Delhi District Court
Sh. Raj Kumar vs Ms. Lalita on 20 October, 2014
IN THE COURT OF MANOJ JAIN: ASJ/SPECIAL JUDGE (PC ACT) (CBI)
SOUTH DISTRICT: SAKET DISTRICT COURTS
NEW DELHI
Criminal Appeal Number : 12/2014
Unique ID No. 02406R0202102014
Sh. Raj Kumar,
Son of Sh. Harbhajan Singh,
R/o E-228, Gali No.6, Mittal Colony,
Pul Parhaladpur, Badarpur,
New Delhi-110044. .....................................Appellant
versus
Ms. Lalita,
Wife of Sh. Raj Kumar,
Daughter of Sh. Bhura Singh,
R/o 1204/13, I-Block,
Sangam Vihar,
New Delhi. ......................................Respondent
Date of institution of Appeal : 13.08.2014
Date of Allocation : 16.08.2014
Date of conclusion of arguments : 16.10.2014
Date of Judgment : 20.10.2014
Particulars related to impugned order
CC No. : 119/1A
PS : Sangam Vihar
Under Section : 12 P.W.D.V. Act
Date of impugned order : 01.07.2014
Name of learned Trial Court : Ms. Niti Phutela,
MM-02, Mahila Court, South, Saket
Memo of Appearance
Sh. Ashok Sehrawat, learned counsel for Appellant.
Sh. Sandeep Kumar, learned counsel for Respondent.
Raj Kumar Vs. Lalita Criminal Appeal No. 12/2014 Page 1 of 11
JUDGMENT
1 Appellant has taken strong exception to the impugned order dated 01.07.2014 whereby his application for rejection of complaint filed by his adversary has been dismissed and simultaneously he has been directed to pay interim maintenance @ Rs.4000/- per month to the aggrieved person i.e. Ms. Lalita, the complainant.
2 Let me give a very brief factual matrix.
3 Complainant Lalita entered into a wedlock with appellant Raj Kumar on 17.02.2012 according to Hindu Rites and Customs at Sangam Vihar, New Delhi. According to her, the marriage was fixed up by playing fraud by appellant and his family members as there was misrepresentation that appellant was a doctor and earning handsomely whereas, later on, it was found that he was merely a compounder/manager. She also mentioned various instances of beatings/torture and accordingly filed one petition u/s 12 of Protection of Women from Domestic Violence Act (in short PWDV Act) seeking protection order, residence order, monetary relief and compensation order.
4 Such complaint was filed by her on 19.08.2013 and she also prayed for interim maintenance by moving an application u/s 23 (2) of PWDV Act.
5 Appellant, before the learned trial court, moved an application seeking rejection of complaint on the ground of non maintainability. It was specifically claimed therein that aggrieved person was already married with one Sh. Gajender Kumar Gupta and such fact was concealed by her and her Raj Kumar Vs. Lalita Criminal Appeal No. 12/2014 Page 2 of 11 family members. It was thus claimed that she was guilty of suppression of material facts and rather played fraud upon him which clearly dis-entitled her from seeking any indulgence from the court.
6 It will be also worthwhile to mention here that in her main petition u/s 12 PWDV Act, Ms. Lalita herself, in para 9, admitted that said Sh. Gajender had married her on 25.01.2012 albeit forcibly. According to her, such marriage with Gajender was without her consent and, therefore, it had no validity.
7 Learned trial court dismissed the application of the appellant and held that there was prima facie existence of domestic relationship covered within PWDV Act being "in the nature of marriage". Simultaneously, appellant was also directed to pay interim maintenance @ Rs.4000/- per month.
8 Let me straight away assess and evaluate whether the learned trial court was justified in dismissing the application of the appellant. In other words, let me first see whether the relationship in question is akin to marriage or in the nature of marriage.
9 I need not reiterate that Ms. Lalita herself admitted that she got married to one Sh. Gajender Gupta on 25.01.2012. Copy of marriage certificate issued by Arya Samaj Vivah Mandir Trust, Jamuna Bazar, Delhi is found to be on trial court record. It is also important to take note of the fact that such marriage certificate, during investigation in connection with one complaint filed by appellant u/s 200 Cr.P.C., was found to be a genuine marriage certificate and as per the investigating agency, while entering into such wedlock with Gajender, Lalita herself had given hand-written statement Raj Kumar Vs. Lalita Criminal Appeal No. 12/2014 Page 3 of 11 mentioning therein that she was entering into said marriage voluntarily, knowingly and consciously. Even the concerned Pandit i.e. Sh. Purushottam Shastri was contacted and he also stated before the police that both the parties had come with their respective witnesses and they both had married voluntarily.
10 Undoubtedly, complainant had alleged acts of domestic violence. However, it is required to be seen whether she falls within the definition of 'aggrieved person' and whether there exists a 'domestic relationship' between her and appellant Raj Kumar. Definitions, as given in PWDV Act, germane to the disposal of the present appeal, are extracted as under:-
Section 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): "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. (emphasis supplied)
11 Valid marriage, in the context of Hindu Marriage, would be one which fulfills the conditions prescribed u/s 5 of Hindu Marriage Act, 1955. One such condition is that "neither of the party has a spouse living at the time of the marriage".
Raj Kumar Vs. Lalita Criminal Appeal No. 12/2014 Page 4 of 1112 Relationship in the nature of marriage is primarily meant for those relationships which are gift and outcome of modernization. These are live-in relationship. These are sorts of personal arrangements and any partner to such relationship can walk-out at any stage without undergoing the legal hassles which are otherwise must in a case of marriage. Live-in relationship has some characteristics of marriage but it cannot be said to be a marriage which is a legally recognized institution.
13 Keeping in mind the fact that the modernity was taking its toll and in the garb of live-in relationship, the women were exploited, the legislature rightly thought of giving protection to those female partners who were living in a relationship akin to the marriage and in the nature of marriage. Learned counsel for respondent has contended that legislative intention is very much evident and any relationship which has shades of marriage necessarily falls under PWDV Act. He has argued that when even live-in relationships qualify for seeking maintenance, any relationship emanating from the marriage itself, even if the marriage is not legal and lawful, should also automatically qualify. He has relied upon Chamuniya Vs. Virender Kumar ( SLP No. 15071 of 2009: DOD 07.10.2010) whereby Apex court allowed maintenance to a wife even when there was no proof that she had undergone a legal marriage. I have seen that judgment very carefully. In that case, maintenance was sought under sec 125 Cr.P.C. and not under PWDV Act and Apex court in order to achieve the object of preventing vagrancy and taking note of wide definition of aggrieved person as given under PWDV Act, decided to give maintenance to a wife despite the fact that marriage between the parties had not been proved.
14 Situation herein is different. Firstly, it's not a case under sec 125 Cr.P.C. Secondly, here, the marriage is not in dispute at all. Neither the first Raj Kumar Vs. Lalita Criminal Appeal No. 12/2014 Page 5 of 11 one and nor the second one.
15 In D. Veluswami Vs D. Patchaiamal (2010) 10 SCC 469, it has been held that in order to fall within the category of "relationship in nature of marriage", it has to be shown that the parties were otherwise qualified to enter into a legal marriage including being unmarried already. Though that case pertained to a petition under sec 125 Cr.P.C yet Apex court went on to explain about the phrase "relationship in nature of marriage". Para 33 and Para 34 of said judgment reads 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.
(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'.
34. 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 Raj Kumar Vs. Lalita Criminal Appeal No. 12/2014 Page 6 of 11 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' 16 Reference be also made to another judgment of Apex Court in Indra Sarma Vs V.K.V. Sarma (Criminal Appeal 2009 of 2013: DOD 26.11.2013).
17 In that case, a peculiar situation had arisen. Ms. Indra Sarma and Mr. V.K.V. Sarma were working together in a private company. Mr. V.K.V. Sarma was already married having two children but Indra was unmarried and despite knowing fully well about the marital status of Mr. Sarma, she started living with him in a shared household. Thereafter, there was some discord between the two resulting in filing of petition u/s 12 of PWDV Act by Ms. Indra. She was granted interim maintenance by the learned trial court which order was affirmed by sessions also. However, when the matter went in appeal before the Hon'ble High Court, the High Court held that the relationship between parties was not within the ambit of "relationship in the nature of marriage", and the tests laid down in Veluswami (Supra) were not satisfied and, therefore, the appeal was allowed and the order of maintenance was set aside. Ms. Indra took the matter to Apex Court and the Hon'ble Supreme Court also dismissed her appeal. While considering the situation of domestic relationship between an unmarried woman and a married adult male, the Apex Court held that since Ms. Indra was very well aware that Mr. Sarma was already a married person, her status was that of a concubine or a mistress who could not have entered into relationship in the nature of marriage and that PWDV Act did not take care of such relationship. It was also held that Ms. Indra was rather party to an adulterous and bigamous relationship and, therefore, she could not have entered into a live-in relationship in nature of marriage. It also held that all live-in relationships were not relationship in the Raj Kumar Vs. Lalita Criminal Appeal No. 12/2014 Page 7 of 11 nature of marriage and if such type of relationship was to be held as relationship in the nature of marriage then there would be injustice to the legally wedded wife of such male partner. It was also held that if any direction for interim maintenance is given to such male partner that would be at the cost of the legally wedded wife and her children and resultantly the appeal of Ms. Indra Sarma was dismissed. It was also held that 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.
18 In Savitaben Somabhai Bhatiya v. State of Gujarat, (2005) 3 SCC 636, even while dealing with issue of maintenance u/s 125 Cr.P.C., Apex court held that however desirable it may be to take note of the plight of an unfortunate woman, who unwittingly enters into wedlock with a married man, there is no scope to include a woman not lawfully married within the expression of `wife'. The Bench held that this inadequacy in law can be amended only by the Legislature and maintenance to such wife was disallowed. However, in one subsequent case i.e. Badshah Vs. Sou. Urmila Badshah (SLP Criminal No. 8596/2013: DOD: 18.10.2013), the Apex Court, in a case u/s 125 Cr.P.C. held that the benefit of maintenance could also be extended to a marriage which was illegal or bigamous. However, presently we are concerned with a case under PWDV Act.
19 Here the situation is rather more against the respondent. Ms. Lalita had already married one Sh. Gajender Gupta. She does not dispute such fact, at all. Surprising, she entered into another wedlock within 23 days. There is nothing on record which can show that such fact of previous marriage was ever made known to the appellant by her or that knowing fully Raj Kumar Vs. Lalita Criminal Appeal No. 12/2014 Page 8 of 11 well about such factum of previous marriage, the appellant consciously married her. Though Lalita has claimed that appellant knew about such previous marriage as Gajender was friend of his brother, yet fact remains that she was already married. Her such marriage may be a voidable marriage u/s 12 of Hindu Marriage Act and unless and until, a decree to that effect is obtained by Ms. Lalita, she continues to be a legally wedded wife of Sh. Gajender Kumar Gupta. Here, it seems to me that she has not filed any such petition whereas appellant has already filed a petition u/s 11 of Hindu Marriage Act seeking decree of nullity of his marriage with Lalita.
20 Even if it is assumed for a moment that appellant was aware about the first marriage of Ms. Lalita with Gajender, that fact by itself would not create a relationship in the nature of marriage as the mandatory condition prescribed u/s 5 of Hindu Marriage Act is found to be lacking and unfulfilled. Such alleged confiding in appellant would not wipe out the legal impact of first marriage. Any valid marriage cannot be dissolved by oral understanding. Laws are meant to be respected and followed and not defeated by mutual agreement. Courts cannot affix its seal of confirmation on any bigamous relationship. As already noticed above, in the case of Indra Sarma (Supra) the lady had knowingly and consciously started living with a married man and even she was denied a right to seek maintenance under PWDV Act on the ground that there was no domestic relationship and if that being so, in the present case when aggrieved person was already married and rather ostensibly suppressed such fact and entered into second marriage without getting her first marriage declared as void, she cannot claim herself to be live- in relationship in the nature of marriage.
21 Undoubtedly it is the bounden duty of the Courts to advance the cause of the social justice. Purposive interpretation needs to be given to Raj Kumar Vs. Lalita Criminal Appeal No. 12/2014 Page 9 of 11 provision meant for achieving "social justice". Courts have to adopt different approaches in "social justice adjudication", which is also known as "social context adjudication" as mere "adversarial approach" may not be very appropriate. However, the ratio of Indra Sarma (supra) is clear and distinctive and also binding. It applies on all fours.
22 I may also hasten to add that no one can be permitted to reap fruits of one's own wrongs. Respondent despite knowing well that she was already married kept appellant in dark and now wants maintenance from him. It somewhat appears in the present scenario that it is the appellant who is aggrieved and not the respondent.
23 Indubitably, maintenance is permitted even when parties are living in 'Live-in' relationship. But in view of legal position emerging, only those live-in relationships are qualified and recognized for such maintenance purpose where the parties can also lawfully enter into a marriage. They may not eventually marry but they must be, at least, eligible to marry each other. Viewed from that angle, aggrieved person here cannot seek maintenance.
24 Upshot of my aforesaid discussion is that there was no domestic relationship between the two and, therefore, the learned trial court should have, in view of admission made in the main petition regarding first marriage, dismissed the main petition u/s 12 of PWDV Act.
25 Appeal is accordingly allowed and the application moved by appellant before the learned trial court praying for rejection of the petition u/s 12 of PWDV Act stands allowed and resultantly the petition u/s 12 of PWDV Act as well as the application u/s 23 (2) of PWDV Act stand dismissed.
Raj Kumar Vs. Lalita Criminal Appeal No. 12/2014 Page 10 of 1126 A copy of this judgment be sent to Ld. Trial Court along with the trial court record.
27 File related to appeal be consigned to the Record Room.
Announced in the open court (MANOJ JAIN) On this 20th day of October 2014. ASJ/Special Judge (PC Act) (CBI) South Distt: Saket Courts: New Delhi Raj Kumar Vs. Lalita Criminal Appeal No. 12/2014 Page 11 of 11