Himachal Pradesh High Court
Smt. Kala Devi vs Shri Mehar Singh And Ors on 9 December, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 183 of 2019
Reserved on : 25.11.2019
Date of Decision: 9 .12.2019.
___________________________________________________________
[
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Smt. Kala Devi .........Petitioner.
Versus
Shri Mehar Singh and Ors. ..........Respondents.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
For the petitioner: Mr. J.L. Bhardwaj, Advocate.
For the respondents: Mr. Vijay K. Verma, Advocate.
______________________________________________________________
Sandeep Sharma, J. (Oral)
Petitioner-applicant (hereinafter referred to as "the applicant") filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short "the Act") in the Court of learned Judicial Magistrate Kullu, District Kullu, H.P., praying therein; (i) protection order under Section 18 of the Women from Domestic Violence; (ii) residence order under Section 19 of the Women from Domestic Violence; and (iii) monetary relief under Section 20 of the Women from Domestic Violence i.e. medical expenses to the tune of Rs. 50,000/- and physical and mental harassment Rs.
1,00,000/-. Apart from above, applicant also prayed for sum of Rs. 1,50,000/-
on account of food, clothes and other necessities. In total, the applicant beside claiming monthly maintenance in the sum of Rs. 5,000/- claimed Rs.
7,00,000/-.
2. The applicant claimed that her marriage with respondent No.1 was solemnized in the month of July, 2012, according to Hindu Rites and Customs and as such, she being legally wedded wife of respondent No.1 is Whether reporters of the Local papers are allowed to see the judgment?
::: Downloaded on - 10/12/2019 20:39:32 :::HCHP -2-entitled for maintenance under the Act. Applicant claimed that after solemnization of her marriage, she lived with respondent No.1 as legally wedded wife and performed her marital obligations sincerely towards her .
husband i.e. respondent No.1 and his family members. She also stated in the application that she is a divorcee and out of her first marriage, two children were born, who at presently are living with their maternal grandmother.
Applicant claimed that her relationship with respondent No.1 was cordial for about 3-4 months, whereafter he started demanding money from the applicant but when she expressed her inability to fulfill the demands made by the respondent, respondent No.1 allegedly under the influence of liquor started beating, maltreating and torturing her without any reason at the instance of respondents No. 2 to 4. The applicant also claimed that she was not provided with proper food and clothing. In the second week of December, 2013, applicant/petitioner escaped from the house of respondent No.1 and started living at village namely Sarabai, P.O. Bhuntar, District Kullu, H.P. Complainant claimed that she repeatedly requested the respondents to provide monthly maintenance to her, but her such request was not acceded to. Complainant claimed that her mother is a very poor person and is unable to provide proper food, medical expenses and clothing to her, whereas respondent No.1 belongs to a very rich family having sufficient movable and immovable property and is earning more than Rs. 40,000/- p.m. The applicant claimed that she has no source of income and is unable to maintain herself and as such, appropriate orders may be passed.
3. The aforesaid application filed by the applicant came to be resisted by the respondent, who in his reply stated that the applicant is not his ::: Downloaded on - 10/12/2019 20:39:32 :::HCHP -3- legally wedded wife. Respondent No.1 also denied factum, if any, with regard to solemnization of marriage inter-se him and the applicant. Respondent also denied the allegation of beatings, maltreating or torturing of the applicant.
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4. Learned CJM, Kullu, District Kullu, H.P., vide order dated 21.6.2018, dismissed the application of the applicant on the ground that applicant has not been able to prove that she is legally wedded wife of respondent No.1 or she is in domestic relationship with respondent No.1 (Annexure P-4).
5. Being aggrieved and dissatisfied with aforesaid order passed by the learned CJM, Kullu, the applicant preferred an appeal under Section 29 of the Act i.e. criminal appeal No. 19 of 2018 in the court of learned Additional Sessions Judge, Kullu, H.P., who vide order dated 4.12.2018, dismissed the appeal, as a consequence of which, aforesaid order passed by the CJM came to be upheld. In the aforesaid background, the applicant has approached this Court in the instant proceedings filed under Section 397 read with Section 401 Cr.PC, praying therein to allow her application under Section 12 of the Act, after setting aside impugned order and judgment passed by the courts below.
6. I have heard the learned counsel for the parties and gone through the records.
7. Having heard learned counsel for the parties and perused material available on record, this Court finds that though in the case at hand, respondent claimed that applicant is not his legally wedded wife, but both the courts below on the basis of cogent and convincing evidence led on record by the applicant arrived at a definite conclusion that marriage inter-se applicant and respondent No.1 was solemnized.
::: Downloaded on - 10/12/2019 20:39:32 :::HCHP -4-8. Since there is no challenge to the finding recorded by both the courts below with regard to solemnization of marriage inter-se applicant and respondent No.1 on behalf of the respondent-husband, there is no occasion .
for this Court to go into that aspect of the matter. Otherwise also, having carefully perused material adduced on record by the applicant to substantiate her marriage with respondent No.1, this court sees no reason to differ with the aforesaid findings returned by both the courts below.
9. Though, in the case at hand, both the courts below have categorically held that it stands duly established on record that respondent No.1 had solemnized marriage with the applicant, but since the applicant was unable to prove on record that she had not solemnized marriage with respondent No.1 during the subsistence of her earlier marriage with person namely Jai Singh, both the courts below held that applicant is neither legally wedded wife of respondent No.1 nor she is in domestic relationship with him.
Material available on record reveals that applicant prior to her marriage with respondent No.1 had solemnized marriage with two persons namely Jai Singh and Hari Ram, respectively
10. RW3 Hari Ram deposed before the court below that he contracted marriage with the applicant about 10 to 12 years back and thereafter took divorce in the year, 2006 as per local custom. This witness in his cross-examination admitted that no entry ever came to be made in the record of Panchayat qua his marriage with the applicant. This witness also admitted that no issue was born out of their wedlock.
11. The applicant Kala Devi while appearing as AW3 tendered her evidence by way of affidavit Ext.AW3/A and deposed that she is legally ::: Downloaded on - 10/12/2019 20:39:32 :::HCHP -5- wedded wife of respondent No.1 and her marriage with respondent No.1 was solemnized in the month of July, 2012 according to Hindu Rites and Customs.
The applicant also deposed that she is a divorcee and out of her first marriage, .
two children were born, who at presently, are living with their maternal grandmother. In her cross-examination, the applicant admitted that she had contracted two marriages; one with Jai Singh; and other with Mehar Chand/Singh (respondent No.1), whereas it has come on record that prior to contracting marriage with Jai Singh, the applicant had also contracted marriage with RW2 Hari Ram. Though the applicant denied the suggestion put r to to her that in the year, 2004, she had contracted marriage with Hari Ram, but RW3 Hari Ram categorically stated before the court below that he had contracted marriage with the applicant about 10 to 12 years back. The applicant Kala Devi with a view to prove her divorce with her earlier husband Jai Singh also placed on record divorce deed Ext. AW1/A. With a view to prove the aforesaid deed, the applicant examined AW1 Shri Narayan Dass, Document Writer, who deposed that divorce deed Ext. AW1/A was written by him at the instance of the applicant Kala Devi and respondent Jai Singh in the presence of witness namely Shri Balwant, Pyaru Ram and identifier Daya Ram.
This witness deposed that he had read over and explained the contents of the divorce deed Ext. AW1/A to both the parties, which were accepted by them to be correct. This witness also deposed that entry of divorce deed in register is at Sr. No. 350 and 351 dated 26.6.2012(ExtAW1/B). In his cross-examination, this witness feigned ignorance that the applicant had not disclosed to him that she had already contracted marriage. He also admitted that he did not ask the applicant about her earlier marriage. AW2 Daya Ram, Lambardar, also ::: Downloaded on - 10/12/2019 20:39:32 :::HCHP -6- deposed that at the instance of both the parties i.e. Kala Devi and Jai Singh, divorce deed Ext. AW1/A was written by Narayan Dass, Document Writer. In his cross-examination, this witness also feigned ignorance with regard to the .
applicant's earlier marriage with Hari Ram/Hari Singh.
12. If the statement of the applicant is read juxtaposing the statements having been made by AW1 Sh. Narayan Dass and AW2 Daya Ram, it clearly emerges that the applicant prior to her marriage with respondent No.1 had also contracted marriage with Jai Singh, but thereafter they both by way of customary divorce separated from each other on 26.6.2012 (Ext.AW1/A).
13. In the case at hand, though it clearly emerges from the evidence collected on record by the applicant that applicant before contracting marriage with respondent No.1 had taken customary divorce from her earlier husband Jai Singh, but such fact with regard to her having taken customary divorce from Jai Singh never came to be pleaded nor proved in accordance with law. As has been taken note herein above, the applicant in her application though has disclosed factum with regard to her earlier marriage, but there is no specific pleading with regard to her having taken customary divorce from her earlier husband Jai Singh. In para-3 of the application, the applicant has simply averred that she is a divorcee and out of her first marriage, two children were born, who at presently, are living with their maternal grandmother. As per the applicant, she is legally wedded wife of respondent No.1 and she had taken divorce from her previous husband. She has further stated that she is Hindu and her marriage with respondent No.1 was solemnized as per Hindu Rites. Needless to say, marriage inter-se Hindus can ::: Downloaded on - 10/12/2019 20:39:32 :::HCHP -7- be dissolved by way of decree of divorce passed by the competent court strictly in terms of provisions contained in the Hindu Marriage Act or by customary divorce.
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14. It is well settled that when plea of customary divorce is taken, custom is to be pleaded and proved in accordance with law. In the case at hand the applicant has neither pleaded custom nor has been able to prove that she took customary divorce from her earlier husband Jai Singh. Since applicant failed to plead any custom, execution of divorce deed Ext. AW1/A is of no relevance and it cannot be said that marriage of the applicant with Jai Singh was dissolved in accordance with law. The applicant deposed that she was having two children from her first marriage, who are living with their material grandmother, whereas RW3 Hari Ram, deposed that he had contracted marriage with the applicant about 10 to 12 years back and thereafter took divorce in the year, 2006. This witness in his cross-examination admitted that no issue was born from their wedlock, meaning thereby, the applicant prior to her marriage with Jai Singh was also married with one another person.
15. As per Section 12 of the Act, an aggrieved person can file application/complaint under Section 12 of the Act against the respondent. As per provisions contained under Section 2 (a) of the act, "an aggrieved person"
means any woman, who is in domestic relationship with the respondent and alleges that she has been subjected to domestic violence by the respondent.
In the instant proceedings, precisely the question needs to be determined is "whether relationship of the applicant and respondent No.1 can be said to be relationship in the nature of marriage and thus falls within the definition of ::: Downloaded on - 10/12/2019 20:39:32 :::HCHP -8- domestic relationship as defined under Section 2 (f) of the Act?" Though in the case at hand, material available on record suggests that marriage of the applicant with respondent No.1 was solemnized, but since dissolution of her .
earlier marriage with person namely Jai Singh was not proved in accordance with law, courts below have rightly held that applicant was not competent to enter legal marriage with respondent No.1. The expression "domestic relationship" includes not only the relationship of marriage, but also a "relationship in the nature of marriage".
16. Unfortunately, expression "relationship in the nature of marriage"
has not been defined in
the Act. Hon'ble Apex Court,
noticed/observed aforesaid discrepancy/shortcoming in the Act and necessity to interpret the aforesaid expression, made an endeavor to define the having expression "relation in nature of marriage" in the case titled D. Velusamy v. D. Patchaiammal, 2010 (10) SCC 469. In the aforesaid judgment, the Hon'ble Apex Court held that all living relationships will amount to relationship in the nature of marriage to get the benefit of the Act, of 2005, but to get such benefit, following conditions must be satisfied, which need to be proved by the evidence; (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 and (d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
17. Apart from above, the Hon'ble Apex Court also held that if a man has a `keep' whom he maintains financially and uses mainly for sexual purpose and/or as a servant, it would not be a relationship in the nature of ::: Downloaded on - 10/12/2019 20:39:32 :::HCHP -9- marriage'. Most importantly, the Hon'ble Apex Court in the aforesaid judgment held that to have benefit of Act of 2005, it must be proved that couple was otherwise qualified to enter into a legal marriage, including being unmarried.
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In the case at hand, though subsequent marriage of the applicant with the respondent stands proved to certain extent, but since there is no evidence with regard to customary divorce, if any, taken by the her prior to her marriage with respondent No.1, she cannot be said to be legally qualified to enter into legal marriage, which she subsequently solemnized with respondent No.1.
Hence, applicant cannot claim benefit if any, of the Act, of 2005. Relevant reproduced herein below:
r to paras of aforesaid judgment (D. Velusamy v. D. Patchaiammal's case) are "13. Since we have held that the Courts below erred in law in holding that Lakshmi was not married to the appellant (since notice was not issued to her and she was not heard), it cannot be said at this stage that the respondent herein is the wife of the appellant. A divorced wife is treated as a wife for the purpose of Section 125 Cr.P.C., but if a person has not even been married obviously that person could not be divorced. Hence the respondent herein cannot claim to be the wife of the appellant herein, unless it is established that the appellant was not married to Lakshmi.
14. However, the question has also be to be examined from the point of view of The Protection of Women from Domestic Violence Act, 2005. Section 2(a) of the Act states:
"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) states :
"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";
15. Section 2(s) states:
"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 ::: Downloaded on - 10/12/2019 20:39:32 :::HCHP
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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."
16.Section 3(a) states that an act will constitute domestic violence in .
case it-
"3(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 (emphasis supplied)
17. The expression "economic abuse" has been defined to include :
"(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".
(emphasis supplied)
18. An aggrieved person under the Act can approach the Magistrate under Section 12 for the relief mentioned in Section 12(2). Under Section 20(1)(d) the Magistrate can grant maintenance while disposing of the application under Section 12(1). Section 26(1) provides that the relief mentioned in Section 20 may also be sought in any legal proceeding, before a civil court, family court or a criminal court.
19. Having noted the relevant provisions in The Protection of Women from Domestic Violence Act, 2005, we may point out that the expression `domestic relationship' includes not only the relationship of marriage but also a relationship `in the nature of marriage'. The question, therefore, arises as to what is the meaning of the expression `a relationship in the nature of marriage'. Unfortunately this expression has not been defined in the Act. Since there is no direct decision of this Court on the interpretation of this expression we think it necessary to interpret it because a large number of cases will be coming up before the Courts in our country on this point, and hence an authoritative decision is required.
20. In our opinion Parliament by the aforesaid Act has drawn a distinction between the relationship of marriage and a relationship in the nature of marriage, and has provided that in either case the person who enters into either relationship is entitled to the benefit of the Act.
21. It seems to us that in the aforesaid Act of 2005 Parliament has taken notice of a new social phenomenon which has emerged in our country known as live-in relationship. This new relationship is still rare in our country, and is sometimes found in big urban cities in India, but it is very common in North America and Europe. It has been commented upon by this Court in S. Khushboo vs. Kanniammal & Anr. (2010) 5 SCC 600 (vide para 31).
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22. When a wife is deserted, in most countries the law provides for maintenance to her by her husband, which is called alimony. However, earlier there was no law providing for maintenance to a woman who was having a live-in relationship with a man without being married to him and was then deserted by him.
23. In USA the expression `palimony' was coined which means grant of .
maintenance to a woman who has lived for a substantial period of time with a man without marrying him, and is then deserted by him (see `palimony' on Google). The first decision on palimony was the well known decision of the California Superior Court in Marvin vs. Marvin (1976) 18 C3d660. This case related to the famous film actor Lee Marvin, with whom a lady Michelle lived for many years without marrying him, and was then deserted by him and she claimed palimony. Subsequently in many decisions of the Courts in USA, the concept of palimony has been considered and developed. The US Supreme Court has not given any decision on whether there is a legal right to palimony, but there are several decisions of the Courts in various States in USA. These Courts in USA have taken divergent views, some granting palimony, some denying it altogether, and some granting it on certain conditions. Hence in USA the law is still in a state of evolution on the right to palimony.
24. Although there is no statutory basis for grant of palimony in USA, the Courts there which have granted it have granted it on a contractual basis. Some Courts in USA have held that there must be a written or oral agreement between the man and woman that if they separate the man will give palimony to the woman, while other Courts have held that if a man and woman have lived together for a substantially long period without getting married there would be deemed to be an implied or constructive contract that palimony will be given on their separation.
25. In Taylor vs. Fields (1986) 224 Cal. Rpr. 186 the facts were that the plaintiff Taylor had a relationship with a married man Leo. After Leo died Taylor sued his widow alleging breach of an implied agreement to take care of Taylor financially and she claimed maintenance from the estate of Leo. The Court of Appeals in California held that the relationship alleged by Taylor was nothing more than that of a married man and his mistress. It was held that the alleged contract rested on meretricious consideration and hence was invalid and unenforceable. The Court of Appeals relied on the fact that Taylor did not live together with Leo but only occasionally spent weekends with him. There was no sign of a stable and significant cohabitation between the two.
26. However, the New Jersey Supreme Court in Devaney vs. L' Esperance 195 N.J., 247 (2008) held that cohabitation is not necessary to claim palimony, rather "it is the promise to support, expressed or implied, coupled with a marital type relationship, that are indispensable elements to support a valid claim for palimony". A law has now been passed in 2010 by the State legislature of New Jersey that there must be a written agreement between the parties to claim palimony.
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27. Thus, there are widely divergent views of the Courts in U.S.A. regarding the right to palimony. Some States like Georgia and Tennessee expressly refuse to recognize palimony agreements.
28. Written palimony contracts are rare, but some US Courts have found implied contracts when a woman has given up her career, has managed the household, and assisted a man in his business for a .
lengthy period of time. Even when there is no explicit written or oral contract some US Courts have held that the action of the parties make it appear that a constructive or implied contract for grant of palimony existed. However, a meretricious contract exclusively for sexual service is held in all US Courts as invalid and unenforceable.
29. In the case before us we are not called upon to decide whether in our country there can be a valid claim for palimony on the basis of a contract, express or implied, written or oral, since no such case was set up by the respondent in her petition under Section 125 Cr.P.C.
30. Some countries in the world recognize common law marriages. A common law marriage, sometimes called de facto marriage, or informal marriage is recognized in some countries as a marriage though no legally recognized marriage ceremony is performed or civil marriage contract is entered into or the marriage registered in a civil registry (see details on Google).
31. 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.
(see `Common Law Marriage' in Wikipedia on Google) 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'.
32. In our opinion not all live in relationships will amount to a relationship in the nature of marriag8e 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'
33. 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, ::: Downloaded on - 10/12/2019 20:39:32 :::HCHP
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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 grab of interpretation cannot change the language of the statute.
34. 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."
18. Reliance is also placed on judgment passed by the Bombay High Court in case titled Narayan Jangluji Thool and Ors v. Mala Chandan Wani, AIR 2015 Bombay 36, which reads as under:
"5. Learned Counsel for the respondent has strongly opposed the petition. He submits that these are all factual aspects of the case, cwp773.14.odt 3/6 which can be decided only after detailed evidence is available and, therefore, this objection should be left for it's appropriate consideration by the trial Court. He submits that whether the respondent was in domestic relationship or not with petitioner No.1 can be appropriately decided in the light of the contentions and evidence brought on record only by the trial Court. Therefore, he submits that this petition may be dismissed.
6. In the case of Durgesh Yuvraj Rahangdale (supra), Division Bench of this Court, following the law laid down by the Hon'ble Apex Court in the case of D. Velusamy Vs. D. Patchaiammal - AIR 2011 SC 479, has held that all live-in-relationships do not amount to relationships in the nature of marriage so as to get the benefit of the Act, 2005. It further held that it is necessary for the applicant and the non-applicant to live in such a way that they are treated by the society at large as husband and wife and not only that they should also otherwise be qualified to enter into a legal marriage, with both of them being of legal age to marry, both of them being unmarried at the time when they enter into a relationship which is akin to a marriage and so on.
7. It is thus clear that in order to attract the provisions of the Act, 2005, the applicant must not only show existence of a live-in-
cwp773.14.odt 4/6 relationship with the non-applicant which is akin to a marriage which is visible from the fact that applicant and non- applicant are living together by holding out as husband and wife, and should also show that they are otherwise legally qualified to marry.
8. In the case of Indra Sarma (supra), the Hon'ble Apex Court clarified the issue as to whether or not a concubine or a mistress, who is living together with a man for a considerably long period of time, would be entitled to derive benefits of the provisions of the Act, 2005 by contending that she is in "domestic relationship" with that man.::: Downloaded on - 10/12/2019 20:39:32 :::HCHP
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The Hon'ble Apex Court has held that even though long standing relationship as a concubine deserves some protection in order to provide her financial stability, her such relationship not being in the nature of marriage cannot be termed as domestic relationship as contemplated by the Act, 2005. Hon'ble Apex Court has categorically held that the provisions of the Act, 2005 do not take care of such a relationship because the definition of Section 2(f) of the Act, 2005 is .
restricted and exhaustive. Hon'ble Apex Court has also expressed a view that perhaps this definition may call for an amendment.
9. So, it is crystal clear that a woman, who is married, cannot enter into a domestic relationship as contemplated under Section 2(f) of the Act, 2005 and even if she establishes a long standing cwp773.14.odt 5/6 relationship with a man as his concubine or mistress, she would not be entitled for protection under the provisions of the Act, 2005."
Emphasis supplied
19. Reliance is also placed on judgment passed by the Hon'ble Supreme Court in case titled Indra Sarma v. V.K. V. Sarma, (2013) 15 SCC 755, which reads as under:
"29. The 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."
30. Section 7 of the Hindu Marriage Act deals with the "Ceremonies for a Hindu marriage" and reads as follows:
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"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."
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31. 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).
32. 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.
33. 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:
34. 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.
35. 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 ::: Downloaded on - 10/12/2019 20:39:32 :::HCHP
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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".
36. 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.
37. The 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-in-relationship is purely an arrangement between the parties unlike, a legal marriage. Once a party to a live-in- 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".
38. 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:
38.1 (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.
38.2(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.
38.3(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 ::: Downloaded on - 10/12/2019 20:39:32 :::HCHP
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relationship with an unmarried adult male, the question is whether such a relationship would fall within the expression relationship "in the nature of marriage".
38.4 (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.
38.5(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 r Domestic relationship.
39. 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.
40. 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.
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41. 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.
42. 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. STATUS OF THE APPELLANT
57. 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, 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.
58. 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.
59. 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 ::: Downloaded on - 10/12/2019 20:39:32 :::HCHP
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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.
60. 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.
61. 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-in-relationship 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.
62. 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."
63. 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.
64. 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.
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65. 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.
20. Careful perusal of aforesaid exposition of law laid down by the Hon'ble Supreme Court, reveals that 'domestic relationship' would mean relationship between two persons who live or have, at any point of time, lived together in a shared household through a relationship in the nature of marriage. Though the expression "relationship in the nature of marriage" has been described as de facto relationship, marriage-like relationship, cohabitation, couple relationship, meretricious relationship, but as has been observed herein above, person intending to have benefit of Act of 2005 is necessarily required to prove that he/she is/was otherwise qualified to enter into a legal marriage. In Gokal Chand v. Parvin Kumari AIR 1952 SC 231, which has been otherwise taken note in the judgment referred herein above, the Hon'ble Supreme Court has held that continuous cohabitation of man and ::: Downloaded on - 10/12/2019 20:39:32 :::HCHP
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woman as husband and 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. A relationship by way of a bigamous marriage i.e. someone already married to another and maintaining an adulterous relationship, cannot be said to be relationship in the nature of marriage. In the case at hand, it stands duly proved on record that the petitioner solemnized marriage with the respondent during the subsistence of her earlier marriage and as such, marriage of the petitioner with respondent would definitely
21.
r to amount to bigamous marriage and such, marriage definitely cannot be said to be relationship in the nature of marriage.
Consequently, in view of the above, this Court sees no illegality and infirmity in the impugned judgments passed by the courts below, which otherwise appear to be based upon proper appreciation of material available on record, and as such, same is upheld. Accordingly, present petition is dismissed being devoid of any merits.
9th December, 2019 (Sandeep Sharma),
manjit Judge.
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