Himachal Pradesh High Court
Param Jeet Singh vs Kiran Bala & Another on 15 March, 2021
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No. 295 of 2019
Date of Decision: 15.03.2021
.
______________________________________________________________
Param Jeet Singh .....Petitioner
Versus
Kiran Bala & another .....Respondents
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the Petitioner: Mr. Dalip. K. Sharma, Advocate.
For the Respondent:
Mr. Karun Negi, Advocate.
Sandeep Sharma, Judge (oral):
r to Mr. Sudhir Thakur, Senior Advocate with By way of instant petition filed under Section 482 of Cr.P.C., read with Article 227 of the Constitution of India, prayer has been made on behalf of the petitioner for quashing and setting aside the order dated 6.12.2014, passed by learned Chief Judicial Magistrate, Kinnaur, Himachal Pradesh in Lok Adalat in case No. 3/2014, titled as Kiran Bala versus Param Jeet Singh as well as subsequent proceedings instituted under Section 31 of the Domestic Violence Act.
2. Having received the notices in the instant proceedings, respondents while putting appearance also filed an application 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 17/03/2021 20:13:32 :::HCHP 2bearing CMP No.13409 of 2019, seeking therein permission of this Court to place on record additional documents, which may be relevant for the adjudication of the case at hand.
.
3. Having heard learned counsel representing the parties and perused the material available on record vis-à-vis order dated 6.12.2014, sought to be quashed in the instant proceedings, this Court finds that a complaint under Section 12 of the Domestic Violence Act (for short 'Act') was filed by respondent No.1 against the petitioner, seeking therein maintenance on account of domestic violence, but it appears that before said proceedings could be taken to its logical end, both the petitioner and respondent No.1 entered into the compromise, as a consequence of which, matter came to be finally listed before the Lok Adalat. On 6.12.2014, petitioner Param Jeet Singh made a statement before the Lok Adalat that he will pay sum of Rs. 4000/- as monthly maintenance and Rs.1500/- as rent to the respondent Kiran Bala. In the aforesaid background, Presiding Officer, Lok Adalat allowed the petition having been filed by respondent No.1and directed the petitioner to pay sum of Rs.4000/- and Rs. 1500/- respectively on account of monthly maintenance and rent. Order dated 6.12.2014 further reveals that at the time of passing of aforesaid order, petitioner also paid sum of ::: Downloaded on - 17/03/2021 20:13:32 :::HCHP 3 Rs. 4000/- in cash and stated before the court below that rent of Rs.
1500/- would be paid by him to the house owner and in future he would pay Rs. 5500/- to respondent No.1 per month. After five .
years of passing of aforesaid order, petitioner has approached this Court in the instant proceedings, seeking therein quashment of order dated 6.12.2014 on the ground that since at the time of passing of order dated 6.12.2014, respondent No.1 was already married to respondent No.2, Sudhir Sharma, she could not have claimed any maintenance from him on account of Domestic Violence Act.
4. However, having carefully perused the provisions contained under Domestic Violence Act, this Court finds no merit in the aforesaid contention of the petitioner. Though, the petitioner has made an attempt to carve out a case that since respondent No.1 was already married with respondent No.2 at the time of passing of order dated 6.12.2014, he is not liable to pay any maintenance in terms of order dated 6.12.2014, but it is none of his case that on 6.12.2014 respondent No.1 was not his legally wedded wife, rather material available on record clearly reveals that factum with regard to marriage interse petitioner and respondent No.1 stands duly admitted by the petitioner. Material available on ::: Downloaded on - 17/03/2021 20:13:32 :::HCHP 4 record further reveals that after filing of proceedings in Domestic Violence Act, petitioner filed a petition under Section 12 of the Hindu Marriage Act, praying therein for annulment of marriage, .
wherein he specifically took a stand that since respondent No.1 solemnized marriage with him during subsistence of her earlier marriage, marriage solemnized interse him and respondent No.1 be declared as null and void. Material available on record further reveals that prior to filing of aforesaid petition for annulment of marriage, petitioner had filed petition for divorce, but same was withdrawn. If the petition for divorce as well as annulment are read in entirety, it clearly suggests that factum with regard to subsistence of earlier marriage interse respondent No.1 and respondent No.2 was very much in the knowledge of the petitioner and as such, after five years of passing of order dated 6.12.2014, he cannot be permitted to rake up that issue again, especially when he himself while admitting respondent No.1 to be his legally wedded wife offered Rs.4000/- as monthly maintenance and Rs. 1500/- as rent.
5. Otherwise also, once factum with regard o marriage interse petitioner and respondent No.1 stands admitted, relief as granted by the Lok Adalat, directing the petitioner to pay ::: Downloaded on - 17/03/2021 20:13:32 :::HCHP 5 maintenance cannot be interfered with on the ground that at the time of passing of order dated 6.12.2014, respondent No.1 was legally wedded wife of respondent No.2. Once, it stands duly .
established on record that marriage interse petitioner and respondent No.1 was solemnized as per Hindu Custom and Rites and they had been living as husband and wife at the time of filing petition under the Domestic Violence Act, grounds as raised in the petition at hand for quashing and setting aside the order dated 6.12.2014 cannot be made basis to set aside the order of maintenance passed by the Lok Adalat.
6. Section 2(f) of the Act, defines "domestic relationship", 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.
7. Though, in the case at hand petitioner has attempted to raise a ground that the marriage interse him and respondent No.1 is not valid marriage as it was solemnized during the subsistence of earlier marriage of respondent No.1, but such argument/ submission may not of any help to the petitioner to come out of ::: Downloaded on - 17/03/2021 20:13:32 :::HCHP 6 order dated 6.12.2014 passed by the Lok Adalat in Domestic Violence proceedings. Factum with regard to marriage interse petitioner and respondent No.1 stands duly admitted by the .
petitioner in his pleadings. Otherwise also, it is not in dispute that petitioner as well as respondent No.1 after their marriage had been living together as husband and wife and as such, it can be safely inferred that there was a domestic relationship interse them. While claiming maintenance under Section 12 of the Domestic Violence Act, respondent No.1 was only under obligation to prove domestic relationship interse her and the petitioner.
8. Hon'ble Apex Court in case titled Indra Sharma vs. V.K.V.Sarma, AIR 2014 Supreme Court Cases (309) has laid down certain 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. At this stage, it would be profitable to reproduce para-55 of the judgment herein:-
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 ::: Downloaded on - 17/03/2021 20:13:32 :::HCHP 7 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 upkeeping 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 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 ::: Downloaded on - 17/03/2021 20:13:32 :::HCHP 8 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.
9. In the case at hand, petitioner has been not able to dispute that he as well as respondent No.1 after their marriage had been living together as husband and wife and during this period, they also shared household. Since, till the passing of impugned order dated 6.12.2014 petitioner had been accepting respondent No.1 to be his legally wedded wife, ground raised in the instant petition for setting aside the impugned order deserves outright rejection being totally devoid of merit. In the proceedings under Section 12 of the Act, petitioner never raised the ground with regard to earlier marriage of respondent No.1 with respondent No.2, rather he admitted that respondent No.1 to be his legally wedded wife and as such, it can be safely inferred /presumed that both the petitioner and respondent No.1 socialized in the Public ::: Downloaded on - 17/03/2021 20:13:32 :::HCHP 9 holding out to the public, relations and others that they are legally wedded husband and wife. Similarly, it is also not in dispute that after their marriage both petitioner and respondent No.1 developed .
intimate relationship for procreation of children and to give emotional support to each other.
10. "Whether respondent No.1 solemnized marriage with the petitioner during subsistence of her earlier marriage with respondent No.2 is/was not a question required to be gone into the proceedings under Section 12 of the Domestic Violence Act, rather in that case complainant with a view to claim maintenance is/was only required to prove that her relationship with the petitioner falls within the definition of expression "relationship in the nature of marriage" under Section 2(f) of the Act and she has been subjected to domestic violence as defined under section 12 of the Act.
11. In the case at hand, for the reasons stated hereinabove, respondent No.1 has successfully proved that she had been living with the petitioner as his legally wedded wife and as such, no fault, if any, can be found with the impugned order dated 6.12.2014, which otherwise came to be passed with the consent of the petitioner.
::: Downloaded on - 17/03/2021 20:13:32 :::HCHP 1012. Consequently, in view of the above, the present petition is dismissed and impugned order dated 6.12.2014 passed by the Court below is upheld. Pending applications, if any stands .
disposed of. Interim order, if any, is also vacated.
(Sandeep Sharma),
Judge
15th March, 2021
(shankar)
r to
::: Downloaded on - 17/03/2021 20:13:32 :::HCHP