Delhi District Court
Sunita vs . Mehar Chand & Ors. on 4 December, 2017
CA No. 204777/16
Sunita Vs. Mehar Chand & Ors.
04.12.2017
Present : None.
Vide this order, I shall decide the appeal filed against
order dated 20.01.2016 whereby Ld. Trial Court dismissed the
application of the complainant filed under Section 12 and 23 of
Protection of Domestic Violence Act (hereinafter referred to as DV
Act) by holding it to be nonmaintainable.
The appellant has submitted that she was married to
respondent no.1 as per Hindu rites and custom in an Arya Samaj
Mandir six years back and since then they were living together as wife and husband on the address mentioned above. Appellant has further submitted that the respondent has not disputed the marriage as well as living together as wife and husband and it is only now when the respondent wants to marry yet another lady and after the case was filed in which impugned order was passed that the respondent has come up with the issue of the legality of the marriage with the appellant.
The appellant was earlier married but she was thrown out by her husband and the marriage between them was socially broken. At the same time, the respondent was also married and he had informed the appellant that his wife had deserted him and her whereabout are not known and thus both the parties were aware of the fact and were living together as wife and husband. She has further submitted that marriage between the parties is not challenged by any of the parties and the same subsists till date.
The appellant has submitted that she had filed documents like Aadhar card, electricity bills in support of the parties living together as wife and husband. She has averred that police filed the status report before the Ld. Trial Court as well as domestic incidence report was filed by the Protection Officer which establish that the appellant and respondent are wife and husband. Despite that, Ld. Magistrate has passed the one sided order without answering or dealing with the points or arguments advanced by Ld. Counsel for appellant by not taking into account the aforestated documents and the reports.
Appellant has also submitted that Ld. Magistrate/Ld. Trial Court has committed an illegality by relying upon and holding the case of D. Velusamy versus D Patchaimmal 2010 (4) LRC 133 (SC) to be good law notwithstanding the later judgment by the Hon'ble Supreme Court in Deoki Panjhiyara vs. Shashi bhushan Narayan Azad and others 2013 (1) JCC 508 decided much later than Velusamy's case.
The appellant has submitted that in Velusamy's case the issue was of wife claiming maintenance under Section 125, the issue of relationship in the nature of marriage in DV Act was not agitated before the Hon'ble bench hearing the plea also the issue of previous marriage was not in issue in Velusamy's case whereas this issued was directly and substantially in issue in Deoki Panjhiyara's case.
It has been contended by the appellant that Ld. Magistrate has not considered the submission made by the counsel for petitioner relying upon the case titled as 2013 (1) JCC 508 Deoki Panjhiyara's case wherein the Hon'ble Supreme Court has held that the court hearing the issue of maintenance has proceeded to decide the issue of validity of marriage, the issue of relation in nature of marriage and declaration of marriage are different things altogether and a marriage could be declared void by a competent Court only.
The appellant has submitted that the impugned order is against the facts and established law and therefore needs to be set aside. Hence the present appeal has been filed praying for setting aside the impugned order dated 20.01.2016.
Respondent no. 1 has filed detailed reply to the appeal and has submitted that the present appeal is grossly time barred. He has also submitted that prior to filing of the present appeal, the appellant challenged the impugned order by way of filing of criminal revision and the same was not maintainable. The same was accordingly dismissed as withdrawn.
The respondent has further submitted that for the purpose of domestic relationship, there must be a live domestic relationship between the complainant and respondent and if the relationship is of past, the same is not within the purview of domestic relationship and it is the admitted get of the appellant herself that there is no domestic relationship at present in between her and the respondent.
The respondent has submitted that the order passed by the Learned Magistrate is speaking order and does not suffer from any illegality or infirmity. The respondent has denied the submissions made in the appeal as well as has denied the solemnisation of any marriage between him and the appellant. The appellant has prayed for dismissal of the present appeal.
Arguments advanced by learned counsels for parties heard. Record perused carefully.
The appellant has admitted that her marriage with her 1st husband was not dissolved legally. It is an admitted fact that she knew about the 1st marriage of respondent no. 1 and also the fact that his marriage was also not dissolved legally. Learned trial court has observed in the impugned order that both the parties were incompetent to enter into a valid marriage with each other during the lifetime of the respective spouses without obtaining divorce from the Competent Court. Learned trial court has further observed that under section 2 (f), relationship in the nature of marriage is also included and considering the fact that the appellant and respondent no. 1 are cohabiting since many years, learned trial court examined whether the relationship is covered within the ambit of a live in relationship or not and after reproducing section 2 (f) of DV Act referred to law laid down in D. Velusamy versus D Patchaimmal 2010 (4) LRC 133 (SC). Learned trial court observed that "a relationship in the nature of marriage" is akin to a commonlaw marriage. In the said matter it was observed as common law marriage require that although not being formally married:
a) The couple must hold themselves out to society of being akin to spouses.
b) They must be of legal age to marry.
c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.
d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses.
In the matter of D Velusamy, it was observed as:
".. In our opinion, 'a relationship in the nature of marriage'under the 2005 Act must also fulfil the above requirements and in addition, the parties must have lived together in a 'shared household' as defined in section 2(s) of the Act. Merely spending weekends together or of a nightstand would not make it a domestic relationship.
In our opinion not all live in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005. To get such benefit the conditions mentioned by us above must be satisfied and this has to be proved by evidence. If a man has a 'keep' whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage.
No doubt the view we are taking would exclude many women who have had a live in relationship from the benefit of the 2005 act, but then it is not for this court to legislate or amend the law. Parliament has used the expression 'relationship in the nature of marriage' and not live in relationship. The court in the garb of interpretation cannot change the language of the statute."
Learned trial court after reiterating that neither the complainant, i.e. the appellant herein, nor the respondent no. 1 was legally qualified to enter into a valid marriage, held that the relationship in the present case does not amount to a relationship 'in the nature of marriage' and thus Learned Trial Court dismissed the application of the appellant filed under Section 12 of DV Act and Section 23 of DV Act.
It was argued by learned counsel for appellant that respondent no. 1 has himself admitted that the appellant is his wife in his complaint dated 06.12.2010 which he wrote to police Commissioner etc. the appellant has also relied on the status report dated 30 July 2015 where it is again reported that the appellant herein and the respondent no. 1 performed the rituals of marriage in the Arya Samaj Mandir out of their own will and started living husband and wife before 56 years back. It was also argued that the provisions of DV Act were not even in issue before the Hon'ble Supreme Court in the matter of D. Velusamy versus D Patchaimmal 2010 (4) LRC 133 (SC) and thus the learned trial court could not have relied upon these observations as quoted above.
Learned Counsel for appellant has submitted that the present case is governed by the law laid down in the matter of 2013 (1) JCC 508 Deoki Panjhiyara vs. Shashi Bhushan Narayan Azad and Ors. where it was observed that court will have to proceed on the footing that the relationship between the parties is one of marriage and not in the nature of marriage. It was also observed that until the invalidation of the marriage between the parties is made by a competent court, it would only be correct to proceed on the basis that the appellant continues to be the wife of the respondent so as to entitle her to claim all the benefits and protection available under the DV Act.
On perusal of the facts of Deoki Panjhiyara case, it is noticed that the said observations were made by the Hon'ble Supreme Court in view of the respondent taking a stand that the marriage between him and the appellant was white on account of his previous marriage and he relied for the same on a marriage certificate dated 18.4.2003 issued under section 13 of Special Marriage Act, 1954. It was in these facts that the learned trial court as well as Hon'ble High Court had proceeded to determine the validity of the marriage between the parties. In that matter the appellant had questioned legitimacy, authenticity and genuineness of the said marriage certificate and thus these aforestated observations were made by Hon'ble Supreme Court.
However the facts of the present case are similar to the facts of the matter titled Indra Sarma vs. V.K.V. Sarma, where the appellant despite knowing that respondent is a married person having 2 children started living with him in a live in relationship and later filed application against the respondent under section 18 to section 23 of DV Act which was dismissed by learned Magistrate but was allowed by learned sessions judge. However the decision was reversed by Hon'ble High Court in the matter was taken in appeal by the appellant before Hon'ble Supreme Court of India. In the matter of Indra Sarma vs V.K.V.Sarma on 26 November, 2013 while deciding Criminal Appeal no. 2009 OF 2013, SLP (CRL.) No.4895 of 2012, Hon'ble Supreme Court observed as:
"56. Appellant, admittedly, entered into a liveinrelationship 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. 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.
57. We may note, in the instant case, there is no necessity to rebut the presumption, since the appellant was aware that the respondent was a married person even before the commencement of their relationship, hence the status of the appellant is that of a concubine or a mistress, who cannot enter into relationship in the nature of a marriage. Long standing relationship as a concubine, though not a relationship in the nature of a marriage, of course, may at times, deserves protection because that woman might not be financially independent, but we are afraid that DV Act does not take care of such relationships which may perhaps call for an amendment of the definition of Section 2(f) of the DV Act, which is restrictive and exhaustive.
58. 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.
63. We may now consider whether the tests, we have laid down, have been satisfied in the instant case. We have found that the appellant was not ignorant of the fact that the respondent was a married person with wife and two children, hence, was party to an adulterous and bigamous relationship. Admittedly, the relationship between the appellant and respondent was opposed by the wife of the respondent, so also by the parents of the appellant and her brother and sister and they knew that they could not have entered into a legal marriage or maintained a relationship in the nature of marriage.
64. Appellant had entered into this relationship knowing well that the respondent was a married person and encouraged bigamous relationship. By entering into such a relationship, the appellant has committed an intentional tort, i.e. interference in the marital relationship with intentionally alienating respondent from his family, i.e. his wife and children. If the case set up by the appellant is accepted, we have to conclude that there has been an attempt on the part of the appellant to alienate respondent from his family, resulting in loss of marital relationship, companionship, assistance, loss of consortium etc., so far as the legally wedded wife and children of the respondent are concerned, who resisted the relationship from the very inception. Marriage and family are social institutions of vital importance. Alienation of affection, in that context, is an intentional tort, as held by this Court in Pinakin Mahipatray Rawal case (supra), which gives a cause of action to the wife and children of the respondent to sue the appellant for alienating the husband/father from the company of his wife/children, knowing fully well they are legally wedded wife/children of the respondent..
65. We are, therefore, of the view that the appellant, having been fully aware of the fact that the respondent was a married person, could not have entered into a livein relationship in the nature of marriage. All livein relationships are not relationships in the nature of marriage. Appellant's and the respondent's relationship is, therefore, not a "relationship in the nature of marriage" because it has no inherent or essential characteristic of a marriage, but a relationship other than "in the nature of marriage" and the appellant's status is lower than the status of a wife and that relationship would not fall within the definition of "domestic relationship" under Section 2(f) of the DV Act. If we hold that the relationship between the appellant and the respondent is a relationship in the nature of a marriage, we will be doing an injustice to the legally wedded wife and children who opposed that relationship. Consequently, any act, omission or commission or conduct of the respondent in connection with that type of relationship, would not amount to "domestic violence" under Section 3 of the DV Act.
66. We have, on facts, found that the appellant's status was that of a mistress, who is in distress, a survivor of a livein relationship which is of serious concern, especially when such persons are poor and illiterate, in the event of which vulnerability is more pronounced, which is a societal reality. Children born out of such relationship also suffer most which calls for bringing in remedial measures by the Parliament, through proper legislation.
67. We are conscious of the fact that if any direction is given to the respondent to pay maintenance or monetary consideration to the appellant, that would be at the cost of the legally wedded wife and children of the respondent, especially when they had opposed that relationship and have a cause of action against the appellant for alienating the companionship and affection of the husband/parent which is an intentional tort.
68. We, therefore, find no reason to interfere with the judgment of the High Court and the appeal is accordingly dismissed."
The observations of Hon'ble Supreme Court cited above are selfspeaking and in view of the same, there is no infirmity in the impugned order and it is accordingly upheld. In view of these observations, there is no merit in the present appeal and it is accordingly dismissed. Copy of the order be sent to learned trial court along with the trial court record. File be consigned to record room.
(Dr. Neera Bharihoke) ASJ06/SouthEast/Saket/ND/04.12.2017