Tag Archives: Domestic Violence

Digest Domestic Violence Act 2005


1. Kunapareddy @Nookala shanka balaji vs Kunapareddy Swarna Kumari & Anr (SC)

Amendment in the complaint was allowed: cognizance not taken, did not change the original nature and summons were yet to be ordered to be issued.

2. Hiralal P. Harsora & Ors. vs Kusum Narotamdas Harsora & Ors. (SC)

Section 2(q) ‘adult male’ struck off before the word person.

3. Krishna Bhatacharjee vs Sarathi Choudhury And Anr (SC)

Retention of Stridhan by husband or any of his family members is a continuing offence.
Claim not barred by limitation that she should have claimed it prior to judicial separation

4. Shalu Ojha versus Prashant Ojha (SC)

Whether the Sessions Court in exercise of its jurisdiction under Section 29 of the Act
has any power to pass interim orders staying the execution of the order appealed before
it is a mater to be examined in an appropriate case. No express grant of power conferred
on the Sessions Court while such power is expressly conferred on the Magistrate under Section 23.

5. Prakash N.D.Saha versus Sou. Meena Prakash D Saha (SC)

S.20,21 Unsuccessful divorce proceedings cannot adversely affect maintainability of application fled under Act.

6. Saraswathy versus Babu (SC)

Compensation and damages for injuries : pay compensation and damages to the
extent of Rs. 5,00,000 in favour of the wife.

7. Indra Sarma versus V.K.V. Sarma (SC)

The Supreme Court para 55 has laid down the tests for judging a live in relationship
following which the expression “ In the nature of marriage” under section 2 (f) of D.V. Act; holding that all live in relationships are not in the nature of marriage and the court shall come to an informed decision on the basis of material available, before passing an order in such cases.

8. V.D.Bhanot versus Savita Bhanot (SC)

Section 2(s) petition under the provisions of the PWD Act, 2005, was maintainable by a woman, who was no longer residing with her husband or who was allegedly subjected to any act of domestic violence prior to the coming into force of the PWD Act on 26th October, 2006.

9. Inderjit Singh Grewal versus State of Punjab & Anr (SC)

Case u/s 12 DV Act afer obtaining divorce by mutual consent and later challenging the same.

10. D.Velusamy versus D.Patachaiammal (SC)

Section 2(f) domestic relationship

11. Japani Sahoo versus Chandra Shekhar Mohanty (SC) 

Provision of limitation in section 468 Cr.P.C. crucial date for computing limitation is not taking of cognizance by the magistrate but the fling of the complaint or initiation of proceedings

12. S.R. Batra & Anr versus Smt. Taruna Batra (SC)

Shared House-Hold (section 2(s)) & Sections 17 and 19(1) ) of the aforesaid Act,
The exclusive property of mother –in-law cannot be called a `shared household’

13. Chitranjan Pd. Singh versus State of Bihar (Patna High Court)

Court not empowered to decide the possession or title of the shared household or
indirectly allow relief of delivery of possession.

14. Rajesh Kumar Chaudhari versus State of U.P. & Anr (Allahabad High Court)

(On the point of limitation ) whether governed by provision of section 468 Cr.P.C.

15. Harbans Lal Malik versus Payal Malik (Delhi High Court)

The Delhi High Court  held that to constitute a family and domestic relationship under D.V. Act. It is necessary that the persons who constitute domestic relationship must be living together in the same house under one head.
The parents can be included in the family of son only when they are dependent upon the son and/or all living along with son in the same house. In case where the shared household have been at USA, the court in India directed the Brother and Father of the husband living in India to pay Rs. 50 thousand to the complainant wife jointly and severally with the husband, is set aside.

16. Sagar Sudhakar Shengde versus Mrs.Naina Sagar Shengde & Ors (Bombay High Court)

Issuance of NBW against for execution of order of maintenance well within the special procedure u/s 28 (2) D.V. Act 2005 .

17. Kunjathiri versus State of Kerela (Kerala High Court)

No necessity that the woman should be related to the person commiting wrong through
matrimony alone..A proceeding against relative of husband perfectly maintainable without husband being in the party array and without relief being sought against him.

Kunapareddy @ nooKala ShanKa Balaji VerSuS Kunapareddy Swarna Kumari & anr

OBJECTIVE SAMPLE QUESTIONS ON THE PROTECTION OF DOMESTIC VIOLENCE ACT, 2005

DV act applies to

  1.  Only the victim of the violence
  2. all women who are subject of 125 Cr.P.C
  3. All women who are not staying with the husband
  4. women who are victim of violence within the family

Aggrieved Person includes

  1. woman having domestic relationship
  2. A woman in live- in relations
  3. a mother whom the son not allowed to live with him
  4.  above all

DV act has retrospective effect

  1. yes
  2. no
  3. Prospective effect
  4. no 1 and three are correct

Monetary relief Can be given

  1. if aggrieved woman suffer loss due to domestic violence
  2. if subject of section 125 of Cr.P.C
  3. If husband failed to maintain the woman
  4. Only no 1 is correct

Who can be respondent

  1.  Only adult male having a domestic relationship
  2. any person with whom domestic relationship could be established
  3. relatives of the husband
  4. no 2 and 3 are correct

A divorced woman can claim in a shared household

  1. true
  2. false

A woman in live in relationship resides with her boyfriend in a rented house and later she discovered that her boyfriend is the owner of a flat in salt lake city of kolkata , whether the claim of the woman for residence in the salt lake flat is competent?

  1. yes
  2. no

The Magistrate can not proceed with the complaint u/s 12 without considering DIR

  1. true
  2. false

A woman can claim u/s 17 a residence order

  1. against the shared  house belongs to husband
  2. against the shared house belongs to father -in -law
  3. against a shared house belongs to the joint family
  4. against the shared house belongs to the relative of the husband
  5. no 1 is correct position of law
  6. no 1 and 3 is the correct position of law

An application u/s 12 of DV  Act should be filed

  1. at any time after the cause of action
  2. within three years  as per article 137 of the limitation act
  3. Any limitation has not ben prescribed in DV Act
  4. no 1  and 3 are  correct
  5. no 2 is correct

An application by wife u/s 12 of DV  Act has been disposed of by the Ld Magistrate and inter alia ordered for residence in the husband’s house in Chetla Kolkata. Now the status of the wife

  1. Like divorcee
  2.  Like judicial separation
  3. Same as a full fledge wife
  4. The husband can ask for casual sex with the wife
  5. the wife can deny sexual intercourse by telling “sexual abuse clause” but allowing a man of her choice
  6. no 3 and 4 are correct
  7. no 5 are correct
  8. no 2 and 5 are correct

“Sexual abuse” defined U/s 3 of DV Act in terms of

  1. Violation of the Dignity of woman
  2. any short of sexual advancement by the husband
  3. Husband wants to see pornography with the wife
  4. Husband asks for sodomy
  5. no 1 and 4 are correct
  6. No 1 , 2 , 3, 4 all are correct

U/s 20 of DV Act the Magistrate is competent

  1. to issue an arrest warrant on failure to pay money
  2. can only direct the employer or debtor to pay the money as ordered
  3. can create a charge on the immovable property of the respondent
  4. all are correct
  5. only no 2 is correct

U/s 23 a magistrate can grant interim Relief

  1. for past, present and future domestic violence
  2. only for past and present domestic violence
  3. which one is correct?

U/S 25 of the DV Act , whether a magistrate is competent to Recall his Order?

  1. yes
  2. no

U/s 28 of the DV Act the procedure shall be adopted by the Ld Magistrate is written in 126 of the CR.P.C

  1. true
  2.  false
  3. The magistrate can overlook Cr.P.C and adopt his own procedure
  4. The magistrate can adopt his own procedure if a thing is not provided in Cr.P.C
  5. Which one is a more appropriate answer?

A magistrate proceed with an Application u/s 12 of DV act without jurisdiction

  1. The respondent shall file a Revision as per Cr.P.C
  2.  The Respondent shall prefer an appeal as per section 29 of the DV Act.

Domestic violence is usually a one time, isolated occurrence
A. True

B. False

In DV Case the burden  lies with the Complainant

  1. true
  2. false

______________________________________

 

LIVE-IN RELATIONSHIPS IN INDIA [UPDATES]

  1. Kerala HC couple allows Muslim teenage couple to stay together[ Jun 01, 2018]
  2. Adult couple can live together without marriage: Supreme Court[May 06, 2018]
  3. Delhi court frees man of rape, false marriage charges; says woman was mature enough and was in live- in relation with the man[Apr 21, 2017]
  4. Rajasthan human rights panel turns to people for views on live-in relationships[Feb 04, 2017]
  5. Kerala HC verdict on girl’s expulsion polarises debate on live-in relationships[Jul 19, 2016]
  6. Delhi HC acquits man in rape case, says it was live-in relationship[Jun 19, 2016]

Domestic violence at a Glance

Law Library

Children-min

 Meaning of domestic violence and its scope

Domestic violence means any unlawful act, omission or behaviour which results in death or the direct infliction of physical, sexual or mental injury to any complainant by a respondent and includes the following—

(a)   physical abuse;

(b)   sexual abuse;

(c)   emotional, verbal and psychological abuse;

`     (d)   economic abuse;

(e)   intimidation;

(f) harassment;

(g)   stalking;

(h)   malicious damage to property;

(i)   forcible entry into the complainant’s residence where the parties do not share the same residence;

(j)   depriving the complainant of or hindering the complainant from access to or a reasonable share of the use of the facilities associated with the complainant’s place of residence;

(k)   the unreasonable disposal of household effects or other property in which the complainant has an interest;

(l)   abuse derived from the following cultural or customary rites or practices that discriminate against or degrade women—

(i)   forced virginity testing; or

(ii)   female genital mutilation; or

(iii)   pledging of women or girls for purposes of appeasing spirits; or

(iv)   forced marriage; or

(v)   child marriage; or

(vi)   forced wife inheritance; or

             (vii)   sexual intercourse between fathers-in-law and newly married daughters-in-law;

(m)   abuse perpetrated on the complainant by virtue of complainant’s age, or complainant’s physical or mental incapacity;

(n)   abuse perpetrated on the complainant by virtue of complainant’s physical, mental or sensory disability, including a visual, hearing or speech functional disability;

(o)   abuse perpetrated on the complainant by virtue of complainant’s mental illness, arrested or incomplete development of the mind, psychopathic disorder or any other disorder or disability of the mind;

(p) any act of domestic violence described in paragraphs (a), (b), (c), (e), (f), (g), (h) or (i) when it is perpetrated on the person or property of the complainant’s representative.

(2)  For the purposes of—

       (a)   subsection (1)(a), “physical abuse” includes any act or threatened act of physical violence towards a complainant;

       (b)   subsection (1)(b), “sexual abuse” includes any conduct that humiliates, degrades or otherwise violates the sexual integrity of the complainant;

       (c)   subsection (1)(c), “emotional, verbal and psychological abuse” means a pattern of degrading or humiliating conduct towards a complainant, including but not limited to the following—

                  (i)   repeated insults, ridicule or name-calling; or

                 (ii)   repeated threats to cause emotional pain; or

(iii) the repeated exhibition of obsessive possessiveness which is such as to constitute a serious invasion of the complainant’s privacy, liberty, integrity or security; or

(iv)   any act, omission or behaviour constituting domestic violence as defined in subsection (1) which, when committed in the presence of minor members of the family, is likely to cause them mental injury;

       (d)   subsection (1)(d), “economic abuse” includes—

                  (i)   the unreasonable deprivation of economic or financial resources to which a complainant is entitled under the law or which the complainant requires out of necessity, including household necessities, medical expenses, school fees, mortgage bond and rent payments, or other like expenses;

                 (ii)   denying the complainant the right to seek employment or engage in any income-generating activity;

(e)   subsection (1)(e), “harassment” means engaging in a pattern of conduct that induces in a complainant the fear of imminent harm or feelings of annoyance and aggravation, including—

                  (i)   watching or loitering outside or near the building or place where the complainant resides, works, carries on business, studies or happens to be;

                 (ii)   repeatedly making or sending or causing another person to repeatedly make or send abusive phone calls or electronically-transmitted messages to the complainant, whether or not conversation ensues;

                (iii)   sending, delivering or causing the delivery of offensive or abusive letters, telegrams, packages, facsimiles, electronic mails or offensive objects to the complainant;

(f)   subsection (1)(f), “intimidation” includes uttering or conveying a threat or causing a complainant to receive a threat which induces a fear of imminent harm in the complainant;

(g)   subsection (1)(g), “stalking” includes following, pursuing, or accosting the complainant.

(3)  For the purposes of  subsection (2)(e) and (f) “imminent harm”, in relation to a complainant, includes harm that the complainant fears to be imminent taking into consideration the history of respondent’s known violent behaviour towards the complainant or other relevant factors.

2. Determination of application if Domestic Violence

(1)  The court shall as soon as possible consider an application made in terms of section 12  and may for such purposes—

       (a)   enquire whether an interim protection order or protection order has at any time been issued to either of the parties;

       (b)   call for such evidence, whether oral or by affidavit, as it considers necessary, including medical evidence:

Provided that any such medical evidence shall be supported by a police report forming the basis on which an examination of a victim of domestic violence was made;

       (c)   examine any witness before the court.

(2) Where the inquiry provided for in subsection (1)(a) reveals that there is an existing interim protection order or protection order the court shall—
(a) consider whether there is any change in circumstances that warrants the granting of a fresh protection order; and
(b) where appropriate, direct the parties to make application under section 12.

3. Issue of interim protection order
(1) Where, upon an application made in terms of section 23 ( or such type of provision), the court is satisfied that prima facie—
(a) the respondent has committed, is committing or is threatening to commit an act of domestic violence; and
(b) it is necessary or desirable to issue immediately an order to protect the complainant from serious or substantial harm or discomfort or inconvenience, whether physical, emotional or economic, which results or may result from such actual or threatened domestic violence;
the court shall issue an interim protection order against the respondent notwithstanding that he or she has not been given notice of the application or has not been before the court.
(2) An interim protection order may, where appropriate, contain any direction, prohibition or award which may be contained in a protection order issued in terms of relevant Provision.
(3) An interim protection order must be served on the respondent in the prescribed manner and must contain a notice calling upon the respondent to show cause, on a date specified in the order, why a protection order should not be issued.
(4) Whenever a court issues an interim protection order the court shall issue a warrant for the arrest of the respondent which shall be attached to the order and which shall be suspended on condition that the respondent complies with the order.
(5) Where upon an application made in terms of section 23 the court is satisfied that, prima facie, the respondent has committed, is committing or threatening to commit an act of domestic violence but that the circumstances do not justify or require the issue of an interim protection order, it may issue a notice calling upon the respondent to show cause why a protection order should not be made.
(6) An interim protection order (together with the suspended warrant of arrest issued in terms of subsection (4)) or a notice issued in terms of subsection (5) shall be served upon the respondent as soon as possible by any police officer:
Provided that, where the complainant so requires, service may be effected, at the complainant’s expense, by the messenger of the court or deputy sheriff, as the case may be.
(7)  The court that issues an interim protection order shall supply the complainant or the complainant’s representative with a certified copy of any interim protection order (together with the suspended warrant of arrest issued in terms of subsection (4)) or notice issued in terms of subsection (5), and, additionally or alternatively, forward the same to the police station nominated by the complainant or the complainant’s representative.
(8) An interim protection order shall remain in force until it is replaced by a protection order or varied or revoked by a competent court.

(9) Any person who fails to comply with the terms and conditions of an interim protection order shall be guilty of an offence and liable to a fine  or imprisonment or to both such fine and such imprisonment

4. Application for revocation, variation or extension of protection orders

(1)  Where there is a change of circumstances, a complainant, complainant’s representative or respondent may apply to the court for the revocation or variation of an interim protection order or a protection order or for the extension of any time limit attached to any direction or award contained therein.

(2)  A complainant’s representative may, with the leave of the court, apply for a revocation, variation or extension of a protection order without the consent of the complainant and the court, in determining whether or not to grant leave, shall have regard to all the circumstances including those referred to in section 7(2).

(3)  A complainant’s representative shall not, under any circumstances, make an application for a revocation, variation or extension of a protection order that may prejudice the complainant

(4) An application under subsection (1) or (2) shall be lodged with the clerk or registrar of the court who shall—
(a) fix a date for the hearing of the application; and
(b) place the application before the court as soon as possible, and in any event not later than forty-eight hours after lodging the application; and
(c) give notice of the date of hearing to other interested parties.
(5) On the date fixed for the hearing of the matter, the court shall consider the application and may for that purpose—
(a) call for such evidence, whether oral or by affidavit, as it considers necessary;
(b) examine any witness before the court.
(6) If the court is satisfied that good cause has been shown it may revoke or vary any interim protection order or protection order or may extend any such order by a period not exceeding twenty-four months.
(7) The  court shall give notice to interested parties of any revocation, variation or extension granted in terms of this section.

5. Filing false complaint and affidavit

 (1)  Any person who makes any false statement in any application or affidavit made in terms of this Act, knowing such statement to be false or not believing it to be true, shall be guilty of an offence and liable to a fine  or imprisonment five years or to both such fine and such imprisonment.

(2)  Where any offence other than one referred to in this Act is committed by a respondent upon a complainant during or in furtherance of the commission any act of domestic violence, the court convicting the respondent therefor shall regard such circumstances as aggravating when assessing the sentence to be imposed.

(3)  For the avoidance of doubt it is declared that the prosecution of a respondent under this Act or any other law shall not prevent the complainant from seeking protection and redress in terms of Domestic violence Act.

 

Status of a woman for determining monetary help 
General violence or abuse
  1. Verbal and emotional violence
  2. Insult – not attractive, not smart, doesn’t respect him/his parents
  3. Accusing/Insulting your parents
  4. Name – calling
  5. Accusations on your character or conduct etc
  6. Insult for not having a male child
  7. Insults for not bringing dowry etc
  8. Preventing you or a child in your custody from attending school, college or any other educational institutions
  9. Forcing you to leave your job
  10. Preventing you from taking up a job
  11. Preventing you or a child in your custody from leaving the house
  12. Preventing you from meeting any person in the normal course of events
  13. Threat to commit suicide

Economic Violence

  1. Not providing you money for maintaining you or your children
  2. Not providing food, clothes, medicines etc, for you or your children
  3. Stopping you from carrying on your employment
  4. Not allowing you to take up on employment or
  5. Taking away your income from your salary, wages etc
  6. Not allowing you to use your salary wages etc
  7. Forcing you out of the house you live in
  8. Stopping you from accessing or using any part of the house
  9. Not allowing use of clothes, articles, or things of general household use,
  10. Not paying rent if staying in a rented accommodation etc.

Physical violence

  1. Slapping
  2. Beating
  3. Hitting
  4. Biting
  5. Kicking
  6. Punching
  7. Pushing
  8. Shoving or
  9. Causing bodily pain or injury in any other manner
  10. Sexual Violence
  11. Forced sexual intercourse
  12. Forced you to look at pornography or any other obscene pictures or material
  13. Any act of sexual nature to abuse humiliates or degrade you, or which is otherwise violating of your dignity or any other unwelcome conduct or sexual nature

Law of England

Protection from Harassment Act 1997

An Act to make provision for protecting persons from harassment and similar conduct.

Serious Crime Act 2015

A new criminal offence of coercive or controlling behaviour against an intimate partner or family member came into force on 29 December 2015. The offence was created, following consultation, through section 76 of the Serious Crime Act 2015. The maximum penalty for someone found guilty is five years’ imprisonment or a fine, or both.

Domestic Violence, Crime and Victims Act 2004

An Act to amend Part 4 of the Family Law Act 1996, the Protection from Harassment Act 1997 and the Protection from Harassment (Northern Ireland) Order 1997; to make provision about homicide; to make common assault an arrestable offence; to make provision for the payment of surcharges by offenders; to make provision about alternative verdicts; to provide for a procedure under which a jury tries only sample counts on an indictment; to make provision about findings of unfitness to plead and about persons found unfit to plead or not guilty by reason of insanity; to make provision about the execution of warrants; to make provision about the enforcement of orders imposed on conviction; to amend section 58 of the Criminal Justice Act 2003 and to amend Part 12 of that Act in relation to intermittent custody; to make provision in relation to victims of offences, witnesses of offences and others affected by offences; and to make provision about the recovery of compensation from offenders.

Family Law Act 1996

An Act to make provision with respect to: divorce and separation; legal aid in connection with mediation in disputes relating to family matters; proceedings in cases where marriages have broken down; rights of occupation of certain domestic premises; prevention of molestation; the inclusion in certain orders under the Children Act 1989 of provisions about the occupation of a dwelling-house; the transfer of tenancies between spouses and persons who have lived together as husband and wife; and for connected purposes.

Preventing and Combating Violence Against Women and Domestic Violence (Ratification of Convention) Bill: Briefing for Lords Stages

Establish a Domestic Violence and Abuse Commissioner
• Introduce a statutory definition of domestic violence and abuse
• Create a “consolidated new domestic abuse civil prevention and
protection order regime”
• Create a new aggravated offence if behaviour is directed at a child

Crown Prosecution service Guidelines on Domestic violence

The Government’s definition of domestic violence is:

“any incident of threatening behaviour, violence or abuse [psychological, physical, sexual, financial or emotional] between adults who are or have been intimate partners or family members, regardless of gender or sexuality.”

The Crown Prosecution Service (CPS) is concerned with criminal offences that occur in a domestic context whatever the age of the victims and abusers.

Devider

Introduction to an Ideal Domestic Violence Law

 

Ashok Kumar Vs State of Haryana[ALL SC 2010 JULY]

KEYWORDS:-the cruelty, harassment and demand of dowry should not be so ancient whereafter, the couple and the family members have lived happily.

c

DATE:-08-07-2010

AIR 2010 SC 2839 : (2010) CriLJ SC 4402 : JT 2010 (7) SC 460 : (2010) 12 SCC 350 : (2010) 7 SCALE 30

(SUPREME COURT OF INDIA)

Ashok Kumar Appellant
Versus
State of Haryana Respondent

(Before : B. S. Chauhan and Swatanter Kumar, JJ.)

Criminal Appeal No. 1489 of 2004; Decided On: 08-07-2010

Dowry Prohibition Act, 1961—Section 2—Dowry—Meaning—‘Dowry’ means any property or valuable security given or agreed to be given either directly or indirectly by one party to another, by parents of either party to each other or any other person at, before, or at any time after the marriage and in connection with marriage, but does not include dower or mehr under Muslim Personal Law—Expression ‘in connection with marriage’ cannot be given a restricted meaning—Definition of ‘dowry’ is not restricted to agreement or demand for payment of dowry before and at time of marriage but even include subsequent demands.

Penal Code, 1860—Section 304B—Dowry death—Expressions ‘soon before her death’ cannot be given a restricted or narrower meaning—They must be understood in their plain language and with reference to their meaning in common parlance—These are provisions relating to human behaviour and cannot be given such a narrower meaning—These are penal provisions and must receive strict construction—Concept of reasonable time is best criteria to be applied for appreciation and examination of such cases.

Penal Code, 1860—Section 304B—Dowry death—Court has to attach specific significance to time of alleged cruelty and harassment to which victim was subjected to and time of her death, as well as whether alleged demand of dowry was in connection with marriage—Once these ingredients are satisfied, it would be called ‘dowry death’ and then, by deemed fiction of law, husband or relatives would be deemed to have committed that offence.

Criminal Procedure Code, 1973—Section 313—Examination of accused—Dual purpose is sought to be achieved when Courts comply with mandatory requirement of recording statement of an accused under this provision—Every material piece of evidence which prosecution proposes to use against accused should be put to him in clear terms and accused should have a fair chance to give his explanation in relation to that evidence as well as his own versions with regard to alleged involvement in crime.

Criminal Procedure Code, 1973—Section 313—Examination of accused—Use of a statement under Section 313 of Cr.P.C. as an evidence is permissible but has its own limitations—Courts may rely on a portion of statement of accused and find him guilty in consideration of other evidence against him led by prosecution—However, such statements should not be considered in isolation but in conjunction with evidence adduced by prosecution.

Criminal Law—Appreciation of evidence—It may not be possible for witnesses to make statements which would be absolute reproduction of their earlier statement or line to line or minute to minute correct reproduction of occurrence/events—Court has to adopt a reasonable and practicable approach and it is only material or serious contradictions/variations which can be of some consequence to create a dent in case of prosecution—Statements of witnesses must be appreciated and dealt with by Court upon their cumulative reading.

Dowry Prohibition Act, 1961—Section 4(2)—Penal Code, 1860—Sections 304B and 34—Criminal Procedure Code, 1973—Sections 174, 313, 142 and 173—Constitution of India, 1950—Article 20.

JUDGMENT

Swatanter Kumar, J—Inter alia but primarily the appellant has raised a question of law in the present appeal. The contention is, that every demand by the husband or his family members cannot be termed as ‘dowry demand’ within the meaning of Section 2 read with Section 4 of the Dowry Prohibition Act, 1961 (for short referred to as ‘the Act’) and consequently, the death of the deceased cannot be termed as a ‘dowry death’ within the ambit and scope of Section 304B of the Indian Penal Code (for short ‘the Code’) and, as such, the conviction and order of sentence passed against the appellant is liable to be set aside.

2. It is a settled canon of criminal jurisprudence that the question of law has to be examined in light of the facts and circumstances of a given case. Thus, reference to the facts giving rise to the present appeal would be necessary.

3. Vipin @ Chanchal @ Rekha, the deceased and Ashok Kumar, the appellant herein, were married on 9th October, 1986. Harbans Lal, the father of the deceased had given sufficient dowry at the time of her marriage according to his means, desire and capacity. But, the appellant and his family members i.e. Mukesh Kumar, the brother of the appellant and Smt. Lajwanti, the mother of the appellant were not satisfied with the dowry. They allegedly used to harass and maltreat the deceased and used to give her beatings. They had demanded a refrigerator, a television etc. One week prior to the date of occurrence, the deceased came to the house of her father at Kaithal and narrated the story. She specifically mentioned that her husband wanted to set up a new business for which he required a sum of ` 5,000/-. The father of the deceased could not manage the same due to which the appellant and his family members particularly, Lajwanti and Mukesh alleged to have burnt the deceased by sprinkling kerosene oil on her as a result of which the deceased died in the hospital at about 4.00 p.m. on 16.05.1988. The father of the deceased received information of the incident from his sister’s son Subhash Chand. Neither the appellant nor his family members informed him about the said demise.

The father of the deceased moved a complaint (Ex. PA) before SI Randhir Mohan who made endorsement (Ex. PA/1) on the basis of which FIR (Ex. PU) was recorded. This was done by SI Randhir Mohan on the basis of ruqa (Ex. PQ) received on 16.05.1988 at about 5.45 p.m. The deceased was brought to the hospital as a burnt case in gasping condition and she expired in casualty. The said officer went to the General Hospital, completed the proceedings under Section 174 of the Criminal Procedure Code (for short ‘the Cr.PC’) and during those proceedings he recorded the statements of Lajwanti, mother in law of the deceased, Ram Lal, father in law of the deceased, Khem Chand, Harbans Lal and one Arjun Dass. Thereafter, the body was sent for postmortem which was handed over to Hanbans Lal, after the post mortem. The complaint was made by Harbans Lal (PW-1) on 17th May, 1988. Site Plan (Ex. PW) as well as the photographs (Ex. P-14 to P-17) and their negatives (Ex. P-18 to P-21) were prepared by Photographer Satish Kumar (PW-10). Ex. P6 was also taken into possession which was half burnt small tin, containing 3 liters of kerosene oil under Ex. PH which was sealed. Certain other goods like hammer (Ex. PK), broken piece of a wooden door (Ex. P-11), half burnt match stick, match box etc (Ex. P-12) were also taken into possession.

4. After completing the investigation of the case and recording the statements of the relevant witnesses, the Investigating Officer submitted the charge sheet in terms of Section 173 of the Cr.PC. The case was committed to the Court of Sessions by the learned CJM vide his order dated 18th October, 1988 which framed the charge under Section 304B of the Code read with Section 34 of the Code. Upon completion of the evidence of prosecution, statement of the accused under Section 313 of Cr.PC was recorded.

5. The learned Trial Court by a detailed judgment dated 13.01.1989/16.01.1989 held all the three accused viz., Ashok Kumar, Mukesh Kumar and Lajwanti, guilty of the offence punishable under Section 304B of the Code and vide order of the same date, sentenced the accused to undergo rigorous imprisonment for a term of 10 years and to pay a fine of ` 1,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for 3 months.

6. Aggrieved by the aforesaid judgment and order of sentence passed by the Trial Court, the accused filed an appeal before the High Court of Punjab and Haryana at Chandigarh, which was partially accepted. Lajwanti and Mukesh, the mother and brother of the accused Ashok Kumar, were acquitted of the offence under Section 304B of the Code while the conviction of Ashok Kumar, accused was upheld and the order of sentence was also maintained by the High Court.

7. Aggrieved by the judgment of the High Court dated 16th December, 2003, Ashok Kumar, the appellant herein, has filed the present appeal. While impugning the judgment under appeal and besides raising the legal contention afore noticed, it is also contended that the Courts below have failed to appreciate the evidence in its correct perspective. The evidence brought on record clearly show that there was no connection between the death of the deceased and the alleged dowry demands or alleged cruelty. Further, it is contended that there was delay in registration of the FIR and no explanation has been rendered whatsoever in that behalf. The occurrence was dated 16.05.1988 at 4.00 p.m. and the FIR was lodged on 17.05.1988, while the deceased died in the hospital on 16.05.1988. Unexplained and inordinate delay in lodging FIR (Ex. PU) creates a serious doubt on the case of the prosecution. There were no specific allegations made in the FIR with regard to dowry and the allegations made, in any case, did not specify the basic ingredients of dowry demand. While criticizing the serious contradiction between the statements of prosecution witnesses, it is also contended that the prosecution has failed to prove its case beyond any reasonable doubt particularly, keeping in view the letters written (Ex. DB to DJ), no offence could be established against the accused and, as such, he is entitled to be acquitted.

8. On the contrary, it is argued on behalf of the State that by virtue of cumulative effect of the statements of Harbans Lal, the father of the deceased (PW-1), Krishna Rani, the mother of the deceased (PW-2) and Subhash Chand (PW-3) read in conjunction with documentary evidence and the statement of the Investigating Officer, the prosecution has been able to prove the charge beyond any reasonable doubt. It is contended that one witness, produced by the accused himself, has fully corroborated the case of the prosecution and, as such, the appellant was rightly convicted and sentenced by the Courts below and the judgment under appeal does not suffer from any legal or other infirmity. According to the prosecution, the appeal should be dismissed.

9. At the very outset, we would proceed to deal with the legal submissions made on behalf of the appellant. But before that, we must notice that the appellant was neither charged with the offence under Section 4 of the Act nor he has been found guilty of the said offence. Thus, the submissions have to be examined only from the point of view that the appellant has been convicted for an offence under Section 304B of the Code and the provisions of the Act are relevant only for examining the merit or otherwise of the contention raised that the expression ‘dowry’, as per explanation to the provisions of Section 304B of the Code, has to be given the same meaning as in Section 2 of the Act.

10. The appellant was charged with an offence under Section 304B of the Code. This penal section clearly spells out the basic ingredients as well as the matters which required to be construed strictly and with significance to the cases where death is caused by burns, bodily injury or the death occurring otherwise than under normal circumstances, in any manner, within 7 years of a marriage. It is the first criteria which the prosecution must prove. Secondly, that ‘soon before her death’ she had been subjected to cruelty or harassment by the husband or any of the relatives of the husband for, or in connection with, any demand for dowry then such a death shall be called ‘dowry death’ and the husband or the relative, as the case may be, will be deemed to have caused such a death. Explanation to this section requires that the expression ‘dowry’ shall have the same meaning as in Section 2 of the Act. The definition of dowry under Section 2 of the Act reads as under:

In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly-

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before [or any time after the marriage] [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Explanation II.–The expression “valuable security” has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860).

11. From the above definition it is clear that, ‘dowry’ means any property or valuable security given or agreed to be given either directly or indirectly by one party to another, by parents of either party to each other or any other person at, before, or at any time after the marriage and in connection with the marriage of the said parties but does not include dower or mahr under the Muslim Personal Law. All the expressions used under this Section are of a very wide magnitude. The expressions ‘or any time after marriage’ and ‘in connection with the marriage of the said parties’ were introduced by amending Act 63 of 1984 and Act 43 of 1986 with effect from 02.10.1985 and 19.11.1986 respectively. These amendments appear to have been made with the intention to cover all demands at the time, before and even after the marriage so far they were in connection with the marriage of the said parties. This clearly shows the intent of the legislature that these expressions are of wide meaning and scope. The expression ‘in connection with the marriage’ cannot be given a restricted or a narrower meaning. The expression ‘in connection with the marriage’ even in common parlance and on its plain language has to be understood generally. The object being that everything, which is offending at any time i.e. at, before or after the marriage, would be covered under this definition, but the demand of dowry has to be ‘in connection with the marriage’ and not so customary that it would not attract, on the face of it, the provisions of this section.

12. At this stage, it will be appropriate to refer to certain examples showing what has and has not been treated by the Courts as ‘dowry’. This Court, in the case of Ram Singh v. State of Haryana, (2008) 4 SCC 70, held that the payments which are customary payments, for example, given at the time of birth of a child or other ceremonies as are prevalent in the society or families to the marriage, would not be covered under the expression ‘dowry’. Again, in the case of Satbir Singh v. State of Punjab, AIR 2001 SC 2828, this Court held that the word ‘dowry’ should be any property or valuable given or agreed to be given in connection with the marriage. The customary payments in connection with birth of a child or other ceremonies are not covered within the ambit of the word ‘dowry’. This Court, in the case of Madhu Sudan Malhotra v. K.C. Bhandari, (1988) 1 Suppl. SCC 424, held that furnishing of a list of ornaments and other household articles such as refrigerator, furniture and electrical appliances etc., to the parents or guardians of the bride, at the time of settlement of the marriage, prima facie amounts to demand of dowry within the meaning of Section 2 of the Act. The definition of ‘dowry’ is not restricted to agreement or demand for payment of dowry before and at the time of marriage but even include subsequent demands, was the dictum of this Court in the case of State of Andhra Pradesh v. Raj Gopal Asawa, (2004) 4 SCC 470.

13. The Courts have also taken the view that where the husband had demanded a specific sum from his father-in-law and upon not being given, harassed and tortured the wife and after some days she died, such cases would clearly fall within the definition of ‘dowry’ under the Act. Section 4 of the Act is the penal Section and demanding a ‘dowry’, as defined under Section 2 of the Act, is punishable under this section. As already noticed, we need not deliberate on this aspect, as the accused before us has neither been charged nor punished for that offence. We have examined the provisions of Section 2 of the Act in a very limited sphere to deal with the contentions raised in regard to the applicability of the provisions of Section 304B of the Code.

14. We have already referred to the provisions of Section 304B of the Code and the most significant expression used in the Section is ‘soon before her death’. In our view, the expressions ‘soon before her death’ cannot be given a restricted or a narrower meaning. They must be understood in their plain language and with reference to their meaning in common parlance. These are the provisions relating to human behaviour and, therefore, cannot be given such a narrower meaning, which would defeat the very purpose of the provisions of the Act. Of course, these are penal provisions and must receive strict construction. But, even the rule of strict construction requires that the provisions have to be read in conjunction with other relevant provisions and scheme of the Act. Further, the interpretation given should be one which would avoid absurd results on the one hand and would further the object and cause of the law so enacted on the other.

15. We are of the considered view that the concept of reasonable time is the best criteria to be applied for appreciation and examination of such cases. This Court in the case of Tarsem Singh v. State of Punjab, AIR 2009 SC 1454, held that the legislative object in providing such a radius of time by employing the words ‘soon before her death’ is to emphasize the idea that her death should, in all probabilities, has been the aftermath of such cruelty or harassment. In other words, there should be a reasonable, if not direct, nexus between her death and the dowry related cruelty or harassment inflicted on her. Similar view was expressed by this Court in the case of Yashoda v. State of Madhya Pradesh, (2004) 3 SCC 98, where this Court stated that determination of the period would depend on the facts and circumstances of a given case. However, the expression would normally imply that there has to be reasonable time gap between the cruelty inflicted and the death in question. If this is so, the legislature in its wisdom would have specified any period which would attract the provisions of this Section. However, there must be existence of proximate link between the acts of cruelty along with the demand of dowry and the death of the victim. For want of any specific period, the concept of reasonable period would be applicable. Thus, the cruelty, harassment and demand of dowry should not be so ancient whereafter, the couple and the family members have lived happily and that it would result in abuse of the said protection. Such demand or harassment may not strictly and squarely fall within the scope of these provisions unless definite evidence was led to show to the contrary. These matters, of course, will have to be examined on the facts and circumstances of a given case.

16. The cruelty and harassment by the husband or any relative could be directly relatable to or in connection with, any demand for dowry. The expression ‘demand for dowry’ will have to be construed ejusdem generis to the word immediately preceding this expression. Similarly, ‘in connection with the marriage’ is an expression which has to be given a wider connotation. It is of some significance that these expressions should be given appropriate meaning to avoid undue harassment or advantage to either of the parties. These are penal provisions but ultimately these are the social legislations, intended to control offences relating to the society as a whole. Dowry is something which existed in our country for a considerable time and the legislature in its wisdom considered it appropriate to enact the law relating to dowry prohibition so as to ensure that any party to the marriage is not harassed or treated with cruelty for satisfaction of demands in consideration and for subsistence of the marriage.

17. The Court cannot ignore one of the cardinal principles of criminal jurisprudence that a suspect in the Indian law is entitled to the protection of Article 20 of the Constitution of India as well as has a presumption of innocence in his favour. In other words, the rule of law requires a person to be innocent till proved guilty. The concept of deeming fiction is hardly applicable to the criminal jurisprudence. In contradistinction to this aspect, the legislature has applied the concept of deeming fiction to the provisions of Section 304B. Where other ingredients of Section 304B are satisfied, in that event, the husband or all relatives shall be deemed to have caused her death. In other words, the offence shall be deemed to have been committed by fiction of law. Once the prosecution proves its case with regard to the basic ingredients of Section 304B, the Court will presume by deemed fiction of law that the husband or the relatives complained of, has caused her death. Such a presumption can be drawn by the Court keeping in view the evidence produced by the prosecution in support of the substantive charge under Section 304B of the Code.

18. Of course, deemed fiction would introduce a rebuttable presumption and the husband and his relatives may, by leading their defence and proving that the ingredients of Section 304B were not satisfied, rebut the same. While referring to raising of presumption under Section 304B of the Code, this Court, in the case of Kaliyaperumal v. State of Tamil Nadu, AIR 2003 SC 3828, stated the following ingredients which should be satisfied:

4. …

1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304B, IPC).

2) The woman was subjected to cruelty or harassment by her husband or his relatives.

3) Such cruelty or harassment was for, or in connection with, any demand for dowry.

4) Such cruelty or harassment was soon before her death.

19. In light of the above essential ingredients, for constituting an offence under Section 304B of the Code, the Court has to attach specific significance to the time of alleged cruelty and harassment to which the victim was subjected to and the time of her death, as well as whether the alleged demand of dowry was in connection with the marriage. Once these ingredients are satisfied, it would be called the ‘dowry death’ and then, by deemed fiction of law, the husband or the relatives would be deemed to have committed that offence. The learned Counsel appearing for the appellant, while relying upon the case of Tarsem Singh (supra), contended that the concept of ‘soon before the death’ is not attracted in relation to the alleged harassment or cruelty inflicted upon the deceased, in the facts of the present case. The oral and documentary evidence produced by the prosecution does not suggest and satisfy the essential ingredients of the offence.

20. Similarly, reference was also made to the judgment of this Court in the case of Appasaheb v. State of Maharashtra, (2007) 9 SCC 721, to substantiate the contention that there was no co-relation between giving or taking of the property with the marriage of the parties and, as such, the essential ingredients of Section 2 of the Act were missing. Accordingly, it is argued that there was no demand of dowry by the appellant but it was merely an understanding that for his better business, at best, the amounts could be given voluntarily by the father of the deceased. This fact was further sought to be substantiated while referring to the following abstracts of the judgment in the case of Appasaheb (supra):

6. …The learned trial Judge then sought clarification from the witnesses by putting the following question:

“Question: What do you mean by ‘domestic cause’?

Answer: What I meant was that there was a demand for money for defraying expenses of manure, etc. and that was the cause.”

In the very next paragraph she stated as under:

It is not true to suggest that in my statement before the police I never said that ill-treatment was as a result of demand for money from us and its fulfillment. I cannot assign any reason why police did not write about it in my statement.

xxx xxx xxx xxx

9. Two essential ingredients of Section 304B IPC, apart from others, are (i) death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) woman is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for “dowry”. The explanation appended to Sub-section (1) of Section 304B IPC says that “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961.

xxx xxx xxx xxx

11. In view of the aforesaid definition of the word “dowry” any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well-known social custom or practice in India. It is well-settled principle of interpretation of statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India v. Garware Nylons Ltd. and Chemical and Fibres of India Ltd. v. Union of India, (1997) 2 SCC 664. A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for “dowry” as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304B IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained.

21. On the contrary, the learned Counsel appearing for the State while relying upon the judgment of this Court in Devi Lal v. State of Rajasthan (2007) 14 SCC 176, argued that the relatives and, particularly the father of the deceased, had specifically mentioned the acts of harassment and, in any case, the statement of the sister of the deceased, who was produced by the accused as his defence witness, itself clinches the entire issue and, therefore, the offence under Section 304B of the Code is made out. It was also contended that an absolute accuracy in the statement of witnesses is not a condition precedent for conviction. He relied upon the following dictum of the Court in Devi Lal’s case (supra):

25. Indisputably, before an accused is found guilty for commission of an offence, the court must arrive at a finding that the ingredients thereof have been established. The statement of a witness for the said purpose must be read in its entirety. It is not necessary for a witness to make a statement in consonance with the wording of the section of a statute. What is needed is to find out as to whether the evidences brought on record satisfy the ingredients thereof.

22. Now we may proceed to discuss the evidence led by the prosecution in the present case. In order to bring the issues raised within a narrow compass we may refer to the statement of the accused made under Section 313, Cr.PC. It is a settled principle of law that dual purpose is sought to be achieved when the Courts comply with the mandatory requirement of recording the statement of an accused under this provision. Firstly, every material piece of evidence which the prosecution proposes to use against the accused should be put to him in clear terms and secondly, the accused should have a fair chance to give his explanation in relation to that evidence as well as his own versions with regard to alleged involvement in the crime. This dual purpose has to be achieved in the interest of the proper administration of criminal justice and in accordance with the provisions of the Cr.P.C. Furthermore, the statement under Section 313 of the Cr.PC can be used by the Court in so far as it corroborates the case of the prosecution. Of course, conviction per se cannot be based upon the statement under Section 313 of the Cr.PC.

23. Let us examine the essential features of this section and the principles of law as enunciated by judgments of this Court, which are the guiding factor for proper application and consequences which shall flow from the provisions of Section 313 of the Cr.PC. As already noticed, the object of recording the statement of the accused under Section 313 of the Cr.PC is to put all incriminating evidence to the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The Court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the Court and besides ensuring the compliance thereof, the Court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simplicitor denial or, in the alternative, to explain his version and reasons, for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the Court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the Court and the accused and to put every important incriminating piece of evidence to the accused and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the Court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the Courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence. The statement of the accused can be used to test the veracity of the exculpatory of the admission, if any, made by the accused. It can be taken into consideration in any, enquiry or trial but still it is not strictly an evidence in the case. The provisions of Section 313(4) of the Cr.PC explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in as evidence for or against the accused in any other enquiry or trial for any other offence for which, such answers may tend to show he has committed. In other words, the use of a statement under Section 313 of Cr.PC as an evidence is permissible as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution. Another important caution that Courts have declared in the pronouncements is that conviction of the accused cannot be based merely on the statement made under Section 313 of the Cr.PC as it cannot be regarded as a substantive piece of evidence. In the case of Vijendrajit Ayodhya Prasad Goel v. State of Bombay, AIR 1953 SC 247, the Court held as under:

3. …As the appellant admitted that he was in charge of the godown, further evidence was not led on the point. The Magistrate was in this situation fully justified in referring to the statement of the accused under Section 342 as supporting the prosecution case concerning the possession of the godown. The contention that the Magistrate made use of the inculpatory part of the accused’s statement and excluded the exculpatory part does not seem to be correct. The statement under Section 342 did not consist of two portions, part inculpatory and part exculpatory. It concerned itself with two facts. The accused admitted that he was in charge of the godown, he denied that the rectified spirit was found in that godown. He alleged that the rectified spirit was found outside it. This part of his statement was proved untrue by the prosecution evidence and had no intimate connection with the statement concerning the possession of the godown.

24. From various answers given by the accused to the Court in his statement recorded under Section 313 of the Cr.P.C., it appears that the death of the deceased is not disputed. The allegation with regard to cruelty was denied. However, besides denying the case of the prosecution, the appellant took the stand that he was falsely implicated in the crime. According to him, the deceased was not happy with the marriage inasmuch as she was in love with some other boy and wanted to marry him which was not permitted by her family and that is why she committed suicide. As would be evident from this admitted position, the death of the deceased by burning is not an issue. The limited question was whether the deceased committed suicide simplicitor for the reasons given by the accused or in the alternative, the prosecution story, that it was a dowry death relatable to the harassment and cruelty inflicted upon her by the accused and his family members, is correct.

25. In the postmortem report it was noticed that the cause of death was shock and dehydration which resulted from extensive burn injuries, which were ante-mortem. The postmortem report (Ex. PO) and the body sketch (Ex. PO/1) clearly demonstrate that practically the entire body had been affected by the burn injuries. The prosecution had examined Harbans Lal, the father of the deceased (PW-1), who stated that immediately after the marriage of deceased with the accused, both were living happily and he had given dowry according to his capacity, but six months after her marriage, her husband and her in-laws started teasing her and giving taunts that she had not brought T.V. and Fridge etc. in the dowry and whenever she used to come to him she mentioned about the same and 20 days prior to her death she had told him that she was being troubled for a sum of ` 5,000/- so that her husband could change to a new business and while consoling her, he told her that he would arrange for the money in some time and took her at the house of her in-laws 7-8 days prior to her death. He also stated that Ashok Kumar, the accused, Lajwanti, the mother-in-law of the deceased and Mukesh, brother-in-law of the deceased, used to give her beatings and he had filed the complaint (Ex.PA). Ex.PB and Ex. PC were the letters which he had given to the police, however, this witness was cross-examined and confronted with Ex. PA, where the allegation about T.V. and Fridge etc. had not been recorded. He voluntarily stated that his son- in-law (the accused) used to deal in vegetables but he wanted to change to Kariyana business, and that is why he wanted a sum of ` 5,000/-. Smt. Krishna Rani, the mother of the deceased, was examined as PW-2. She admitted that a child was born from the marriage. She had also corroborated the statement of PW 1. According to her, Lajwanti told that the deceased had expired. Subhash Chand (PW-3) stated that he had informed Harbans Lal (PW-1) about the death of the deceased due to burn injuries and stated that they (the husband of the deceased and her in-laws) used to ill-treat the deceased and were demanding dowry. However, he did not refer to the demand of ` 5,000/-, as stated by other witnesses. To prove the case Karta Ram, SI (PW-6), Darshan Lal, H.C. (PW-7), Ranbir Mohan, SI (PW-8), the police officials, were also examined by the prosecution apart from Kharati Lal, Kariyana Merchant (PW-4). Dr. Manjula Bansal, Medical Officer, Civil Hospital, Jind (PW-5), was examined to prove the death of the deceased which was caused by burn injuries.

26. The accused had led defence and examined as many as six witnesses. Dr. Bhushan Aggarwal, Incharge Swami Salagram Ashram Charitable Hospital, Jind (DW-1) was examined to primarily show that a child was born on 30th August, 1987. Vijay Laxmi (DW-3) and Lekh Raj (DW-4) were examined to show that there were no dowry demands and Harbans Lal, the father of the deceased had not complained to them about the same at any point of time. But, the most important witness examine by the accused was Vijay Laxmi (DW-3), who is the daughter of Harbans Lal, aged about 14 years. She mentioned that the letter (Ex. DJ) was written by her and she stated that sometimes Ashok Kumar, the accused used to take the deceased to her father’s house. She admitted that two days prior to writing of the letter (Ex. DJ), her sister and sister’s son had come to her house and she stated that whatever is written in the letter is correct. But, in her cross-examination, she stated as under:

Whenever my sister visited our home after marriage, she would complain that her husband and in-laws demanded dowry and also they used to give her beating. She came to our home 20 days prior to her death. At that time she told that her in-laws etc. were demanded a T.V. and ` 5,000/-. My father took her to her husband’s home. My sister was not suffering from my disease. She was having good health.

27. The above statement of this witness (DW-3) in cross- examination, in fact, is clinching evidence and the accused can hardly get out of this statement. The defence would be bound by the statement of the witness, who has been produced by the accused, whatever be its worth. In the present case, DW-3 has clearly stated that there was cruelty and harassment inflicted upon the deceased by her husband and in-laws and also that a sum of ` 5,000/- was demanded. The statement of this witness has to be read in conjunction with the statement of PW-1 to PW-3 to establish the case of the prosecution. There are certain variations or improvements in the statements of PWs but all of them are of minor nature. Even if, for the sake of argument, they are taken to be as some contradictions or variations in substance, they are so insignificant and mild that they would no way be fatal to the case of the prosecution.

28. This Court has to keep in mind the fact that the incident had occurred on 16.05.1988 while the witnesses were examined after some time. Thus, it may not be possible for the witnesses to make statements which would be absolute reproduction of their earlier statement or line to line or minute to minute correct reproduction of the occurrence/events. The Court has to adopt a reasonable and practicable approach and it is only the material or serious contradictions/variations which can be of some consequence to create a dent in the case of the prosecution. Another aspect is that the statements of the witnesses have to be read in their entirety to examine their truthfulness and the veracity or otherwise. It will neither be just nor fair to pick up just a line from the entire statement and appreciate that evidence out of context and without reference to the preceding lines and lines appearing after that particular sentence. It is always better and in the interest of both the parties that the statements of the witnesses are appreciated and dealt with by the Court upon their cumulative reading.

29. As already noticed, the expression ‘soon before her death’ has to be accorded its appropriate meaning in the facts and circumstances of a given case. In the present case, there is definite evidence to show that nearly 20-22 days prior to her death the deceased had come to her parental home and informed her father about the demand of ` 5,000/- and harassment and torture to which she was subjected to by the accused and her in-laws. Her father had consoled her ensuring that he would try to arrange for the same and thereafter took her at her matrimonial home 7-8 days prior to the incident.

30. On face of the aforesaid evidence read in conjunction with the statement of DW-3, we are convinced that ingredients of Section 304B have been satisfied in the present case. It was for the accused to prove his defence. He had taken up the stand that the deceased was in love with another boy and did not want to marry the accused and the marriage of the deceased with the accused being against her wishes was the real cause for her to commit the suicide. However, he has led no evidence in this regard and thus, the Court cannot believe this version put forward by the accused.

31. The argument raised on behalf of the appellant that there was inordinate and unexplained delay in registering the FIR is without any substance. The incident occurred at 4.00 p.m. on 16.05.1988 whereafter the family of the deceased was informed. It is a normal conduct of a normal person that the entire concentration would be upon looking after and saving the deceased rather than to run up to the police or other persons instantaneously. Unfortunately, she died at 9.00 p.m. on the same day and the FIR was lodged on the next day i.e. on 17.05.1988. The purpose of raising such a contention is to show and prove that there was a planned effort on the part of the complainant or the prosecution to falsely implicate the accused. Here, such a situation does not exist. We have already noticed that the complaint (Ex.PA) has been lodged resulting in registration of FIR (Ex. PU) at 7.30 p.m. on 17.05.1988 which obviously means that the complainant had reached the police station even prior thereto. The conduct of the complainant and the witnesses is in line with the behaviour of a person of common prudence and the facts and circumstances of the case clearly demonstrate proper exercise of due diligence on the part of these witnesses. Firstly, the complainant family got the information of the death of the deceased from a relative named Subhash Chand (PW-3) and, thereafter, they must have tried to get the body subjected to the postmortem and have the same released for performing the last rites. The incident occurred on 16.05.1988 and the FIR was registered on 17.05.1988, therefore, there was no abnormal or inordinate delay in lodging the FIR in the facts of this case. Even if we presume the delay, it is not of such a nature that would entail any benefit to the accused. Thus, in our view, there is no inordinate or unexplained delay in lodging the FIR.

32. Having found no infirmity in the concurrent judgments of the learned Sessions Judge and the High Court, we see no reason to interfere in these judgments in law or on facts. Thus, we sustain the conviction of the accused.

33. Coming to the question of quantum of punishment, there are few factors of which we must take note of. It is not even the case of the prosecution that at the time of occurrence, the accused-appellant was present at home and he failed to protect or save the deceased from burning which caused her death. Secondly, the marriage itself has survived for a short period of nearly one and a half year. The cruelty and harassment to the deceased was stated to be caused by Lajwanti, the mother in law of the deceased and Mukesh, the brother in law of the deceased. As already noticed, Lajwanti and Mukesh have been acquitted by the High Court for total lack of evidence. Neither the State nor the complainant has preferred an appeal against judgment of acquittal. The accused is a young person of 48 years. Keeping in view the facts and circumstances of the case and in exercise of powers under Article 142 of the Constitution of India to do complete justice, we are of the considered view that ends of justice would be met by awarding him the minimum sentence provided in law, i.e. 7 years of rigorous imprisonment. Resultantly, the appeal is partially accepted and the accused-appellant is awarded sentence of 7 years rigorous imprisonment for an offence under Section 304B of the Code.

34. The appeal is disposed off in the above terms.

35. The accused is on bail. His bail bonds and surety stand discharged. He be taken into custody to undergo the remaining period of his sentence.

Aviral Bhatla Vs Bhawana Bhatla[ALL SC 2009 FEBRUARY]

KEYWORDS:- DOMESTIC VIOLENCE-SETTLEMENT

c

DATE:-18-02-2009

AIR 2009 SCW 6622 : (2009) 3 SCALE 120 : (2009) 3 SCC 448

(SUPREME COURT OF INDIA)

Aviral Bhatla Appellant
Versus
Bhawana Bhatla Respondent

(Before : Arijit Pasayat And Asok Kumar Ganguly, JJ.)

Transfer Petn. (Civil) Nos. 431 with 1052 of 2008, Decided on : 18-02-2009.

Hindu Marriage Act, 1955—Sections 9 and 13(1)(ia)—Criminal Procedure Code, 1973—Section 125—Protection of Women From Domestic Violence Act, 2005—Section 12—Dowry Prohibition Act, 1961—Section 4.

Counsel for the Parties:

Ajai Bhalla, Abhinav Jain, Shefali Jain, K. D. Prasad, Abha R. Sharma, for Appellants

Pinky Anand, Geeta Luthra, D. N. Goburdhan, Jatin, for Respondent.

Judgment

Arijit Pasayat, J—These transfer petitions have been filed by Aviral Bhatla (hereinafter referred to as the ‘husband’) seeking transfer of several cases pending before learned Chief Judge, Family Court, Gwalior, in proceedings under Section 9 of the Hindu Marriage Act, 1955 (in short the ‘Act’) and Section 125 of the Code of Criminal Procedure, 1973 (in short the ‘Code’). The parties were married on 20-1-2006 at Surajkund, Haryana. It appears that there were some irreconcilable differences between the parties and despite concerted and serious efforts the parties were not able to resolve their disputes and were living separately since 10-10-2007. It appears that after the transfer petitions were filed before this Court, learned counsel for the parties made efforts to bring about a comprehensive settlement of the dispute relating to the matrimonial discord. The Mediation Centre of the Delhi High Court also played a vital role in arriving at a settlement. The details of the litigations between the parties are as follows :

(i) The petitioner has filed a case/petition under Section 13(1)(ia) read with Section (iii) of the Hindu Marriage Act, 1955 titled Aviral Bhatla vs. Bhawna Bhatla bearing case No. 48/07 which is pending in the Court of Mr. Ashok Bhardwaj, ASG Gurgaon, Haryana.

(ii) Respondent has filed a case under The Protection of Women from Domestic Violence Act, 2005 being complaint case No. 3086/1/2007 dated 3-11-2007, under Section 12 of the Domestic Violence Act, which is pending in the Court of Ms. Veena Rani Metropolitan Magistrate at Patiala House, New Delhi.

(iii) Respondent has filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 in Gwalior bearing No. 501(a)/07 against the Petitioner pending before Ms. Saroj Maheshwari Jain, Chief Judge, Family Court, Gwalior. The said proceedings have been stayed by this Hon’ble Court in the Transfer Petition No. 1052/2008.

(iv) Respondent has filed a petition u/S. 125 Criminal Procedure Code, 1973 being case No. 435 of 2007 titled as Bhavna Bhatla vs. Aviral Bhatla, pending before Ms. Saroj Maheshwari Jain, Chief Judge, Family Court, Gwalior (MP). The Petitioner has filed a transfer petition for the transfer of this matter bearing Transfer Petition No. 431/2008 and such proceeding has been stayed by this Court in the Transfer Petition No. 431/2008.

(v) Respondent has filed an FIR bearing No. 68/2007 dated 26-11-2007, against Petitioner and his family members under Section 406 r/w 34 and 498A of the IPC read with Section 4 of Dowry Prohibition Act which is pending investigation in Mahila Police Station Padav, Gwalior.

(vi) That petitioner’s father has filed a case bearing Case No. 18664/1/08 titled as M.K. Bhatla vs. Chitvan Sharma and Ors. u/Ss. 420, 465, 468, 471 and 120B pending before the Court of Mr. Sudesh Kumar MM Patiala House, New Delhi.

(vii) The Petitioner has filed two Transfer Petitions bearing TP (C) No. 1052 of 2008 and TP (Crl.) No. 431 of 2008 before this Court inter alia praying transfer of the petition u/S. 9 of the Hindu Marriage Act, 1955 filed by the Respondent pending before the Chief Judge, Family Court at Gwalior and transfer of proceedings under Section 125 Criminal Procedure Code, 1973 filed by Respondent pending before the Chief Judge, Family Court at Gwalior (MP).

The agreed terms of settlement are as follows :

“That the Petitioner agrees and undertakes that he shall pay an amount of ` 12 lacs (Rupees Twelve Lacs) to Respondent in the form of a Pay Order in favour of Ms. Bhavna Bhatla, at the time of making of statements/grant of divorce/quashing of all the criminal and civil proceedings as a full and final settlement of all her claims. Furthermore the petitioner agrees and undertakes to hand over all the household articles as mentioned in settlement agreement dated 14-11-2008 before Ld. Mediator of High Court of Delhi in the presence of both the parties, which are lying at House No. E-8/10, 3rd Floor, Malviya Nagar, New Delhi, within 7 days from the date of signing of the present petition, the same will be collected by the respondent and the expenses for the transportation will be borne by her.

The respondent agrees and undertakes that after the receipt of ` 12 lacs, she and/or any of her family member will have no claim on account of alimony (past, present and future, maintenance, dowry, stridhan or will have no right of claim on any of the property movable or immovable, self acquired, ancestral, joint or HUF of the petitioner or his parents, or his family for any past, present or future claims which have all been settled in terms of the present Consent Terms. Similarly, petitioner and his family members will also have no claim against the respondent and her family members.

That both the parties agree and undertake that all the cases/complaints in any forum or Court which have been filed by the parties and their family members against each other including the ones listed above will be treated as compromised and settled in terms of the present application of divorce by mutual consent under Article 142 of the Constitution of India and this Court may also pass order for quashing of Criminal proceedings as mentioned above.”

2. In view of the factual situation and the settlement arrived at by the parties we direct that a decree of divorce by mutual consent be passed. All the proceedings referred to above which are pending shall stand quashed. We record our appreciation for the effective manner in which the Mediation Centre of Delhi High Court helped the parties to arrive at a settlement.

3. The transfer petitions are accordingly disposed of.

Shri Naorem Shamungou Singh  Vs.  Smt. Moirangthem Guni Devi[ ALL HC MANIPUR 2014 FEBRUARY]

KEYWORDS:-  PROCEDURE OF HEARING OF  AN APPLICATION UNDER DOMESTIC VIOLENCE ACT-

DATE:-07.02.2014

  • Rule 6 of the Protection of Women from Domestic Violence Act, 2006 provides that applications under Section 12 of the Act shall be dealt and orders enforced in the manner laid down in Section 125 of the Cr.P.C. 1973.
  • even though section 28(1) specifically provides that all proceedings under section 12 shall be governed by the provisions of Cr.P.C., 1973, it is directory in nature and any departure from the provisions of Code of Criminal Procedure will not vitiate a proceeding initiated under section 12. Therefore, this Court will hold that the Courts while dealing with proceedings under section 12 of the Protection of Women from Domestic Violence Act, 2005 shall abide by the provisions of Cr.P.C., 1973 as far as possible. However, any departure from the provisions of Cr.P.C. will not have the effect of vitiating the proceeding in view of the fact that the statute itself specifically provides for the Court to lay down its own procedure for disposal of an application under section 12.

ACT : DOMESTIC VIOLENCE ACT

IN THE HIGH COURT OF MANIPUR

[Cril. Revision Petn. No. 7 of 2013]

Shri Naorem Shamungou Singh  Vs.  Smt. Moirangthem Guni Devi

Hon’ble Judges/Coram:N. Kotiswar Singh, J.

Citation: AIR2014 25, II(2014)DMC555 , 2014(2)GLT7,2014(3) Crimes 446 manipur

1. Heard Mr. Th. Ibohal, learned counsel for the petitioner and Mr. H. Nabachandra, learned counsel for the respondent. The revision petition has been preferred against the order dated 6.5.2013 passed by the learned Sessions Judge, Manipur East in Cril. Appeal Case No. 8 of 2013 by which the appeal filed by the present petitioner/appellant therein was dismissed.
The present petition raises the issue as to the nature of the proceeding initiated under Section 12 of the Protection of Women from Domestic Violence Act, 2005.

2. As we proceed, we may refer to the bare minimum facts of the case as can be gathered from the pleadings. One Smt. Moirangthem Guni Devi, the respondent herein filed a complaint before the Chief Judicial Magistrate, Imphal East under section 12(1) of the Protection of Women from Domestic Violence Act, 2005 (for short PWDV Act) against the present petitioner seeking reliefs, inter-alia, for
(i) Protection under section 18 PWDV Act,
(ii) Monetary relief under section 20 PWDV Act,
(iii) Compensation order under section 22 PWDV Act,
(iv) Monthly maintenance allowance of Rs. 20,000/-,
(v) Compensation of Rs. 10,00,000/-.
The said complaint was filed stating that the complainant was married to the present petitioner in the year 1994 by performing Loukhatpa Ceremony (a form of marriage locally recognised) and thereafter lived as husband and wife out of which wedlock, one daughter (now 16 years) and a son (now 13 years) were born. While the daughter is with the father, the son is with the complainant. After the said marriage, some time in the year 2008, some differences arose between the wife and the husband. According to the complainant, she was physically and verbally abused since the month of March, 2009. The petitioner took another woman as his wife and started neglecting the complainant because of which the said complaint was filed. The learned Chief Judicial Magistrate, took cognisance of the said complaint under section 200 of the Code of Criminal Procedure in Cril. (C) Case No. 66 of 2013 on 4.12.2012 and issued process under section 204 Cr.P.C. to the present petitioner. As the petitioner did not appear before the Chief Judicial Magistrate, Imphal East, in spite of proper service of summons/notice, the Chief Judicial Magistrate, proceeded with the matter and heard the matter ex-parte on 28.12.2012 and passed the order on 7.01.2013. In the said order, the learned Chief Judicial Magistrate, observed that after proper notice, the respondent (the present petitioner) did not turn up and no reason for failure to appear before the Court was also shown and did not file any written objection to the complaint petition though he had once filed an application for adjournment which was granted but he did not turn up subsequently. Accordingly, Chief Judicial Magistrate proceeded in absence of the petitioner and recorded the statement of 4 witnesses produced by the complainant including herself. The Chief Judicial Magistrate on the basis of evidence so tendered in the Court observed that the complainant and the present petitioner were married in the month of December, 1994 out which wedlock, a son and a daughter were born. The Chief Judicial Magistrate also accepted that the plea of complainant that she was subjected to physical and verbal abuse since the year 2008 and was financially neglected after the petitioner had taken another woman as his wife and started living in another place. The Chief Judicial Magistrate also considered the domestic incident report prepared by the Protection Officer, Imphal East District, which was in favour of the complainant. After considering the aforesaid materials, the Chief Judicial Magistrate, Imphal East was satisfied that the complainant was able to prove the domestic violence perpetrated by the petitioner by causing mental an physical harassment to the complainant including economic deprivation within the ambit of Section 3 of the PWDV Act. Accordingly, Chief Judicial Magistrate, Imphal East directed as follows:-
In the result, the respondent is directed to make payment of Rs. 10,000/- to the complainant and her minor son as their monthly maintenance allowance under section 20(d) of the PWDV Act from the month of December, 2012. It is further ordered that the respondent should make deposit of sum of Rs. 10,000/- before the court on or before the 10th of every calendar month so that the complainant can collect such amount from the court as their maintenance allowance. It is further ordered that the respondent should pay a sum of Rs. 2,00,000/- (Rupees two lacs) as compensation under section 22 of the PWDV Act, 2005 as compensation as the respondent had caused mental and physical harassment to the complainant and also caused damage to the complainant by his act of domestic violence to the complainant. It is further ordered that the respondent should make payment of such compensation amount of Rs. 2,00,000/- within two months from the date of receipt of this order through the Court.
Send a copy of this order to the respondent by registered post. Furnish a copy of this order to the complainant also free of cost. The complainant is to take proper step for sending this order to the respondent within 3 days from today.

3. Being aggrieved by the aforesaid order passed by the Chief Judicial Magistrate, Imphal East on 7.1.2013, the petitioner preferred an appeal before the learned Sessions Judge, Manipur East by filing Cril. Appeal Case No. 8 of 2013 contending that the provisions of the Criminal Procedure Code, 1973, were not followed as required under Section 28(1) of the PWDV Act. It was submitted that no charge was framed against the appellant nor was he given any right to defend as an accused in the proceeding and it was also contended that the learned Trial Court had no power to proceed the case ex-parte. It was also contended that the complainant was already married to another person and as such, the question of domestic relation did not arise between the two.

The learned Sessions Judge, Manipur East after considering the contentions raised by the petitioner as appellant observed as follows:-
As per section 12 quoted above, the first step for initiation of a proceeding before a Magistrate for seeking any relief under the Act is presenting an application by an aggrieved persons or Protection Officer or any other person on behalf of the aggrieved person to a Magistrate seeking reliefs provided under the Act on such form and contain such particulars as may be prescribed or as nearly as possible thereto provided in Form II of the Protection of Women from Domestic Violence Act, 2005 and thereafter, the Court shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the Court and the Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing.
On perusal of the Objects and Reasons of this Act and its Preamble, it is crystal clear that this Act i.e. Protection of Women from Domestic Violence Act, 2005 is a special Act enacted for protection of women from domestic violence and special directions alien to the Code of Criminal Procedure, 1973 are given to the Magistrates for fixing the date of hearing not beyond three days from the date of receipt of the application and endeavour to dispose the cases within a period of sixty days.

4. Thus, the learned Sessions Judge, Manipur East held that the proceeding under sections 17 to 22 of the Act are of civil nature and not criminal. It is similar to the proceedings under section 125 of Cr.P.C. and as such, there was no need to examine the complainant on oath under section 200 Cr.P.C. and no formal charge is required to be framed as claimed by the appellant petitioner and observed as follows:-
10. On careful scrutiny of the above referred sections 17 to 22, it is very clear that the reliefs provided therein are of Civil nature and not of any Criminal offence. The power given to the Magistrate for passing ex-parte order is also alien to the procedure of criminal trial. Thus, the procedures to be followed for the proceedings under the Protection of Women from Domestic Violence Act, 2005, is no doubt, quasi-civil nature, like the proceedings under section 125 of the Code of Criminal Procedure. Rule 6(5) of the Protection of Women from Domestic Violence Rules, 2006 also provided as follows:-
6. Application to Magistrate:-
(1) ….
(2)…..
(3)…..
(4)…..
(5) The applications under section 12 shall be dealt with and the orders enforced in the same manner laid down under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974).
In the light of the foregoing observation, I am of the considered view that when an aggrieved person presented an application under section 12 of PWDV Act, 2005 there is no need for examining her under section 200 of Cr.P.C. and in the proceeding no formal charge is required to be framed because the reliefs provided under sections 17 to 22 are of Civil nature and not of Criminal offences. Nevertheless, a breach of protection order or an interim protection order by the respondent shall be an offence as per section 31 of the PWDV Act, 2005 and punishable with imprisonment of either description which may extend to one year or with fine which may extend to twenty thousand rupees or with both. In the proceedings under section 31 the Magistrate has to frame charge and the Magistrate may also frame charges under section 498A or any other provision of the Indian Penal Code or the Dowry Prohibition Act, 1961 in case the facts disclose the commission of any offence under those provisions.

5. As regards the ex-parte proceedings, the learned Sessions Judge, Manipur East after perusal of the record, found that summon was duly served upon the appellant and in fact, he had once appeared and requested the Court for fixing another date on the ground that he had to appear in a Limited Departmental examination. However, he failed to appear in the next dates. It was also observed that the learned Trial Court gave several opportunities to the appellant to appear before the Court and accordingly, held that since the procedures to be followed in an application under section 12 of the PWDV Act is akin to the one under section 125 Cr.P.C., the procedures envisaged under section 273, 274, 303, 313 and 315 of the Cr.P.C. relating to framing of charge, examination of accused, etc. meant for regular criminal trial need not be followed and accordingly, held that no error was committed by the learned Trial Court in proceeding the case in absence of the appellant and passing the impugned order by observing as follows:-
On perusal of the orders dated 5.11.2012 and 21.11.2012 of the Trial Court it is evident that summons was duly served to the present appellant and accordingly, he wrote a letter to the trial Court requesting for fixing another dated on the ground that he has to be appear his Limited Departmental Examination. It is settled principle of law that if a summon of a Court is served to a person, he has to appear before the Court without fail and if he is not able to appear before the Court on the date fixed by the Court due to any unavoidable circumstance, he may engage an advocate and appear before the Court on his behalf. The present appellant is a Government employee serving as Superintendent of Police in the Manipur Police Department and thus, he is supposed to be well versed about the law and its procedure. The Trial Court instead of proceeding the case ex-parte against the present appellant for his failure to appear before the Court after duly served notice to him adjourned the case by giving an opportunity to him to appear before the Court. The Trial Court has also tried to communicate the next date of the case to the present respondent but the respondent neither found in his official address nor appeared before the Court and therefore, the Trial Court proceeded the case with the respondent. The appellant in the grounds of his memo appeal did not mention the reason of his non-appearance before the Court inspite of summons was duly served.

It has already observed in the above para that the procedures to be followed for an application under section 12 of PWDV Act is the procedure followed for an application under section 125 Cr.P.C. and thus, the procedure envisages in Section 273, 274, 303, 313 and 315 of the Code of Criminal Procedure will not be followed.

Situated thus, I come to the conclusion that no error was committed by the Trial Court in proceeding the case without the present appellant and passed the impugned order.

6. Coming to the other contention that the complainant was already married to another person and no domestic relationship existed, the Appellate Court held that the appellant did not take any such plea by appearing before the learned Trial Court and as such, the plea cannot be entertained at the appellate stage and accordingly, rejected the said contention. As regards the contention of the petitioner as appellant that the amount awarded was too severe, the learned Sessions Judge, Manipur East held that considering the admitted position that the appellant was a Superintendent of Police serving in the Police Department, Government of Manipur and as the complainant was living with the minor son without any financial support from anybody, the monthly maintenance allowance directed was held not to be severe. Accordingly, the learned Sessions Judge, Manipur East dismissed the appeal.
Being aggrieved by the aforesaid dismissal order, the present criminal revision has been filed before this Court.

7. The petitioner has taken more or less the same pleas which were raised before the Appellate Court. It has been submitted that the complaint filed by the complainant has to be considered as a summary trial and all the necessary provisions as prescribed under Code of Criminal Procedure for conducting of summary trial ought to have been observed. According to the petitioner, the complainant ought to have been examined on oath before taking cognisance of the complaint under section 200 Cr.P.C. Thus, without examining the complainant on oath, the Magistrate ought not to have taken cognisance and issued the process. It was also contended that charge ought to have been framed against the petitioner being accused of certain offence and as provided under section 251 Cr.P.C. and trial could not have been commenced without framing of charge which has not been done in the present case. It was also submitted that no evidence could have been recorded in absence of the accused by the learned Trial Court as has been done in the present case, in absence of the petitioner. As the proceeding was proceeded ex-parte, the accused petitioner was not defended though he has a right to be defended by a lawyer of his choice. The provisions of section 313 of Cr.P.C. were not invoked which require examination of accused by the learned Trial Court. The accused had not been given an opportunity to produce his witness in his defence, etc. According to the petitioner, section 28(1) of the PWDV Act provides that all procedures under section 12, 18, etc. of PWDV Act shall be governed by the provisions of Code of Criminal Procedure, 1973. However, none of the relevant provisions of the Code of Criminal Procedure was followed by the Magistrate while taking cognisance of the complaint and in the subsequent proceedings and as such, the proceedings before the Chief Judicial Magistrate, Imphal East is liable to be quashed/set aside.

8. In response, Mr. Nabachandra, learned counsel for the respondent has submitted that it is now well settled that the proceedings initiated after application filed under section 12 of the Act is akin to the proceeding under section 125 Cr.P.C. and in respect of any application under section 125Cr.P.C., procedure as provided under section 126 Cr.P.C. is to be followed. Under section 126 Cr.P.C., even though it has been provided that all evidence in such proceeding shall be taken in presence of the person against whom an order of payment of maintenance is proposed to be made, if the Magistrate is satisfied that the person against whom the order of payment of maintenance is proposed to be made is wilfully avoiding service or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex-parte and any order so made may be set aside for good cause within three months. Therefore, the procedures provided for the proceedings initiated under section 125 Cr.P.C. do not contemplate resorting to the various provisions which have been provided for a summary trial under Code of Criminal Procedure. Therefore, there was no irregularity or illegality in the procedure adopted by the learned Trial Court while passing the impugned order dated 6.5.2013 in an application under section 12 of Protection of Women from Domestic Violence Act, 2005.

9. The main grievance of the petitioner thus, is that learned Chief Judicial Magistrate, Imphal East as well as the learned Sessions Judge, Manipur East failed to appreciate that the application filed under section 12 of the PWDV Act is to be dealt with by adhering to the provisions of Code of Criminal Procedure as provided under section 28(1) of the PWDV Act, failing which such a proceeding cannot be sustained. According to the petitioner, the necessary provisions regarding taking cognisance of complaint under section 200 of Cr.P.C. by recording of statement of the complainant under oath, framing of charges against the accused, examination of witnesses in presence of the accused petitioner, opportunity to the accused to lead evidence, etc. as prescribed under Code of Criminal Procedure for conducting a trial had not been followed and as such, the entire proceeding is liable to be recalled.
Therefore, it is necessary to discuss as to the nature of the proceedings, more particularly, with reference to the proceeding under section 12 of the PWDV Act. Even though it had been mentioned in subsection (1) of Section 28 that proceedings under the aforesaid section shall be governed by the provisions of Code of Criminal Procedure, it has been also mentioned in sub-section (2) that nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23. Therefore, it is abundantly clear from sub-section (2) of section 28 that as far as the proceedings under section 12 is concerned, the Court can devise its own procedure for disposal of such an application filed under section 12 of the PWDV Act. In that view of the matter, it is clear that it was not incumbent upon the Magistrate or the Court concerned to strictly adhere to the provisions of the Code of Criminal Procedure and it could make departure from the provisions of Cr.P.C., if the need arise and it could adopt a method, which however, has to be just and fair.

10. Further, Rule 6 of the Protection of Women from Domestic Violence Act, 2006 provides that applications under Section 12 of the Act shall be dealt and orders enforced in the manner laid down in Section 125 of the Cr.P.C. 1973. As regards proceeding under Section 125 of the Cr.P.C., the procedure thereof has been provided under Section 126 of the Cr.P.C. Section 126 of the Cr.P.C. provides that even though evidence in proceedings under Section125 shall be taken in the presence of the person against whom the order for payment of maintenance is proposed to be made. If the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex-parte. Thus, Section 126 Cr.P.C., which governs the proceeding under Section 125 Cr.P.C. provides for ex-parte proceeding if the Magistrate is satisfied that the person concerned is avoiding attendance of the Court.
In the present case, there is a specific finding by the learned Magistrate that the petitioner, in spite of proper service of notice and also being fully aware of the proceedings before the Magistrate did not attend the Court. Hence, the learned Magistrate proceeded against the petitioner ex-parte.

11. In this context, it may be noted that Protection of Women from Domestic Violence Act, 2005 was enacted by the Parliament keeping in view that phenomenon of domestic violence which is widely prevalent has remained largely invisible in the public domain and even though there is a specific offence under section 498-A of the Indian Penal Code dealing with cruelty by husband and relatives, there is no civil law to address this issue. The Parliament keeping in mind the said aspect and to provide the remedy under the Civil law which is intended to protect the women from being victims of domestic violence and to prevent occurrence of domestic violence, enacted the said law as evident from the Statement of Objects and Reasons, which is reproduced here below:-

Statement of Objects and Reasons.-

Domestic violence is undoubtedly a human rights issue and serious deterrent to development. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in its General Recommendation No. XII (1989) has recommended that State parties should act to protect women against violence of any kind especially that occurring within the family.
2. The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a women is subjected to cruelty by her husband or his relatives, it is an offence under section 498-A of the Indian Penal Code. The civil law does not however address this phenomenon in its entirety.
3. It is, therefore, proposed to enact law keeping in view the rights guaranteed under articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.
The Statement of Objects and Reasons indicates that various issues arising out of and relating to domestic violence are sought to be dealt with by enacting the said law and by providing remedies which are normally available under the civil law. Therefore, even if Section 28(1) of the Act provides that the proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of Code of Criminal Procedure, 1973, in view of different remedies which one can obtained under Section 12 of the Act, some of which are of civil in nature, the Act itself has provided under sub-section (2) of Section 28 that nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under section 12. Therefore, the Legislature has introduced an element of flexibility in the procedure to be adopted while dealing with application under section 12 of the Act. This is, perhaps, because of the intention of the Legislature in seeking to provide civil remedies also under the said Act. Code of Criminal Procedure had been enacted primarily to provide a fair procedure to deal with the offences punishable under various penal Acts and is geared to find out the guilt or innocence of the person, who has been charged of any offence. Protection of Women from Domestic Violence Act, 2005 has been enacted primarily to give relief to the victims of domestic violence many of which are of civil nature and as such, while devising and granting appropriate relief under the Act, the provisions of Code of Criminal Procedure which is fashioned for criminal trial may not be appropriate in all cases. Many of the reliefs contemplated under the Act are of civil nature which cannot normally granted by the Criminal Court, but only by a Civil Court. That is the reason why the Legislature incorporated sub-section (2) in Section 28 permitting the Court to lay down its own procedure for disposal of an application under section 12 of the Act.

12. Thus, it is clear that even though section 28(1) specifically provides that all proceedings under section 12 shall be governed by the provisions of Cr.P.C., 1973, it is directory in nature and any departure from the provisions of Code of Criminal Procedure will not vitiate a proceeding initiated under section 12. Therefore, this Court will hold that the Courts while dealing with proceedings under section 12 of the Protection of Women from Domestic Violence Act, 2005 shall abide by the provisions of Cr.P.C., 1973 as far as possible. However, any departure from the provisions of Cr.P.C. will not have the effect of vitiating the proceeding in view of the fact that the statute itself specifically provides for the Court to lay down its own procedure for disposal of an application under section 12. Having heard the counsel for the parties and considered the materials on record, this Court is not able to discern any material irregularity or illegality in the proceedings before the Court below. The petitioner has failed to make out any case to interfere with the impugned judgment and order of the learned Sessions Judge, Manipur East.

In the result, the present petition is dismissed as devoid of merit.

Krishna Bhatacharjee Vs. Sarathi Choudhury and ANR [SC 2015 November]

KEYWORDS:-STRIDHAN – DOMESTIC VIOLENCE-

Capture

DATED:-November 20, 2015-

ACT: Domestic Violence Act

As long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the 2005 Act.

SUPREME COURT OF INDIA

Krishna Bhatacharjee Vs. Sarathi Choudhury and ANR.

[Criminal Appeal No. 1545 of 2015 @ SLP (CRL) No. 10223 of 2014]

Dipak Misra, J.

1. Leave granted.

2. The appellant having lost the battle for getting her Stridhan back from her husband, the first respondent herein, before the learned Magistrate on the ground that the claim preferred under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short, ‘the 2005 Act’) was not entertainable as she had ceased to be an “aggrieved person” under Section 2(a) of the 2005 Act and further that the claim as put forth was barred by limitation; preferred an appeal before the learned Additional Sessions Judge who concurred with the view expressed by the learned Magistrate, and being determined to get her lawful claim, she, despite the repeated non-success, approached the High Court of Tripura, Agartala in Criminal Revision No. 19 of 2014 with the hope that she will be victorious in the war to get her own property, but the High Court, as is perceivable, without much analysis, declined to interfere by passing an order with Spartan austerity possibly thinking lack of reasoning is equivalent to a magnificent virtue and that had led the agonised and perturbed wife to prefer the present appeal, by special leave.

3. Prior to the narration of facts which are essential for adjudication of this appeal, we may state that the 2005 Act has been legislated, as its Preamble would reflect, to provide for more effective protection of the rights of the women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. The 2005 Act is a detailed Act. The dictionary clause of the 2005 Act, which we shall advert to slightly at a later stage, is in a broader spectrum. The definition of “domestic violence” covers a range of violence which takes within its sweep “economic abuse” and the words “economic abuse”, as the provision would show, has many a facet.

4. Regard being had to the nature of the legislation, a more sensitive approach is expected from the courts where under the 2005 Act no relief can be granted, it should never be conceived of but, before throwing a petition at the threshold on the ground of maintainability, there has to be an apposite discussion and thorough deliberation on the issues raised. It should be borne in mind that helpless and hapless “aggrieved person” under the 2005 Act approaches the court under the compelling circumstances.

It is the duty of the court to scrutinise the facts from all angles whether a plea advanced by the respondent to nullify the grievance of the aggrieved person is really legally sound and correct. The principle “justice to the cause is equivalent to the salt of ocean” should be kept in mind. The court of law is bound to uphold the truth which sparkles when justice is done. Before throwing a petition at the threshold, it is obligatory to see that the person aggrieved under such a legislation is not faced with a situation of non-adjudication, for the 2005 Act as we have stated is a beneficial as well as assertively affirmative enactment for the realisation of the constitutional rights of women and to ensure that they do not become victims of any kind of domestic violence.

5. Presently to the narration of the facts. The marriage between the appellant and the respondent No. 1 was solemnised on 27.11.2005 and they lived as husband and wife. As the allegations proceed, there was demand of dowry by the husband including his relatives and, demands not being satisfied, the appellant was driven out from the matrimonial home. However, due to intervention of the elderly people of the locality, there was some kind of conciliation as a consequence of which both the husband and the wife stayed in a rented house for two months. With the efflux of time, the husband filed a petition seeking judicial separation before the Family Court and eventually the said prayer was granted by the learned Judge, Family Court.

After the judicial separation, on 22.5.2010 the appellant filed an application under Section 12 of the 2005 Act before the Child Development Protection Officer (CDPO), O/O the District Inspector, Social Welfare & Social Education, A.D. Nagar, Agartala, Tripura West seeking necessary help as per the provisions contained in the 2005 Act. She sought seizure of Stridhan articles from the possession of the husband. The application which was made before the CDPO was forwarded by the said authority to the learned Chief Judicial Magistrate, Agartala Sadar, West Tripura by letter dated 1.6.2010. The learned Magistrate issued notice to the respondent who filed his written objections on 14.2.2011.

6. Before the learned Magistrate it was contended by the respondent that the application preferred by the wife was barred by limitation and that she could not have raised claim as regards Stridhan after the decree of judicial separation passed by the competent court. The learned Magistrate taking into consideration the admitted fact that respondent and the appellant had entered into wedlock treated her as an “aggrieved person”, but opined that no “domestic relationship” as defined under Section 2(f) of the 2005 Act existed between the parties and, therefore, wife was not entitled to file the application under Section 12 of the 2005 Act.

The learned Magistrate came to hold that though the parties had not been divorced but the decree of judicial separation would be an impediment for entertaining the application and being of this view, he opined that no domestic relationship subsisted under the 2005 Act and hence, no relief could be granted. Be it stated here that before the learned Magistrate, apart from herself, the appellant examined three witnesses and the husband had examined himself as DW-1. The learned Magistrate while dealing with the maintainability of the petition had noted the contentions of the parties as regards merits, but has really not recorded any finding thereon.

7. The aggrieved wife preferred criminal appeal No. 6(1) of 2014 which has been decided by the learned Additional Sessions Judge, Agartala holding, inter alia, that the object of the 2005 Act is primarily to give immediate relief to the victims; that as per the decision of this Court in Inderjit Singh Grewal v. State of Punjab[1] that Section 468 of the Code of Criminal Procedure applies to the proceedings under the 2005 Act and, therefore, her application was barred by time. Being of this view, the appellate court dismissed the appeal.

8. On a revision being preferred, the High Court, as is demonstrable from the impugned order, after referring to the decision in Inderjit Singh Grewal (supra), has stated that the wife had filed a criminal case under Section 498(A) IPC in the year 2006 and the husband had obtained a decree of judicial separation in 2008, and hence, the proceedings under the 2005 Act was barred by limitation. That apart, it has also in a way expressed the view that the proceedings under the 2005 Act was not maintainable.

9. In our prefatory note, we have stated about the need of sensitive approach to these kinds of cases. There can be erroneous perception of law, but as we find, neither the learned Magistrate nor the appellate court nor the High Court has made any effort to understand and appreciate the stand of the appellant. Such type of cases and at such stage should not travel to this Court. We are compelled to say so as we are of the considered opinion that had the appellate court and the High Court been more vigilant, in all possibility, there could have been adjudication on merits. Be that as it may.

10. The facts that we have enumerated as regards the “status of the parties”, “judicial separation” and “the claim for Stridhan” are not in dispute. Regard being had to the undisputed facts, it is necessary to appreciate the scheme of the 2005 Act. Section 2(a) defines “aggrieved person” which means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.

Section 2(f) defines “domestic relationship” which 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. Section 2(g) defines the term “domestic violence” which has been assigned and given the same meaning as in Section 3. Sub- section (iv) of Section 3 deals with “economic abuse”. As in the facts at hand, we are concerned with the “economic abuse”, we reproduce Section 3(iv) which reads as follows:-

“Section 3. Definition of domestic violence.

(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 court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household 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 household 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.”

11. Section 8(1) empowers the State Government to appoint such number of Protection Officers in each district as it may consider necessary and also to notify the area or areas within which a Protection Officer shall exercise the powers and perform the duties conferred on him by or under the 2005 Act. The provision, as is manifest, is mandatory and the State Government is under the legal obligation to appoint such Protection Officers. Section 12 deals with application to Magistrate. Sub-sections (1) and (2) being relevant are reproduced below:-

“Section 12. Application to Magistrate.-

(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act: Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.

(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent: Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.”

12. Section 18 deals with passing of protection orders by the Magistrate. Section 19 deals with the residence orders and Section 20 deals with monetary reliefs. Section 28 deals with procedure and stipulates that all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973. Section 36 lays down that the provisions of the 2005 Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force.

13. Having scanned the anatomy of the 2005 Act, we may now refer to a few decisions of this Courts that have dealt with the provisions of the 2005 Act. In V.D. Bhanot v. Savita Bhanot[2] the question arose whether the provisions of the 2005 Act can be made applicable in relation to an incident that had occurred prior to the coming into force of the said Act. Be it noted, the High Court had rejected the stand of the respondent therein that the provisions of the 2005 Act cannot be invoked if the occurrence had taken place prior to the coming into force of the 2005 Act.

This Court while dealing with the same referred to the decision rendered in the High Court which after considering the constitutional safeguards under Article 21 of the Constitution vis-à-vis the provisions of Sections 31 and 33 of the 2005 Act and after examining the Statement of Objects and Reasons for the enactment of the 2005 Act, had held that it was with the view of protecting the rights of women under Articles 14, 15 and 21 of the Constitution that Parliament enacted the 2005 Act in order to provide for some effective protection of rights guaranteed under the Constitution to women, who are victims of any kind of violence occurring within the family and matters connected therewith and incidental thereto, and to provide an efficient and expeditious civil remedy to them and further that a petition under the provisions of the 2005 Act is maintainable even if the acts of domestic violence had been committed prior to the coming into force of the said Act, notwithstanding the fact that in the past she had lived together with her husband in a shared household, but was no more living with him, at the time when the Act came into force. After analyzing the verdict of the High Court, the Court concurred with the view expressed by the High Court by stating thus:-

“We agree with the view expressed by the High Court that in looking into a complaint under Section 12 of the PWD Act, 2005, the conduct of the parties even prior to the coming into force of the PWD Act, could be taken into consideration while passing an order under Sections 18, 19 and 20 thereof. In our view, the Delhi High Court has also rightly held that even if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the PWD Act, 2005.”

14. In Saraswathy v. Babu[3] a two-Judge Bench, after referring to the decision in V.D. Bhanot (supra), reiterated the principle.

It has been held therein:-

“We are of the view that the act of the respondent husband squarely comes within the ambit of Section 3 of the DVA, 2005, which defines “domestic violence” in wide terms. The High Court made an apparent error in holding that the conduct of the parties prior to the coming into force of the DVA, 2005 cannot be taken into consideration while passing an order. This is a case where the respondent husband has not complied with the order and direction passed by the trial court and the appellate court. He also misleads the Court by giving wrong statement before the High Court in the contempt petition filed by the appellant wife.

The appellant wife having being harassed since 2000 is entitled for protection order and residence order under Sections 18 and 19 of the DVA, 2005 along with the maintenance as allowed by the trial court under Section 20(1)(d) of the DVA, 2005. Apart from these reliefs, she is also entitled for compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by the respondent husband. Therefore, in addition to the reliefs granted by the courts below, we are of the view that the appellant wife should be compensated by the respondent husband. Hence, the respondent is hereby directed to pay compensation and damages to the extent of Rs 5,00,000 in favour of the appellant wife.”

15. In the instant case, as has been indicated earlier, the courts below as well as the High Court have referred to the decision in Inderjit Singh Grewal (supra). The said case has to be understood regard being had to the factual exposè therein. The Court had referred to the decision in D. Velusamy v. D. Patchaiammal[4] wherein this Court had considered the expression “domestic relationship” under Section 2(f) of the Act and judgment in Savitaben Somabhai Bhatiya v. State of Gujarat[5] and distinguished the said judgments as those cases related to live-in relationship without marriage.

The Court analyzing the earlier judgments opined that the couple must hold themselves out to society as being akin to spouses in addition to fulfilling all other requisite conditions for a valid marriage. The said judgments were distinguished on facts as those cases related to live-in relationship without marriage. The Court opined that the parties therein had got married and the decree of the civil court for divorce subsisted and that apart a suit to declare the said judgment and decree as a nullity was still pending consideration before the competent court. In that background, the Court ruled that:-

“In the facts and circumstances of the case, the submission made on behalf of Respondent 2 that the judgment and decree of a civil court granting divorce is null and void and they continued to be the husband and wife, cannot be taken note of at this stage unless the suit filed by Respondent 2 to declare the said judgment and decree dated 20-3-2008 is decided in her favour. In view thereof, the evidence adduced by her particularly the record of the telephone calls, photographs attending a wedding together and her signatures in school diary of the child cannot be taken into consideration so long as the judgment and decree of the civil court subsists. On a similar footing, the contention advanced by her counsel that even after the decree of divorce, they continued to live together as husband and wife and therefore the complaint under the 2005 Act is maintainable, is not worth acceptance at this stage.”

[Emphasis supplied]

16. It may be noted that a submission was advanced by the wife with regard to the applicability of Section 468 CrPC. While dealing with the submission on the issue of limitation, the Court opined:- “…… in view of the provisions of Section 468 CrPC, that the complaint could be filed only within a period of one year from the date of the incident seem to be preponderous in view of the provisions of Sections 28 and 32 of the 2005 Act read with Rule 15(6) of the Protection of Women from Domestic Violence Rules, 2006 which make the provisions of CrPC applicable and stand fortified by the judgments of this Court in Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394, and NOIDA Entrepreneurs Assn. v. NOIDA, (2011) 6 SCC 508.”

17. As it appears, the High Court has referred to the same but the same has really not been adverted. In fact, it is not necessary to advert to the said aspect in the present case.

18. The core issue that is requisite to be addressed is whether the appellant has ceased to be an “aggrieved person” because of the decree of judicial separation. Once the decree of divorce is passed, the status of the parties becomes different, but that is not so when there is a decree for judicial separation. A three-Judge Bench in Jeet Singh and Others Vs. State of U.P. and Others[6] though in a different context, adverted to the concept of judicial separation and ruled that the judicial separation creates rights and obligations. A decree or an order for judicial separation permits the parties to live apart. There would be no obligation for either party to cohabit with the other. Mutual rights and obligations arising out of a marriage are suspended. The decree however, does not sever or dissolve the marriage. It affords an opportunity for reconciliation and adjustment. Though judicial separation after a certain period may become a ground for divorce, it is not necessary and the parties are not bound to have recourse to that remedy and the parties can live keeping their status as wife and husband till their lifetime.

19. In this regard, we may fruitfully refer to the authority in Hirachand Srinivas Managaonkar v. Sunanda[7] wherein the issue that arose for determination was whether the husband who had filed a petition seeking dissolution of the marriage by a decree of divorce under Section 13(1-A)(i) of the Hindu Marriage Act, 1955 can be declined relief on the ground that he had failed to pay maintenance for his wife and daughter despite an order of the court. The husband was appellant before this Court and had filed an application under Section 10 of the Hindu Marriage Act, 1955 for seeking judicial separation on the ground of adultery on the part of the appellant.

Thereafter, the appellant presented the petition for dissolution of marriage by decree of divorce on the ground that there has been no resumption of cohabitation as between the parties to the marriage for a period of more than one year after passing of the decree for judicial separation. The stand of the wife was that the appellant having failed to pay the maintenance as ordered by the court, the petition for divorce filed by the husband was liable to be rejected inasmuch he was trying to get advantage of his own wrong for getting the relief. The High Court accepted the plea of the wife and refused to grant the prayer of the appellant seeking divorce.

It was contended before this Court that the only condition for getting divorce under Section 13(1-A)(i) of the Hindu Marriage Act, 1955 is that there has been no resumption of cohabitation between the parties to the marriage for a period of one year or upwards after the passing of the decree for judicial separation in a proceeding to which both the spouses are parties. It was urged that if the said condition is satisfied the court is required to pass a decree of divorce. On behalf of the wife, the said submissions were resisted on the score that the husband had been living in continuous adultery even after passing of the decree of judicial separation and had reasonably failed to maintain the wife and daughter.

The Court proceeded to analyse Section 13(1- A)(i) of the Hindu Marriage Act, 1955. Analysing the provisions at length and speaking about judicial separation, it expressed that after the decree for judicial separation was passed on the petition filed by the wife it was the duty of both the spouses to do their part for cohabitation. The husband was expected to act as a dutiful husband towards the wife and the wife was to act as a devoted wife towards the husband. If this concept of both the spouses making sincere contribution for the purpose of successful cohabitation after a judicial separation is ordered then it can reasonably be said that in the facts and circumstances of the case the husband in refusing to pay maintenance to the wife failed to act as a husband. Thereby he committed a “wrong” within the meaning of Section 23 of the Act. Therefore, the High Court was justified in declining to allow the prayer of the husband for dissolution of the marriage by divorce under Section 13(1- A) of the Act.

20. And, the Court further stated thus:- “… The effect of the decree is that certain mutual rights and obligations arising from the marriage are as it were suspended and the rights and duties prescribed in the decree are substituted therefor. The decree for judicial separation does not sever or dissolve the marriage tie which continues to subsist. It affords an opportunity to the spouse for reconciliation and readjustment. The decree may fall by a conciliation of the parties in which case the rights of the respective parties which float from the marriage and were suspended are restored. Therefore the impression that Section 10(2) vests a right in the petitioner to get the decree of divorce notwithstanding the fact that he has not made any attempt for cohabitation with the respondent and has even acted in a manner to thwart any move for cohabitation does not flow from a reasonable interpretation of the statutory provisions. At the cost of repetition it may be stated here that the object and purpose of the Act is to maintain the marital relationship between the spouses and not to encourage snapping of such relationship.”

21. It is interesting to note that an issue arose whether matrimonial offence of adultery had exhausted itself when the decree for judicial separation was granted and, therefore, it cannot be said that it is a new fact or circumstance amounting to wrong which will stand as an obstacle in the way of the husband to obtain the relief which he claims in the divorce proceedings. Be it stated that reliance was placed on the decision of Gujarat High Court in Bai Mani v. Jayantilal Dahyabhai[8]. This Court did not accept the contention by holding that living in adultery on the part of the husband is a continuing matrimonial offence, and it does not get frozen or wiped out merely on passing of a decree for judicial separation which merely suspends certain duties and obligations of the spouses in connection with their marriage and does not snap the matrimonial tie. The Court ruled that the decision of the Gujarat High Court does not lay down the correct position of law. The Court approved the principle stated by the Madras High Court in the case of Soundarammal v. Sundara Mahalinga Nadar[9] in which a Single Judge had taken the view that the husband who continued to live in adultery even after decree at the instance of the wife could not succeed in a petition seeking decree for divorce and that Section 23(1)(a) barred the relief.

22. In view of the aforesaid pronouncement, it is quite clear that there is a distinction between a decree for divorce and decree of judicial separation; in the former, there is a severance of status and the parties do not remain as husband and wife, whereas in the later, the relationship between husband and wife continues and the legal relationship continues as it has not been snapped. Thus understood, the finding recorded by the courts below which have been concurred by the High Court that the parties having been judicial separated, the appellant wife has ceased to be an “aggrieved person” is wholly unsustainable.

23. The next issue that arises for consideration is the issue of limitation. In the application preferred by the wife, she was claiming to get back her stridhan. Stridhan has been described as saudayika by Sir Gooroodas Banerjee in “Hindu Law of Marriage and Stridhan” which is as follows:- “First, take the case of property obtained by gift. Gifts of affectionate kindred, which are known by the name of saudayika stridhan, constitute a woman’s absolute property, which she has at all times independent power to alienate, and over which her husband has only a qualified right, namely, the right of use in times of distress.”

24. The said passage, be it noted, has been quoted Pratibha Rani v. Suraj Kumar and Another[10]. In the said case, the majority referred to the stridhan as described in “Hindu Law” by N.R. Raghavachariar and Maine’s “Treatise on Hindu Law”. The Court after analyzing the classical texts opined that:- “It is, therefore, manifest that the position of stridhan of a Hindu married woman’s property during coverture is absolutely clear and unambiguous; she is the absolute owner of such property and can deal with it in any manner she likes – she may spend the whole of it or give it away at her own pleasure by gift or will without any reference to her husband. Ordinarily, the husband has no right or interest in it with the sole exception that in times of extreme distress, as in famine, illness or the like, the husband can utilise it but he is morally bound to restore it or its value when he is able to do so. It may be further noted that this right is purely personal to the husband and the property so received by him in marriage cannot be proceeded against even in execution of a decree for debt.”

25. In the said case, the Court ruled:- “… a pure and simple entrustment of stridhan without creating any rights in the husband excepting putting the articles in his possession does not entitle him to use the same to the detriment of his wife without her consent. The husband has no justification for not returning the said articles as and when demanded by the wife nor can he burden her with losses of business by using the said property which was never intended by her while entrusting possession of stridhan. On the allegations in the complaint, the husband is no more and no less than a pure and simple custodian acting on behalf of his wife and if he diverts the entrusted property elsewhere or for different purposes he takes a clear risk of prosecution under Section 406 of the IPC. On a parity of reasoning, it is manifest that the husband, being only a custodian of the stridhan of his wife, cannot be said to be in joint possession thereof and thus acquire a joint interest in the property.”

26. The decision rendered in the said case was referred for a fresh look by a three-Judge Bench. The three-Judge Bench Rashmi Kumar (Smt) v. Mahesh Kumar Bhada[11] while considering the issue in the said case, ruled that :-

“9. A woman’s power of disposal, independent of her husband’s control, is not confined to saudayika but extends to other properties as well. Devala says: “A woman’s maintenance (vritti), ornaments, perquisites (sulka), gains (labha), are her stridhana. She herself has the exclusive right to enjoy it. Her husband has no right to use it except in distress….” In N.R. Raghavachariar’s Hindu Law – Principles and Precedents, (8th Edn.) edited by Prof. S. Venkataraman, one of the renowned Professors of Hindu Law para 468 deals with “Definition of Stridhana”. In para 469 dealing with “Sources of acquisition” it is stated that the sources of acquisition of property in a woman’s possession are: gifts before marriage, wedding gifts, gifts subsequent to marriage etc. Para 470 deals with “Gifts to a maiden”.

Para 471 deals with

“Wedding gifts” and it is stated therein that properties gifted at the time of marriage to the bride, whether by relations or strangers, either Adhiyagni or Adhyavahanika, are the bride’s stridhana. In para 481 at page 426, it is stated that ornaments presented to the bride by her husband or father constitute her Stridhana property. In para 487 dealing with “powers during coverture” it is stated that saudayika meaning the gift of affectionate kindred, includes both Yautaka or gifts received at the time of marriage as well as its negative Ayautaka. In respect of such property, whether given by gift or will she is the absolute owner and can deal with it in any way she likes. She may spend, sell or give it away at her own pleasure.

10. It is thus clear that the properties gifted to her before the marriage, at the time of marriage or at the time of giving farewell or thereafter are her stridhana properties. It is her absolute property with all rights to dispose at her own pleasure. He has no control over her stridhana property. Husband may use it during the time of his distress but nonetheless he has a moral obligation to restore the same or its value to his wife. Therefore, stridhana property does not become a joint property of the wife and the husband and the husband has no title or independent dominion over the property as owner thereof.”

27. After so stating the Court proceeded to rule that stridhana property is the exclusive property of the wife on proof that she entrusted the property or dominion over the stridhana property to her husband or any other member of the family, there is no need to establish any further special agreement to establish that the property was given to the husband or other member of the family. Further, the Court observed that it is always a question of fact in each case as to how the property came to be entrusted to the husband or any other member of the family by the wife when she left the matrimonial home or was driven out therefrom. Thereafter, the Court adverted to the concept of entrustment and eventually concurred with the view in the case of Pratibha Rani (supra). It is necessary to note here that the question had arisen whether it is a continuing offence and limitation could begin to run everyday lost its relevance in the said case, for the Court on scrutiny came to hold that the complaint preferred by the complainant for the commission of the criminal breach of trust under Section 406 of the Indian Penal Code was within limitation.

28. Having appreciated the concept of Stridhan, we shall now proceed to deal with the meaning of “continuing cause of action”. In Raja Bhadur Singh v. Provident Fund Inspector and Others[12] the Court while dealing with the continuous offence opined that the expression “continuing offence” is not defined in the Code but that is because the expressions which do not have a fixed connotation or a static import are difficult to define. The Court referred to the earlier decision in State of Bihar v. Deokaran Nenshi[13] and reproduced a passage from the same which is to the following effect:-

“A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and reoccurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues, and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all.”

29. The Court further observed :- “This passage shows that apart from saying that a continuing offence is one which continues and a non-continuing offence is one which is committed once and for all, the Court found it difficult to explain as to when an offence can be described as a continuing offence. Seeing that difficulty, the Court observed that a few illustrative cases would help to bring out the distinction between a continuing offence and a non-continuing offence. The illustrative cases referred to by the Court are three from England, two from Bombay and one from Bihar.”

30. Thereafter, the Court referred to the authorities and adverted to Deokaran Nenshi (supra) and eventually held:- “The question whether a particular offence is a continuing offence must necessarily depend upon the language of the statute which creates that offence, the nature of the offence and, above all, the purpose which is intended to be achieved by constituting the particular act as an offence…”

31. Regard being had to the aforesaid statement of law, we have to see whether retention of stridhan by the husband or any other family members is a continuing offence or not. There can be no dispute that wife can file a suit for realization of the stridhan but it does not debar her to lodge a criminal complaint for criminal breach of trust. We must state that was the situation before the 2005 Act came into force. In the 2005 Act, the definition of “aggrieved person” clearly postulates about the status of any woman who has been subjected to domestic violence as defined under Section 3 of the said Act.

“Economic abuse” as it has been defined in Section 3(iv) of the said Act has a large canvass. Section 12, relevant portion of which have been reproduced hereinbefore, provides for procedure for obtaining orders of reliefs. It has been held in Inderjit Singh Grewal (supra) that Section 498 of the Code of Criminal Procedure applies to the said case under the 2005 Act as envisaged under Sections 28 and 32 of the said Act read with Rule 15(6) of the Protection of Women from Domestic Violence Rules, 2006. We need not advert to the same as we are of the considered opinion that as long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the 2005 Act.

We are disposed to think so as the status between the parties is not severed because of the decree of dissolution of marriage. The concept of “continuing offence” gets attracted from the date of deprivation of stridhan, for neither the husband nor any other family members can have any right over the stridhan and they remain the custodians. For the purpose of the 2005 Act, she can submit an application to the Protection Officer for one or more of the reliefs under the 2005 Act. In the present case, the wife had submitted the application on 22.05.2010 and the said authority had forwarded the same on 01.06.2010.

In the application, the wife had mentioned that the husband had stopped payment of monthly maintenance from January 2010 and, therefore, she had been compelled to file the application for stridhan. Regard being had to the said concept of “continuing offence” and the demands made, we are disposed to think that the application was not barred by limitation and the courts below as well as the High Court had fallen into a grave error by dismissing the application being barred by limitation.

32. Consequently, the appeal is allowed and the orders passed by the High Court and the courts below are set aside. The matter is remitted to the learned Magistrate to proceed with the application under Section 12 of the 2005 Act on merits.

 [Dipak Misra]

 [Prafulla C. Pant]

New Delhi

November 20, 2015

[1] (2011) 12 SCC 588

[2] (2012) 3 SCC 183

[3] (2014) 3 SCC 712

[4] (2010) 10 SCC 469

[5] (2005) 3 SCC 636

[6] (1993) 1 SCC 325

[7] (2001) 4 SCC 125

[8] AIR 1979 Guj 209

[9] AIR 1980 Mad 294

[10] (1985) 2 SCC 370

[11] (1997) 2 SCC 397

[12] (1984) 4 SCC 222

[13] (1972) 2 SCC 890

V.D.Bhanot vs Savita Bhanot [SC 2012 FEBRUARY]

KEYWORDS:-DOMESTIC VIOLENCE

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A petition under the provisions of the PWD Act, 2005, is maintainable even if the acts of domestic violence had been committed prior to the coming into force of the said Act, notwithstanding the fact that in the past she had lived together with her husband in a shared household, but was no more living with him, at the time when the Act came into force.

DATE : 7 February, 2012

Bench: Altamas Kabir, J. Chelameswar

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (Crl.) NO. 3916 OF 2010

V.D. BHANOT Vs. SAVITA BHANOT

O R D E R
ALTAMAS KABIR, J.

1. The Special Leave Petition is directed against the judgment and order dated 22nd March, 2010, passed by the Delhi High Court in Cr.M.C.No.3959 of 2009 filed by the Respondent wife, Mrs. Savita Bhanot, questioning the order passed by the learned Additional Sessions Judge on 18th September, 2009, dismissing the appeal filed by her against the order of the Metropolitan Magistrate dated 11th May, 2009.

2. There is no dispute that marriage between the parties was solemnized on 23rd August, 1980 and till 4th July, 2005, they lived together. Thereafter, for whatever reason, there were misunderstandings between the parties, as a result whereof, on 29th November, 2006, the Respondent filed a petition before the Magistrate under Section 12 of the Protection of Women from Domestic Violence Act, 2005, hereinafter referred to as the “PWD Act”, seeking various reliefs. By his order dated 8th December, 2006, the learned Magistrate granted interim relief to the Respondent and directed the Petitioner to pay her a sum of Rs.6,000/- per month. By a subsequent order dated 17th February, 2007, the Magistrate passed a protection/residence order under Sections 18 and 19 of the above Act, protecting the right of the Respondent wife to reside in her matrimonial home in Mathura. The said order was challenged before the Delhi High Court, but such challenge was rejected.

3. In the meantime, the Petitioner, who was a member of the Armed Forces, retired from service on 6th December, 2007, and on 26th February, 2008, he filed an application for the Respondent’s eviction from the Government accommodation in Mathura Cantonment. The learned Magistrate directed the Petitioner herein to find an alternative accommodation for the Respondent who had in the meantime received an eviction notice requiring her to vacate the official accommodation occupied by her. By an order dated 11th May, 2009, the learned Magistrate directed the Petitioner to let the Respondent live on the 1st Floor of House No.D-279, Nirman Vihar, New Delhi, which she claimed to be her permanent matrimonial home. The learned Magistrate directed that if this was not possible, a reasonable accommodation in the vicinity of Nirman Vihar was to be made available to the Respondent wife. She further directed that if the second option was also not possible, the Petitioner would be required to pay a sum of Rs.10,000/- per month to the Respondent as rental charges, so that she could find a house of her choice.

4. Being dissatisfied with the order passed by the learned Metropolitan Magistrate, the Respondent preferred an appeal, which came to be dismissed on 18th September, 2009, by the learned Additional Sessions Judge, who was of the view that since the Respondent had left the matrimonial home on 4th July, 2005, and the Act came into force on 26th October, 2006, the claim of a woman living in domestic relationship or living together prior to 26th October, 2006, was not maintainable. The learned Additional Sessions Judge was of the view that since the cause of action arose prior to coming into force of the PWD Act, the Court could not adjudicate upon the merits of the Respondent’s case.

5. Before the Delhi High Court, the only question which came up for determination was whether the petition under the provisions of the PWD Act, 2005, was maintainable by a woman, who was no longer residing with her husband or who was allegedly subjected to any act of domestic violence prior to the coming into force of the PWD Act on 26th October, 2006. After considering the constitutional safeguards under Article 21 of the Constitution, vis-`-vis, the provisions of Sections 31 and 33 of the PWD Act, 2005, and after examining the statement of objects and reasons for the enactment of the PWD Act, 2005, the learned Judge held that it was with the view of protecting the rights of women under Articles 14, 15 and 21 of the Constitution that the Parliament enacted the PWD Act, 2005, in order to provide for some effective protection of rights guaranteed under the Constitution to women, who are victims of any kind of violence occurring within the family and matters connected therewith and incidental thereto, and to provide an efficient and expeditious civil remedy to them. The learned Judge accordingly held that a petition under the provisions of the PWD Act, 2005, is maintainable even if the acts of domestic violence had been committed prior to the coming into force of the said Act, notwithstanding the fact that in the past she had lived together with her husband in a shared household, but was no more living with him, at the time when the Act came into force. The learned Judge, accordingly, set aside the order passed by the Additional Sessions Judge and directed him to consider the appeal filed by the Respondent wife on merits.

6. As indicated hereinbefore, the Special Leave Petition is directed against the said order dated 22nd March, 2010, passed by the Delhi High Court and the findings contained therein.

7. During the pendency of the Special Leave Petition, on 15th September, 2011, the Petitioner appearing in-person submitted that the disputes between him and the Respondent had been resolved and the parties had decided to file an application for withdrawal of the Special Leave Petition. The matter was, thereafter, referred to the Supreme Court Mediation Centre and during the mediation, a mutual settlement signed by both the parties was prepared so that the same could be filed in the Court for appropriate orders to be passed thereupon. However, despite the said settlement, which was mutually arrived at by the parties, on 17th January, 2011, when the matter was listed for orders to be passed on the settlement arrived at between the parties, an application filed by the Petitioner was brought to the notice of the Court praying that the settlement arrived at between the parties be annulled. Thereafter, the matter was listed in-camera in Chambers and we had occasion to interact with the parties in order to ascertain the reason for change of heart. We found that while the wife was wanting to rejoin her husband’s company, the husband was reluctant to accept the same. For reasons best known to the Petitioner, he insisted that the mutual settlement be annulled as he was not prepared to take back the Respondent to live with him.

8. The attitude displayed by the Petitioner has once again thrown open the decision of the High Court for consideration. We agree with the view expressed by the High Court that in looking into a complaint under Section 12 of the PWD Act, 2005, the conduct of the parties even prior to the coming into force of the PWD Act, could be taken into consideration while passing an order under Sections 18, 19 and 20 thereof. In our view, the Delhi High Court has also rightly held that even if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the PWD Act, 2005.

9. On facts it may be noticed that the couple has no children. Incidentally, the Respondent wife is at present residing with her old parents, after she had to vacate the matrimonial home, which she had shared with the Petitioner at Mathura, being his official residence, while in service. After more than 31 years of marriage, the Respondent wife having no children, is faced with the prospect of living alone at the advanced age of 63 years, without any proper shelter or protection and without any means of sustenance except for a sum of Rs.6,000/- which the Petitioner was directed by the Magistrate by order dated 8th December, 2006, to give to the Respondent each month. By a subsequent order dated 17th February, 2007, the Magistrate also passed a protection-cum-residence order under Sections 18 and 19 of the PWD Act, protecting the rights of the Respondent wife to reside in her matrimonial home in Mathura. Thereafter, on the Petitioner’s retirement from service, the Respondent was compelled to vacate the accommodation in Mathura and a direction was given by the Magistrate to the Petitioner to let the Respondent live on the 1st Floor of House No.D-279, Nirman Vihar, New Delhi, and if that was not possible, to provide a sum of Rs.10,000/- per month to the Respondent towards rental charges for acquiring an accommodation of her choice.

10. In our view, the situation comes squarely within the ambit of Section 3 of the PWD Act, 2005, which defines “domestic violence” in wide terms, and, accordingly, no interference is called for with the impugned order of the High Court.

However, considering the fact that the couple is childless and the Respondent has herself expressed apprehension of her safety if she were to live alone in a rented accommodation, we are of the view that keeping in mind the object of the Act to provide effective protection of the rights of women guaranteed under the Constitution, who are victims of violence of any kind occurring within the family, the order of the High Court requires to be modified. We, therefore, modify the order passed by the High Court and direct that the Respondent be provided with a right of residence where the Petitioner is residing, by way of relief under Section 19 of the PWD Act, and we also pass protection orders under Section 18 thereof. As far as any monetary relief is concerned, the same has already been provided by the learned Magistrate and in terms of the said order, the Respondent is receiving a sum of Rs.6,000/- per month towards her expenses.

11. Accordingly, in terms of Section 19 of the PWD Act, 2005, we direct the Petitioner to provide a suitable portion of his residence to the Respondent for her residence, together with all necessary amenities to make such residential premises properly habitable for the Respondent, within 29th February, 2012. The said portion of the premises will be properly furnished according to the choice of the Respondent to enable her to live in dignity in the shared household. Consequently, the sum of Rs.10,000/- directed to be paid to the Respondent for obtaining alternative accommodation in the event the Petitioner was reluctant to live in the same house with the Respondent, shall stand reduced from Rs.10,000/- to Rs.4,000/-, which will be paid to the Respondent in addition to the sum of Rs.6,000/- directed to be paid to her towards her maintenance. In other words, in addition to providing the residential accommodation to the Respondent, the Petitioner shall also pay a total sum of Rs.10,000/- per month to the Respondent towards her maintenance and day-to-day expenses.

12. In the event, the aforesaid arrangement does not work, the parties will be at liberty to apply to this Court for further directions and orders.

The Special Leave Petition is disposed of accordingly.

13. There shall, however, be no order as to costs.

(ALTAMAS KABIR)

 (J. CHELAMESWAR)

Indra Sarma vs V.K.V.Sarma[SC 2013 NOVEMBER]

KEYWORDS:-relationship in the nature of marriage-live-in relationship-domestic violence- bigamous relationship-mistress-

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  • 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 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.
  • the appellant’s status was that of a mistress, who is in distress, a survivor of a live-in relationship which is of serious concern, especially when such persons are poor and illiterate, in the event of which vulnerability is more pronounced, which is a societal reality. Children born out of such relationship also suffer most which calls for bringing in remedial measures by the Parliament, through proper legislation.

Section 2(f) of the Protection of Women from Domestic Violence Act, 2005 (for short “the DV Act”).

DATE : 26 November, 2013

Bench: K.S. Radhakrishnan, Pinaki Chandra Ghose

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2009 OF 2013

SPECIAL LEAVE PETITION (CRL.) NO.4895 OF 2012)

Indra Sarma Versus V.K.V. Sarma

J U D G M E N T

K.S. Radhakrishnan, J.

Leave granted.

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.

FACTS:

4. Appellant and respondent were working together in a private company. The Respondent, who was working as a Personal Officer of the Company, was a married person having two children and the appellant, aged 33 years, was unmarried. Constant contacts between them developed intimacy and in the year 1992, appellant left the job from the above-mentioned Company and started living with the respondent in a shared household. Appellant’s family members, including her father, brother and sister, and also the wife of the respondent, opposed that live-in-relationship. She has also maintained the stand that the respondent, in fact, started a business in her name and that they were earning from that business. After some time, the respondent shifted the business to his residence and continued the business with the help of his son, thereby depriving her right of working and earning. Appellant has also stated that both of them lived together in a shared household and, due to their relationship, appellant became pregnant on three occasions, though all resulted in abortion. Respondent, it was alleged, used to force the appellant to take contraceptive methods to avoid pregnancy. Further, it was also stated that the respondent took a sum of Rs.1,00,000/- from the appellant stating that he would buy a land in her name, but the same was not done. Respondent also took money from the appellant to start a beauty parlour for his wife. Appellant also alleged that, during the year 2006, respondent took a loan of Rs.2,50,000/- from her and had not returned. Further, it was also stated that the respondent, all along, was harassing the appellant by not exposing her as his wife publicly, or permitting to suffix his name after the name of the appellant. Appellant also alleged that the respondent never used to take her anywhere, either to the houses of relatives or friends or functions. Appellant also alleged that the respondent never used to accompany her to the hospital or make joint Bank account, execute documents, etc. Respondent’s family constantly opposed their live-in relationship and ultimately forced him to leave the company of the appellant and it was alleged that he left the company of the appellant without maintaining her.

5. Appellant then preferred Criminal Misc. No. 692 of 2007 under Section 12 of the DV Act before the III Additional Chief Metropolitan Magistrate, Bangalore, seeking the following reliefs:

1) Pass a Protection Order under Section 18 of the DV Act prohibiting the respondent from committing any act of domestic violence against the appellant and her relatives, and further prohibiting the respondent from alienating the assets both moveable and immoveable properties owned by the respondent;

2) Pass a residence order under Section 19 of the DV Act and direct the respondent to provide for an independent residence as being provided by the respondent or in the alternative a joint residence along with the respondent where he is residing presently and for the maintenance of Rs.25,000/- per month regularly as being provided earlier or in the alternative to pay the permanent maintenance charges at the rate of Rs.25,000/- per month for the rest of the life;

3) Pass a monetary order under Section 20 of the DV Act directing the respondent to pay a sum of Rs.75,000/- towards the operation, pre and post operative medication, tests etc and follow up treatments;

4) Pass a compensation order under Section 22 of the DV Act to a sum of Rs.3,50,000/- towards damages for misusing the funds of the sister of the appellant, mental torture and emotional feelings; and

5) Pass an ex-parte interim order under Section 23 of the DV Act directing the respondent to pay Rs.75,000/- towards the medical expenses and pay the maintenance charges @ Rs.25,000/- per month as being paid by the respondent earlier.

6. Respondent filed detailed objections to the application stating that it was on sympathetical grounds that he gave shelter to her in a separate house after noticing the fact that she was abandoned by her parents and relatives, especially after the demise of her father. She had also few litigations against her sister for her father’s property and she had approached the respondent for moral as well as monetary support since they were working together in a Company. The respondent has admitted that he had cohabited with the appellant since 1993. The fact that he was married and had two children was known to the appellant. Pregnancy of the appellant was terminated with her as well as her brother’s consent since she was not maintaining good health. The respondent had also spent large amounts for her medical treatment and the allegation that he had taken money from the appellant was denied. During the month of April, 2007, the respondent had sent a cheque for Rs.2,50,000/- towards her medical expenses, drawn in the name of her sister which was encashed. Further, it was stated, it was for getting further amounts and to tarnish the image of the respondent, the application was preferred under the DV Act. Before the learned Magistrate, appellant examined herself as P.W.1 and gave evidence according to the averments made in the petition. Respondent examined himself as R.W.1. Child Development Project Officer was examined as R.W.2. The learned Magistrate found proof that the parties had lived together for a considerable period of time, for about 18 years, and then the respondent left the company of the appellant without maintaining her. Learned Magistrate took the view that the plea of “domestic violence” had been established, due to the non-maintenance of the appellant and passed the order dated 21.7.2009 directing the respondent to pay an amount of Rs.18,000/- per month towards maintenance from the date of the petition.

7. Respondent, aggrieved by the said order of the learned Magistrate, filed an appeal before the Sessions Court under Section 29 of the DV Act. The Appellate Court, after having noticed that the respondent had admitted the relationship with appellant for over a period of 14 years, took the view that, due to their live-in relationship for a considerable long period, non-maintenance of the appellant would amount to domestic violence within the meaning of Section 3 of the DV Act. The appellate Court also concluded that the appellant has no source of income and that the respondent is legally obliged to maintain her and confirmed the order passed by the learned Magistrate.

8. The respondent took up the matter in appeal before the High Court. It was contended before the High Court that the appellant was aware of the fact that the respondent was a married person having two children, yet she developed a relationship, in spite of the opposition raised by the wife of the respondent and also by the appellant’s parents. Reliance was also placed on the judgment of this Court in D. Velusamy v. D. Patchaiammal (2010) 10 SCC 469 and submitted that the tests laid down in Velusamy case (supra) had not been satisfied. The High Court held that the relationship between the parties would not fall within the ambit of “relationship in the nature of marriage” and the tests laid down in Velusamy case (supra) have not been satisfied. Consequently, the High Court allowed the appeal and set aside the order passed by the Courts below. Aggrieved by the same, this appeal has been preferred.

9. Shri Anish Kumar Gupta, learned counsel appearing for the appellant, submitted that the relationship between the parties continued from 1992 to 2006 and since then, the respondent started avoiding the appellant without maintaining her. Learned counsel submitted that the relationship between them constituted a “relationship in the nature of marriage” within the meaning of Section 2(f) of the DV Act, which takes in every relationship by a man with a woman, sharing household, irrespective of the fact whether the respondent is a married person or not. Learned counsel also submitted that the tests laid down in Velusamy case (supra) have also been satisfied.

10. Ms. Jyotika Kalra, learned amicus curiae, took us elaborately through the provisions of the DV Act as well as the objects and reasons for enacting such a legislation. Learned amicus curiae submitted that the Act is intended to provide for protection of rights of women who are victims of violence of any type occurring in the family. Learned amicus curiae also submitted that the various provisions of the DV Act are intended to achieve the constitutional principles laid down in Article 15(3), reinforced vide Article 39 of the Constitution of India. Learned amicus curiae also made reference to the Malimath Committee report and submitted that a man who marries a second wife, during the subsistence of the first wife, should not escape his liability to maintain his second wife, even under Section 125 CrPC. Learned amicus curiae also referred to a recent judgment of this Court in Deoki Panjhiyara v. Shashi Bhushan Narayan Azad and Another (2013) 2 SCC 137 in support of her contention.

11. Mr. Nikhil Majithia, learned counsel appearing for the respondent, made extensive research on the subject and made available valuable materials. Learned counsel referred to several judgments of the Constitutional Courts of South Africa, Australia, New Zealand, Canada, etc. and also referred to parallel legislations on the subject in other countries. Learned counsel submitted that the principle laid down in Velusamy case (supra) has been correctly applied by the High Court and, on facts, appellant could not establish that their relationship is a “relationship in the nature of marriage” so as to fall within Section 2(f) of the DV Act. Learned counsel also submitted that the parties were not qualified to enter into a legal marriage and the appellant knew that the respondent was a married person. Further, the appellant was not a victim of any fraudulent or bigamous marriage and it was a live-in relationship for mutual benefits, consequently, the High Court was right in holding that there has not been any domestic violence, within the scope of Section 3 of the DV Act entitling the appellant to claim maintenance.

12. We have to examine whether the non maintenance of the appellant in a broken live-in-relationship, which is stated to be a relationship not in the nature of a marriage, will amount to “domestic violence” within the definition of Section 3 of the DV Act, enabling the appellant to seek one or more reliefs provided under Section 12 of the DV Act.

13. Before examining the various issues raised in this appeal, which have far reaching consequences with regard to the rights and liabilities of parties indulging in live-in relationship, let us examine the relevant provisions of the DV Act and the impact of those provisions on such relationships.

D.V. ACT

14. The D.V. Act has been enacted to provide a remedy in Civil Law for protection of women from being victims of domestic violence and to prevent occurrence of domestic violence in the society. The DV Act has been enacted also to provide an effective protection of the rights of women guaranteed under the Constitution, who are victims of violence of any kind occurring within the family.

15. “Domestic Violence” is undoubtedly a human rights issue, which was not properly taken care of in this country even though the Vienna Accord 1994 and the Beijing Declaration and Platform for Action (1995) had acknowledged that domestic violence was undoubtedly a human rights issue. UN Committee on Convention on Elimination of All Forms of Discrimination Against Women in its general recommendations had also exhorted the member countries to take steps to protect women against violence of any kind, especially that occurring within the family, a phenomenon widely prevalent in India. Presently, when a woman is subjected to cruelty by husband or his relatives, it is an offence punishable under Section 498A IPC. The Civil Law, it was noticed, did not address this phenomenon in its entirety. Consequently, the Parliament, to provide more effective protection of rights of women guaranteed under the Constitution under Articles 14, 15 and 21, who are victims of violence of any kind occurring in the family, enacted the DV Act.

16. Chapter IV is the heart and soul of the DV Act, which provides various reliefs to a woman who has or has been in domestic relationship with any adult male person and seeks one or more reliefs provided under the Act. The Magistrate, while entertaining an application from an aggrieved person under Section 12 of the DV Act, can grant the following reliefs:

1) Payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for injuries caused by the acts of domestic violence committed by the adult male member, with a prayer for set off against the amount payable under a decree obtained in Court;

2) The Magistrate, under Section 18 of the DV Act, can pass a “protection order” in favour of the aggrieved person and prohibit the respondent from:

a) committing any act of domestic violence;

b) aiding or abetting in the commission of acts of domestic violence;

c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;

d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;

e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;

f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;

g) committing any other act as specified in the protection order.

3) The Magistrate, while disposing of an application under Section 12(1) of the DV Act, can pass a “residence order” under Section 19 of the DV Act, in the following manner:

“19. Residence orders.- (1) While disposing of an application under sub- section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order-

a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;
b) directing the respondent to remove himself from the shared household;
(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;
(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or
(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:
Provided that no order under clause (b) shall be passed against any person who is a woman.

xxx xxx xxx
xxx xxx xxx”

(4) An aggrieved person, while filing an application under Section 12(1) of the DV Act, is also entitled, under Section 20 of the DV Act, to get “monetary reliefs” to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but is not limited to,-

“20. Monetary reliefs.- (1) While disposing of an application under sub- section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,-

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974 ) or any other law for the time being in force.

xxx xxx xxx
xxx xxx xxx”

The monetary reliefs granted under the above mentioned section shall be adequate, fair, reasonable and consistent with the standard of living to which an aggrieved person is accustomed and the Magistrate has the power to order an appropriate lump sum payment or monthly payments of maintenance.

(5) The Magistrate, under Section 21 of the DV Act, has the power to grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent.

(6) The Magistrate, in addition to other reliefs, under Section 22 of the DV Act, can pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by the respondent.

17. Section 26 of the DV Act provides that any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a Civil Court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act. Further, any relief referred to above may be sought for in addition to and along with any other reliefs that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. Further, if any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.

18. Section 3 of the DV Act deals with “domestic violence” and reads as under:

“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-
(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 court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household 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 household 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.”
19. In order to examine as to whether there has been any act, omission, or commission or conduct so as to constitute domestic violence, it is necessary to examine some of the definition clauses under Section 2 of the DV Act. Section 2(a) of the DV Act defines the expression “aggrieved person” as follows:
“2(a). “Aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.” Section 2(f) defines the expression “domestic relationship” as follows:
“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.” Section 2(q) defines the expression “respondent” as follows:
“2(q). “Respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:
Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.” Section 2(s) defines the expression “shared household” and reads as follows:
“2(s). “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.”
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 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 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 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 “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 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

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”.

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): 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 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).

44. The Interpretation Act, 1984 (Australia) has laid down certain indicators to determine the meaning of “de facto relationship”, which are as follows:

“13A . De facto relationship and de facto partner, references to (1) A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage-like relationship.

(2) The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential —
(a) the length of the relationship between them;
(b) whether the 2 persons have resided together;
(c) the nature and extent of common residence;
(d) whether there is, or has been, a sexual relationship between them;
(e) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(f) the ownership, use and acquisition of their property (including property they own individually);
(g) the degree of mutual commitment by them to a shared life;
(h) whether they care for and support children;
(i) the reputation, and public aspects, of the relationship between them.
xxx xxx xxx
xxx xxx xxx”

45. The Domestic and Family Violence Protection Act, 2012 (Queensland) has defined the expression “couple relationship” to mean as follows”:
“18. Meaning of couple relationship
1) xxx xxx xxx
2) In deciding whether a couple relationship exists, a court may have regard to the following –
a) the circumstances of the relationship between the persons, including, for example–
(i) the degree of trust between the persons; and
(ii) the level of each person’s dependence on, and commitment to, the other person;
b) the length of time for which the relationship has existed or did exist;
c) the frequency of contact between the persons;
d) the degree of intimacy between the persons.

3) Without limiting sub-section (2), the court may consider the following factors in deciding whether a couple relationship exists-
a) Whether the trust, dependence or commitment is or was of the same level;
b) Whether one of the persons is or was financially dependent on the other;
c) Whether the persons jointly own or owned any property;
d) Whether the persons have or had joint bank accounts;
e) Whether the relationship involves or involved a relationship of a sexual nature;
f) Whether the relationship is or was exclusive.
4) A couple relationship may exist even if the court makes a negative finding in relation to any or all of the factors mentioned in subsection (3).
5) A couple relationship may exist between two persons whether the persons are of the same or a different gender.
6) A couple relationship does not exist merely because two persons date or dated each other on a number of occasions.”
46. The Property (Relationships) Act, 1984 of North South Wales, Australia also provides for some guidelines with regard to the meaning and content of the expression “de facto relationship”, which reads as follows:
“4 De facto relationships (1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:

(a) who live together as a couple, and

(b) who are not married to one another or related by family. (2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:

(a) the duration of the relationship,
(b) the nature and extent of common residence,
(c) whether or not a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the relationship.
(3) No finding in respect of any of the matters mentioned in subsection (2) (a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

(4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship.”

47. “In Re Marriage of Lindsay, 101 Wn.2d 299 (1984), Litham v. Hennessey 87 Wn.2d 550 (1976), Pennington 93 Wash.App. at 917, the Courts in United States took the view that the relevant factors establishing a meretricious relationship include continuous cohabitation, duration of the relationship, purpose of the relationship, and the pooling of resources and services for joint projects. The Courts also ruled that a relationship need not be “long term” to be characterized as meretricious relationship. While a long term relationship is not a threshold requirement, duration is a significant factor. Further, the Court also noticed that a short term relationship may be characterized as a meretricious, but a number of other important factors must be present.

48. In Stack v. Dowden [2007] 2 AC 432, Baroness Hale of Richmond said:

“Cohabitation comes in many different shapes and sizes. People embarking on their first serious relationship more commonly cohabit than marry. Many of these relationships may be quite short-lived and childless. But most people these days cohabit before marriage….. So many couples are cohabiting with a view to marriage at some later date – as long ago as 1998 the British Household Panel Survey found that 75% of current cohabitants expected to marry, although only a third had firm plans: John Ermisch, Personal Relationships and Marriage Expectations (2000) Working Papers of the Institute of Social and Economic Research: Paper 2000-27. Cohabitation is much more likely to end in separation than is marriage, and cohabitations which end in separation tend to last for a shorter time than marriages which end in divorce. But increasing numbers of couples cohabit for long periods without marrying and their reasons for doing so vary from conscious rejection of marriage as a legal institution to regarding themselves ‘as good as married’ anyway: Law Commission, Consultation Paper No 179, Part 2, para 2.45.”
49. In MW v. The Department of Community Services [2008] HCA 12, Gleeson, CJ, made the following observations:

“Finn J was correct to stress the difference between living together and living together ‘as a couple in a relationship in the nature of marriage or civil union’. The relationship between two people who live together, even though it is a sexual relationship, may, or may not, be a relationship in the nature of marriage or civil union. One consequence of relationships of the former kind becoming commonplace is that it may now be more difficult, rather than easier, to infer that they have the nature of marriage or civil union, at least where the care and upbringing of children are not involved.”
50. In Lynam v. The Director-General of Social Security (1983) 52 ALR 128, the Court considered whether a man and a woman living together ‘as husband and wife on a bona fide domestic basis’ and Fitzgerald, J. said:

“Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.”
51. Tipping, J. in Thompson v. Department of Social Welfare (1994) 2 SZLR 369 (HC), listed few characteristics which are relevant to determine relationship in the nature of marriage as follows:

“(1) Whether and how frequently the parties live in the same house. (2) Whether the parties have a sexual relationship. (3) Whether the parties give each other emotional support and companionship.
(4) Whether the parties socialize together or attend activities together as a couple.
(5) Whether and to what extent the parties share the responsibility for bringing up and supporting any relevant children. (6) Whether the parties share household and other domestic tasks. (7) Whether the parties share costs and other financial responsibilities by the pooling of resources or otherwise. (8) Whether the parties run a common household, even if one or other partner is absent for periods of time.
(9) Whether the parties go on holiday together. (10) Whether the parties conduct themselves towards, and are treated by friends, relations and others as if they were a married couple.”
52. Live-in relationship, as such, as already indicated, is a relationship which has not been socially accepted in India, unlike many other countries. In Lata Singh v. State of U.P. [AIR 2006 SC 2522] it was observed that a live-in relationship between two consenting adults of heterosexual sex does not amount to any offence even though it may be perceived as immoral. However, in order to provide a remedy in Civil Law for protection of women, from being victims of such relationship, and to prevent the occurrence of domestic violence in the society, first time in India, the DV Act has been enacted to cover the couple having relationship in the nature of marriage, persons related by consanguinity, marriages etc. We have few other legislations also where reliefs have been provided to woman placed in certain vulnerable situations.

53. Section 125 Cr.P.C., of course, provides for maintenance of a destitute wife and Section 498A IPC is related to mental cruelty inflicted on women by her husband and in-laws. Section 304-B IPC deals with the cases relating to dowry death. The Dowry Prohibition Act, 1961 was enacted to deal with the cases of dowry demands by the husband and family members. The Hindu Adoptions and Maintenance Act, 1956 provides for grant of maintenance to a legally wedded Hindu wife, and also deals with rules for adoption. The Hindu Marriage Act, 1955 refers to the provisions dealing with solemnization of marriage also deals with the provisions for divorce. For the first time, through, the DV Act, the Parliament has recognized a “relationship in the nature of marriage” and not a live-in relationship simplicitor.

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 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 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.

STATUS OF THE APPELLANT

56. Appellant, admittedly, entered into a live-in-relationship with the respondent knowing that he was married person, with wife and two children, hence, the generic proposition laid down by the Privy Council in Andrahennedige Dinohamy v. Wiketunge Liyanapatabendage Balshamy, AIR 1927 PC 185, that where a man and a woman are proved to have lived together as husband and wife, the law presumes that they are living together in consequence of a valid marriage will not apply and, hence, the relationship between the appellant and the respondent was not a relationship in the nature of a marriage, and the status of the appellant was that of a concubine. A concubine cannot maintain a relationship in the nature of marriage because such a relationship will not have exclusivity and will not be monogamous in character. Reference may also be made to the judgments of this Court in Badri Prasad v. Director of Consolidation 1978 (3) SCC 527 and Tulsa v. Durghatiya 2008 (4) SCC 520. In Gokal Chand v. Parvin Kumari AIR 1952 SC 231 this Court held that the continuous cohabitation of man and woman as husband and wife may raise the presumption of marriage, but the presumption which may be drawn from long cohabition is a rebuttable one and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them. Polygamy, that is a relationship or practice of having more than one wife or husband at the same time, or a relationship by way of a bigamous marriage that is marrying someone while already married to another and/or maintaining an adulterous relationship that is having voluntary sexual intercourse between a married person who is not one’s husband or wife, cannot be said to be a relationship in the nature of marriage.

57. We may note, in the instant case, there is no necessity to rebut the presumption, since the appellant was aware that the respondent was a married person even before the commencement of their relationship, hence the status of the appellant is that of a concubine or a mistress, who cannot enter into relationship in the nature of a marriage. Long standing relationship as a concubine, though not a relationship in the nature of a marriage, of course, may at times, deserves protection because that woman might not be financially independent, but we are afraid that DV Act does not take care of such relationships which may perhaps call for an amendment of the definition of Section 2(f) of the DV Act, which is restrictive and exhaustive.

58. Velusamy case (supra) stated that instances are many where married person maintain and support such types of women, either for sexual pleasure or sometimes for emotional support. Woman, a party to that relationship does suffer social disadvantages and prejudices, and historically, such a person has been regarded as less worthy than the married woman. Concubine suffers social ostracism through the denial of status and benefits, who cannot, of course, enter into a relationship in the nature of marriage.

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 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.

62. Parliament has to ponder over these issues, bring in proper legislation or make a proper amendment of the Act, so that women and the children, born out of such kinds of relationships be protected, though those types of relationship might not be a relationship in the nature of a marriage.

63. We may now consider whether the tests, we have laid down, have been satisfied in the instant case. We have found that the appellant was not ignorant of the fact that the respondent was a married person with wife and two children, hence, was party to an adulterous and bigamous relationship. Admittedly, the relationship between the appellant and respondent was opposed by the wife of the respondent, so also by the parents of the appellant and her brother and sister and they knew that they could not have entered into a legal marriage or maintained a relationship in the nature of marriage. Parties never entertained any intention to rear children and on three occasions the pregnancy was terminated. Having children is a strong circumstance to indicate a relationship in the nature of marriage. No evidence has been adduced to show that the parties gave each other mutual support and companionship. No material has been produced to show that the parties have ever projected or conducted themselves as husband and wife and treated by friends, relatives and others, as if they are a married couple. On the other hand, it is the specific case of the appellant that the respondent had never held out to the public that she was his wife. No evidence of socialization in public has been produced. There is nothing to show that there was pooling of resources or financial arrangements between them. On the other hand, it is the specific case of the appellant that the respondent had never opened any joint account or executed any document in the joint name. Further, it was also submitted that the respondent never permitted to suffix his name after the name of the appellant. No evidence is forthcoming, in this case, to show that the respondent had caused any harm or injuries or endangered the health, safely, life, limb or well- being, or caused any physical or sexual abuse on the appellant, except that he did not maintain her or continued with the relationship.

ALIENATION OF AFFECTION

64. Appellant had entered into this relationship knowing well that the respondent was a married person and encouraged bigamous relationship. By entering into such a relationship, the appellant has committed an intentional tort, i.e. interference in the marital relationship with intentionally alienating respondent from his family, i.e. his wife and children. If the case set up by the appellant is accepted, we have to conclude that there has been an attempt on the part of the appellant to alienate respondent from his family, resulting in loss of marital relationship, companionship, assistance, loss of consortium etc., so far as the legally wedded wife and children of the respondent are concerned, who resisted the relationship from the very inception. Marriage and family are social institutions of vital importance. Alienation of affection, in that context, is an intentional tort, as held by this Court in Pinakin Mahipatray Rawal case (supra), which gives a cause of action to the wife and children of the respondent to sue the appellant for alienating the husband/father from the company of his wife/children, knowing fully well they are legally wedded wife/children of the respondent..

65. We are, therefore, of the view that the appellant, having been fully aware of the fact that the respondent was a married person, could not have entered into a 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 relationship is, therefore, not a “relationship in the nature of marriage” because it has no inherent or essential characteristic of a marriage, but a relationship other than “in the nature of marriage” and the appellant’s status is lower than the status of a wife and that relationship would not fall within the definition of “domestic relationship” under Section 2(f) of the DV Act. If we hold that the relationship between the appellant and the respondent is a relationship in the nature of a marriage, we will be doing an injustice to the legally wedded wife and children who opposed that relationship. Consequently, any act, omission or commission or conduct of the respondent in connection with that type of relationship, would not amount to “domestic violence” under Section 3 of the DV Act.

66. We have, on facts, found that the appellant’s status was that of a mistress, who is in distress, a survivor of a live-in relationship which is of serious concern, especially when such persons are poor and illiterate, in the event of which vulnerability is more pronounced, which is a societal reality. Children born out of such relationship also suffer most which calls for bringing in remedial measures by the Parliament, through proper legislation.

67. We are conscious of the fact that if any direction is given to the respondent to pay maintenance or monetary consideration to the appellant, that would be at the cost of the legally wedded wife and children of the respondent, especially when they had opposed that relationship and have a cause of action against the appellant for alienating the companionship and affection of the husband/parent which is an intentional tort.

68. We, therefore, find no reason to interfere with the judgment of the High Court and the appeal is accordingly dismissed.

(K.S. Radhakrishnan)

(Pinaki Chandra Ghose)

Kunapareddy @ Nookala Shanka Balaji Vs. Kunapareddy Swarna Kumari & ANR [SC 2016 April]

Keywords :- Domestic violence

Capture

If the power to amend the complaint/application etc. is not read into the aforesaid provision, the very purpose which the Act attempts to sub-serve itself may be defeated in many cases.

APRIL 18, 2016

SUPREME COURT OF INDIA

Kunapareddy @ Nookala Shanka Balaji Vs. Kunapareddy Swarna Kumari & ANR

[Criminal Appeal Nos. 516/2016 arising out of SLP (CRL.) No. 1537/2016]

A.K. SIKRI,J.

1. Leave granted.

2. Learned counsel for both the parties have been finally heard at this stage.

3. The issue that arises for consideration in the instant case is whether a court dealing with the petition/complaint filed under the provisions of the Domestic Violence Act, 2005 (hereinafter referred to as ‘the DV Act’) has power to allow amendment to the petition/complaint originally filed. This issue has arisen in the petition/complaint filed by respondent no. 1/wife. Respondent No. 1 herein, who is the wife of the appellant, has filed a case against the appellant and his family members before the Court of IInd Additional Judicial First Class Magistrate, West Godavari, Eluru under Sections 9B & 37(2)(C) of the DV Act which is registered as Domestic Violence Case No. 20/2008.

It may be mentioned here that the said petition now stands transferred to the Court of Judicial First Class Magistrate (Mobile Court), Eluru and has been renumbered as DV Case No. 29/2012. In this case, respondent no. 1 has leveled various allegations against the appellant and his family members inter alia alleging that the appellant and his family members used to harass her physically as well as mentally and by also demanding dowry. It is further alleged that she was driven out from her matrimonial home in the month of March, 2015 and initially she took shelter at her brother’s house along with the children in Eluru.

Thereafter, on the appellant tendering an apology to respondent no. 1 by coming to Eluru they put up their family together in Gadam Ramakrishna’s House at Ashok Nagar, Eluru,but the things did not change. The following prayers are made in the said petition:

“a) to provide protection to the life and limb of the complainant in the hands of the respondents;

b) to grant monthly maintenance of Rs. 5,000/- to the complainant and her children each towards her maintenance, medicines etc. and her children education and maintenance;

c) to grant such other relief or reliefs if the Hon’ble Court deems fit and proper in the circumstances of the case.”

4. Respondent no.1 has also filed a divorce petition before the Court of Senior Civil Judge, West Godavari, Eluru wherein she has made an application for interim maintenance as well. Thereafter, she also filed a maintenance petition under Sections 23(2) and 24 of the Hindu Marriage Act, 1955 before the Court of Family Judge, Eluru.

5. On receiving notice in DV Petition, family members of the appellant filed a petition under Section 482 Cr.P.C. in the High Court of Judicature at Hyderabad for the States of Telengana and Andhra Pradesh for quashing the proceedings in the said DV Petition. This petition was allowed by the High Court vide order dated 17.04.2009 thereby quashing the domestic violence proceedings against the family members of the appellant on the ground that there was no specific allegations against them.

After the DV Petition was transferred to the Court of Judicial First Class Magistrate, Eluru, respondent no. 1 filed an application seeking amendment of the petition. By way of the said amendment petition, respondent no. 1 wanted to amend the prayer clause by incorporating some more prayers, as is clear from the following amendment in this behalf which was sought by respondent no. 1:

a) To provide protection to life and limb of the complainant in the hands of the respondent.

b) To grant monthly maintenance of Rs. 15,000/- to the complainant and her 2nd child to their maintenance instead of Rs.5000/-

c) Direct the respondent to return the Sridhana amount of Rs.3,00,000/- and 15 sovereigns of gold ornaments and other sari samanas and marriage batuvu presented to the respondent worth about 2 sovereigns wrist watch, 7 sovereign gold chain presented by the complainant and her parents.

d) Direct the respondent to pay the compensation of Rs.15 lakhs to the complaint for subjecting the compliant to physical and mental harassments besides including acts of Domestic Violence.

e) Direct the respondent to return the sari samans and other goods like worth more than Rs.10,00,000/- as per the list annexed herewith.

f) Direct the respondent to pay the cost of, litigation to the tune of Rs.25,000/- so far spent by the complainant persuing her litigation.

g) Direct the 1st respondent to provide separate residence by taking rent portion with monthly rent of Rs.10,000/-

h) Directing the respondent to return the original study certificates, medical certificates, deposits certificates and receipts etc. in the prayer portion paragraphs the following amendment by deleting the prayer original para b) to grant monthly maintenance of Rs.5,000/- to the complainant and her children each towards her maintenance, medicines etc. and her children education and maintenance.”

6. The appellant herein opposed the said application. However, the learned Trail Court after hearing both the parties allowed the amendment. The appellant raised an objection that there was no power with the court to allow amendment of such a petition/complaint in the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’). This contention was rejected by the trial court on the premise that section 26 of the DV Act, which entitles a civil court, a family court or a criminal court as well to grant any relief which is available to the complainant under Sections 18, 19, 20, 21 & 22 of the said Act, gives an indication that the provisions of the Code of Civil Procedure would squarely apply and, therefore, the court had the power to allow amendment of the petition/complaint, more so, when it was necessary for the purpose of determining the real matter in controversy and to prevent multiplicity of the litigation.

7. This order was challenged by the appellant by filing an appeal before the Court of District and Sessions Judge, Eluru. The District and Sessions Judge, Eluru set aside the order of the Trial Court holding that there was no specific provision for amendment of the complaint and allowed the appeal of the appellant. Aggrieved by that order, respondent no. 1 filed a revision petition in the High Court which has been allowed by the High Court vide impugned judgment permitting respondent no. 1 to amend the petition/complaint, thereby setting aside the order of the District and Sessions Judge and restoring the order of the Trial Court.

8. As mentioned above, in the present appeal preferred by the appellant questioning the validity of the order of the High Court, the contention of the appellant is that there is no such an provision under the DV Act which permits the Trial Court to allow such amendment. On this issue, we have heard the learned counsel for the parties at length.

9. The contention of Mr. G.V.Rao, learned counsel appearing for the appellant was that the proceedings under the DV Act are governed by the provisions of the Code of Criminal Procedure as prescribed under Section 28 of the DV Act and there is no provision for amendment in the Code. He further submitted that the court below was wrong in treating the application for amendment under Order VI Rule 17 of the Code of Civil Procedure which has no application to the proceedings under the DV Act.

10. In order to decide the aforesaid issue, we may take note of some of the salient provisions of the DV Act as well as relevant Rules framed under the said Act. We have gone through the concerned provisions of the Code. We may start our discussion with Section 28 of the DV Act which reads as under:

“28. Procedure.-

(1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).

(2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub- section (2) of section 23.”

11. No doubt this provision provides that all proceedings under Sections 12, 19 to 23 as well as offences under Section 31 are to be governed by the provisions of the Code. The instant petition, as noted above, is filed under Section 9B and 37(2)(C) of the DV Act. Section 9 enumerates duties and functions of Protection Officer and Clause (b) of sub-Section (1) thereof reads as under:

“(b) to make a domestic incident report to the Magistrate, in such form and in such manner as may be prescribed, upon receipt of a complaint of domestic violence and forward copies thereof to the police officer in charge of the police station within the local limits of whose jurisdiction domestic violence is alleged to have been committed and to the service providers in that area;”

12. We have already mentioned the prayers which were made by respondent no.1 in the original petition and prayer ‘A’ thereof relates to Section 9. However, in prayer ‘B’, the respondent no.1 also sought relief of grant of monthly maintenance to her as well as her children. This prayer falls within the ambit of Section 20 of the DV Act. In fact, prayer ‘A” is covered by Section 18 which empowers the Magistrate to grant such a protection which is claimed by the respondent no.1.

Therefore, the petition is essentially under Sections 18 and 20 of the DV Act, though in the heading these provisions are not mentioned. However, that may not make any difference and, therefore, no issue was raised by the appellant on this count. In respect of the petition filed under Sections 18 and 20 of the DV Act, the proceedings are to be governed by the Code, as provided under Section 28 of the DV Act. At the same time, it cannot be disputed that these proceedings are predominantly of civil nature.

13. In fact, the very purpose of enacting the DV Act was to provide for a remedy which is an amalgamation of civil rights of the complainant i.e aggrieved person. Intention was to protect women against violence of any kind, especially that occurring within the family as the civil law does not address this phenomenon in its entirety. It is treated as an offence under Section 498A of the Indian Penal Code.

The purpose of enacting the law was to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. It is for this reason, that the Scheme of the Act provides that in the first instance, the order that would be passed by the Magistrate, on a complaint by the aggrieved person, would be of a civil nature and if the said order is violated, it assumes the character of criminality. In order to demonstrate it, we may reproduce the introduction as well as relevant portions of the Statement of Objects and Reasons of the said Act, as follows:

“INTRODUCTION.

The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged that domestic violence is undoubtedly a human rights issue. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women in its General Recommendations has recommended that State parties should act to protect women against violence of any kind, especially that occurring within the family. The phenomenon of domestic violence in India is widely prevalent but has remained invisible in the public domain.

The civil law does not address this phenomenon in its entirety. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under Section 498A of the Indian Penal Code. In order to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society the protection of Women from Domestic Violence Bill was introduced in the Parliament.

STATEMENT OF OBJECTS AND REASONS Domestic violence is undoubtedly a human Right issue and serious deterrent to development. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in its General Recommendation NO. XII (1989) has recommended that State parties should act to protect women against violence of any kind especially the occurring within the family.

xxx xxx xxx

3. It is, therefore, proposed to enact a law keeping in view the rights guaranteed under articles 14,15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.

4. The Bill, inter alia, seeks to provide for the following:-

xxx xxx xxx

(ii) It defines the expression “domestic violence” to include actual abuse or threat or abuse that is physical, secual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition.

(iii)It provides for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate.

(iv) It empowers the Magistrate to pass protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the aggrieved person, attempting the communicate with her, isolating any assets used by both the parties and causing violence to the aggrieved person, her relatives or others who provide her assistance from the domestic violence.”

14. Procedure for obtaining order of reliefs is stipulated in Chapter IV of the DV Act which comprises Sections 12 to 29. Under Section 12 an application can be made to the Magistrate by the aggrieved person or Protection Officer or any other person on behalf of the aggrieved person.

The Magistrate is empowered, under Section 18, to pass protection order. Section 19 of the DV Act authorizes the Magistrate to pass residence order which may include restraining the respondent from dispossessing or disturbing the possession of the aggrieved person or directing the respondent to remove himself from the shared household or even restraining the respondent or his relatives from entering the portion of the shared household in which the aggrieved person resides etc.

Monetary reliefs which can be granted by the Magistrate under Section 20 of the DV Act include giving of the relief in respect of the loss of earnings, the medical expenses, the loss caused due to destruction, damage or removal of any property from the control of the aggrieved person and the maintenance for the aggrieved person as well as her children, if any.

Custody can be decided by the Magistrate which was granted under Section 21 of the DV Act. Section 22 empowers the Magistrate to grant compensation and damages for the injuries, including mental torture and emotional distress, caused by the domestic violence committed by the appellant. All the aforesaid reliefs that can be granted by the Magistrate are of civil nature. Section 23 vests the Magistrate with the power to grant interim ex-parte orders.

It is, thus, clear that various kinds of reliefs which can be obtained by the aggrieved person are of civil nature. At the same time, when there is a breach of such orders passed by the Magistrate, Section 31 terms such a breach to be a punishable offence.

15. In the aforesaid scenario, merely because Section 28 of the DV Act provides for that the proceedings under some of the provisions including Sections 18 and 20 are essentially of civil nature. We may take some aid and assistance from the nature of the proceedings filed under Section 125 of the Code. Under the said provision as well, a woman and children can claim maintenance. At the same time these proceedings are treated essentially as of civil nature.

16. In Ramesh Chander Kaushal vs. Venna Kaushal (1978) 4 SCC 70, Justice Krishna Iyer, dealing with the interpretation of Section 125 of the Code, observed as follows:

“9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfill.

The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social functions to fulfill. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause of the derelicts.”

17. We understood in this backdrop, it cannot be said that the Court dealing with the application under DV Act has no power and/or jurisdiction to allow the amendment of the said application. If the amendment becomes necessary in view of subsequent events [escalation of prices in the instant case] or to avoid multiplicity of litigation, Court will the have power to permit such an amendment. It is said that procedure is the handmaid of justice and is to come to the aid of the justice rather than defeating it. It is nobody’s case that respondent no. 1 was not entitled to file another application claiming the reliefs which she sought to include in the pending application by way of amendment.

If that be so, we see no reason, why the applicant be not allowed to incorporate this amendment in the pending application rather than filing a separate application. It is not that there is a complete ban/bar of amendment in the complaints in criminal Courts which are governed by the Code, though undoubtedly such power to allow the amendment has to be exercised sparingly and with caution under limited circumstances. The pronouncement on this is contained in the recent judgment of this Court in S.R.Sukumar vs. S. Sunaad Raghuram (2015) 9 SCC 609 in the following paras:

“17. Insofar as merits of the contention regarding allowing of amendment application, it is true that there is no specific provision in the Code to amend either a complaint or a petition filed under the provisions of the Code, but the Courts have held that the petitions seeking such amendment to correct curable infirmities can be allowed even in respect of complaints. In U.P. Pollution Control Board vs. Modi Distillery And Ors., (1987) 3 SCC 684, wherein the name of the company was wrongly mentioned in the complaint that is, instead of Modi Industries Ltd. The name of the company was mentioned as Modi Distillery and the name was sought to be amended. In such factual background, this Court has held as follows:-

“…The learned Single Judge has focused his attention only on the [pic]technical flaw in the complaint and has failed to comprehend that the flaw had occurred due to the recalcitrant attitude of Modi Distillery and furthermore the infirmity is one which could be easily removed by having the matter remitted to the Chief Judicial Magistrate with a direction to call upon the appellant to make the formal amendments to the averments contained in para 2 of the complaint so as to make the controlling company of the industrial unit figure as the concerned accused in the complaint.

All that has to be done is the making of a formal application for amendment by the appellant for leave to amend by substituting the name of Modi Industries Limited, the company owning the industrial unit, in place of Modi Distillery…. Furthermore, the legal infirmity is of such a nature which could be easily cured…”

18. What is discernible from the U.P. Pollution Control Board’s case is that easily curable legal infirmity could be cured by means of a formal application for amendment.

If the amendment sought to be made relates to a simple infirmity which is curable by means of a formal amendment and by allowing such amendment, no prejudice could be caused to the other side, notwithstanding the fact that there is no enabling provision in the Code for entertaining such amendment, the Court may permit such an amendment to be made. On the contrary, if the amendment sought to be made in the complaint does not relate either to a curable infirmity or the same cannot be corrected by a formal amendment or if there is likelihood of prejudice to the other side, then the Court shall not allow such amendment in the complaint.

19. In the instant case, the amendment application was filed on 24.05.2007 to carry out the amendment by adding paras 11(a) and 11 (b). Though, the proposed amendment was not a formal amendment, but a substantial one, the Magistrate allowed the amendment application mainly on the ground that no cognizance was taken of the complaint before the disposal of amendment application.

Firstly, Magistrate was yet to apply the judicial mind to the contents of the complaint and had not taken cognizance of the matter.

Secondly, since summons was yet to be ordered to be issued to the accused, no prejudice would be caused to the accused.

Thirdly, the amendment did not change the original nature of the complaint being one for defamation.

Fourthly, the publication of poem ‘Khalnayakaru’ being in the nature of subsequent event created a new cause of action in favour of the respondent which could have been prosecuted by the respondent by filing a separate complaint and therefore to avoid multiplicity of proceedings, the trial court allowed the amendment application.

Considering these factors which weighed in the mind of the courts below, in our view, the High Court rightly declined to interfere with the order passed by the Magistrate allowing the amendment application and the impugned order does not suffer from any serious infirmity warranting interference in exercise of jurisdiction under Article 136 of the Constitution of India.”

18. What we are emphasis1 ing is that even in criminal cases governed by the Code, the Court is not powerless and may allow amendment in appropriate cases. One of the circumstances where such an amendment is to be allowed is to avoid the multiplicity of the proceedings. The argument of the learned counsel for the appellant, therefore, that there is no power of amendment has to be negated.

19. In this context, provisions of Sub-Section(2) of Section 28 of the DV Act gain significance. Whereas proceedings under certain sections of the DV Act as specified in sub-Section (1) of Section 28 are to be governed by the Code, the Legislature at the same time incorporated the provisions like sub – Section (2) as well which empowers the Court to lay down its own procedure for disposal of the application under Section 12 or Section 23(2) of the DV Act.

This provision has been incorporated by the Legislature keeping a definite purpose in mind. Under Section 12, an application can be made to a Magistrate by an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person to claim one or more reliefs under the said Act. Section 23 deals with the power of the Magistrate to grant interim and ex-parte orders and sub-Section (2) of Section 23 is a special provision carved out in this behalf which is as follows:

“(2).If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.

20. The reliefs that can be granted by the final order or an by interim order, have already been pointed out above wherein it is noticed that most of these reliefs are of civil nature. If the power to amend the complaint/application etc. is not read into the aforesaid provision, the very purpose which the Act attempts to sub-serve itself may be defeated in many cases.

21. We, thus, are of the opinion that the amendment was rightly allowed by the Trial Court and there is no blemish in the impugned judgment of the High Court affirming the order of the Trial Court. This appeal is, thus, devoid of any merits and is, accordingly, dismissed with costs.

 [A.K. SIKRI]

 [R.K.AGRAWAL]

An Ideal Domestic Violence Statute

Red

In this introduction, I tried to put some basic ingredients of an Ideal Domestic Violence statute, which eventually not available or fully discussed in Indian domestic violence act 2005 (Act no 43 of 2005) .

Indian Statute is completely biased and failed to take the issue of false allegations. Again another issue could be raised regarding the Monetary relief or interim petition for monetary relief, which could easily be confused with maintenance proceeding under matrimonial act or u/s 125 of the Criminal Procedure Code. The cause of action for asking monetary help by a women should be distinguished .

But Indian experience law application has been confusing and overlapping. Therefore multiplicity of proceeding against husband became reality. And more horrible part of the law is that there is no effective redressal against false acquisition.   This article shall provide fair criticism of the law and would adopt a balance treatment towards the both gender.

True to be said that Indian women are till weak even after 60 years of getting Independence but the approach of law nonetheless shall be biasless.

  1. Meaning of domestic violence and its scope

Domestic violence means any unlawful act, omission or behaviour which results in death or the direct infliction of physical, sexual or mental injury to any complainant by a respondent and includes the following—

       (a)   physical abuse;

       (b)   sexual abuse;

       (c)   emotional, verbal and psychological abuse;

`     (d)   economic abuse;

       (e)   intimidation;

        (f) harassment;

       (g)   stalking;

       (h)   malicious damage to property;

(i)   forcible entry into the complainant’s residence where the parties do not share the same residence;

(j)   depriving the complainant of or hindering the complainant from access to or a reasonable share of the use of the facilities associated with the complainant’s place of residence;

(k)   the unreasonable disposal of household effects or other property in which the complainant has an interest;

(l)   abuse derived from the following cultural or customary rites or practices that discriminate against or degrade women—

(i)   forced virginity testing; or

(ii)   female genital mutilation; or

 (iii)   pledging of women or girls for purposes of appeasing spirits;or

 (iv)   forced marriage; or

(v)   child marriage; or

(vi)   forced wife inheritance; or

(vii)   sexual intercourse between fathers-in-law and newly married daughters-in-law;

(m)   abuse perpetrated on the complainant by virtue of complainant’s age, or complainant’s physical or mental incapacity;

(n)   abuse perpetrated on the complainant by virtue of complainant’s physical, mental or sensory disability, including a visual, hearing or speech functional disability;

(o)   abuse perpetrated on the complainant by virtue of complainant’s mental illness, arrested or incomplete development of the mind, psychopathic disorder or any other disorder or disability of the mind;

(p) any act of domestic violence described in paragraphs (a), (b), (c), (e), (f), (g), (h) or (i) when it is perpetrated on the person or property of the complainant’s representative.

(2)  For the purposes of—

       (a)   subsection (1)(a), “physical abuse” includes any act or threatened act of physical violence towards a complainant;

       (b)   subsection (1)(b), “sexual abuse” includes any conduct that humiliates, degrades or otherwise violates the sexual integrity of the complainant;

       (c)   subsection (1)(c), “emotional, verbal and psychological abuse” means a pattern of degrading or humiliating conduct towards a complainant, including but not limited to the following—

                  (i)   repeated insults, ridicule or name-calling; or

                 (ii)   repeated threats to cause emotional pain; or

(iii) the repeated exhibition of obsessive possessiveness which is such as to constitute a serious invasion of the complainant’s privacy, liberty, integrity or security; or

(iv)   any act, omission or behaviour constituting domestic violence as defined in subsection (1) which, when committed in the presence of minor members of the family, is likely to cause them mental injury;

 (d)   subsection (1)(d), “economic abuse” includes—

                  (i)   the unreasonable deprivation of economic or financial resources to which a complainant is entitled under the law or which the complainant requires out of necessity, including household necessities, medical expenses, school fees, mortgage bond and rent payments, or other like expenses;

                 (ii)   denying the complainant the right to seek employment or engage in any income-generating activity;

(e)   subsection (1)(e), “harassment” means engaging in a pattern of conduct that induces in a complainant the fear of imminent harm or feelings of annoyance and aggravation, including—

 (i)   watching or loitering outside or near the building or place where the complainant resides, works, carries on business, studies or happens to be;

 (ii)   repeatedly making or sending or causing another person to repeatedly make or send abusive phone calls or electronically-transmitted messages to the complainant, whether or not conversation ensues;

 (iii)   sending, delivering or causing the delivery of offensive or abusive letters,  telegrams, packages, facsimiles, electronic mails or offensive objects to the complainant;

(f)   subsection (1)(f), “intimidation” includes uttering or conveying a threat or causing a complainant to receive a threat which induces a fear of imminent harm in the complainant;

(g)   subsection (1)(g), “stalking” includes following, pursuing, or accosting the complainant.

(3)  For the purposes of  subsection (2)(e) and (f) “imminent harm”, in relation to a complainant, includes harm that the complainant fears to be imminent taking into consideration the history of respondent’s known violent behaviour towards the complainant or other relevant factors.

2. Determination of application if Domestic Violence

(1)  The court shall as soon as possible consider an application made in terms of section 12  and may for such purposes—

 (a)   enquire whether an interim protection order or protection order has at any time been issued to either of the parties;

 (b)   call for such evidence, whether oral or by affidavit, as it considers necessary, including medical evidence:

Provided that any such medical evidence shall be supported by a police report forming the basis on which an examination of a victim of domestic violence was made;

 (c)   examine any witness before the court.

(2) Where the inquiry provided for in subsection (1)(a) reveals that there is an existing interim protection order or protection order the court shall—
(a) consider whether there is any change in circumstances that warrants the granting of a fresh protection order; and
(b) where appropriate, direct the parties to make application under section 12.

3. Issue of interim protection order
(1) Where, upon an application made in terms of section 23 ( or such type of provision), the court is satisfied that prima facie—
(a) the respondent has committed, is committing or is threatening to commit an act of domestic violence; and
(b) it is necessary or desirable to issue immediately an order to protect the complainant from serious or substantial harm or discomfort or inconvenience, whether physical, emotional or economic, which results or may result from such actual or threatened domestic violence;
the court shall issue an interim protection order against the respondent notwithstanding that he or she has not been given notice of the application or has not been before the court.
(2) An interim protection order may, where appropriate, contain any direction, prohibition or award which may be contained in a protection order issued in terms of relevant Provision.
(3) An interim protection order must be served on the respondent in the prescribed manner and must contain a notice calling upon the respondent to show cause, on a date specified in the order, why a protection order should not be issued.
(4) Whenever a court issues an interim protection order the court shall issue a warrant for the arrest of the respondent which shall be attached to the order and which shall be suspended on condition that the respondent complies with the order.
(5) Where upon an application made in terms of section 23 the court is satisfied that, prima facie, the respondent has committed, is committing or threatening to commit an act of domestic violence but that the circumstances do not justify or require the issue of an interim protection order, it may issue a notice calling upon the respondent to show cause why a protection order should not be made.
(6) An interim protection order (together with the suspended warrant of arrest issued in terms of subsection (4)) or a notice issued in terms of subsection (5) shall be served upon the respondent as soon as possible by any police officer:
Provided that, where the complainant so requires, service may be effected, at the complainant’s expense, by the messenger of the court or deputy sheriff, as the case may be.
(7)  The court that issues an interim protection order shall supply the complainant or the complainant’s representative with a certified copy of any interim protection order (together with the suspended warrant of arrest issued in terms of subsection (4)) or notice issued in terms of subsection (5), and, additionally or alternatively, forward the same to the police station nominated by the complainant or the complainant’s representative.
(8) An interim protection order shall remain in force until it is replaced by a protection order or varied or revoked by a competent court.

(9) Any person who fails to comply with the terms and conditions of an interim protection order shall be guilty of an offence and liable to a fine  or imprisonment or to both such fine and such imprisonment

4. Application for revocation, variation or extension of protection orders

(1)  Where there is a change of circumstances, a complainant, complainant’s representative or respondent may apply to the court for the revocation or variation of an interim protection order or a protection order or for the extension of any time limit attached to any direction or award contained therein.

(2)  A complainant’s representative may, with the leave of the court, apply for a revocation, variation or extension of a protection order without the consent of the complainant and the court, in determining whether or not to grant leave, shall have regard to all the circumstances including those referred to in section 7(2).

(3)  A complainant’s representative shall not, under any circumstances, make an application for a revocation, variation or extension of a protection order that may prejudice the complainant

(4) An application under subsection (1) or (2) shall be lodged with the clerk or registrar of the court who shall—
(a) fix a date for the hearing of the application; and
(b) place the application before the court as soon as possible, and in any event not later than forty-eight hours after lodging the application; and
(c) give notice of the date of hearing to other interested parties.
(5) On the date fixed for the hearing of the matter, the court shall consider the application and may for that purpose—
(a) call for such evidence, whether oral or by affidavit, as it considers necessary;
(b) examine any witness before the court.
(6) If the court is satisfied that good cause has been shown it may revoke or vary any interim protection order or protection order or may extend any such order by a period not exceeding twenty-four months.
(7) The  court shall give notice to interested parties of any revocation, variation or extension granted in terms of this section.

5. Filing false complaint and affidavit

 (1)  Any person who makes any false statement in any application or affidavit made in terms of this Act, knowing such statement to be false or not believing it to be true, shall be guilty of an offence and liable to a fine  or imprisonment five years or to both such fine and such imprisonment.

(2)  Where any offence other than one referred to in this Act is committed by a respondent upon a complainant during or in furtherance of the commission any act of domestic violence, the court convicting the respondent therefor shall regard such circumstances as aggravating when assessing the sentence to be imposed.

(3)  For the avoidance of doubt it is declared that the prosecution of a respondent under this Act or any other law shall not prevent the complainant from seeking protection and redress in terms of Domestic violence Act.

Chanmuniya Vs Chanmuniya Virendra Kumar Singh Kushwaha and Another [SC 2010 October]

Keywords :- Live in relationship:- wife-

Criminal Law-min

 Women in live-in relationships are also entitled to all the reliefs given in the said Act.

[ref: to larger bench]

(SUPREME COURT OF INDIA)

(Before : G. S. Singhvi and Asok Kumar Ganguly, JJ.)

Civil Appeal No. … of 2010 (Arising out of SLP (Civil) No. 15071 of 2009);

Decided On: 07-10-2010

Criminal Procedure Code, 1973—Section 125—Maintenance—Presumption of valid marriage—Man and woman living together for a long time without valid marriage—Where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay woman maintenance if he deserts her—Man should not be allowed to benefit from legal loopholes by enjoying advantages of a de facto marriage without undertaking duties and obligations.

Protection of Women from Domestic Violence Act, 2005—Section 20—Criminal Procedure Code, 1973—Section 125—Wife—Interpretation—Court has to take a broad view of definition of wife having regard to social object of Section 125—Women in live-in relationships are also entitled to all reliefs given in Act of 2005—If monetary relief and compensation can be awarded in cases of live-in relationships under Act of 2005, they should also be allowed in a proceedings under Section 125 of Cr.P.C.

Hindu Marriage Act, 1955—Sections 9, 7, 7(1) and 28—Criminal Procedure Code, 1973—Sections 125 and 488—Constitution of India, 1950—Articles 15(3) and 39—Penal Code, 1860—Section 494.

JUDGMENT

Asok Kumar Ganguly, J—Leave granted.

2. One Sarju Singh Kushwaha had two sons, Ram Saran (elder son) and Virendra Kumar Singh Kushwaha (younger son and the first respondent). The appellant, Chanmuniya, was married to Ram Saran and had 2 daughters-Asha, the first one, was born in 1988 and Usha, the second daughter, was born in 1990. Ram Saran died on 7.03.1992.

3. Thereafter, the appellant contended that she was married off to the first respondent as per the customs and usages prevalent in the Kushwaha community in 1996. The custom allegedly was that after the death of the husband, the widow was married off to the younger brother of the husband. The appellant was married off in accordance with the local custom of Katha and Sindur. The appellant contended that she and the first respondent were living together as husband and wife and had discharged all marital obligations towards each other. The appellant further contended that after some time the first respondent started harassing and torturing the appellant, stopped her maintenance and also refused to discharge his marital obligations towards her.

4. As a result, she initiated proceedings under Section 125 of the Cr.P.C. for maintenance (No. 20/1997) before the 1st Additional Civil Judge, Mohamadabad, Ghazipur. This proceeding is pending.

5. She also filed a suit (No. 42/1998) for the restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 in the Court of 1st Additional District Judge, Ghazipur.

6. The Trial Court decreed the suit for restitution of conjugal rights in favour of the appellant on 3.1.2004 as it was of the opinion that the appellant had remarried the first respondent after the death of Ram Saran, and the first respondent had deserted the appellant thereafter. Thus, it directed the first respondent to live with the appellant and perform his marital duties.

7. Hence, the first respondent preferred a first appeal (No. 110/2004) under Section 28 of the Hindu Marriage Act. The main issue in appeal was whether there was any evidence on record to prove that the appellant was the legally wedded wife of the first respondent. The High Court in its judgment dated 28.11.2007 was of the opinion that the essentials of a valid Hindu marriage, as required under Section 7 of the Hindu Marriage Act, had not been performed between the first respondent and the appellant and held that the first respondent was not the husband of the appellant and thus reversed the findings of the Trial Court.

8. Aggrieved by the aforesaid judgment of the High Court, the appellant sought a review of the order dated 28.11.2007. The review petition was dismissed on 23.01.2009 on the ground that there was no error apparent on the face of the record of the judgment dated 28.11.2007.

9. Hence, the appellant approached this Court by way of a special leave petition against the impugned orders dated 28.11.2007 and 23.01.2009.

10. One of the major issues which cropped up in the present case is whether or not presumption of a marriage arises when parties live together for a long time, thus giving rise to a claim of maintenance under Section 125 Cr.P.C. In other words, the question is what is meant by ‘wife’ under Section 125 of Criminal Procedure Code especially having regard to explanation under Clause (b) of the Section.

11. Thus, the question that arises is whether a man and woman living together for a long time, even without a valid marriage, would raise as in the present case, a presumption of a valid marriage entitling such a woman to maintenance.

12. On the question of presumption of marriage, we may usefully refer to a decision of the House of Lords rendered in the case of Lousia Adelaide Piers and Florence A.M. De Kerriguen v. Sir Henry Samuel Piers (1849) II HLC 331, in which their Lordships observed that the question of validity of a marriage cannot be tried like any other issue of fact independent of presumption. The Court held that law will presume in favour of marriage and such presumption could only be rebutted by strong and satisfactory evidence.

13. In Lieutenant C.W. Campbell v. John A.G. Campbell (1867) Law Rep. 2 HL 269, also known as the Breadalbane case, the House of Lords held that cohabitation, with the required repute, as husband and wife, was proof that the parties between themselves had mutually contracted the matrimonial relation. A relationship which may be adulterous at the beginning may become matrimonial by consent. This may be evidenced by habit and repute. In the instant case both the appellant and the first respondent were related and lived in the same house and by a social custom were treated as husband and wife. Their marriage was solemnized with Katha and Sindur. Therefore, following the ratio of the decisions of the House of Lords, this Court thinks there is a very strong presumption in favour of marriage. The House of Lords again observed in Captain De Thoren v. The Attorney-General (1876) 1 AC 686, that the presumption of marriage is much stronger than a presumption in regard to other facts.

14. Again in Sastry Velaider Aronegary and his wife v. Sembecutty Viagalie and Ors. (1881) 6 AC 364, it was held that where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.

15. In India, the same principles have been followed in the case of A. Dinohamy v. W.L. Balahamy AIR 1927 P.C. 185, in which the Privy Council laid down the general proposition that where a man and woman are proved to have lived together as man and wife, the law will presume, unless, the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.

16. In Mohabbat Ali Khan v. Muhammad Ibrahim Khan and Ors. AIR 1929 PC 135, the Privy Council has laid down that the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years.

17. In the case of Gokal Chand v. Parvin Kumari AIR 1952 SC 231, this Court held that continuous co- habitation of man and woman as husband and wife may raise the presumption of marriage, but the presumption which may be drawn from long co- habitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them.

18. Further, in the case of Badri Prasad v. Dy. Director of Consolidation and Ors., (1978) 3 SCC 527, the Supreme Court held that a strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin.

19. Again, in Tulsa and Ors. v. Durghatiya and Ors., (2008) 4 SCC 520, this Court held that where the partners lived together for a long spell as husband and wife, a presumption would arise in favour of a valid wedlock.

20. Sir James Fitz Stephen, who piloted the Criminal Procedure Code of 1872, a legal member of Viceroy’s Council, described the object of Section 125 of the Code (it was Section 536 in 1872 Code) as a mode of preventing vagrancy or at least preventing its consequences.

21. Then came the 1898 Code in which the same provision was in Chapter XXXVI Section 488 of the Code. The exact provision of Section 488(1) of the 1898 Code runs as follows:

488. (1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding five hundred rupees in the whole as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.

22. In Jagir Kaur and Anr. v. Jaswant Singh, AIR 1963 SC 1521, the Supreme Court observed with respect to Chapter XXXVI of Cr.P.C. of 1898 that provisions for maintenance of wives and children intend to serve a social purpose. Section 488 prescribes forums for a proceeding to enable a deserted wife or a helpless child, legitimate or illegitimate, to get urgent relief.

23. In Nanak Chand v. Chandra Kishore Aggarwal and Ors., (1969) 3 SCC 802, the Supreme Court, discussing Section 488 of the older Cr.P.C, virtually came to the same conclusion that Section 488 provides a summary remedy and is applicable to all persons belonging to any religion and has no relationship with the personal law of the parties.

24. In Captain Ramesh Chander Kaushal v. Veena Kaushal and Ors., AIR 1978 SC 1807, this Court held that Section 125 is a reincarnation of Section 488 of the Cr.P.C. of 1898 except for the fact that parents have also been brought into the category of persons entitled for maintenance. It observed that this provision is a measure of social justice specially enacted to protect, and inhibit neglect of women, children, old and infirm and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. Speaking for the Bench Justice Krishna Iyer observed that- “We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfill. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it is to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause- the cause of the derelicts.” (Para 9 on pages 1809-10)

25. Again in Vimala (K) v. Veeraswamy (K), (1991) 2 SCC 375, a three-Judge Bench of this Court held that Section 125 of the Code of 1973 is meant to achieve a social purpose and the object is to prevent vagrancy and destitution. Explaining the meaning of the word ‘wife’ the Court held:

…The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage. The term ‘wife’ in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term ‘wife’ consistent with the objective….

26. Thus, in those cases where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay the woman maintenance if he deserts her. The man should not be allowed to benefit from the legal loopholes by enjoying the advantages of a de facto marriage without undertaking the duties and obligations. Any other interpretation would lead the woman to vagrancy and destitution, which the provision of maintenance in Section 125 is meant to prevent.

27. The Committee on Reforms of Criminal Justice System, headed by Dr. Justice V.S. Malimath, in its report of 2003 opined that evidence regarding a man and woman living together for a reasonably long period should be sufficient to draw the presumption that the marriage was performed according to the customary rites of the parties. Thus, it recommended that the word ‘wife’ in Section 125 Cr.P.C. should be amended to include a woman who was living with the man like his wife for a reasonably long period.

28. The Constitution Bench of this Court in Mohammad Ahmed Khan v. Shah Bano Begum and Ors. reported in, (1985) 2 SCC 556, considering the provision of Section 125 of the 1973 Code, opined that the said provision is truly secular in character and is different from the personal law of the parties. The Court further held that such provisions are essentially of a prophylactic character and cut across the barriers of religion. The Court further held that the liability imposed by Section 125 to maintain close relatives, who are indigent, is founded upon the individual’s obligation to the society to prevent vagrancy and destitution.

29. In a subsequent decision, in Dwarika Prasad Satpathy v. Bidyut Prava Dixit and Anr., (1999) 7 SCC 675, this Court held that the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 of IPC. The learned Judges explained the reason for the aforesaid finding by holding that an order passed in an application under Section 125 does not really determine the rights and obligations of parties as the section is enacted with a view to provide a summary remedy to neglected wives to obtain maintenance. The learned Judges held that maintenance cannot be denied where there was some evidence on which conclusions of living together could be reached. (See para 9)

30. However, striking a different note, in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Anr. reported in, AIR 1988 SC 644, a two-Judge Bench of this Court held that an attempt to exclude altogether personal law of the parties in proceedings under Section 125 is improper. (See para 6). The learned Judges also held (paras 4 & 8) that the expression ‘wife’ in Section 125 of the Code should be interpreted to mean only a legally wedded wife.

31. Again in a subsequent decision of this Court in Savitaben Somabhat Bhatiya v. State of Gujarat and Ors. reported in, AIR 2005 SC 1809, this Court held however desirable it may be to take note of plight of an unfortunate woman, who unwittingly enters into wedlock with a married man, there is no scope to include a woman not lawfully married within the expression of ‘wife’. The Bench held that this inadequacy in law can be amended only by the Legislature. While coming to the aforesaid finding, the learned Judges relied on the decision in the Yamunabai case (supra).

32. It is, therefore, clear from what has been discussed above that there is a divergence of judicial opinion on the interpretation of the word ‘wife’ in Section 125.

33. We are inclined to take a broad view of the definition of ‘wife’ having regard to the social object of Section 125 in the Code of 1973. However, sitting in a two-Judge Bench, we cannot, we are afraid, take a view contrary to the views expressed in the abovementioned two cases.

34. However, law in America has proceeded on a slightly different basis. The social obligation of a man entering into a live-in relationship with another woman, without the formalities of a marriage, came up for consideration in the American courts in the leading case of Marvin v. Marvin (1976) 18 Cal. 660. In that context, a new expression of ‘palimony’ has been coined, which is a combination of ‘pal’ and ‘alimony’, by the famous divorce lawyer in the said case, Mr. Marvin Mitchelson.

35. In the Marvin case (supra), the plaintiff, Michelle Marvin, alleged that she and Lee Marvin entered into an oral agreement which provided that while “the parties lived together they would combine their efforts and earnings and would share equally any and all property accumulated as a result of their efforts whether individual or combined.” The parties allegedly further agreed that Michelle would “render her services as a companion, homemaker, housekeeper and cook.” Michelle sought a judicial declaration of her contract and property rights, and sought to impose a constructive trust upon one half of the property acquired during the course of the relationship. The Supreme Court of California held as follows:

(1) The provisions of the Family Law Act do not govern the distribution of property acquired during a non-marital relationship; such a relationship remains subject solely to judicial decision.

(2) The courts should enforce express contracts between non-marital partners except to the extent that the contract is explicitly founded on the consideration of meretricious sexual services.

(3) In the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties. The courts may also employ the doctrine of quantum meruit, or equitable remedies such as constructive or resulting trusts, when warranted by the facts of the case.

36. Though in our country, law has not developed on the lines of the Marvin case (supra), but our social context also is fast changing, of which cognizance has to be taken by Courts in interpreting a statutory provision which has a pronounced social content like Section 125 of the Code of 1973.

37. We think the larger Bench may consider also the provisions of the Protection of Women from Domestic Violence Act, 2005. This Act assigns a very broad and expansive definition to the term ‘domestic abuse’ to include within its purview even economic abuse. ‘Economic abuse’ has been defined very broadly in sub-explanation (iv) to explanation I of Section 3 of the said Act to include deprivation of financial and economic resources.

38. Further, Section 20 of the Act allows the Magistrate to direct the respondent to pay monetary relief to the aggrieved person, who is the harassed woman, for expenses incurred and losses suffered by her, which may include, but is not limited to, maintenance under Section 125 Cr.P.C. (Section 20(1)(d)).

39. Section 22 of the Act confers upon the Magistrate, the power to award compensation to the aggrieved person, in addition to other reliefs granted under the Act.

40. In terms of Section 26 of the Act, these reliefs mentioned above can be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent.

41. Most significantly, the Act gives a very wide interpretation to the term ‘domestic relationship’ as to take it outside the confines of a marital relationship, and even includes live-in relationships in the nature of marriage within the definition of ‘domestic relationship’ under Section 2(f) of the Act.

42. Therefore, women in live-in relationships are also entitled to all the reliefs given in the said Act.

43. We are thus of the opinion that if the abovementioned monetary relief and compensation can be awarded in cases of live-in relationships under the Act of 2005, they should also be allowed in a proceedings under Section 125 of Cr.P.C. It seems to us that the same view is confirmed by Section 26 of the said Act of 2005.

44. We believe that in light of the constant change in social attitudes and values, which have been incorporated into the forward-looking Act of 2005, the same needs to be considered with respect to Section 125 of Cr.P.C. and accordingly, a broad interpretation of the same should be taken.

45. We, therefore, request the Hon’ble Chief Justice to refer the following, amongst other, questions to be decided by a larger Bench. According to us, the questions are:

1. Whether the living together of a man and woman as husband and wife for a considerable period of time would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under Section 125 Cr.P.C?

2. Whether strict proof of marriage is essential for a claim of maintenance under Section 125 Cr.P.C. having regard to the provisions of Domestic Violence Act, 2005?

3. Whether a marriage performed according to customary rites and ceremonies, without strictly fulfilling the requisites of Section 7(1) of the Hindu Marriage Act, 1955, or any other personal law would entitle the woman to maintenance under Section 125 Cr.P.C.?

46. We are of the opinion that a broad and expansive interpretation should be given to the term ‘wife’ to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a pre-condition for maintenance under Section 125 of the Cr.P.C., so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125.

47. We also believe that such an interpretation would be a just application of the principles enshrined in the Preamble to our Constitution, namely, social justice and upholding the dignity of the individual.


JT 2010 (11) SC 132 : (2011) 1 SCC 141 : (2010) 10 SCALE 602

Counsel for Parties: Altaf Ahmad and P.S. Patwalia, Sr. Advs., Sibo Sankar Mishra and M. Indrani, Advs.   Mona K. Rajvanshi, Anurag Kashyap and B.K. Shahi, Advs.

HIRAL P. HARSORA AND ORS. VERSUS KUSUM NAROTTAMDAS HARSORA AND ORS [SC 2016 OCTOBER] DV

Key Words:-Domestic Violence-Adult male-constitutional validity

Supreme Court-min

The words “adult male” in Section 2(q) of the 2005 Act will stand deleted since these words do not square with Article 14 of the Constitution

DATE : 06-10-2016

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10084 of 2016
(ARISING OUT OF SLP (CIVIL) NO. 9132 OF 2015)

HIRAL P. HARSORA AND ORS. VERSUS KUSUM NAROTTAMDAS HARSORA AND ORS. …

Bench: Kurian Joseph, Rohinton Fali Nariman

J U D G M E N T

R.F. Nariman, J.
1. Leave granted.

2. The present appeal arises out of a judgment dated 25.9.2014 of a Division Bench of the Bombay High Court. It raises an important question as to the constitutional validity of Section 2(q) of the Protection of Women from Domestic Violence Act, 2005, (hereinafter referred to as “the 2005 Act”).

3. On 3.4.2007, Kusum Narottam Harsora and her mother Pushpa Narottam Harsora filed a complaint under the 2005 Act against Pradeep, the brother/son, and his wife, and two sisters/daughters, alleging various acts of violence against them. The said complaint was withdrawn on 27.6.2007 with liberty to file a fresh complaint.

4. Nothing happened for over three years till the same duo of mother and daughter filed two separate complaints against the same respondents in October, 2010. An application was moved before the learned Metropolitan Magistrate for a discharge of respondent Nos. 2 to 4 stating that as the complaint was made under Section 2(a) read with Section 2(q) of the 2005 Act, it can only be made against an adult male person and the three respondents not being adult male persons were, therefore, required to be discharged. The Metropolitan Magistrate passed an order dated 5.1.2012 in which such discharge was refused. In a writ petition filed against the said order, on 15.2.2012, the Bombay High Court, on a literal construction of the 2005 Act, discharged the aforesaid three respondents from the complaint. We have been informed that this order has since attained finality.

5. The present proceedings arise because mother and daughter have now filed a writ petition, being writ petition No.300/2013, in which the constitutional validity of Section 2(q) has been challenged. Though the writ petition was amended, there was no prayer seeking any interference with the order dated 15.2.2012, which, as has already been stated hereinabove, has attained finality.

6. The Bombay High Court by the impugned judgment dated 25.9.2014 has held that Section 2(q) needs to be read down in the following manner:-

“In view of the above discussion and in view of the fact that the decision of the Delhi High Court in Kusum Lata Sharma’s case has not been disturbed by the Supreme Court, we are inclined to read down the provisions of section 2(q) of the DV Act and to hold that the provisions of “respondent” in section 2(q) of the DV Act is not to be read in isolation but has to be read as a part of the scheme of the DV Act, and particularly along with the definitions of “aggrieved person”, “domestic relationship” and “shared household” in clauses (a), (f) and (s) of section 2 of the DV Act. If so read, the complaint alleging acts of domestic violence is maintainable not only against an adult male person who is son or brother, who is or has been in a domestic relationship with the aggrieved complainant- mother or sister, but the complaint can also be filed against a relative of the son or brother including wife of the son / wife of the brother and sisters of the male respondent. In other words, in our view, the complaint against the daughter-in-law, daughters or sisters would be maintainable under the provisions of the DV Act, where they are co- respondent/s in a complaint against an adult male person, who is or has been in a domestic relationship with the complainant and such co- respondent/s. It must, of course, be held that a complaint under the DV Act would not be maintainable against daughter-in-law, sister-in- law or sister of the complainant, if no complaint is filed against an adult male person of the family.”

7. The present appeal has been filed against this judgment. Shri Harin P. Raval, learned senior advocate appearing on behalf of the appellants, assailed the judgment, and has argued before us that it is clear that the “respondent” as defined in Section 2(q) of the said Act can only mean an adult male person. He has further argued that the proviso to Section 2(q) extends “respondent” only in the case of an aggrieved wife or female living in a relationship in the nature of a marriage, in which case even a female relative of the husband or male partner may be arraigned as a respondent. He sought to assail the judgment on the ground that the Court has not read down the provision of Section 2(q), but has in fact read the proviso into the main enacting part of the said definition, something that was impermissible in law. He has argued before us that the 2005 Act is a penal statute and should be strictly construed in the event of any ambiguity. He further argued that in fact there was no ambiguity because the expression “adult male person” cannot be diluted in the manner done by the High Court in the impugned judgment. He cited a large number of judgments on the golden rule of literal construction, on how reading down cannot be equated to re-reading in constitutional law, and on how a proviso cannot be introduced into the main part of a provision so as to distort its language. He also cited before us judgments which stated that even though a statute may lead to some hardship, that would not necessarily render the provision unconstitutional nor, in the process of interpretation, can a Court mend or bend the provision in the face of the plain language used. He also cited judgments before us stating that given the plain language, it is clear that it is only for the legislature to make the changes suggested by the High Court.

8. Ms. Meenakshi Arora, learned senior counsel appearing on behalf of the respondents, countered each of these submissions. First and foremost, she argued that the 2005 Act is a piece of social beneficial legislation enacted to protect women from domestic violence of all kinds. This being the case, it is clear that any definition which seeks to restrict the reach of the Act would have to be either struck down as being violative of Article 14 of the Constitution or read down. According to her, given the object of the statute, which is discernible clearly from the statement of objects and reasons, the preamble, and various provisions of the 2005 Act which she took us through, it is clear that the expression “adult male person” is a classification not based on any intelligible differentia, and not having any rational relationship with the object sought to be achieved by the Act. In fact, in her submission, the said expression goes contrary to the object of the Act, which is to afford the largest possible protection to women from domestic violence by any person, male or female, who happens to share either a domestic relationship or shared household with the said woman. In the alternative, she argued that the High Court judgment was right, and that if the said expression is not struck down, it ought to be read down in the manner suggested to make it constitutional. She also added that the doctrine of severability would come to her rescue, and that if the said expression were deleted from Section 2(q), the Act as a whole would stand and the object sought to be achieved would only then be fulfilled. She referred to a large number of judgments on Article 14 and the doctrine of severability generally. She also argued that within the definition of “shared household” in Section 2(s) of the Act, the “respondent” may be a member of a joint family. She has adverted to the amendment made to the Hindu Succession Act in 2005, by which amendment females have also become coparceners in a joint Hindu family, and she argued that therefore the 2005 Act is not in tune with the march of statutory law in other areas. She also countered the submission of Shri Raval stating that the 2005 Act is in fact a piece of beneficial legislation which is not penal in nature but which affords various remedies which are innovative in nature and which cannot be availed of in the ordinary civil courts. She added that Section 31 alone was a penal provision for not complying with a protection order, and went on to state that the modern rule as to penal provisions is different from that sought to be contended by Shri Raval, and that such rule requires the court to give a fair interpretation to the provisions of these statutes, neither leaning in favour of the accuser or the accused. She also added that given the beneficial statute that we have to strike down/interpret, a purposive construction alone should be given, and as the offending expression “adult male person” is contrary to such purpose and would lead to absurdities and anomalies, it ought to be construed in tune with the Act as a whole, which therefore would include females, as well, as respondents. She also pointed out that, at present, the sweep of the Act was such that if a mother-in-law or sister-in-law were to be an aggrieved person, they could only be aggrieved against adult male members and not against any opposing female member of a joint family – for example, a daughter-in-law or a sister-in- law. This will unnecessary stultify what was sought to be achieved by the Act, and would make the Act a dead letter insofar as these persons are concerned. She also argued that the Act would become unworkable in that the reliefs that were to be given would only be reliefs against adult male members and not their abettors who may be females.

9. Ms. Pinky Anand, learned Additional Solicitor General for India, more or less adopted the arguments of the counsel who appeared for the Union of India in the Bombay High Court. It was her submission that in view of the judgment in Kusum Lata Sharma v. State (Crl. M.C. No.75 of 2011 dated 2.9.2011) of the Delhi High Court, laying down that the mother-in-law is also entitled to file a complaint against the daughter-in-law under the provisions of the 2005 Act, and the SLP against the said judgment having been dismissed by the Supreme Court, her stand was that it would be open to a mother-in-law to file a complaint against her son as well as her daughter- in-law and other female relatives of the son. In short, she submitted that the impugned judgment does not require interference at our end.

10. This appeal therefore raises a very important question in the area of protection of the female sex generally. The Court has first to ascertain what exactly is the object sought to be achieved by the 2005 Act. In doing so, this Court has to see the statement of objects and reasons, the preamble and the provisions of the 2005 Act as a whole. In so doing, this Court is only following the law already laid down in the following judgments.

11. In Shashikant Laxman Kale v. Union of India, (1990) 2 SCR 441, this Court was faced with the constitutional validity of an exemption section contained in the Indian Income Tax Act, 1961. After referring in detail to Re: Special Courts Bill, 1979 2 SCR 476 and the propositions laid down therein on Article 14 generally and a few other judgments, this Court held:-

“It is first necessary to discern the true purpose or object of the impugned enactment because it is only with reference to the true object of the enactment that the existence of a rational nexus of the differentia on which the classification is based, with the object sought to be achieved by the enactment, can be examined to test the validity of the classification. In Francis Bennion’s Statutory Interpretation, (1984 edn.), the distinction between the legislative intention and the purpose or object of the legislation has been succinctly summarised at p. 237 as under: “The distinction between the purpose or object of an enactment and the legislative intention governing it is that the former relates to the mischief to which the enactment is directed and its remedy, while the latter relates to the legal meaning of the enactment.” There is thus a clear distinction between the two. While the purpose or object of the legislation is to provide a remedy for the malady, the legislative intention relates to the meaning or exposition of the remedy as enacted. While dealing with the validity of a classification, the rational nexus of the differentia on which the classification is based has to exist with the purpose or object of the legislation, so determined. The question next is of the manner in which the purpose or object of the enactment has to be determined and the material which can be used for this exercise. For determining the purpose or object of the legislation, it is permissible to look into the circumstances which prevailed at the time when the law was passed and which necessitated the passing of that law. For the limited purpose of appreciating the background and the antecedent factual matrix leading to the legislation, it is permissible to look into the Statement of Objects and Reasons of the Bill which actuated the step to provide a remedy for the then existing malady. In A. Thangal Kunju Musaliar v. M. Venkitachalam Potti [(1955) 2 SCR 1196 : AIR 1956 SC 246 : (1956) 29 ITR 349] , the Statement of Objects and Reasons was used for judging the reasonableness of a classification made in an enactment to see if it infringed or was contrary to the Constitution. In that decision for determining the question, even affidavit on behalf of the State of “the circumstances which prevailed at the time when the law there under consideration had been passed and which necessitated the passing of that law” was relied on. It was reiterated in State of West Bengal v. Union of India [(1964) 1 SCR 371 : AIR 1963 SC 1241] that the Statement of Objects and Reasons accompanying a Bill, when introduced in Parliament, can be used for ‘the limited purpose of understanding the background and the antecedent state of affairs leading up to the legislation’. Similarly, in Pannalal Binjraj v. Union of India [1957 SCR 233 : AIR 1957 SC 397 : (1957) 31 ITR 565] a challenge to the validity of classification was repelled placing reliance on an affidavit filed on behalf of the Central Board of Revenue disclosing the true object of enacting the impugned provision in the Income Tax Act.”

12. To similar effect, this Court held in Harbilas Rai Bansal v. State of Punjab, (1996) 1 SCC 1, as follows:

“The scope of Article 14 has been authoritatively laid down by this Court in innumerable decisions including Budhan Choudhry v. State of Bihar [(1955) 1 SCR 1045 : AIR 1955 SC 191] , Ram Krishna Dalmia v. Justice S.R. Tendolkar [1959 SCR 279 : AIR 1958 SC 538] , Western U.P. Electric Power and Supply Co. Ltd. v. State of U.P. [(1969) 1 SCC 817] and Mohd. Hanif Quareshi v. State of Bihar [1959 SCR 629 : AIR 1958 SC 731] . To be permissible under Article 14 of the Constitution a classification must satisfy two conditions namely (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different basis, but what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration.

The statement of objects and reasons of the Act is as under: “Statement of Objects and Reasons of the East Punjab Urban Rent Restriction Act, 1949 (Act 3 of 1949).— Under Article 6 of the India (Provisional Constitution) Order, 1947, any law made by the Governor of the Punjab by virtue of Section 93 of the Government of India Act, 1935, which was in force immediately before 15-8-1947, is to remain in force for two years from the date on which the Proclamation ceased to have effect, viz., 14-8- 1947. A Governor’s Act will, therefore, cease to have effect on 14-8-1949. It is desired that the Punjab Urban Rent Restriction Act, 1947 (Punjab Act No. VI of 1947), being a Governor’s Act, be re-enacted as a permanent measure, as the need for restricting the increase of rents of certain premises situated within the limits of urban areas and the protection of tenants against mala fide attempts by their landlords to procure their eviction would be there even after 14-8-1949.

In order to achieve the above object, a new Act incorporating the provisions of the Punjab Urban Rent Restriction Act, 1947 with necessary modification is being enacted.” It is obvious from the objects and reasons quoted above that the primary purpose for legislating the Act was to protect the tenants against the mala fide attempts by their landlords to procure their eviction. Bona fide requirement of a landlord was, therefore, provided in the Act — as originally enacted — a ground to evict the tenant from the premises whether residential or non-residential.

The provisions of the Act, prior to the amendment, were uniformly applicable to the residential and non-residential buildings. The amendment, in the year 1956, created the impugned classification. The objects and reasons of the Act indicate that it was enacted with a view to restrict the increase of rents and to safeguard against the mala fide eviction of tenants. The Act, therefore, initially provided — conforming to its objects and reasons — bona fide requirement of the premises by the landlord, whether residential or non-residential, as a ground of eviction of the tenant. The classification created by the amendment has no nexus with the object sought to be achieved by the Act. To vacate a premises for the bona fide requirement of the landlord would not cause any hardship to the tenant. Statutory protection to a tenant cannot be extended to such an extent that the landlord is precluded from evicting the tenant for the rest of his life even when he bona fide requires the premises for his personal use and occupation. It is not the tenants but the landlords who are suffering great hardships because of the amendment. A landlord may genuinely like to let out a shop till the time he bona fide needs the same. Visualise a case of a shopkeeper (owner) dying young. There may not be a member in the family to continue the business and the widow may not need the shop for quite some time. She may like to let out the shop till the time her children grow up and need the premises for their personal use. It would be wholly arbitrary — in a situation like this — to deny her the right to evict the tenant. The amendment has created a situation where a tenant can continue in possession of a non-residential premises for life and even after the tenant’s death his heirs may continue the tenancy. We have no doubt in our mind that the objects, reasons and the scheme of the Act could not have envisaged the type of situation created by the amendment which is patently harsh and grossly unjust for the landlord of a non- residential premises.” [paras 8, 9 &13]

13. In accordance with the law laid down in these judgments it is important first to discern the object of the 2005 Act from the statement of objects and reasons:-

STATEMENT OF OBJECTS AND REASONS

1. Domestic violence is undoubtedly a human rights issue and serious deterrent to development. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in its General Recommendation No. XII (1989) has recommended that State parties should act to protect women against violence of any kind especially that occurring within the family.

2. The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under section 498A of the Indian Penal Code. The civil law does not however address this phenomenon in its entirety.

3. It is, therefore, proposed to enact a law keeping in view the rights guaranteed under articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.

4. The Bill, inter alia, seeks to provide for the following:-

(i) It covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. In addition, relationships with family members living together as a joint family are also included. Even those women who are sisters, widows, mothers, single women, or living with the abuser are entitled to legal protection under the proposed legislation. However, whereas the Bill enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any female relative of husband or the male partner, it does not enable any female relative of the husband or the male partner to file a complaint against the wife or the female partner.

(ii) It defines the expression “domestic violence” to include actual abuse or threat or abuse that is physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition.

(iii) It provides for the rights of women to secure housing. It also provides household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate.

iv) It empowers the Magistrate to pass protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the aggrieved person, attempting to communicate with her, isolating any assets used by both the parties and causing violence to the aggrieved person, her relatives or others who provide her assistance from the domestic violence.

(v) It provides for appointment of Protection Officers and registration of non-governmental organizations as service providers for providing assistance to the aggrieved person with respect to her medical examination, obtaining legal aid, safe shelter, etc.

5. The Bill seeks to achieve the above objects. The notes on clauses explain the various provisions contained in the Bill.”

14. A cursory reading of the statement of objects and reasons makes it clear that the phenomenon of domestic violence against women is widely prevalent and needs redressal. Whereas criminal law does offer some redressal, civil law does not address this phenomenon in its entirety. The idea therefore is to provide various innovative remedies in favour of women who suffer from domestic violence, against the perpetrators of such violence.

15. The preamble of the statute is again significant. It states:

Preamble “An Act to provide for more effective protection of the rights of women guaranteed under the constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.”

16. What is of great significance is that the 2005 Act is to provide for effective protection of the rights of women who are victims of violence of any kind occurring within the family. The preamble also makes it clear that the reach of the Act is that violence, whether physical, sexual, verbal, emotional or economic, are all to be redressed by the statute. That the perpetrators and abettors of such violence can, in given situations, be women themselves, is obvious. With this object in mind, let us now examine the provisions of the statute itself.

17. The relevant provisions of the statute are contained in the following Sections:

“2. Definitions.—In this Act, unless the context otherwise requires,—

(a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;

(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;

(q) “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.

(s) “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.

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—

(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 court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household 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 household 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.

17. Right to reside in a shared household.— (1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.

(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.

18. Protection orders.—The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from—

(a) committing any act of domestic violence;

(b) aiding or abetting in the commission of acts of domestic violence;

(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;

(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;

(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;

(f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;

(g) committing any other act as specified in the protection order.

19. Residence orders.— (1) While disposing of an application under sub-section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order—

(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;

(b) directing the respondent to remove himself from the shared household;

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d) restraining the respondent from alienating or disposing of the shared household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require: Provided that no order under clause (b) shall be passed against any person who is a woman.

(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.

(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.

(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.

(5) While passing an order under sub-section (1), sub-section (2) or sub- section (3), the court may also pass an order directing the officer-in- charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.

(6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.

(7) The Magistrate may direct the officer-in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.

(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.

20. Monetary reliefs.— (1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to—

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.

(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.

(4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in- charge of the police station within the local limits of whose jurisdiction the respondent resides.

(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1).

(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.

26. Relief in other suits and legal proceedings.—

1. Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.

2. Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.

3. In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.

31. Penalty for breach of protection order by respondent.— (1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.

(2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused.

(3) While framing charges under sub-section (1), the Magistrates may also frame charges under section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.”

18. It will be noticed that the definition of “domestic relationship” contained in Section 2(f) is a very wide one. It is a relationship between persons who live or have lived together in a shared household and are related in any one of four ways – blood, marriage or a relationship in the nature of marriage, adoption, or family members of a joint family. A reading of these definitions makes it clear that domestic relationships involve persons belonging to both sexes and includes persons related by blood or marriage. This necessarily brings within such domestic relationships male as well as female in-laws, quite apart from male and female members of a family related by blood. Equally, a shared household includes a household which belongs to a joint family of which the respondent is a member. As has been rightly pointed out by Ms. Arora, even before the 2005 Act was brought into force on 26.10.2006, the Hindu Succession Act,1956 was amended, by which Section 6 was amended, with effect from 9.9.2005, to make females coparceners of a joint Hindu family and so have a right by birth in the property of such joint family. This being the case, when a member of a joint Hindu family will now include a female coparcener as well, the restricted definition contained in Section 2(q) has necessarily to be given a relook, given that the definition of ‘shared household’ in Section 2(s) of the Act would include a household which may belong to a joint family of which the respondent is a member. The aggrieved person can therefore make, after 2006, her sister, for example, a respondent, if the Hindu Succession Act amendment is to be looked at. But such is not the case under Section 2(q) of the 2005 Act, as the main part of Section 2(q) continues to read “adult male person”, while Section 2(s) would include such female coparcener as a respondent, being a member of a joint family. This is one glaring anomaly which we have to address in the course of our judgment.

19. When Section 3 of the Act defines domestic violence, it is clear that such violence is gender neutral. It is also clear that physical abuse, verbal abuse, emotional abuse and economic abuse can all be by women against other women. Even sexual abuse may, in a given fact circumstance, be by one woman on another. Section 3, therefore, in tune with the general object of the Act, seeks to outlaw domestic violence of any kind against a woman, and is gender neutral. When one goes to the remedies that the Act provides, things become even clearer. Section 17(2) makes it clear that the aggrieved person cannot be evicted or excluded from a shared household or any part of it by the “respondent” save in accordance with the procedure established by law. If “respondent” is to be read as only an adult male person, it is clear that women who evict or exclude the aggrieved person are not within its coverage, and if that is so, the object of the Act can very easily be defeated by an adult male person not standing in the forefront, but putting forward female persons who can therefore evict or exclude the aggrieved person from the shared household. This again is an important indicator that the object of the Act will not be sub-served by reading “adult male person” as “respondent”.

20. This becomes even clearer from certain other provisions of the Act. Under Section 18(b), for example, when a protection order is given to the aggrieved person, the “respondent” is prohibited from aiding or abetting the commission of acts of domestic violence. This again would not take within its ken females who may be aiding or abetting the commission of domestic violence, such as daughters-in-law and sisters-in-law, and would again stultify the reach of such protection orders.

21. When we come to Section 19 and residence orders that can be passed by the Magistrate, Section 19(1)(c) makes it clear that the Magistrate may pass a residence order, on being satisfied that domestic violence has taken place, and may restrain the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides. This again is a pointer to the fact that a residence order will be toothless unless the relatives, which include female relatives of the respondent, are also bound by it. And we have seen from the definition of “respondent” that this can only be the case when a wife or a common law wife is an aggrieved person, and not if any other woman belonging to a family is an aggrieved person. Therefore, in the case of a wife or a common law wife complaining of domestic violence, the husband’s relatives including mother-in-law and sister-in-law can be arrayed as respondents and effective orders passed against them. But in the case of a mother-in-law or sister-in-law who is an aggrieved person, the respondent can only be an “adult male person” and since his relatives are not within the main part of the definition of respondent in Section 2(q), residence orders passed by the Magistrate under Section 19(1)(c) against female relatives of such person would be unenforceable as they cannot be made parties to petitions under the Act.

22. When we come to Section 20, it is clear that a Magistrate may direct the respondent to pay monetary relief to the aggrieved person, of various kinds, mentioned in the Section. If the respondent is only to be an “adult male person”, and the money payable has to be as a result of domestic violence, compensation due from a daughter-in-law to a mother-in-law for domestic violence inflicted would not be available, whereas in a converse case, the daughter-in-law, being a wife, would be covered by the proviso to Section 2(q) and would consequently be entitled to monetary relief against her husband and his female relatives, which includes the mother-in-law.

23. When we come to Section 26 of the Act, the sweep of the Act is such that all the innovative reliefs available under Sections 18 to 22 may also be sought in any legal proceeding before a civil court, family court or criminal court affecting the aggrieved person and the respondent. The proceeding in the civil court, family court or criminal court may well include female members of a family, and reliefs sought in those legal proceedings would not be restricted by the definition of “respondent” in the 2005 Act. Thus, an invidious discrimination will result, depending upon whether the aggrieved person chooses to institute proceedings under the 2005 Act or chooses to add to the reliefs available in either a pending proceeding or a later proceeding in a civil court, family court or criminal court. It is clear that there is no intelligible differentia between a proceeding initiated under the 2005 Act and proceeding initiated in other fora under other Acts, in which the self-same reliefs grantable under this Act, which are restricted to an adult male person, are grantable by the other fora also against female members of a family. This anomaly again makes it clear that the definition of “respondent” in Section 2(q) is not based on any intelligible differentia having any rational relation to the object sought to be achieved by the 2005 Act. The restriction of such person to being an adult male alone is obviously not a differentia which would be in sync with the object sought to be achieved under the 2005 Act, but would in fact be contrary to it.

24. Also, the expression “adult” would have the same effect of stultifying orders that can be passed under the aforesaid sections. It is not difficult to conceive of a non-adult 16 or 17 year old member of a household who can aid or abet the commission of acts of domestic violence, or who can evict or help in evicting or excluding from a shared household an aggrieved person. Also, a residence order which may be passed under Section 19(1)(c) can get stultified if a 16 or 17 year old relative enters the portion of the shared household in which the aggrieved person resides after a restraint order is passed against the respondent and any of his adult relatives. Examples can be multiplied, all of which would only lead to the conclusion that even the expression “adult” in the main part is Section 2(q) is restrictive of the object sought to be achieved by the kinds of orders that can be passed under the Act and must also be, therefore, struck down, as this word contains the same discriminatory vice that is found with its companion expression “male”.

25. Shri Raval has cited a couple of judgments dealing with the provisions of the 2005 Act. For the sake of completeness, we may refer to two of them.

26. In Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade, (2011) 3 SCC 650, this Court, in a petition by a married woman against her husband and his relatives, construed the proviso to Section 2(q) of the 2005 Act. This Court held:

“No restrictive meaning has been given to the expression “relative”, nor has the said expression been specifically defined in the Domestic Violence Act, 2005, to make it specific to males only. In such circumstances, it is clear that the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act, 2005.” [Para 16]

27. In Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755, the appellant entered into a live-in relationship with the respondent knowing that he was a married person. A question arose before this Court as to whether the appellant could be said to be in a relationship in the nature of marriage. Negativing this contention, this Court held:

“The appellant, admittedly, entered into a live-in relationship with the respondent knowing that he was a married person, with wife and two children, hence, the generic proposition laid down by the Privy Council in Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy [(1928) 27 LW 678 : AIR 1927 PC 185] , that where a man and a woman are proved to have lived together as husband and wife, the law presumes that they are living together in consequence of a valid marriage will not apply and, hence, the relationship between the appellant and the respondent was not a relationship in the nature of a marriage, and the status of the appellant was that of a concubine. A concubine cannot maintain a relationship in the nature of marriage because such a relationship will not have exclusivity and will not be monogamous in character. Reference may also be made to the judgments of this Court in Badri Prasadv. Director of Consolidation [(1978) 3 SCC 527] and Tulsa v. Durghatiya [(2008) 4 SCC 520] .

We may note that, in the instant case, there is no necessity to rebut the presumption, since the appellant was aware that the respondent was a married person even before the commencement of their relationship, hence the status of the appellant is that of a concubine or a mistress, who cannot enter into relationship in the nature of a marriage. The long- standing relationship as a concubine, though not a relationship in the nature of a marriage, of course, may at times, deserves protection because that woman might not be financially independent, but we are afraid that the DV Act does not take care of such relationships which may perhaps call for an amendment of the definition of Section 2(f) of the DV Act, which is restrictive and exhaustive.

Parliament has to ponder over these issues, bring in proper legislation or make a proper amendment of the Act, so that women and the children, born out of such kinds of relationships be protected, though those types of relationship might not be a relationship in the nature of a marriage.” [Paras 57, 59 & 64]

28. It may be noted that in Badshah v. Urmila Badshah Godse & Anr., (2014) 1 SCC 188, this Court held that the expression “wife” in Section 125 of the Criminal Procedure Code, includes a woman who had been duped into marrying a man who was already married. In so holding, this Court held:

“Thus, while interpreting a statute the court may not only take into consideration the purpose for which the statute was enacted, but also the mischief it seeks to suppress. It is this mischief rule, first propounded in Heydon case [(1584) 3 Co Rep 7a : 76 ER 637] which became the historical source of purposive interpretation. The court would also invoke the legal maxim construction of ut res magis valeat quam pereatin such cases i.e. where alternative constructions are possible the court must give effect to that which will be responsible for the smooth working of the system for which the statute has been enacted rather than one which will put a road block in its way. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation should be avoided. We should avoid a construction which would reduce the legislation to futility and should accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. If this interpretation is not accepted, it would amount to giving a premium to the husband for defrauding the wife. Therefore, at least for the purpose of claiming maintenance under Section 125 Cr.P.C, such a woman is to be treated as the legally wedded wife.”[Para 20]

29. We will now deal with some of the cases cited before us by both the learned senior advocates on Article 14, reading down, and the severability principle in constitutional law.

30. Article 14 is in two parts. The expression “equality before law” is borrowed from the Irish Constitution, which in turn is borrowed from English law, and has been described in State of U.P. v. Deoman Upadhyaya, (1961) 1 SCR 14, as the negative aspect of equality. The “equal protection of the laws” in Article 14 has been borrowed from the 14th Amendment to the U.S. Constitution and has been described in the same judgment as the positive aspect of equality namely the protection of equal laws. Subba Rao, J. stated:

“This subject has been so frequently and recently before this court as not to require an extensive consideration. The doctrine of equality may be briefly stated as follows: All persons are equal before the law is fundamental of every civilised constitution. Equality before law is a negative concept; equal protection of laws is a positive one. The former declares that every one is equal before law, that no one can claim special privileges and that all classes are equally subjected to the ordinary law of the land; the latter postulates an equal protection of all alike in the same situation and under like circumstances. No discrimination can be made either in the privileges conferred or in the liabilities imposed. But these propositions conceived in the interests of the public, if logically stretched too far, may not achieve the high purpose behind them. In a society of unequal basic structure, it is well nigh impossible to make laws suitable in their application to all the persons alike. So, a reasonable classification is not only permitted but is necessary if society should progress. But such a classification cannot be arbitrary but must be based upon differences pertinent to the subject in respect of and the purpose for which it is made.” [at page 34]

31. In Lachhman Dass v. State of Punjab, (1963) 2 SCR 353, Subba Rao, J. warned that over emphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive Article 14 of its glorious content. That process would inevitably end in substituting the doctrine of classification for the doctrine of equality. This admonition seems to have come true in the present case, as the classification of “adult male person” clearly subverts the doctrine of equality, by restricting the reach of a social beneficial statute meant to protect women against all forms of domestic violence.

32. We have also been referred to D.S. Nakara v. Union of India, (1983) 1 SCC 305. This judgment concerned itself with pension payable to Government servants. An office Memorandum of the Government of India dated 25.5.1979 restricted such pension payable only to persons who had retied prior to a specific date. In holding the date discriminatory and arbitrary and striking it down, this Court went into the doctrine of classification, and cited from Re: Special Courts Bill, (1979) 2 SCR 476 and Maneka Gandhi v. Union of India, (1978) 2 SCR 621, and went on to hold that the burden to affirmatively satisfy the court that the twin tests of intelligible differentia having a rational relation to the object sought to be achieved by the Act would lie on the State, once it has been established that a particular piece of legislation is on its face unequal. The Court further went on to hold that the petitioners challenged only that part of the scheme by which benefits were admissible to those who retired from service after a certain date. The challenge, it was made clear by the Court, was not to the validity of the Scheme, which was wholly acceptable to the petitioners, but only to that part of it which restricted the number of persons from availing of its benefit. The Court went on to hold:

“If it appears to be undisputable, as it does to us that the pensioners for the purpose of pension benefits form a class, would its upward revision permit a homogeneous class to be divided by arbitrarily fixing an eligibility criteria unrelated to purpose of revision, and would such classification be founded on some rational principle? The classification has to be based, as is well settled, on some rational principle and the rational principle must have nexus to the objects sought to be achieved. We have set out the objects underlying the payment of pension. If the State considered it necessary to liberalise the pension scheme, we find no rational principle behind it for granting these benefits only to those who retired subsequent to that date simultaneously denying the same to those who retired prior to that date. If the liberalisation was considered necessary for augmenting social security in old age to government servants then those who, retired earlier cannot be worst off than those who retire later. Therefore, this division which classified pensioners into two classes is not based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving something more to persons otherwise equally placed, it would be discriminatory. To illustrate, take two persons, one retired just a day prior and another a day just succeeding the specified date. Both were in the same pay bracket, the average emolument was the same and both had put in equal number of years of service. How does a fortuitous circumstance of retiring a day earlier or a day later will permit totally unequal treatment in the matter of pension? One retiring a day earlier will have to be subject to ceiling of Rs 8100 p.a. and average emolument to be worked out on 36 months’ salary while the other will have a ceiling of Rs 12,000 p.a. and average emolument will be computed on the basis of last 10 months’ average. The artificial division stares into face and is unrelated to any principle and whatever principle, if there be any, has absolutely no nexus to the objects sought to be achieved by liberalising the pension scheme. In fact this arbitrary division has not only no nexus to the liberalised pension scheme but it is counter-productive and runs counter to the whole gamut of pension scheme. The equal treatment guaranteed in Article 14 is wholly violated inasmuch as the pension rules being statutory in character, since the specified date, the rules accord differential and discriminatory treatment to equals in the matter of commutation of pension. A 48 hours’ difference in matter of retirement would have a traumatic effect. Division is thus both arbitrary and unprincipled. Therefore, the classification does not stand the test of Article 14.” [para 42]

33. We were also referred to Rattan Arya and others v. State of Tamil Nadu and another, (1986) 3 SCC 385, and in particular, to the passage reading thus:-

“We may now turn to S.30(ii) which reads as follows:

“Nothing contained in this Act shall apply to any residential building or part thereof occupied by anyone tenant if the monthly rent paid by him in respect of that building or part exceeds four hundred rupees.”

By one stroke, this provision denies the benefits conferred by the Act generally on all tenants to tenants of residential buildings fetching a rent in excess of four hundred rupees. As a result of this provision, while the tenant of a non-residential building is protected, whether the rent is Rs. 50, Rs. 500 or Rs. 5000 per month, a tenant of a residential building is protected if the rent is Rs. 50, but not if it is Rs. 500 or Rs. 5000 per month. Does it mean that the tenant of a residential building paying a rent of Rs. 500 is better able to protect himself than the tenant of a non- residential building paying a rent of Rs. 5000 per month? Does it mean that the tenant of a residential building who pays a rent of Rs. 500 per month is not in need of any statutory protection? Is there any basis for the distinction between the tenant of a residential building and the tenant of a non-residential building and that based on the rent paid by the respective tenants? Is there any justification at all for picking out the class of tenants of residential buildings paying a rent of more than four hundred rupees per month to deny them the |rights conferred generally on all tenants of buildings residential or non-residential by the Act? Neither from the Preamble of the Act nor from the provisions of the Act has it been possible for us even to discern any basis for the classification made by S.30(ii) of the Act.”(Para 3)

34. In Subramanian Swamy v. CBI, (2014) 8 SCC 682, a Constitution Bench of this Court struck down Section 6A of the Delhi Police Special Establishment Act on the ground that it made an invidious distinction between employees of the Central Government of the level of Joint Secretary and above as against other Government servants. This Court, after discussing various judgments dealing with the principle of discrimination (when a classification does not disclose an intelligible differentia in relation to the object sought to be achieved by the Act) from para 38 onwards, ultimately held that the aforesaid classification defeats the purpose of finding prima facie truth in the allegations of graft and corruption against public servants generally, which is the object for which the Prevention of Corruption Act, 1988 was enacted. In paras 59 and 60 this Court held as follows:

“It seems to us that classification which is made in Section 6-A on the basis of status in government service is not permissible under Article 14 as it defeats the purpose of finding prima facie truth into the allegations of graft, which amount to an offence under the PC Act, 1988. Can there be sound differentiation between corrupt public servants based on their status? Surely not, because irrespective of their status or position, corrupt public servants are corrupters of public power. The corrupt public servants, whether high or low, are birds of the same feather and must be confronted with the process of investigation and inquiry equally. Based on the position or status in service, no distinction can be made between public servants against whom there are allegations amounting to an offence under the PC Act, 1988.

Corruption is an enemy of the nation and tracking down corrupt public servants and punishing such persons is a necessary mandate of the PC Act, 1988. It is difficult to justify the classification which has been made in Section 6-A because the goal of law in the PC Act, 1988 is to meet corruption cases with a very strong hand and all public servants are warned through such a legislative measure that corrupt public servants have to face very serious consequences. In the words of Mathew, J. in Shri Ambica Mills Ltd. [State of Gujarat v. Shri Ambica Mills Ltd., (1974) 4 SCC 656 : 1974 SCC (L&S) 381 : (1974) 3 SCR 760] : (SCC p. 675, paras 53-54) “53. The equal protection of the laws is a pledge of the protection of equal laws. But laws may classify. …

54. A reasonable classification is one which includes all who are similarly situated and none who are not.” Mathew, J., while explaining the meaning of the words, “similarly situated” stated that we must look beyond the classification to the purpose of the law. The purpose of a law may be either the elimination of a public mischief or the achievement of some positive public good. The classification made in Section 6-A neither eliminates public mischief nor achieves some positive public good. On the other hand, it advances public mischief and protects the crimedoer. The provision thwarts an independent, unhampered, unbiased, efficient and fearless inquiry/investigation to track down the corrupt public servants.” [paras 59 and 60]

35. In a recent judgment, reported as Union of India v. N.S. Ratnam, (2015) 10 SCC 681, this Court while dealing with an exemption notification under the Central Excise Act stated the law thus:-

“We are conscious of the principle that the difference which will warrant a reasonable classification need not be great. However, it has to be shown that the difference is real and substantial and there must be some just and reasonable relation to the object of legislation or notification. Classification having regard to microscopic differences is not good. To borrow the phrase from the judgment in Roop Chand Adlakha v. DDA [1989 Supp (1) SCC 116 : 1989 SCC (L&S) 235 : (1989) 9 ATC 639] : “To overdo classification is to undo equality.” [para 18]

36. A conspectus of these judgments also leads to the result that the microscopic difference between male and female, adult and non adult, regard being had to the object sought to be achieved by the 2005 Act, is neither real or substantial nor does it have any rational relation to the object of the legislation. In fact, as per the principle settled in the Subramanian Swamy judgment, the words “adult male person” are contrary to the object of affording protection to women who have suffered from domestic violence “of any kind”. We, therefore, strike down the words “adult male” before the word “person” in Section 2(q), as these words discriminate between persons similarly situate, and far from being in tune with, are contrary to the object sought to be achieved by the 2005 Act.

Having struck down these two words from the definition of “respondent” in Section 2(q), the next question that arises is whether the rest of the Act can be implemented without the aforesaid two words. This brings us to the doctrine of severability – a doctrine well-known in constitutional law and propounded for the first time in the celebrated R.M.D. Chamarbaugwalla v. Union of India, 1957 SCR 930. This judgment has been applied in many cases. It is not necessary to refer to the plethora of case law on the application of this judgment, except to refer to one or two judgments directly on point.

37. An early application of the aforesaid principle is contained in Corporation of Calcutta v. Calcutta Tramways Co. Ltd., [1964] 5 S.C.R. 25, in which a portion of Section 437(i)(b) of the Calcutta Municipal Act, 1951 was struck down as being a procedural provision which was an unreasonable restriction within the meaning of Article 19(6) of the Constitution. Chamarbaugwalla’s case was applied, and it was ultimately held that only the portion in parenthesis could be struck down with the rest of the Act continuing to apply.

38. Similarly, in Motor General Traders v. State of A.P., (1984) 1 SCC 222, Section 32(b) of the Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act, 1960 which exempted all buildings constructed on and after 26.8.1957, was struck down as being violative of Article 14 of the Constitution. This judgment, after applying Chamarbaugwalla’s case in para 27, and D.S. Nakara’s case in para 28, stated the law thus:-

“On a careful consideration of the above question in the light of the above principles we are of the view that the striking down of clause (b) of Section 32 of the Act does not in any way affect the rest of the provisions of the Act. The said clause is not so inextricably bound up with the rest of the Act as to make the rest of the Act unworkable after the said clause is struck down. We are also of the view that the Legislature would have still enacted the Act in the place of the Madras Buildings (Lease and Rent Control) Act, 1949 and the Hyderabad House (Rent, Eviction and Lease) Act, 1954 which were in force in the two areas comprised in the State of Andhra Pradesh and it could not have been its intention to deny the beneficial effect of those laws to the people residing in Andhra Pradesh on its formation. After the Second World War owing to acute shortage of urban housing accommodation, rent control laws which were brought into force in different parts of India as pieces of temporary legislation gradually became almost permanent statutes. Having regard to the history of the legislation under review, we are of the view that the Act has to be sustained even after striking down clause (b) of Section 32 of the Act. The effect of striking down the impugned provision would be that all buildings except those falling under clause (a) of Section 32 or exempted under Section 26 of the Act in the areas where the Act is in force will be governed by the Act irrespective of the date of their construction.” [para 29]

39. In Satyawati Sharma v. Union of India, (2008) 5 SCC 287, Section 14(1)(e) of the Delhi Rent Control Act was struck down in part, inasmuch as it made an invidious distinction between bonafide requirement of two kinds of landlords, the said ground being available for residential premises only and not non residential premises. An argument was made that if the Section was struck down only in part, nothing more would survive thereafter. This was negatived by this Court in the following words:

“In view of the above discussion, we hold that Section 14(1)(e) of the 1958 Act is violative of the doctrine of equality embodied in Article 14 of the Constitution of India insofar as it discriminates between the premises let for residential and non-residential purposes when the same are required bona fide by the landlord for occupation for himself or for any member of his family dependent on him and restricts the latter’s right to seek eviction of the tenant from the premises let for residential purposes only. However, the aforesaid declaration should not be misunderstood as total striking down of Section 14(1)(e) of the 1958 Act because it is neither the pleaded case of the parties nor the learned counsel argued that Section 14(1)(e) is unconstitutional in its entirety and we feel that ends of justice will be met by striking down the discriminatory portion of Section 14(1)(e) so that the remaining part thereof may read as under: “14. (1)(e) that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation;

“While adopting this course, we have kept in view well-recognised rule that if the offending portion of a statute can be severed without doing violence to the remaining part thereof, then such a course is permissible—R.M.D. Chamarbaugwalla v. Union of India [AIR 1957 SC 628] and Lt. Col. Sawai Bhawani Singh v. State of Rajasthan[(1996) 3 SCC 105] . As a sequel to the above, the Explanation appearing below Section 14(1)(e) of the 1958 Act will have to be treated as redundant.” [paras 41 – 43]

40. An application of the aforesaid severability principle would make it clear that having struck down the expression “adult male” in Section 2(q) of the 2005 Act, the rest of the Act is left intact and can be enforced to achieve the object of the legislation without the offending words. Under Section 2(q) of the 2005 Act, while defining ‘respondent’, a proviso is provided only to carve out an exception to a situation of “respondent” not being an adult male. Once we strike down ‘adult male’, the proviso has no independent existence, having been rendered otiose.

41. Interestingly the Protection from Domestic Violence Bill, 2002 was first introduced in the Lok Sabha in 2002. This Bill contained the definition of “aggrieved person”, “relative”, and “respondent” as follows:

“2. Definitions.

In this Act, unless the context otherwise requires,-

“aggrieved person” means any woman who is or has been a relative of the respondent and who alleges to have been subjected to acts of domestic violence by the respondent;” xxxx

i) “relative” includes any person related by blood, marriage or adoption and living with the respondent;

j) “respondent’ means any person who is or has been a relative of the aggrieved person and against whom the aggrieved person has sought monetary relief or has made an application for protection order to the Magistrate or to the Protection Officer, as the case may be; and”

42. We were given to understand that the aforesaid Bill lapsed, after which the present Bill was introduced in the Lok Sabha on 22.8.2005, and was then passed by both Houses. It is interesting to note that the earlier 2002 Bill defined “respondent” as meaning “any person who is…..” without the addition of the words “adult male”, being in consonance with the object sought to be achieved by the Bill, which was pari materia with the object sought to be achieved by the present Act. We also find that, in another Act which seeks to protect women in another sphere, namely, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, “respondent” is defined in Section 2(m) thereof as meaning a person against whom the aggrieved woman has made a complaint under Section 9. Here again it will be noticed that the prefix “adult male” is conspicuous by its absence. The 2002 Bill and the 2013 Act are in tune with the object sought to be achieved by statutes which are meant to protect women in various spheres of life. We have adverted to the aforesaid legislation only to show that Parliament itself has thought it reasonable to widen the scope of the expression “respondent” in the Act of 2013 so as to be in tune with the object sought to be achieved by such legislations.

43. Having struck down a portion of Section 2(q) on the ground that it is violative of Article 14 of the Constitution of India, we do not think it is necessary to go into the case law cited by both sides on literal versus purposive construction, construction of penal statutes, and the correct construction of a proviso to a Section. None of this becomes necessary in view of our finding above.

44. However, it still remains to deal with the impugned judgment. We have set out the manner in which the impugned judgment has purported to read down Section 2(q) of the impugned Act. The doctrine of reading down in constitutional adjudication is well settled and has been reiterated from time to time in several judgments, the most recent of which is contained in Cellular Operators Association of India v. TRAI, (2016) 7 SCC 703. Dealing with the doctrine of reading down, this Court held:-

“But it was said that the aforesaid Regulation should be read down to mean that it would apply only when the fault is that of the service provider. We are afraid that such a course is not open to us in law, for it is well settled that the doctrine of reading down would apply only when general words used in a statute or regulation can be confined in a particular manner so as not to infringe a constitutional right. This was best exemplified in one of the earliest judgments dealing with the doctrine of reading down, namely, the judgment of the Federal Court in Hindu Women’s Rights to Property Act, 1937, In re [Hindu Women’s Rights to Property Act, 1937, In re, 1941 SCC OnLine FC 3 : AIR 1941 FC 72] . In that judgment, the word “property” in Section 3 of the Hindu Women’s Rights to Property Act was read down so as not to include agricultural land, which would be outside the Central Legislature’s powers under the Government of India Act, 1935. This is done because it is presumed that the legislature did not intend to transgress constitutional limitations. While so reading down the word “property”, the Federal Court held: (SCC OnLine FC) “… If the restriction of the general words to purposes within the power of the legislature would be to leave an Act with nothing or next to nothing in it, or an Act different in kind, and not merely in degree, from an Act in which the general words were given the wider meaning, then it is plain that the Act as a whole must be held invalid, because in such circumstances it is impossible to assert with any confidence that the legislature intended the general words which it has used to be construed only in the narrower sense: Owners of SS Kalibia v.Wilson [Owners of SS Kalibia v. Wilson, (1910) 11 CLR 689 (Aust)] , Vacuum Oil Co. Pty. Ltd. v. Queensland [Vacuum Oil Co. Pty. Ltd. v. Queensland, (1934) 51 CLR 677 (Aust)] , R. v. Commonwealth Court of Conciliation and Arbitration, ex p Whybrow & Co. [R. v. Commonwealth Court of Conciliation and Arbitration, ex p Whybrow & Co., (1910) 11 CLR 1 (Aust)] and British Imperial Oil Co. Ltd. v.Federal Commr. of Taxation [British Imperial Oil Co. Ltd. v. Federal Commr. of Taxation, (1925) 35 CLR 422 (Aust)] .” (emphasis supplied) This judgment was followed by a Constitution Bench of this Court in DTC v.Mazdoor Congress [DTC v. Mazdoor Congress, 1991 Supp (1) SCC 600 : 1991 SCC (L&S) 1213] . In that case, a question arose as to whether a particular regulation which conferred power on an authority to terminate the services of a permanent and confirmed employee by issuing a notice terminating his services, or by making payment in lieu of such notice without assigning any reasons and without any opportunity of hearing to the employee, could be said to be violative of the appellants’ fundamental rights. Four of the learned Judges who heard the case, the Chief Justice alone dissenting on this aspect, decided that the regulation cannot be read down, and must, therefore, be held to be unconstitutional. In the lead judgment on this aspect by Sawant, J., this Court stated: (SCC pp. 728-29, para 255) “255. It is thus clear that the doctrine of reading down or of recasting the statute can be applied in limited situations. It is essentially used, firstly, for saving a statute from being struck down on account of its unconstitutionality. It is an extension of the principle that when two interpretations are possible—one rendering it constitutional and the other making it unconstitutional, the former should be preferred. The unconstitutionality may spring from either the incompetence of the legislature to enact the statute or from its violation of any of the provisions of the Constitution. The second situation which summons its aid is where the provisions of the statute are vague and ambiguous and it is possible to gather the intention of the legislature from the object of the statute, the context in which the provision occurs and the purpose for which it is made. However, when the provision is cast in a definite and unambiguous language and its intention is clear, it is not permissible either to mend or bend it even if such recasting is in accord with good reason and conscience. In such circumstances, it is not possible for the court to remake the statute. Its only duty is to strike it down and leave it to the legislature if it so desires, to amend it. What is further, if the remaking of the statute by the courts is to lead to its distortion that course is to be scrupulously avoided. One of the situations further where the doctrine can never be called into play is where the statute requires extensive additions and deletions. Not only it is no part of the court’s duty to undertake such exercise, but it is beyond its jurisdiction to do so. (emphasis supplied)” [paras 50 and 51]

45. We may add that apart from not being able to mend or bend a provision, this Court has earlier held that “reading up” a statutory provision is equally not permissible. In B.R. Kapur v. State of T.N., (2001) 7 SCC 231, this Court held:

“Section 8(4) opens with the words “notwithstanding anything in sub-section (1), sub-section (2) or sub-section (3)”, and it applies only to sitting members of Legislatures. There is no challenge to it on the basis that it violates Article 14. If there were, it might be tenable to contend that legislators stand in a class apart from non-legislators, but we need to express no final opinion. In any case, if it were found to be violative of Article 14, it would be struck down in its entirety. There would be, and is no question of so reading it that its provisions apply to all, legislators and non-legislators, and that, therefore, in all cases the disqualification must await affirmation of the conviction and sentence by a final court. That would be “reading up” the provision, not “reading down”, and that is not known to the law.” [para 39]

46. We, therefore, set aside the impugned judgment of the Bombay High Court and declare that the words “adult male” in Section 2(q) of the 2005 Act will stand deleted since these words do not square with Article 14 of the Constitution of India. Consequently, the proviso to Section 2(q), being rendered otiose, also stands deleted. We may only add that the impugned judgment has ultimately held, in paragraph 27, that the two complaints of 2010, in which the three female respondents were discharged finally, were purported to be revived, despite there being no prayer in Writ Petition No.300/2013 for the same. When this was pointed out, Ms. Meenakshi Arora very fairly stated that she would not be pursuing those complaints, and would be content to have a declaration from this Court as to the constitutional validity of Section 2(q) of the 2005 Act. We, therefore, record the statement of the learned counsel, in which case it becomes clear that nothing survives in the aforesaid complaints of October, 2010. With this additional observation, this appeal stands disposed of.

(Kurian Joseph)

(R.F. Nariman)

October 6, 2016.

 

D. Velusamy Vs D. Patchaiammal[SC 2010 October]

KeyWords:– Maintenance-Delay-a relationship in the nature of marriage-Polimony-common law marriage⇒

Criminal Law-min

It is not for Supreme Court to legislate or amend law—Parliament has used expression “relationship in nature of marriage” and not live-in-relationship—Court in garb of interpretation cannot change language of statute.

The petition under Section 125 Cr.P.C. filed in the year 2001, i.e. after a delay of about twelve years, shall have to be satisfactorily explained by the respondent.

AIR 2011 SC 479 : (2011) CriLJ SC 320 : JT 2010 (11) SC 325 : (2010) 11 SCALE 112 : (2010) 10 SCC 469

(SUPREME COURT OF INDIA)

D. Velusamy Appellant
Versus
D. Patchaiammal Respondent

(Before : Markandey Katju and T. S. Thakur, JJ.)

Criminal Appeal Nos. 2028-2029 of 2010 (Arising out of Special Leave Petition (Crl.) Nos. 2273-2274/2010); Decided On: 21-10-2010

Criminal Procedure Code, 1973—Sections 125 and 125(1)—Protection of Women from Domestic Violence Act, 2005—Sections 2(a), 20(1)(d), 12(2), 26(1) and 2(s).

JUDGMENT

Markandey Katju, J—Leave granted.

2. Heard learned Counsel for the appellant. None has appeared for the respondent although she has been served notice. We had earlier requested Mr. Jayant Bhushan, learned Senior counsel to assist us as Amicus Curiae in the case, and we record our appreciation of Mr. Bhushan who was of considerable assistance to us.

3. These appeals have been filed against the judgment of the Madras High Court dated 12.10.2009.

4. The appellant herein has alleged that he was married according to the Hindu Customary Rites with one Lakshmi on 25.6.1980. Out of the wedlock with Lakshmi a male child was born, who is now studying in an Engineering college at Ooty. The petitioner is working as a Secondary Teacher in Thevanga Higher Secondary School, Coimbatore.

5. It appears that the respondent-D. Patchaiammal filed a petition under Section 125 Cr.P.C. in the year 2001 before the Family Court at Coimbatore in which she alleged that she was married to the appellant herein on 14.9.1986 and since then the appellant herein and she lived together in her father’s house for two or three years. It is alleged in the petition that after two or three years the appellant herein left the house of the respondent’s father and started living in his native place, but would visit the respondent occasionally.

6. It is alleged that the appellant herein (respondent in the petition under Section 125 Cr.P.C.) deserted the respondent herein (petitioner in the proceeding under Section 125 Cr.P.C.) two or three years after marrying her in 1986. In her petition under Section 125 Cr.P.C. she alleged that she did not have any kind of livelihood and she is unable to maintain herself whereas the respondent (appellant herein) is a Secondary Grade Teacher drawing a salary of ` 10000/- per month. Hence it was prayed that the respondent (appellant herein) be directed to pay ` 500/- per month as maintenance to the petitioner.

7. In both her petition under Section 125 Cr.P.C. as well as in her deposition in the case the respondent has alleged that she was married to the appellant herein on 14.9.1986, and that he left her after two or three years of living together with her in her father’s house.

8. Thus it is the own case of the respondent herein that the appellant left her in 1988 or 1989 (i.e. two or three years after the alleged marriage in 1986). Why then was the petition under Section 125 Cr.P.C. filed in the year 2001, i.e. after a delay of about twelve years, shall have to be satisfactorily explained by the respondent. This fact also creates some doubt about the case of the respondent herein.

9. In his counter affidavit filed by the appellant herein before the Family Court, Coimbatore, it was alleged that the respondent (appellant herein) was married to one Lakshmi on 25.6.1980 as per the Hindu Marriage rites and customs and he had a male child, who is studying in C.S.I. Engineering college at Ooty. To prove his marriage with Lakshmi the appellant produced the ration card, voter’s identity card of his wife, transfer certificate of his son, discharge certificate of his wife Lakshmi from hospital, photographs of the wedding, etc.

10. The learned Family Court Judge has held by his judgment dated 5.3.2004 that the appellant was married to the respondent and not to Lakshmi. These findings have been upheld by the High Court in the impugned judgment.

11. In our opinion, since Lakshmi was not made a party to the proceedings before the Family Court Judge or before the High Court and no notice was issued to her hence any declaration about her marital status vis-à-vis the appellant is wholly null and void as it will be violative of the rules of natural justice. Without giving a hearing to Lakshmi no such declaration could have validly be given by the Courts below that she had not married the appellant herein since such as a finding would seriously affect her rights. And if no such declaration could have been given obviously no declaration could validly have been given that the appellant was validly married to the respondent, because if Lakshmi was the wife of the appellant then without divorcing her the appellant could not have validly married the respondent.

12. It may be noted that Section 125 Cr.P.C. provides for giving maintenance to the wife and some other relatives. The word ‘wife’ has been defined in Explanation (b) to Section 125(1) of the Cr.P.C. as follows:

Wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

13. In Vimala (K) v. Veeraswamy (K), (1991) 2 SCC 375, a three- Judge Bench of this Court held that Section 125 of the Code of 1973 is meant to achieve a social purpose and the object is to prevent vagrancy and destitution. Explaining the meaning of the word ‘wife’ the Court held:

…the object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage. The term ‘wife’ in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term ‘wife’ consistent with the objective. However, under the law a second wife whose marriage is void on account of the survival of the first marriage is not a legally wedded wife, and is, therefore, not entitled to maintenance under this provision.

14. In a subsequent decision of this Court in Savitaben Somabhat Bhatiya v. State of Gujarat and Ors., AIR 2005 SC 1809, this Court held that however desirable it may be to take note of the plight of an unfortunate woman, who unwittingly enters into wedlock with a married man, there is no scope to include a woman not lawfully married within the expression of ‘wife’. The Bench held that this inadequacy in law can be amended only by the Legislature.

15. Since we have held that the Courts below erred in law in holding that Lakshmi was not married to the appellant (since notice was not issued to her and she was not heard), it cannot be said at this stage that the respondent herein is the wife of the appellant. A divorced wife is treated as a wife for the purpose of Section 125 Cr.P.C. but if a person has not even been married obviously that person could not be divorced. Hence the respondent herein cannot claim to be the wife of the appellant herein, unless it is established that the appellant was not married to Lakshmi.

16. However, the question has also be to be examined from the point of view of The Protection of Women from Domestic Violence Act, 2005. Section 2(a) of the Act states:

2(a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;

Section 2(f) states :

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;

Section 2(s) states :

2(s) “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.

Section 3(a) states that an act will constitute domestic violence in case it-

3(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

                                                                          (emphasis supplied)

17. The expression “economic abuse” has been defined to include :

(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 court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household 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 household and maintenance.

(emphasis supplied)

18. An aggrieved person under the Act can approach the Magistrate under Section 12 for the relief mentioned in Section 12(2). Under Section 20(1)(d) the Magistrate can grant maintenance while disposing of the application under Section 12(1).

19. Section 26(1) provides that the relief mentioned in Section 20 may also be sought in any legal proceeding, before a civil court, family court or a criminal court.

20. Having noted the relevant provisions in The Protection of Women from Domestic Violence Act, 2005, we may point out that the expression ‘domestic relationship’ includes not only the relationship of marriage but also a relationship ‘in the nature of marriage’. The question, therefore, arises as to what is the meaning of the expression ‘a relationship in the nature of marriage’. Unfortunately this expression has not been defined in the Act. Since there is no direct decision of this Court on the interpretation of this expression we think it necessary to interpret it because a large number of cases will be coming up before the Courts in our country on this point, and hence an authoritative decision is required.

21. In our opinion Parliament by the aforesaid Act has drawn a distinction between the relationship of marriage and a relationship in the nature of marriage, and has provided that in either case the person who enters into either relationship is entitled to the benefit of the Act.

22. It seems to us that in the aforesaid Act of 2005 Parliament has taken notice of a new social phenomenon which has emerged in our country known as live-in relationship. This new relationship is still rare in our country, and is sometimes found in big urban cities in India, but it is very common in North America and Europe. It has been commented upon by this Court in S. Khushboo v. Kanniammal and Anr., (2010) 5 SCC 600 (vide para 31).

23. When a wife is deserted, in most countries the law provides for maintenance to her by her husband, which is called alimony. However, earlier there was no law providing for maintenance to a woman who was having a live-in relationship with a man without being married to him and was then deserted by him.

24. In USA the expression ‘palimony’ was coined which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying him, and is then deserted by him (see ‘palimony’ on Google). The first decision on palimony was the well known decision of the California Superior Court in Marvin v. Marvin (1976) 18 C3d660. This case related to the famous film actor Lee Marvin, with whom a lady Michelle lived for many years without marrying him, and was then deserted by him and she claimed palimony. Subsequently in many decisions of the Courts in USA, the concept of palimony has been considered and developed. The US Supreme Court has not given any decision on whether there is a legal right to palimony, but there are several decisions of the Courts in various States in USA. These Courts in USA have taken divergent views, some granting palimony, some denying it altogether, and some granting it on certain conditions. Hence in USA the law is still in a state of evolution on the right to palimony.

25. Although there is no statutory basis for grant of palimony in USA, the Courts there which have granted it have granted it on a contractual basis. Some Courts in USA have held that there must be a written or oral agreement between the man and woman that if they separate the man will give palimony to the woman, while other Courts have held that if a man and woman have lived together for a substantially long period without getting married there would be deemed to be an implied or constructive contract that palimony will be given on their separation.

26. In Taylor v. Fields (1986) 224 Cal. Rpr. 186 the facts were that the plaintiff Taylor had a relationship with a married man Leo. After Leo died Taylor sued his widow alleging breach of an implied agreement to take care of Taylor financially and she claimed maintenance from the estate of Leo. The Court of Appeals in California held that the relationship alleged by Taylor was nothing more than that of a married man and his mistress. It was held that the alleged contract rested on meretricious consideration and hence was invalid and unenforceable. The Court of Appeals relied on the fact that Taylor did not live together with Leo but only occasionally spent weekends with him. There was no sign of a stable and significant cohabitation between the two.

27. However, the New Jersey Supreme Court in Devaney v. L’ Esperance 195 N.J. 247 (2008) held that cohabitation is not necessary to claim palimony, rather “it is the promise to support, expressed or implied, coupled with a marital type relationship, that are indispensable elements to support a valid claim for palimony”. A law has now been passed in 2010 by the State legislature of New Jersey that there must be a written agreement between the parties to claim palimony.

28. Thus, there are widely divergent views of the Courts in U.S.A. regarding the right to palimony. Some States like Georgia and Tennessee expressly refuse to recognize palimony agreements. 29. Written palimony contracts are rare, but some US Courts have found implied contracts when a woman has given up her career, has managed the household, and assisted a man in his business for a lengthy period of time. Even when there is no explicit written or oral contract some US Courts have held that the action of the parties make it appear that a constructive or implied contract for grant of palimony existed.

30. However, a meretricious contract exclusively for sexual service is held in all US Courts as invalid and unenforceable.

31. In the case before us we are not called upon to decide whether in our country there can be a valid claim for palimony on the basis of a contract, express or implied, written or oral, since no such case was set up by the respondent in her petition under Section 125 Cr.P.C.

32. Some countries in the world recognize common law marriages. A common law marriage, sometimes called de facto marriage, or informal marriage is recognized in some countries as a marriage though no legally recognized marriage ceremony is performed or civil marriage contract is entered into or the marriage registered in a civil registry (see details on Google).

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.

(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’

35. No doubt the view we are taking would exclude many women who have had a live in relationship from the benefit of the 2005 Act, but then it is not for this Court to legislate or amend the law. Parliament has used the expression ‘relationship in the nature of marriage’ and not ‘live in relationship’. The Court in the grab of interpretation cannot change the language of the statute.

36. In feudal society sexual relationship between man and woman outside marriage was totally taboo and regarded with disgust and horror, as depicted in Leo Tolstoy’s novel ‘Anna Karenina’, Gustave Flaubert’s novel ‘Madame Bovary’ and the novels of the great Bengali writer Sharat Chandra Chattopadhyaya.

37. However, Indian society is changing, and this change has been reflected and recognized by Parliament by enacting The Protection of Women from Domestic Violence Act, 2005.

38. Coming back to the facts of the present case, we are of the opinion that the High Court and the learned Family Court Judge erred in law in holding that the appellant was not married to Lakshmi without even issuing notice to Lakshmi. Hence this finding has to be set aside and the matter remanded to the Family Court which may issue notice to Lakshmi and after hearing her give a fresh finding in accordance with law. The question whether the appellant was married to the respondent or not can, of course, be decided only after the aforesaid finding.

39. There is also no finding in the judgment of the learned Family Court Judge on the question whether the appellant and respondent had lived together for a reasonably long period of time in a relationship which was in the nature of marriage. In our opinion such findings were essential to decide this case. Hence we set aside the impugned judgment of the High Court and Family Court Judge, Coimbatore and remand the matter to the Family Court Judge to decide the matter afresh in accordance with law and in the light of the observations made above. Appeals allowed.