Delhi District Court
Ravinder Kumar vs . Rajwanti on 10 May, 2016
Ravinder Kumar Vs. Rajwanti
Criminal Appeal No. 03/2016
IN THE COURT OF : MS. ANU GROVER BALIGA :
SPECIAL JUDGE : CBI [PC ACT]:
DWARKA COURTS : NEW DELHI.
Criminal Appeal No. 03/2016
Ravinder Kumar
S/o Sh. Bansi Ram,
R/o RZ28F, Indra Park,
Gali No. 24, Palam Colony,
New Delhi.
....Appellant
Versus
Rajwanti
D/o Sh. Jile Singh
R/o RZ20A, Nanak PyauI,
Dhansa Road, Gopal Nagar,
Najafgarh, New Delhi.
.....Respondent
Date of Institution : 04.03.2016.
Date of conclusion of arguments : 30.04.2016.
Date of Order : 10.05.2016.
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Ravinder Kumar Vs. Rajwanti
Criminal Appeal No. 03/2016
O R D E R :
1. This is an appeal filed against an order dated 03.03.2016 of Ld. Mahila Court, Dwarka, vide which Ld. MM has held that there exists a domestic relationship between the petitioner and the respondent herein.
2. Briefly stated the plea of the aggrieved respondent before the Ld. M.M. in her petition u/s 12 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as DV Act) is that she had married the appellant herein in the year 2001, according to Hindu customs and ceremonies and that the said marriage was the second marriage for both the parties in as much as at the time of the said marriage, the first wife of the appellant had already expired and the respondent had also obtained a divorce from her previous husband in a Panchayat. The grievance of the respondent woman is that in her 14 years of marriage she has been tortured and harassed by the appellant and his family members because she did not bring sufficient dowry and also because she could not bear a child.
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3. A perusal of the reply filed by the appellant herein to the said petition shows that he has completely denied the existence of any domestic relationship / marriage with the respondent. In the para wise reply the appellant has gone to the extent of alleging that the assertions of the respondent herein that she was married with the appellant is "an invented story of the ill mind of the complainant". A plea was thus taken that the petition filed by the respondent herein was not maintainable and that it should be dismissed as such.
4. Vide the impugned order the Ld. MM taking into consideration the marriage photographs and the ration card filed on record by the respondent wherein her name was appearing as the wife of the appellant took a prima facie view that the respondent is the wife of the appellant herein and that therefore there was a domestic relationship between the parties. It has been further observed by the Ld. MM that at this stage it could not be disputed that the parties were residing in a shared household. The plea of the appellant that the petition was not maintainable as the parties were not lawfully married was rejected by the Ld.MM in view of such facts and also on the ground that the appellant had not even filed any suit of declaration for nullity of marriage.
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5. Now before this Court also though the appellant had initially sought to take a stand that he had never shared a household with the respondent and had gone to the extent of stating before this court that the respondent used to come and spend nights with him of her own volition, Ld. Counsels for the appellant, Sh.Y.N.Singh Sengar and Sh. Manjeet Singh, gave up the said stand when they could not explain the marriage photographs and the ration card placed on the trial court record. The said photographs and the ration card make it apparently clear that the appellant has stated patently false facts that he never had got married to the respondent and had not shared a household with her. Admittedly the respondent had also filed a petition seeking restitution of conjugal rights against the appellant before the Family Courts, Dwarka and a copy of the pleadings filed before the said Court were also placed before this Court and the reply filed by the appellant herein in the said proceedings shows that he clearly admitted therein the factum of his marriage with the respondent herein. In the said reply he interalia took a stand that there was no Satpadi and that the parties had merely exchanged garlands. Ld. Counsels for the appellant in view of such record before this Court have submitted that even if all the assertions made by the respondent in her petition are taken to be correct, the respondent still cannot be entitled to any benefit under the DV Act as her marriage with her first Criminal Appeal No. 03/16 Page No.4 / 13 Ravinder Kumar Vs. Rajwanti Criminal Appeal No. 03/2016 husband was not dissolved by any Court of law and that a Panchayat proceedings giving her the right to remarry is null and void in the eyes of law. They have thus contended that respondent being married on the date of her marriage with the respondent cannot claim that her relationship with the appellant was in the nature of marriage and that therefore the Ld. M.M. should have taken note that as per the own case of the respondent / complainant her first marriage was subsisting when she got married to the appellant herein and therefore should have held that her marriage with the appellant was null and void marriage in view of the Section 5 of the Hindu Marriage Act. It is further the contention of Ld. Counsels that the relationship between the parties cannot even be stated to be in the nature of marriage for the Hon'ble Supreme Court in Indra Sarma vs V.K.V Sarma AIR 2014 SC 309 has clearly held that where an adult married woman enters into a relationship with an unmarried adult male, her relationship will not fall in the nature of marriage for her to claim any benefit under the DV Act. They have pointed out that in the said judgment the Hon'ble Apex Court has also held that 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 Criminal Appeal No. 03/16 Page No.5 / 13 Ravinder Kumar Vs. Rajwanti Criminal Appeal No. 03/2016 married person who is not one's husband or wife, cannot be said to be a relationship in the nature of marriage. Ld. Counsels have also referred to the judgment of Hon'ble Supreme Court pronounced in the case titled and reported as D. Velusamy Vs. D.Patchaiammal AIR 2011 SC 479 : 2010 (10) SCC 469, to contend that since the respondent complainant was not qualified to enter into a legal marriage with the appellant, she already being married, her relationship with the appellant cannot be called a relationship in the nature of marriage.
6. In rebuttal Ld. Counsel for the respondent Sh. Neeraj Dhaiya has contended that the judgments being relied upon by the Counsels for the appellant are not at all applicable to the facts of the present case. He has contended that the present is not a case where respondent complainant can be stated to have been knowingly entered into an adulterous relationship with the appellant. He has pointed out that the Ld. MM has rightly observed in the impunged order that the appellant / respondent before her has not at all denied the solemnization of the marriage with the complainant or that she was not residing with him in the shared household and therefore the submission is that present is not the case where the appellant can take advantage of the fact that the first marriage of the respondent herein Criminal Appeal No. 03/16 Page No.6 / 13 Ravinder Kumar Vs. Rajwanti Criminal Appeal No. 03/2016 was dissolved only by a Panchyat and not by a Court of law.
7. I have carefully considered the submissions made by the Ld. Counsels and have gone through the judicial dicta referred to by them and the records of the present case. In the considered opinion of this court it is being rightly contended by Ld. Counsel for the respondent that the judgments being relied upon by the Ld. Counsel for the petitioner do not come to the aid of the petitioner at all. The reliance of Ld. Counsel for the petitioner on the judgments pronounced in Sarma's case and D.Veluswamy's case (Supra), to contend that the relationship of the respondent with the petitioner cannot be accepted to be a relationship in the nature of marriage, as the respondent was not legally competent to marry the petitioner as her divorce by the Panchayat is not legally recognised, is misplaced. In both the said judgments, the Hon'ble Supreme Court was dealing with a livein relationship and it is in the context of livein relationships that the Hon'ble Supreme Court held that the parties to a livein relationship must be otherwise legally competent to marry for it to amount to a relationship in the nature of marriage to get the benefit of DV Act. In Sarma's case (Supra) the facts before the Hon'ble Supreme Court were that the aggrieved complainant was a woman who entered into a live in relationship with a man with the knowledge Criminal Appeal No. 03/16 Page No.7 / 13 Ravinder Kumar Vs. Rajwanti Criminal Appeal No. 03/2016 that he was married and had two children and there was no evidence of mutual support and companionship between the parties and there was further no projection of their relationship in public and the woman was not allowed by the man to suffix his name after her name and it is in such facts that the Hon'ble Supreme Court held that the status of the woman before it was that of a concubine or mistress and that she was not entitled to any benefits under the DV Act. The facts of the present case are however completely distinguishable - by no stretch of imagination can it be stated that the status of the respondent herein is that of a concubine or mistress. The photographs of marriage placed on record by the respondent clearly belies the contention of the appellant that he had not entered into any ceremony with the respondent. A period of almost 15 years has elapsed since the said marriage of the parties and they are assertedly living in a shared household and admittedly as observed by the Ld. MM in the impugned order even the name of the respondent appears as that of wife in the ration card issued in the name of the appellant which clearly at this stage shows that the parties projected themselves to be married in public and were not merely in a livein relationship.
8. In the considered opinion of this court, the facts at this stage prima facie reveal that the intention of the parties was that they Criminal Appeal No. 03/16 Page No.8 / 13 Ravinder Kumar Vs. Rajwanti Criminal Appeal No. 03/2016 had taken each other to be their married partners and the said intention cannot be ignored as sought to be contended by the Ld. Counsels for the petitioner. In Sarma's case itself, the Hon'ble Supreme Court has specifically held that "......it is the common intention of the parties to that relationship as to what their relationship it 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". (Para 40)
9. No doubt though it has been rightly contended by Ld. Counsels for the petitioner that in Sarma's case the Hon'ble Supreme Court has given illustrations to explain what kinds of relationships would not amount to a relationship in the nature of marriage and one such illustration given by the Apex Court is that of a relationship between an adult married woman and an unmarried adult male, the Ld. Counsels have perhaps failed to appreciate that even in the said illustration the Hon'ble Supreme Court has emphasised upon the intention of the woman by explicitly using the word knowingly in the said illustration. The specific words used by the Hon'ble Supreme Court are that where a married adult woman knowingly enters into a Criminal Appeal No. 03/16 Page No.9 / 13 Ravinder Kumar Vs. Rajwanti Criminal Appeal No. 03/2016 relationship with an unmarried adult male, the relationship will not fall within section 2 (f) of the DV Act for the woman to seek the benefits of the DV Act. As narrated herein above in the said case the aggrieved woman before the Hon'ble Supreme Court had knowingly entered into a livein relationship with a married person who already had two children from his wife and it is in such facts that the Hon'ble Supreme Court refused to give her the benefit of DV Act and held that if the relationship between the aggrieved woman and the respondent man is held to be a relationship in the nature of a marriage, injustice would be done to the legally wedded wife and children of the wife and any directions given to the man to pay maintenance or monitory consideration to the aggrieved woman would be at the cost of the legally wedded wife and the children of the man, which is impermissible. The Hon'ble Supreme Court took note of the fact that the aggrieved woman before them had entered into a relationship with the respondent man knowing well that he was a married person and that she thereby encouraged bigamous relationship and committed an intentional tort against the legally wedded wife and children of the said man.
10. Since the respondent in the present case can by no stretch of imagination be held to have knowingly entered into a bigamous Criminal Appeal No. 03/16 Page No.10 / 13 Ravinder Kumar Vs. Rajwanti Criminal Appeal No. 03/2016 relationship with the appellant, the petitioner appellant cannot be allowed to rely upon the observations made in the Sarma's case to contend that the respondent should be denied the benefits of DV Act. Prima facie the material on record at this stage does suggest that both the parties presumed that the Panchayat proceedings were valid and that both of them intended to enter into a monogamous relationship recognized by law and did so. No doubt ignorance of law is no excuse as contended by the Ld. Counsels for the petitioners but this court is of the considered opinion that the appellant also cannot be allowed to abuse the process of law in the manner he is attempting to. As narrated hereinabove, before this Court the appellant, on a query by this Court took a stand that the respondent had never got married with him and she used to come and spend nights with him at a various rented premises of her own volition a statement which is completely belied by the marriage photographs placed on record which shows that the appellant had performed the marriage ceremony with the respondent in the presence of his relatives. It does appear that the respondent being now made aware of the judgment pronounced in the Saran's case is attempting to malign the appellant by making such false statements. It is apparent that if such were the facts, the appellant would not have entered the name of the respondent in his ration card as his wife.
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11. Further, though it has been rightly contended by the Ld. Counsels for the petitioners that the first marriage of the appellant cannot be stated to have been dissolved in a legal and valid manner, in the considered opinion of this court it is precisely such relationships which are also sought to be protected by the DV Act. The legislature was aware that in many situations a man after getting married to a woman could turn around and question the very validity of the marriage and it is to save such woman, was the "relationship in the nature of marriage", included within the protective ambit of the DV Act. Both in Sarma's and D.Veluswamy's case the Hon'ble Supreme Court has defined the expression "relationship in the nature of marriage to be a relationship which has some inherent or essential characteristic of a marriage though not a marriage legally recognised. The marriage between the appellant and the respondent in the present case may not be legally recognized for the first marriage of the respondent was not legally dissolved but it definitely has to be held to be a relationship in the nature of marriage for it has all the inherent or essential characteristics of a marriage in view of the facts asserted in the petition filed before the Ld. MM. The contention of the Ld. Counsel for the petitioners that no relief is permissible to the respondent because even her petition for restitution of conjugal rights Criminal Appeal No. 03/16 Page No.12 / 13 Ravinder Kumar Vs. Rajwanti Criminal Appeal No. 03/2016 was considered to be non maintainable by the Ld. Family Courts, cannot be upheld. As discussed herein above the marriage between the parties may not be legally recognised under the provisions of the Hindu Marriage Act and for that reason the petition filed by the respondent for restitution of conjugal rights may have been considered to be non maintainable, but that fact itself cannot be made a ground to hold her petition u/s 12 of the DV Act as nonmaintainable.
12. In view of the discussion hereinabove, this Court is of the considered opinion that no illegality has been committed by the Ld. MM which requires any interference by this Court in the present appeal proceedings. The petition filed by the respondent u/s 12 of the DV Act before the Ld. MM is held to be maintainable at this stage and the present appeal petition therefore stands dismissed. Trial Court Record be sent back immediately and a copy of this order be sent to Ld. Trial Court for purposes of record. This file be consigned to Record Room.
Announced in open court (ANU GROVER BALIGA)
on 10.05.2016 SPECIAL JUDGE: CBI (PC ACT),
DWARKA COURTS, NEW DELHI
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