Bangalore District Court
Smt.Poornima.S W/O Dinesh Kumar vs Dinesh Kumar S/O Govindaswamy on 10 January, 2017
IN THE COURT OF THE METROPOLITAN MAGISTRATE,
TRAFFIC COURT - III, AT BENGALURU
DATED THIS 10TH DAY OF JANUARY 2017.
PRESENT : Sri. SANTHOSH.M.S., B.A., LL.B., (HONS); LL.M.,
M.M.T.C-III, BENGALURU.
Crl.Misc.No.163/2015
PETITIONER Smt.Poornima.S W/o Dinesh Kumar,
33 years, R/o No.44/2, 10th Cross,
5th Main Road, R.K.Lyou,
Padmanabhanagara, Bengaluru.
(By Sri.R.S., Adv.,)
V/s
RESPONDENT Dinesh Kumar S/o Govindaswamy, 34
years, R/o No.22/3, Gnanakshi Nilaya,
Chowdappa Coconut Garden,
Hosakerehalli, BSK III Stage,
Bengaluru.
(By Sri.M.M., Adv.,)
JUDGMENT
This petition is filed by the petitioner under Sec.12 of the Protection of Women from Domestic Violence Act, 2005, seeking relief under Sec.18, 19, 20 and 22 of the said Act.
2 Crl.Misc.No.163/20152. The case of the petitioner in brief is as under; The petitioner contends that she was separated from her first husband and she had become the tenants of respondent and family members and due to first wedlock the petitioner had son by name Sathyarth aged about 14 years. The petitioner and the respondent came into acquaintance and the respondent knew about the marital status of the petitioner and he was also unmarried during the said acquaintance time and he started to frequently contact with the petitioner as a friend and later one day i.e., about 10 years back he expressed his feelings towards the petitioner that he was in love with her and assured the petitioner that he would marry her. Because of the assurance the petitioner and respondent started to have live-in- relationship. In the year 2010-2011 the respondent had taken the petitioner to his house and for nearly 1 ½ year she had resided. At that time she was subjected to abuse, harassment and threatened by the respondent's parents and she was forced to vacate the said house. The petitioner further contends that due to live-in- relationship the petitioner got conceived and she gave birth to a male child by name Shree Kausthubh on 28.2.2012, after the birth petitioner and respondent started to reside in the address mentioned in the cause title. In the year 2011 the respondent took the initiative for getting the divorce from the first husband of the 3 Crl.Misc.No.163/2015 petitioner and thereafter the divorce was granted. Then the petitioner had insisted for marriage and on 29.6.2014 the marriage between the petitioner and the respondent was solemnized at Sri Vasantha Vallabha Temple, Uttarahalli, Bengaluru. Then the respondent all of a sudden had deserted the petitioner and had also taken away the child. The petitioner had filed G & WC petition No.23/2015 before the Hon'ble Family Court regarding the custody of the child. She further contends that the respondent is earning Rs.3,00,000/- p.m. from agricultural lands and he is also doing real estate business and cable connection business. It is contended that in the month of October 2014 the respondent deserted the petitioner and thereafter the petitioner approached the parents of the respondent and requested them to intervene, for which they abused the petitioner in filthy language and threatened her. The respondent has never taken care of petitioner and he intentionally refused to give money to her day to day maintenance. Later the petitioner came to know that the respondent had married to one Lavanya and it is a second marriage. Now, the respondent has not cared about her well being. The respondent has caused physical, emotional, mental and financial abuse amounting to Domestic Violence. Hence, on these grounds she prays for allowing the petition.
4 Crl.Misc.No.163/20153. After receipt of petition, notice was issued to the respondent and on appearance through his advocate the respondent has filed his statement of objection. In the statement of objection the respondent has contended that the present petition is not maintainable as there is no single incidence of Domestic Violence and that the claim of petitioner that she is married to respondent and that she is his wife is also denied. The aspect of having live-in- relationship with the petitioner is also denied. It is contended by the respondent that the petitioner and respondent become acquainted to each other where the petitioner joined one of the tenants of the respondent's parents and represented before him that she is young un- married girl and they had physical relationship with each other once or twice. Thereafter the petitioner revealed that she was pregnant and started to make her demand and the respondent heeded to her demands and demanded her to get married before her pregnancy would come to the notice of others. However, the petitioner refused the marriage proposal and started threatening him and claimed amount from him. The respondent proposed for abortion of the said child by payment of amount which was also rejected by the petitioner. The respondent contends that she continued her demand and continued to refuse the proposal of marriage and abortion put forth by the respondent. The 5 Crl.Misc.No.163/2015 respondent contends that he used to provide medical and financial assistance to her, thereafter she gave birth to a male child. Therefore the aspect of "domestic relationship"
and Domestic Violence are disputed by the respondent and he contends that the male child by name Kausthubh.D was deserted by the petitioner for claiming custody of which the petitioner filed case G & WC No.23/2015. Hence, he prays for dismissal of the petition. All allegations against him are also denied by respondent.
4. In order to prove her case the petitioner has examined herself as PW.1 and got marked Ex.P.1 and 2. Inspite of sufficient opportunity the respondent has failed to cross-examine PW.1 and he has lead no respondent's evidence in the above case.
5. Heard arguments and perused the pleadings, documents and entire record. The following points that arises for my consideration are as under;
1. Whether the Petitioner proves that she has been in domestic relationship with the respondent?
2. Whether the Petitioner proves that she has been subjected to Domestic Violence and neglected by the respondent?
3. Whether the petitioner is entitled for the reliefs as sought in the petition?
6 Crl.Misc.No.163/20154. What order?
6. On perusal of materials before this court, my findings on the above points are as follows;
Point No.1 : In the negative;
Point No.2 : In the negative;
Point No.3 : In the negative;
Point No.4 : As per final order for the following;
REASONS
7. POINT Nos.1 to 3: For the purpose of brevity, the following points are taken for common discussions.
8. It is the specific case of the petitioner that she was separated from her husband K.H.Ramesh and this aspect is known to respondent who was unmarried, they became friend which developed into love and the respondent assured that he would marry the petitioner, as such they started to have live-in-relationship around 10 years ago. The petitioner contends that in the year 2010-2011 the respondent had taken her to his house for about 1 ½ years and resided together at No.22/3, Gnanakshi Nilaya, Chowdappa Coconut Garden, Hosakerehali, BSK III Stage, Bengaluru where she was abused, harassed and threatened by respondent's parents. Out of the said live-in-relationship a child by name Kausthubh.D was born on 28.2.2012.
7 Crl.Misc.No.163/2015Thereafter in the year 2011 the respondent took initiative for the petitioner's divorce with her earlier husband by name K.H.Ramesh, accordingly the divorce was granted. Hence the petitioner contends that on 29.6.2014 both of them got married at Sri Vasantha Vallabha Temple, Uttarahalli, Bengaluru which was witnessed by the parents of both the parties.
9. The aspect of marriage of petitioner with the respondent has been denied by the respondent. Though he admits to have had physical relationship with the petitioner. Therefore, in order to be entitled for the relief under the provision of PWDV Act it is incumbent on the part of the petitioner to prove that she is in domestic relationship with the respondent and that they have resided together in the shared household and during said residence the petitioner was subjected to Domestic Violence as such she is aggrieved person as per the provision of the said Act. Though the proceedings are governed by Cr.P.C. yet the burden on petitioner is to prove her case to the preponderance of the probability unlike other cases were standard of proof is expected beyond reasonable doubt. Though the petitioner has to prove her case to the preponderance of the probability yet initial burden of proving her contention and to substantiate her case as mentioned above are to be discharged by her. The petitioner in this case has filed 8 Crl.Misc.No.163/2015 petition seeking various reliefs. It is to be noted that the provisions of the PWDV Act confer right on the petitioner to claim relief for her sufferings arising out of Domestic Violence and proof of such Domestic Violence is a condition precedent for claiming relief. Domestic Violence has been widely worded in PWDV Act. However to prove her case of Domestic Violence the petitioner is expected to make out specific case against the respondent and vague or ambiguous pleadings and evidence does not come to her aid. As per the provisions of PWDV Act while deciding the aspect of Domestic Violence, overall facts and circumstances of a given case are to be examined. Hence, this being the position of law let me now analyze the allegations of the petitioner made against the respondent in the main petition as well as her affidavit.
10. When it is the specific case of the petitioner that she was married to respondent on 29.6.2014 it flows that the initial burden of proving the said contention would lie on the petitioner. On perusal of the deposition except the statement of petitioner no independent witness has been examined before the court nor any documents relating to marriage have been submitted. Ex.P.1 is the rental agreement which is a photostat copy and it bears no reference to the petitioner. Though Ex.P.2 i.e., birth certificate of Kausthubh bears the name of father as 9 Crl.Misc.No.163/2015 Dinesh Kumar, yet the said document by itself cannot be a proof of marriage though it may be proof of paternity of the child. It is to be noticed that paternity of the child is different from marital relationship with the petitioner. As per the provision of PWDV Act it is only when the petitioner establishes "domestic relationship" with the respondent that she would be entitled to maintain the petition. She is also expected to prove Domestic Violence arising out of such "domestic relationship" in order to be entitled for the relief. Though the respondent admits physical relationship, mere physical relationship between the parties or intercourse and paternity of the child does not qualify to be "domestic relationship" under the Act.
11. In this regard, the decision of Hon'ble Supreme Court of India reported in AIR 2014 SC page 309 in case of Indra Sarma V/s VKV Sarma dated 29.11.2013 can be referred to where it was held that live-in-relationship between the parties does not amount to relationship in the nature of marriage under Sec.2(f) of PWDV Act. It was further held as under;
"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 live-in relationship in the nature of marriage. All live-in- relationships are not relationships in the nature of marriage.
Appellant's and the respondent's
10 Crl.Misc.No.163/2015
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."
12. The Hon'ble Supreme Court of India while deciding the above case was pleased to refer its earlier judgment in case of D.Velusamy V/s D.Patchaiammal in (2010)10 SCC 469 wherein it has been held that;
"33. In our opinion a `relationship in the nature of marriage' is akin to a common law marriage. Common law marriages require that although not being formally married :-
(a) The couple must hold themselves out to society as being akin to spouses.11 Crl.Misc.No.163/2015
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
(see `Common Law Marriage' in Wikipedia on Google) In our opinion a `relationship in the nature of marriage' under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a `shared household' as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a `domestic relationship'.
34. In our opinion not all live in relationships will amount to a relationship in the nature of marriag8e to get the benefit of the Act of 2005. To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence. If a man has a `keep' whom he maintains 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'."
Therefore, this being the position of law the petitioner in the above case has not only failed to establish her "domestic relationship" with the respondent through 12 Crl.Misc.No.163/2015 marriage but also failed to establish that the live-in- relationship between her and the respondent is "relationship in the nature of marriage" as per the provisions of PWDV Act.
13. Hence, applying the said legal principles to the present set of facts the only conclusion that can be reached by this court is that the initial burden on the petitioner has not been discharged, even though she has not been cross-examined or there is no evidence of the respondent. Hence, even if the case of petitioner as a whole is taken as accepted that would not entitled the petitioner for any relief under the provisions of PWDV Act as though the petitioner contends that she was married to respondent on 29.6.2014 under the oral or documentary evidence has been put forth to establish the said fact when the same is disputed by the respondent. Hence, I answer Point Nos.1 to 3 in the negative.
14. POINT No.4 :- In view of the materials placed before this court, pleadings, deposition and documentary evidence this court proceeds to pass the following:
ORDER The petition filed by the petitioner U/s 12 of The Protection of Women from Domestic Violence Act, 2005 is hereby rejected.13 Crl.Misc.No.163/2015
No order as to costs.
Office is directed to furnish a copy of this order free of cost to both the parties. (Dictated to the Stenographer, transcript computerized by her, revised corrected and then pronounced by me in the open Court on this the 10th day of January, 2017) (SANTHOSH.M.S.) MMTC-III, BENGALURU.
ANNEXURE WITNESSES EXAMINED FOR THE PETITIONER:
PW.1 Smt.Poornima DOCUMENTS EXHIBITED FOR THE PETITIONER:
Ex.P.1 Rental agreement Ex.P.2 Birth certificate
WITNESSES EXAMINED FOR THE RESPONDENT :
NIL DOCUMENTS EXHIBITED FOR THE RESPONDENT :
NIL MMTC-III, BENGALURU.14 Crl.Misc.No.163/2015