Bangalore District Court
Aditya Bal vs Elena Milyakova Bal on 17 April, 2025
KABC010371662019
KABC010359902019
IN THE COURT OF THE LXIII ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-64) AT BENGALURU
Dated this the 17th day of April, 2025
: PRESENT :
Sri. I. P. Naik
LXIII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
Crl.A.No.2524/2019
C/W Crl A.No.2451/2019
APPELLANT: Smt. Elena Milyakova Bai,
(Respondent in W/o.Aditya Bal,
Crl.A.No.2451- Aged 34 years,
2019) R/at.No.12/2(A/1),
Stephens Road,
1st Floor Frazer Town,
Bangalore-560 005.
(Represented by by Smt GM Adv)
2 Crl. A. No. 2524/2019
C/w Crl A.No 2451/2019
-V/s-
RESPONDENT : Aditya Bal S/o.Rakesh Bal,
(Appellant in Crl. Aged 41 years,
A.No.2451/2019) R/o. B-801.
Central park, Sector- 42
Haryana-122002.
(Represented by by Sri SKG Adv)
*******
JUDGMENT
The appellant has preferred an appeal in Crl Appl No 2524/2019 and respondent has preferred an appeal in Crl Appl No 2451/2019 separately against single Judgment and Order passed by the learned MMTC-IV, Bengaluru in Crl.Misc.No.164/2018 dated 31.10.2019. Hereinafter their rank referred as per their rank i.e., the petitioner and respondent before Trial Court. 3 Crl. A. No. 2524/2019
C/w Crl A.No 2451/2019
2.The factual matrix of case:-
The petitioner is the legally wedded wife of the re-
spondent. They are having domestic relationship and residing at shareholder of the house mentioned in the cause-title of the petition. The petitioner is an Russian citizen. The petitioner has come to India from Russia in the year 2007 for study purpose on study Visa. She has completed her BBA degree at Brindavan College at Bengaluru in the month of September-October 2010.
The petitioner met with respondent at Leela palace, Bengaluru, at a fashion show. Further, the respondent has collected the telephone number of the petitioner.
Thereafter, he has frequently contacted with her. The respondent has hosts several cooking shows on NDTV channal and continued to hosts couple of shows on the 4 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 said channel. The respondent was residing and working at Goa in the end of 2010 while recording shows on TV for that season. The petitioners and her friends went to Goa at the instance of Respondent and again met with him. She met him in 3 occasions at Goa. They started staying together as husband and wife. Thereafter, petitioner went to her native country for two and half months in the June 2011. Thereafter, she has returned back to India in the month of August 2011.
3. Thereafter, the respondent was convinced the petitioner to get marry him. The parents of the respon- dent agreed the decision taken by the respondent to get marry with the petitioner. Accordingly, her marriage was performed with respondent as per Sikh rites at 5 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 Gurudwara Sri Guru Singh Sabha, New Delhi. Thereafter both petitioner and the respondent came down to Bengaluru and started staying in the address mentioned in the cause-title and started leading their matrimonial life herein. The petitioner stayed in the rented house where she was staying.
4. After marriage, the true colours of the respondent emerged. The respondent has addicted to alcohol, drugs/charas. He started abusing the petitioner verbally, mentally and was giving physical torture. The respondent was smoking charas for 4 to 5 times daily. Whenever, they went to Goa for wedding at that time, also the respondent was taking MDM tablets and his behavior and attitude changed the petitioner was shocked regarding the attitude of the respondent. The 6 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 petitioner was unable to stay with the respondent. In one occasion the petitioner and respondent went to Crown plaza Hotel for a fashion show at that time, he was behaved in a very rude manner with a taxi driver. He always consumes drugs and will be in state of intoxicated.
5. The petitioner is paying Rs.21,000/- towards rent and it was increased to Rs.23,100/- after June 2023. without informing the petitioner, the respondent went to his parents' house. Therefore, the petitioner was forced to take money from her parents' for her day to day expenses. The petitioner is not employee and stayed in India due to her marital life with respondent. Therefore, her parents are paying money to her for her day to day expenses.
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6. One day the respondent woke up in a foul mood and started screaming and shouting at the petitioner and also assaulted on her physically and abused her. On 14.12.2012 the petitioner and respondent went to movie on the occasion of first marriage anniversary. At that time also he was behaved in a very rude manner, abused her in filthy language and thereafter friends of the petitioner confined the respondent not to behaved in the rude manner. The respondent has promised that he will not behave in a rude manner.
7. The respondent was sent to rehabilitation center for de-addiction of the alcohol and drugs. Number of times, the respondent abused and assaulted on peti- tioner, she was residing at her friends place. During a 8 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 wedding party at Goa on 03.03.2013 of her friends, the petitioner has humiliated from the activities of the respondent. The petitioner has no money so as to maintain herself. The respondent willfully and deliberately refused the pay the rent to get the petitioner evict from the rented house. Hence, the petitioner has filed petition U/Sec 12 of the Protection of Women from Domestic Violence Act, 2005 (in short referred as PWDV Act) for grant of monetary benefits, shelter and compensation.
APPEARANCE OF RESPONDENT & HIS OBJECTIONS
8. In pursuant to the Summons, the respondent appeared before Trial Court through his counsel and filed objections, wherein he has taken contention that he is married with the petitioner due to her force. Fur- 9 Crl. A. No. 2524/2019
C/w Crl A.No 2451/2019 ther, he has not disputed his occupation. Further the respondent specifically denied that after marriage he was abused the petitioner, she was subjected to physically, mentally and verbally harassment. Further, denied that he is drug addicted and alcoholic. The respondent specifically denied the allegations made against him. The petitioner is not changed her religion at and even after marriage. The petitioner is using relationship of the respondent to say in India without proper Visa. The respondent categorically denied regarding he has abused her in vulgar words and threatened her.
9. The respondent has taken contention specific con- tention that the petitioner was indulged in on line sex with other male persons. The respondent's health 10 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 condition is not a good condition, he is unable to work due sugar and blood presser. The respondent was no- ticed that the petitioner is mixing something white powder in his juice, on investigation it is found that petitioner is mixing drugs in his foods and juice. Further, she threatened the respondent regarding lodg- ing of the false complaint and putting him behind bars. The respondent asked her about her illegal presence in India. She is using the respondent as trump card for stat in India. The respondent informed to his parents about attitude of petitioner, they have advised to get health checkup. The respondent has taken treatment at NIMHANS, Bengaluru.
10. The respondent wants to get divorce from petitioner and she is in living relationship with another person by 11 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 name Anto Usha. The petition is demanding Rs.50,000/- maintenance per month for grant of decree of mutual divorce. The respondent has asked her intention, she is giving threat to him that she will filed domestic violence case against him. The petitioner went to her native country with her belongings. She is demanding Rs.1,00,00,000/- from the respondent as compensation. The petitioner is indulged in extra matrimonial life with some one. She is living immoral life, the petitioner is enjoying her life in India indulging in parties and consuming alcohol.
11. The respondent denied that now he is master chef and hosting food show at NDTV and other TV Channel. The respondent specifically denied that after marriage, he has behaved in a very rude manner and other as- 12 Crl. A. No. 2524/2019
C/w Crl A.No 2451/2019 pects are specifically denied. The petitioner is having elicit relationship with male friends in difference places. It is humiliating and caused hurt to the family members of respondent and their dignity. The respon- dent has specifically denied that he is an drug addict and stated that the petitioner is taking undue advan- tage of her marriage and staying in India. Hence, she is not entitled for any relief as claimed by the petitioner.
12. The petitioner herself examined as PW.1, in support of her oral evidence she relied produced 17 documents, got marked at Ex.P.1 to Ex.P.17. On the other hand the respondent has examined as RW.1, in support of his oral evidence he has produced 12 documents, got marked at Ex.R.1 to Ex.R.12. 13 Crl. A. No. 2524/2019
C/w Crl A.No 2451/2019 FINDING OF TRIAL COURT
13. After hearing both parties and considering the pe- tition, objection and documentary evidence, the trial court allowed the petition and directed the respondent to pay Rs.10,000/- maintenance to the petitioner and also directed the petitioner to pay Rs 5,00,000/- as compensation within 3 months from the date of order. PROCEEDINGS IN APPEAL PRIOR REMAND
14. The petitioner has preferred appeal in Crl.A.No.2524/2019 against impugned Judgment and Order before this Court. The respondent has also prepared appeal against Judgment and Order in appeal Crl Appeal No 2451/2019 before learned LV Addl City Civil and Sessions Judge, Bengaluru. This Court has 14 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 allowed the appeal prepared by the petitioner and directed to respondent pay maintenance of Rs 40,000/- per month and pay compensation of Rs 10,00,000/- within three months from the date of order i.e., 11.09.2023. The Judgment and order of this Court was challenged before the Hon'ble High Court of Karnataka Crl.R.P.No.1677/2023.
15. The Hon'ble High Court of Karnataka opined that an appeal preferred by the respondent against the Judgment and order of the Trial Court in Crl.A.No.2451/2019 is not decided yet, wherein steps has been not taken against petitioner. For this reasons, the Hon'ble High Court of Karnataka remanded back the matter to this Court for disposal of the appeal 15 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 along with Crl Appeal No 2451/2019. Further, their lordship directed to transfer said appeal to this Court.
16. Accordingly, Hon'ble Principal District and Ses- sions Judge, Bengaluru transferred and made over the appeal preferred by the respondent in Crl.A.No.2451/2019 to this Court which is pending be- fore learned LV ACC& SJ, Bengaluru as per the notifi- cation Crl.B.To.No.9/2025 dated 12.03.2025. GROUNDS URGED BY PETITIONER IN HER APPEAL
17. The petitioner dis-agreed and dis-satisfied by the Judgment of the Trial Court has preferred this appeal on the ground that the Trial Court has not considered Ex.P.4 e-mail sent by the respondent to land lord. 16 Crl. A. No. 2524/2019
C/w Crl A.No 2451/2019 Further, the Trial Court has not made any order regarding residential order. Further, Trial Court has awarded lower compensation amount without considering economic status of the parties. Further, the Trial Court awarded compensation of Rs.5,00,000/- is lower side. Hence, prays to allow the petition and en- hance the compensation and maintenance as prayed in the petition.
GROUNDS URGED BY RESPONDENT IN HER APPEAL
18. The respondent also preferred this Appeal against the Judgment and Order passed by the learned Trial Court on the ground that learned Trial Court not considered the interim order passed in Crl.A.No.853/2014 dated 12.08.2024. The Trial Court misconceived while considering the domestic violence. 17 Crl. A. No. 2524/2019
C/w Crl A.No 2451/2019 The Trial Court deliberately and intentionally committed error in without noticing the documents produced by the respondent. The petitioner belongs to christian religion and she has not renounced her reli- gion as on the date of the marriage. Therefore, the mar- riage in question is void marriage U/s.11 of Hindu Marriage Act. Therefore, there is no domestic relationship between the petitioner and the respondent. Further, the marriage and the relationship is not as per section 5 of the Hindu Marriage Act. The petitioner and respondent spending one week end together or some days. This will not make domestic relationship. A wife alone is entitled for maintenance and compensation under PWDV Act. The petitioner has not at all the wife, therefore she is not entitled for any compensation or any maintenance or any order under the PWDV Act. 18 Crl. A. No. 2524/2019
C/w Crl A.No 2451/2019 The learned Trial Court exceeds its jurisdiction and granted maintenance. The Trial Court has not appreciated the oral and documentary evidence placed by the respondent. The Trial Court has committed error on considering the annual income of the respondent, net income is different from net worth of assets and liability. The income of the respondent is wrongly calculated by the Trial Court and awarded exorbitant compensation and maintenance. The Trial Court has not considered the photos of the petitioner having her attitude towards other male persons. Hence, impugned Judgment and order as against law, opposed to the principles of natural justice. Hence, prays to allow the petition and set aside the order passed by the Trial Court.
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19. After registration of appeal and made over to this Court, issued notice to respondent. In pursuant to notice, he appeared through Counsel and filed num- bers of documents and photos & pen drive without certificate (Sec.63 of BSA-23) with memo. As per direc- tion of Hon'ble High Court Karnataka in Crl.Rev.P. Crl.R.P.No.1677/2023. Accordingly, Hon'ble Prl City Civil Court and Sessions Judge, Bengaluru transferred and made over the appeal preferred by the respondent in Crl.A.No.2451/2019 to this Court which was pending before learned LV ACC& SJ, Bengaluru as per the notification Crl.B.To.No.9/2025 dated 12.03.2025. Said the petitioner voluntarily appeared and filed docu- ment with memo.
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20. Thereafter, both appeal clubbed together to avoid for divergent order as per order dated 05.04.2025.
21. Heard both sides and gone through written arguments as submitted by both parties. ARGUMENTS OF PETITIONER
22. The learned counsel for the petitioner submitted that in this case, the petitioner is Russian origin. She came to India for study purpose in the year 2007. She has completed her degree in BBA in the year 2010. Meanwhile she met with the respondent who is mast chef and he has telecast shows for TV Channels for different seasons. He has good income. The petitioner and the respondent met each other in Bengaluru and 21 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 Goa. They have stayed together at Goa on several times. The respondent has expressed his intention to marry with the petitioner. Later on parents both parties were have agree to the marriage of the petitioner and respondent. The petitioner was converted into Sikh and their marriage was soleminised on 14.12.2012 at Delhi. Thereafter, both petitioner and respondent came down to Bengaluru and stayed together for short term. After that, true color of the respondent emerged and respondent started committing domestic violation ver- bally, physically and abused.
23. Further, it was emerged that the respondent is drug addict and consuming alcohol, for 4 to 5 times a day. In this case, he has taken treatment at NIMHANS. 22 Crl. A. No. 2524/2019
C/w Crl A.No 2451/2019 In this regard, the petitioner has produced Ex.P.5. Itself disclosed that the respondent is drug addicted since 12 years in Bombay.
24. The learned counsel for the petitioner urged that the petitioner has taken the treatment at NIMHANS. But wrongly mentioned the name of the respondent inEx.P.5. But there is specifically mentioned the name, age, sex of the respondent. Further, Ex.P.5 and Ex.P.6 discloses that these documents are pertaining to respondent only. This itself clearly discloses that the respondent is drug addict.
25. The petitioner went to the Russia. At that time, the respondent vacated the rented house and put the 23 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 petitioner on the foot path. The petitioner came to India to lead her matrimonial life with the respondent. Now the petitioner engaged in any job/work/occupation it amounts violation the object/terms of Visa. The learned counsel for the petitioner urged that the respondent made against petitioner having elicit relationship with some persons. In this regard, he has no evidence. This fact is elicited from the mouth of Respondent during his cross-examination. Therefore, making false allegations without evidence, it amounts to domestic violation. The petitioner is proved Sex al harassment, physical violation, emotional harass- ment during cross examination of RW.1. 24 Crl. A. No. 2524/2019
C/w Crl A.No 2451/2019
26. The respondent not provided proper maintenance and compensation after passing order, it amounts to economic abuse. Therefore, the petitioner has success- fully proved the attitude and domestic violation from respondent.
27. During arguments, the learned counsel for the petitioner draw the attention of this court regarding messages exchanged by the petitioner and the respondent. These documents is not marked. Ex.R.10 is insurance copy, it is not whatsapp chats as con- tented by respondent. It was not exhibited, therefore, it cannot be looked into. Hence, the petitioner success- fully proved her case. The respondent is actor, master- chef and having good income, in spite of that, the 25 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 maintenance and compensation awarded by the Trial Court is lower side. Hence, prays to allow the appeal filed by the respondent and grant maintenance and compensation and prays for reject the appeal preferred by the respondent.
28. In support of her contention she has relied on the following citations:-
(2003) 6 SCC 334 Vijay Kumar Ramchandra Bhate VS Neela Vijay Kumar Bhate (2012) 3 SCC 183 V.D.Bhanot VS Savit Bhanot (2015) 11 SCC 718 Shalini Vs Kishor & Ors (2016) 2 SCC 705 Krishna Bhattacharjee Vs Sarathi Choudhury & Anr (2014) 3 SCC 712 Saraswathy VS Babu 26 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 2011(1) Mh.L.J 427 Sabah Sami Khan Vs Adnan Sami Khan ARGUMENTS OF RESPONDENT
29. As against this, the learned counsel for the respon- dent urged that the petitioner using the respondent as tools to stay in India without changing VISA, she has not changed her religion at the time of her marriage even after marriage. In this regard, the learned counsel for the respondent drawn the attention of this Court on the marriage certificate Ex.R.1. This clearly discloses that she is Russian origin and belongs to Christian religion. It violates the Sec.5, Sec.11 and Sec.12 of Hindu Marriage Act. Therefore, she is not wife or not having domestic relationship with respondent. The learned counsel for the respondent heavily relied on the messages, chats took between petitioner and 27 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 respondent. The petitioner has find out her mistake af- ter filing this petition before the Trial Court, the what- sapp messages/Ex.P.10 itself clearly discloses that there is no domestic violence was occurred.
30. The petitioner making one side allegations against the respondent that, he is drug addict, alcoholic, having 4 to 5 times drugs a day and abusing her. At another breath, the petitioner claiming compensation and maintenance. Further, it really, the respondent is drug addict and alcoholic till today, the petitioner has not sought for divorce on her marriage with the respon- dent. This itself shows that the petitioner is harassing the respondent by misusing present enactment. 28 Crl. A. No. 2524/2019
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31. The learned counsel for the respondent has produced his recent income tax returns. It reveals that the income of the respondent is less than Rs.50,000/-. The petitioner made false declaration before the Trial Court while disclosing assets and liabilities. The petitioner is taking money from her parents and enjoy- ing her extra marital relationship with other male particularly with auto unonovel. Photos produced clearly discloses that the petitioner is having extra marital relationship with others. The phots/Ex.R.2 clearly disclosed that, the petitioner's unchaste life style.
32. In appeal, the respondent produced the photos and pen drive and shown the videos by playing them in his loptop before this court. The petitioner is leading luxu- 29 Crl. A. No. 2524/2019
C/w Crl A.No 2451/2019 rious life with others by consuming alcohol and wear- ing indecent cloths. Due to the act of the petitioner health of the respondent is become week. He is suffer- ing from sugar and high BP. For this reason, he has lost his job and no income, his income drastically come down and also reasoned that malicious and frivolous cases filed by petitioner. The petitioner has wrongly stated about income of respondent as Rs 33 lakhs in the FY-2012-13, his actual income is only Rs 11.3 lakhs. The last FY-2024-25 income of the respondent is Rs 2.27 lakhs. The petitioner is relying on certain documents to show that the respondent is doing live shows in TV Channels. These videos are old one. There is no season. The petitioner has violated the Indian Rules and Regulations and she is residing in this country without changing her religion and Visa. 30 Crl. A. No. 2524/2019
C/w Crl A.No 2451/2019 She is misusing the PIO Card. she is unchaste lady, she having extramarital life with third person. There- fore, she is entitled for relief as claimed under PWDV Act. Therefore, prays for dismiss the appeal filed by the petitioner and allowed the appeal preferred by the re- spondent and to set aside the order passed by the Trial Court.
POINTS FOR CONSIDERATION
33. The following points arise for my consideration:
1. Whether the Trial Court has committed error in considering the domestic relationship of the petitioner and respondent.?31 Crl. A. No. 2524/2019
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2. Whether the Trial Court committed error in considering the economic status of the parties.?
3. Whether the Trial Court has granted maintenance and compensation is proper.?
4. Whether the Trial Court has committed error in non ordering of the residential order.
5. What order?
MY FINDINGS ON AFORESAID POINTS
34. On considering the appeal memo filed by both parties, oral and documentary evidence of petitioner and objection and hearing of the both parties, my answer to the above points are as under:
Point No.1 : In the negative 32 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 Point No.2 : In the partly affirmative. Point No.3 : In the affirmative.
Point No.4 : In the affirmative.
Point No.5 : As per final order ............for the following;
REASONS EVIDENCE LEAD BY PETITIONER
35. On order to prove allegations made against respondent, the petitioner herself stepped in to witness box and filed an affidavit in lieu of examination-in- chief. Wherein she deposed about why she came Indian?, when she completed her BBA degree, how she met with respondent, her marriage ceremony with respondent. Further she specially deposed regarding all types of domestic violation from respondent. The PW.1 deposed regarding attitude and behavior of respondent 33 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 after marriage. The petitioner has made specific allegations about respondent drug adduct and alcoholic since 12 year and admitted to drugs de-addiction center, in this regard she has strongly relied on medical records of NIMHANS Bengaluru.
36. The PW-1 stated in her oral evidence in form of affidavit that, the respondent is master-chef and conducting/telecasting food shows on NDTV channel. He is earning more then Rs. 33 lakhs per year.
37. During cross-examination PW1 stated that prior to her marriage, she has converted into Hindu Sikh religion from christian religion. In this regard, she has produced documents. She is residing in India on the 34 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 basis of SOUPAS India. She is residing in India temporarily. She pleaded ignorance regarding after marriage they have resided at Delhi. Further, she pleaded ignorance regarding their stay for a period of one and half months in Bengalore after marriage.
38. PW.2 denied that the respondent is doing work/job at GOA and at Bengaluru. She pleaded ignorance regarding respondent's job at NDTV is on contract basis. During cross-examination of PW1 the learned counsel for the respondent suggested that you have married with the respondent to get financial profit. She is an alcoholic and participates in parties with other males. This suggestion is denied. The learned counsel for the respondent specifically 35 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 suggested that at present you are having extra marital life with other person. This suggestion is denied. Further stated that her behaviour of being alcoholic, smoking and consuming drugs, has made the respondent to quit the matrimonial life with her.
39. PW1 further cross-examined on 16.02.2018 at that time, she stated that you have insisted the respondent to get married to her due to avoid cancellation of study VISA in the year 2011. This suggestion is denied. She admitted that her parents are transferring money to her account. She is not aware where the parents of the respondent are resident. The respondent has not informed her regarding the residence of his parents.
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40. In support of her contention she has produced the marriage certificate issued by the Gurudwara Shri Guru Singh, marriage certificate, pass books, chats other digital photos, CD's.
EVIDENCE LEAD BY RESPONDENT
41. In order to prove his contention the respondent himself examined as PW.1 he has filed affidavit in lieu of examination in chief wherein, he has stated that the petitioner is Russian citizen and belongs to Christian religion. She has not renounced her religion at the time of marriage. It is violation of the Hindu Marriage Act. Further he stated that his parents and family members are belongs to Hindu Sikh Family having deep roots in 37 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 the society and law binding citizens. The petitioner has completed her BBA degree at Brindavan College, she has studied in India in the year 2011, as there was chance of cancellation of her study Visa, therefore, she has forced the respondent to get married with her. Hence, he got married with the petitioner.
42. Further, he stated that due to marriage her Visa was extended. Accordingly, their marriage was performed. After marriage the petitioner started abusing her in Russian language, stating foolish Indian. She also threatened to file false complaint and to destroy his carrier. Due to her harassment his life began to deteriorate. Further she misused transfer of India right card.
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43. Due to harassment from the petitioner the family members of the respondent advised him to get a health check up. Accordingly, he visited the NIMHANS hospital for treatment. The petitioner had pre-planned to mention his name in the records instead of mentioning her name in medical records. She is having drugs since more than 15 years. She wanted to marry him by hook or cook. Hence, he has filed complaint against the petitioner.
44. In the course of cross-examination, the respondent admitted regarding he has filed petition Ex.P.15 for dissolution of the marriage by getting divorce before the Family Court, Delhi. Further it was 39 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 transferred to Bengaluru, as per the orders of Hon'ble Supreme Court of India. Further another document is confronted to the petitioner Ex.P.16 which is presented before the learned 5th Additional Principal Family Court which was dismissed as withdrawn. He further stated that he has submitted photos with the celebrities like Manoj Bajpayee and other models Further he is hosting food show at NDTV and other Channels.
45. During cross-examination the learned counsel for the petitioner suggested not to follow christian religion to lead life. The learned counsel for the petitioner suggested that prior to marriage respondent was having physical relationship with the petitioner. He admitted that he had physical relationship with her 40 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 prior to marriage. The learned counsel for the petitioner suggested that no documents to show that the respondent forced for physical relationship with her. The learned counsel for the petitioner suggested that he has taken treatment at NIMHANS for his health. This suggestion is denied.
46. During cross-examination the learned counsel for the petitioner extracted from the mouth of respondent that Ex.P.5 and Ex.P.6 documents are issued by the NIMHANS. He has not taken any action against Dr.Rajesh Kumar, who has issued the said Ex.P.5 and Ex.P.6.
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47. Further stated that when the petitioner went to Russia in the month of May 2013 he has sent an e-mail to landlord and tried to evict her from the premises. There is no dispute regarding the landlord having initiated any proceedings for eviction before the Civil Court and he has not made any residential arrangement to the petitioner.
48. The respondent is tendered for cross-examination on 26.12.2018. At that time, the petitioner extracted from the mouth of respondent that he is an model by profession. Ladies wear all types of fashioned dresses (short dresses) which is against the India culture. The learned counsel for the petitioner suggested that at the 42 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 age of 15 years he is consuming drugs. This suggestion is denied.
49. In support of his oral evidence, he has produced the digital photos and documents. Further respondent produced his bank statement, IT returns, TDS. POINT No.1 DOMESTIC RELATIONSHIP OF PARTIES
50. Before going to the merits of the case, this court has relied on the definition of domestic relationship as defined U/s. 2(f), of PWDV Act, which reads thus:
Sec 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;43 Crl. A. No. 2524/2019
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51. In this case, one aspects reveals from the oral evidence of PW.1 and RW.1 that she has come to India for study purpose in the year 2007. She has completed her BBA degree in the year 2011. During study period, she has met with the respondent. They were in physical relationship, after that, they have got married with each other. In this regard, the petitioner has produced important documents i.e., Ex.P.1 and Ex.P.2 marriage registration certificate and marriage certificate issued Gurudwara Samithi. Both parties are not dispute regarding their marriage.
52. The learned counsel for the respondent drawn the attention of this court at Ex.R.1. This reveals that the petitioner belongs to christian religion and Russian 44 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 citizen. She has not converted into Hindu religion. The marriage of the petitioner and the respondent comes U/Sec.5, Sec.11 and Sec.12 of the Marriage Act. Therefore, I have carefully perused Ex.P.2 document. i.e., marriage certificate. Both petitioner and respondent have got registered their marriage at Municipal Corporation Gurugram. Therefore, it is held that it is registered under the Special Marriage Act. This itself discloses that the petitioner and the respondent are husband and wife. The petitioner contended that prior to marriage they were living as husband and wife. This aspect is denied by the respondent. But he admitted that they have spent/stayed together for two nights and were in physical relationship. Therefore, they have got married with permission and consent of both their 45 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 parents. The contention of the respondent is that the marriage of the petitioner and the respondent is not valid and it is violation of Hindu marriage act. In this regard, the law is settled by the Hon'ble Supreme Court in following cases:
2013 AIR SCW 6783 Indra Sarma vs V.K.V.Sarma
2. Live-in or marriage like relationship is neither a crime nor a sin though socially unacceptable in this country. The decision to marry or not to marry or to have a heterosexual relationship is intensely personal.
3. We are, in this case, concerned with the question whether a "live-in relationship" would amount to a "relationship in the nature of marriage" falling within the definition of "domestic relationship" under Section 2(f) of the Protection of Women from Domestic Violence Act, 2005 (for short "the DV Act") and the disruption of such a relationship by failure to maintain a women involved in such a relationship amounts to "domestic violence" within the meaning of Section 3 of the DV Act.
20. We are, in this case, concerned with a "live-in relationship"
which, according to the aggrieved person, is a "relationship in the nature of marriage" and it is that relationship which has been disrupted in the sense that the respondent failed to maintain the aggrieved person, which, according to the appellant, amounts to "domestic violence". The respondent maintained the stand that the relationship between the appellant and the respondent was not a relationship in the nature of marriage but a live-in-relationship simplicitor and 46 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 the alleged act, omission, commission or conduct of the respondent would not constitute "domestic violence" so as to claim any protection orders under Section 18, 19 or 20 of the DV Act.
21. We have to first examine whether the appellant was involved in a domestic relationship with the respondent. Section 2(f) refers to five categories of relationship, such as, related by consanguinity, marriage, relationship in the nature of marriage, adoption, family members living together as a joint family, of which we are, in this case, concerned with an alleged relationship in the nature of marriage.
22. Before we examine whether the respondent has committed any act of domestic violence, we have to first examine whether the relationship between them was a "relationship in the nature of marriage" within the definition of Section 3 read with Section 2(f) of the DV Act. Before examining the term "relationship in the nature of marriage", we have to first examine what is "marriage", as understood in law. MARRIAGE AND MARITAL RELATIONSHIP:
23. Marriage is often described as one of the basic civil rights of man/woman, which is voluntarily undertaken by the parties in public in a formal way, and once concluded, recognizes the parties as husband and wife. Three elements of common law marriage are (1) agreement to be married (2) living together as husband and wife, (3) holding out to the public that they are married. Sharing a common household and duty to live together form part of the 'Consortium Omnis Vitae" which obliges spouses to live together, afford each other reasonable marital privileges and rights and be honest and faithful to each other. One of the most important invariable consequences of marriage is the reciprocal support and the responsibility of maintenance of the common household, jointly and severally. Marriage as an institution has great legal significance and various obligations and duties flow out of marital relationship, as per law, in the matter of inheritance of property, successionship, etc. Marriage, therefore, involves legal requirements of formality, publicity, exclusivity and all the legal consequences flow out of that relationship.
24. Marriages in India take place either following the personal Law of the Religion to which a party is belonged or following 47 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 the provisions of the Special Marriage Act. Marriage, as per the Common Law, constitutes a contract between a man and a woman, in which the parties undertake to live together and support each other. Marriage, as a concept, is also nationally and internationally recognized. O'Regan, J., in Dawood and Another v. Minister of Home Affairs and Others 2000 (3) SA 936 (CC) noted as follows:
"Marriage and the family are social institutions of vital importance. Entering into and sustaining a marriage is a matter of intense private significance to the parties to that marriage for they make a promise to one another to establish and maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one another, to live together and to be faithful to one another. Such relationships are of profound significance to the individuals concerned. But such relationships have more than personal significance at least in part because human beings are social beings whose humanity is expressed through their relationships with others. Entering into marriage therefore is to enter into a relationship that has public significance as well.
The institutions of marriage and the family are important social institutions that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children. The celebration of a marriage gives rise to moral and legal obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage. These legal obligations perform an important social function. This importance is symbolically acknowledged in part by the fact that marriage is celebrated generally in a public ceremony, often before family and close friends...."
25. South African Constitutional Court in various judgments recognized the above mentioned principle. In Satchwell v. President of the Republic of South Africa and Another 2002 (6) SA 1 (CC), Du Toit and Another v. Minister of Welfare and Population Development and Others (Lesbian and Gay Equality Project as Amicus Curiae) 2003 (2) SA 198 (CC), the 48 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 Constitutional Court of South Africa recognized the right "free to marry and to raise family". Section 15(3)(a)(i) of the Constitution of South Africa, in substance makes provision for the recognition of "marriages concluded under the tradition, or a system of religious, personal or family law." Section 9(3) of the Constitution of South Africa reads as follows:
"The State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth."
26. Article 23 of the International Covenant on Civil and Political Rights, 1966 (ICCPR) provides that:
"1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
2. The right of men and women of marriageable age to marry and to found a family shall be recognized.
3. No marriage shall be entered into without the free and full consent of the intending spouses.
4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children."
27. Article 16 of the Universal Declaration of Human Rights, 1948 provides that:
"1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at it dissolution.
2. Marriage shall be entered into only with the free and full consent of the intending spouses.
3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State."
28. Parties in the present case are Hindus by religion and are governed by the Hindu Marriage Act, 1955. The expression 49 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 "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."
29. Section 7 of the Hindu Marriage Act deals with the "Ceremonies for a Hindu marriage" and reads as follows:
"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."
30. 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 50 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 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).
31. 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.
32. 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:
33. 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 51 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019
c) Through a relationship in the nature of marriage
d) Adoption
e) Family members living together as joint family.
34. 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 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".
35. 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.
36. 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". 52 Crl. A. No. 2524/2019
C/w Crl A.No 2451/2019
37. 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:
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.
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.
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 relationship with an unmarried adult male, the question is whether such a relationship would fall within the expression relationship "in the nature of marriage".
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.
e) Domestic relationship between same sex partners (Gay and Lesbians):53 Crl. A. No. 2524/2019
C/w Crl A.No 2451/2019 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 Domestic relationship.
38. 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.
39. 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 54 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 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.
40. 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.
41. 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.
42. Courts and legislatures of various countries now began to think that denying certain benefits to a certain class of persons on the basis of their marital status is unjust where the need of those benefits is felt by both unmarried and married cohabitants. Courts in various countries have extended certain benefits to heterosexual unmarried cohabitants. Legislatures too, of late, through legislations started giving benefits to heterosexual cohabitants.
43. In U.K. through the Civil Partnership Act, 2004, the rights of even the same-sex couple have been recognized. Family Law Act, 1996, through the Chapter IV, titled 'Family Homes and Domestic Violence', cohabitants can seek reliefs if there is domestic violence. Canada has also enacted the Domestic Violence Intervention Act, 2001. In USA, the violence against woman is a crime with far-reaching consequences under the Violence Against Women Act, 1994 (now Violence Against Women Reauthorization Act, 2013).
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54. We have already stated, when we examine whether a relationship will fall within the expression "relationship in the nature of marriage" within the meaning of Section 2(f) of the DV Act, we should have a close analysis of the entire relationship, in other words, all facets of the interpersonal relationship need to be taken into account. We cannot isolate individual factors, because there may be endless scope for differences in human attitudes and activities and a variety of combinations of circumstances which may fall for consideration. Invariably, it may be a question of fact and degree, whether a relationship between two unrelated persons of the opposite sex meets the tests judicially evolved.
55. We may, on the basis of above discussion cull out some guidelines for testing under what circumstances, a live-in relationship will fall within the expression "relationship in the nature of marriage" under Section 2(f) of the DV Act. The guidelines, of course, are not exhaustive, but will definitely give some insight to such relationships.
1) Duration of period of relationship Section 2(f) of the DV Act has used the expression "at any point of time", which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation.
(2) Shared household The expression has been defined under Section 2(s) of the DV Act and, hence, need no further elaboration.
(3) Pooling of Resources and Financial Arrangements Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long term investments in business, shares in separate and joint names, so as to have a long standing relationship, may be a guiding factor. (4) Domestic Arrangements Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or up keeping the house, etc. is an indication of a relationship in the nature of marriage.
(5) Sexual Relationship Marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional 56 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring etc. (6) Children Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long standing relationship. Sharing the responsibility for bringing up and supporting them is also a strong indication.
(7) Socialization in Public Holding out to the public and socializing with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage. (8) Intention and conduct of the parties Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship.
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.
59. 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 57 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 children, etc. and disputes may also arise when one of the parties dies intestate.
60. 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."
61. 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].
53. By considering all these aspects and following guidelines lead down by their lordship, I am of the opinion that the petitioner has successfully proved that she is having domestic relationship with the 58 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 respondent as wife and she got marital status with him. This aspect is clearly held by the Trial Court in its Judgment and Order. Accordingly, Point No.1 is answered in the Negative.
Point No.2:-
DOMESTIC VIOLENCE
54. Further, this Court has relied on definition domestic violation as defined in PWDV Act. Sec 2(g) "domestic violence" has the same meaning as assigned to it in section 3;
CHAPTER II DOMESTIC VIOLENCE Sec. 3. Definition of domestic violence.-- For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it-- 59 Crl. A. No. 2524/2019
C/w Crl A.No 2451/2019
(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
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
Explanation I.--For the purposes of this section,--
(i) "physical abuse" means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;
(ii) "sexual abuse" includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;
(iii) "verbal and emotional abuse" includes--
(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and
(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested;
(iv) "economic abuse" includes--
(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 60 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, house hold 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 house hold and maintenance;
(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and
(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household. Explanation II.--For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes "domestic violence" under this section, the overall facts and circumstances of the case shall be taken into consideration.
55. The petitioner and the respondent are making allegations against each other regarding both are drug addicts and alcoholic. The respondent has taken contention that Ex.P.5 and P.6 are pertaining to the petitioner she has pre-planned to mention the name of 61 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 the respondent instead of her name colluding with the officials of the NIMHANS. During cross-examination the learned counsel for the petitioner rightly elicited from the mouth that she has not taken any action against Dr.Rajesh Kumar. He has not initiated any action against him and also not lodged any complaint to Medical Council against the said Dr. Rajesh Kumar. The recitals of Ex.P.6 discloses that the respondent is drug addict since 12 years. He has taken treatment at NIMHANS hospital on 22.04.2013. Since long back respondent was consuming alcohol. Making these types of allegations against each other also amounts to domestic violence.
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56. The respondent has taken contention that the petitioner is having live sexual chats with other male persons. In this regard, he has not produced any document. Making allegations without any supporting evidence is also mental torture. In this regard, this court has relied on the definition of the domestic violence as per law laid down by the Hon'ble Supreme Court of India as under:-
[2019] 6 S.C.R. 577 RUPALI DEVI v. STATE OF UTTAR PRADESH & ORS
15. The Protection of Women from Domestic Violence Act, as the object behind its enactment would indicate, is to provide a civil remedy to victims of domestic violence as against the remedy in criminal law which is what is provided under Section 498-A of the Indian Penal Code.
The definition of the Domestic Violence in the Protection of Women from Domestic Violence Act, 2005 contemplates harm or injuries that endanger the health, safety, life, limb or well-being, whether mental or physical, as well as emotional abuse. The said definition would certainly, for reasons stated above, have a close connection with Explanation A & B to Section 498A, Indian Penal Code which defines cruelty. The provisions contained in Section 498A of the Indian Penal 63 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 Code, undoubtedly, encompasses both mental as well as the physical well-being of the wife. Even the silence of the wife may have an underlying element of an emotional distress and mental agony. Her sufferings at the parental home though may be directly attributable to commission of acts of cruelty by the husband at the matrimonial home would, undoubtedly, be the consequences of the acts committed at the matrimonial home. Such consequences, by itself, would amount to distinct offences committed at the parental home where she has taken shelter. The adverse effects on the mental health in the parental home though on account of the acts committed in the matrimonial home would, in our considered view, amount to commission of cruelty within the meaning of Section 498A at the parental home. The consequences of the cruelty committed at the matrimonial home results in repeated offences being committed at the parental home. This is the kind of offences contemplated under Section 179 Cr.P.C which would squarely be applicable to the present case as an answer to the question raised
57. The petitioner to show that the respondent is alcoholic etc., in this regard, she has produced digital color photos got marked at Ex.P.7 to Ex,P.9 and also produced Ex.P.13 and Ex.P14. At the same time, the respondent to prove that the petitioner is having extra marital relationship with others he has produced 64 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 number of digital photos at Ex.R.2. These digital photos are not supported with certificate as defined U/s.63 of B.S.A-2023. Therefore, the digital evidence relied by both the petitioner as well as the respondent are not admissible in evidence. Non furnishing of certificate in support of digital evidence is curable defect, it can be cured at appropriate stage. Both parties not made any attempts to cured it as law lead down by Hon'ble Supreme Court in State of Karnataka represented by Karnataka Lokayukta P.S.VS M.R.Hiremath. (AIR 2019 SC 2377).
58. In this appeal both the petitioner and the respondent have produced number of documents along with the digital photos and pen drive. Further, at the 65 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 time of arguments, the learned counsel for the respondent displayed the videos before the Court. This CD is also not supported with certificate and also they have not sought to adduce additional evidence before this court. Simply, they have produced the documents.. This Court does not understand why they have relied on the documents without adducing additional evidence.
59. By considering entire cross-examination of RW1, it reveals that when the petitioner went to her mother land i.e., Russia, at that time, the respondent has sent e-mail to the land lord insisting him to evict the petitioner. In this regard, the landlord has initiated proceedings for eviction. By considering all these 66 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 aspects, it clearly discloses that it is nothing but economic abuse and mental torture and he has denied to share the house for residential purpose of the petitioner. This itself amounts to domestic violence.
60. In this case, the petitioner contended that the Trial Court has ordered for residential order or not ordered for any order regarding economic violence. In this regard, she has produced IT returns submitted by the respondent. The respondent also produced his bank statement from the year 2012 in respect of other times, his income is sound. The learned counsel for the respondent produced his recent IT returns submitted by him. At that time, has shown his income as Rs.2/- Lakhs. The petitioner is residing in Bengaluru. She is 67 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 also a BBA graduated holder. For more than one decade even after completing her degree of BBA she has not shown any interest to engaged herself in any profession/job for utilised her intelligence, otherwise it defeat the purposes of her study. The petitioner is not illiterate or rustic lady, she came to India for study purpose, she completed her eduction of BBA degree, she might have got job in Bengaluru and had got salary not less than Rs.30,000/- per month, further she has not changed her Visa to reside permanently in India, for the reasons best known to her.
61. The respondent may earn in his individual capacity but she must to lead her life on her own style by self earning. Without that she is trying to lead a 68 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 luxurious life at her whims and facies and without performing her social obligation at the cost of the respondent is not permissible at present scenario. Since one decade petitioner residing in Indian without changing citizenship, it shows her little intention. Therefore, I am of the opinion that, the Trial Court has rightly considered the economic status of both parties, accordingly, Point No.2 is answered in partly affirmative.
Point No.3:-
62. The petitioner contended that maintenance and compensation awarded by the learned Trial Court is at lower side. Admittedly the petitioner is having no income. Before canvassing the arguments, the learned 69 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 counsel for the respondent submitted to direct the petitioner to declare her recent assets and liabilities. This Court passing an order for want of declaration, held that there is necessary to make declaration again and again.
63. The petitioner is residing in Bengaluru. Amount of Rs.10,000/- monthly maintenance is sufficient and also compensation awarded by the Trial Court is proper one. The respondent already paid partial amount as per the direction of the Hon'ble High Court of Karnataka. As already held by this Court, the petitioner has to show her interest to earn herself based on her higher education. By considering all these aspects, I am of the opinion that the Trial Court has rightly ordered for 70 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 maintenance and granted proper compensation. Accordingly, Point No.3 is answered in the Affirmative.
Point No.4:-
64. The petitioner being a lady, she is residing in Bengaluru, she has completed her education she herself being the wife of the respondent it is obligation on the part of the respondent to make residential arrangement to her to reside in India. The petitioner being an Russian is behaving like an Indian lady. By considering the oral evidence of the respondent it reveals that he is leading a life of western style. But petitioner being a lady of Russian origin, he has insisted her to lead her life as a Indian lady. The 71 Crl. A. No. 2524/2019 C/w Crl A.No 2451/2019 respondent himself has to lead his life style as Indian then he has to advise to the petitioner. The respondent being the husband of the petitioner he is duty bond to make residential arrangement to the petitioner at Bengaluru. This fact is not considered by the Trial Court. Accordingly, Point No.4 is answered in the Affirmative.
Point No.5:-
65. For the forgoing reason, proceed to pass the following..., ORDER The Appeal filed by the petitioner U/s.29 of the PWDV Act is hereby partially allowed.
72 Crl. A. No. 2524/2019
C/w Crl A.No 2451/2019 The respondent is hereby directed to pay maintenance of Rs.20,000/- per month to the petitioner from the date of this order.
The respondent is hereby directed to pay rent of Rs.10,000/- per month to the petitioner.
Rest of the order passed by the Trial Court if confirmed.
The appeal filed by the respondent is hereby rejected. Office is directed that keep original Judgment in Crl.Appl.No 2524/2019, its copy keep in Crl.Appl No.2451/2019.
73 Crl. A. No. 2524/2019
C/w Crl A.No 2451/2019 Further office is directed to send back the TCR to Trial Court along with a copy of this Judgment forthwith.
(Dictated to Stenographer, typed by her, taken out print corrected by me and then pronounced in the Open-Court on this the 17th day of April, 2025) Digitally signed irappanna (Sri. I. by P. Naik) irappanna LXIII Addl. City Civil andNaik Pavadi Sessions Pavadi Judge (CCH-64),Date:
Bengaluru City.
Naik 2025.04.28
17:31:02 +0530
74 Crl. A. No. 2524/2019
C/w Crl A.No 2451/2019
s
(Order typed vide separate sheet)
ORDER
The Appeal filed by the
petitioner U/s.29 of the
PWDV Act is hereby partially
allowed.
The respondent is hereby
directed to pay maintenance
of Rs.20,000/- per month to
the petitioner from the date
of this order.
The respondent is hereby
directed to pay rent of
Rs.10,000/- per month to
the petitioner.
75 Crl. A. No. 2524/2019
C/w Crl A.No 2451/2019
Rest of the order passed by
the Trial Court if confirmed.
The appeal filed by the
respondent is hereby
rejected. Office is directed
that keep original
Judgment in
Crl.Appl.No 2524/2019, its
copy keep in Crl.Appl
No.2451/2019.
Further office is directed to
send back the TCR to Trial
Court along with a copy of
this Judgment forthwith.
LXIII ACC & SJ(CCH-64),
Bengaluru City
76 Crl. A. No. 2524/2019
C/w Crl A.No 2451/2019