationship between the parties. Therefore, the matter requires to be remanded to the trial court for consideration of the application pending and also to record the additional evidence of the parties. Hence, the above points are answered accordingly.
17. POINT NO.3: - For the reasons stated above and my findings on the point Nos.1 and 2, I proceed to pass the following:
ORDER The Criminal Appeal filed under Section 29 of the Protection of Women from Domestic Violence Act, 2005 is hereby allowed.
The Order dated 28.02.2014 passed by the Learned Metropolitan Magistrate, Traffic - VI, Bengaluru City in Crl.Misc.No.196/2011 is set-
aside.20 Crl.Ap.No.291/2014
I.A.No.II filed under Section 391 of Cr.P.C.
is allowed.
I.A.No.I filed under Section 45 of Evidence Act and Section 391 of Cr.P.C. is disposed off.
Consequently the matter is remanded to the trial court with a direction to hear the parties on the application filed under Section 45 of Evidence Act read with Section 53 of Cr.P.C. and pass the order in accordance with law.
Further the trial court is directed to receive the documents sought to be produced under Section 391 of Cr.P.C. and to give opportunity to both the parties to lead additional evidence and then dispose of the matter afresh in accordance with law without influenced by any observation made in this appeal.
Send the copy of the order, I.A.No.II filed under Section 391 of Cr.P.C. and the records produced along with such application, along with LCR to the trial court.21 Crl.Ap.No.291/2014
Both parties are hereby directed to appear before the trial court on 01.09.2016 without waiting for notice.
The trial court shall take the matter on 01.09.2016 and proceed with the matter in accordance with law.
(Dictated to the Judgment-writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 1st day of August 2016).
(B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.
22 Crl.Ap.No.291/201401.08.2016:
(Order pronounced in open court, vide separate detailed order) ORDER The Criminal Appeal filed under Section 29 of the Protection of Women from Domestic Violence Act, 2005 is hereby allowed. The Order dated 28.02.2014 passed by the Learned Metropolitan Magistrate, Traffic - VI, Bengaluru City in Crl.Misc.No.196/2011 is set- aside.
I.A.No.II filed under Section 391 of Cr.P.C. is allowed.
I.A.No.I filed under Section 45 of Evidence Act and Section 391 of Cr.P.C. is disposed off. Consequently the matter is remanded to the trial court with a direction to hear the parties on the application filed under Section 45 of Evidence Act read with Section 53 of Cr.P.C. and pass the order in accordance with law.
Further the trial court is directed to receive the documents sought to be produced under Section 391 of Cr.P.C. and to give opportunity to both the parties to lead additional evidence and then dispose of the matter afresh in accordance 23 Crl.Ap.No.291/2014 with law without influenced by any observation made in this appeal.
Send the copy of the order, I.A.No.II filed under Section 391 of Cr.P.C. and the records produced along with such application, along with LCR to the trial court.
Both parties are hereby directed to appear before the trial court on 01.09.2016 without waiting for notice.
The trial court shall take the matter on 01.09.2016 and proceed with the matter in accordance with law.
(B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.
24 Crl.Ap.No.291/201425 Crl.Ap.No.291/2014