Family Matters - Landmark Judgements by the SC

landmark judgments of supreme court of india on DOMESTIC violence

requested that his matter be heard by the Sessions Court on merits. In this application
this Court passed orders dated December 18, 2014 directing the Sessions Court to
decide the appeal of the respondent within six weeks. He remained in judicial custody
till December 22, 2014, on which date he was released. During this period, though the
respondent had paid certain amounts towards maintenance, but he did not clear the
entire outstanding dues.
Thereafter, on February 13, 2015, the learned ASJ decided the appeal of the respondent reducing
the maintenance from Rs.2,50,000/-, as fixed by the Family Court, to Rs.50,000/- per month,
from the date of filing of the petition under Section 12 of the DV Act. This order was challenged
by the appellant by filing a petition (Crl.MC. No. 850 of 2015) before the High Court under
Section 482 read with Section 482 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’).
It will also be of interest to note that the maintenance of Rs.50,000/-, as fixed by the learned ASJ,
even when reduced significantly from Rs.2,50,000/-, was still not acceptable to the respondent
either. Seeking further reduction in the maintenance, the respondent also challenged this order
before the High Court by filing petition under Section 482 Cr.P.C. However, his petition was
dismissed by the High Court vide order dated April 06, 2015.
The special leave petition filed by the respondent there against was also dismissed by this
Court on May 11, 2015. In this manner, insofar as maintenance granted by the learned ASJ @
Rs.50,000/- per month is concerned, this order has attained finality qua the respondent. The
question, therefore, is as to whether the petitioner is entitled to enhancement and whether the
learned ASJ rightly reduced the amount of maintenance.
Though, the petitioner has filed a petition under Section 482 Cr.P.C., which is registered as Crl.
MC. No. 850 of 2015, as pointed out above, and the same is still pending. Notwithstanding,
the petitioner has chosen to file the instant special leave petition challenging the order dated
February 13, 2015 passed by the ASJ.
Normally, when the proceedings are still pending before the High Court, where same order
dated February 13, 2015 passed by the ASJ is challenged, this Court should not have entertained
the instant petition from the very beginning. However, notice was issued in this petition, keeping
in mind the consideration as to whether the dispute can be resolved amicably, suitably and
appropriately by this Court. For this purpose, matter was taken up from time to time. Attempts
were even made that the parties settle all their disputes amicably. We even called the parties
to the Chambers and had discussions with them. However, amicable solution to the problem,
acceptable to both the parties, could not be achieved.
The petitioner, who appears in person, has submitted that there were no valid reasons for
the learned ASJ to reduce the maintenance. In order to prove that the respondent is a man of
means who is running number of businesses either as the proprietor or partner of firm(s) or
shareholder/director in certain companies and possesses various assets and is also enjoying the
life of affluence, she has produced plethora of documents in support. The respondent has refuted
the authenticity or the relevance of those documents and his submission is that his stakes in all
these businesses are no longer there. According to him, some of the companies/firms mentioned
by the petitioner never took off and started any business and in some other companies he no
longer enjoys any stakes. Picture painted by the respondent is that he is undergoing very hard

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SHALU OJHA VERSUS PRASHANT OJHA

times and his financial condition is pathetic. It is also stated that he had to even go behind bars
and remain in custody for more than fifty days because of his inability to pay the arrears.
4) We may point out that during arguments, it was contended by learned counsel for the respondent
that apart from the monthly maintenance amount which the respondent was giving to the
petitioner every month, the petitioner had some other source of income as well. This submission
was based on the premise that the amount of maintenance so far received by the petitioner,
which was to the tune of Rs.49 lakhs, was kept by the petitioner in the fixed deposits accounts
in the banks. According to him, it proves that the petitioner had other source of income and
she was employed/self-employed and from that income, she was meeting her day to day needs.
We accordingly passed order dated January 29, 2018 directing the petitioner to file an affidavit
of her income which would be in the fomat as prescribed in the judgment of Delhi High Court
in the case of Kusum Sharma v. Mahinder Kumar Sharma decided on January 14, 2015 (FAO
No. 309/1996). Respondent was also given opportunity to file additional documents along with
affidavit. Such an affidavit of income was, therefore, filed by the petitioner. Respondent also filed
reply to the said income affidavit to which petitioner filed her rejoinder.
5) In the income affidavit filed by the petitioner in the prescribed format, she has, inter alia,
mentioned that she is staying with her parents in their house in Mansarovar Garden. The
petitioner has also mentioned about monthly expenditure. Col. 11 and Col. 16 of Part I being
relevant are reproduced below:

Sl. Description Particulars
No.

11. Monthly expenditure Rs. 1.5 lac approx. spent jointly by parents and self. My
mentioned in S. No. 60) share in the above expenditure is around Rs. 1 lac per
month.

Staying with my parents in House home, relationship and
16. If not staying at Matrimonial in which my brother has a sizable income of the person

with share. Income Rs. 1.5 lac p.m. whom you are staying?

6) It is not understood as to how petitioner’s share of expenditure is Rs. 1 lakh per month out of
Rs.1.5 lakhs monthly expenditure. Likewise, it is not explained in Col. 16 as to in what form,
income of Rs. 1.5 lakhs per month is generated and who is earning that income. Of course, the
petitioner has otherwise maintained that she is not having any other source of income except the
amount of maintenance given to her by the respondent. The petitioner has also stated that she is
compelled to live in her parents house as the maintenance amount is not sufficient even to pay
monthly rent of an aparment.

7) In Part II of the affidavit, the petitioner has made averments relating to respondent. The petitioner
says that respondent is earning about Rs.20 lakhs per month. She has given the details of certain
business ventures/restaurants owned by the respondent in which he is having his share. The
petitioner has also given particulars of assets allegedly owned by the respondent. The petitioner
has annexed photocopies of various documents in support of her assertions.

8) In the reply affidavit filed by the respondent, it is averred that the petitioner is maintaining
four bank accounts and the total amount lying in these accounts is Rs.8,36,610/-. It is also

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landmark judgments of supreme court of india on DOMESTIC violence

stated that the petitioner is having fixed deposits in the banks for a total sum of Rs. 35,75,000/-.
In this manner, the total bank balance of the petitioner is Rs.44,11,610/-. As against this, the
respondent has paid to the petitioner a sum of Rs.49 lakhs from June 4, 2009 to July, 2017. Thus,
in the last eight years, against a sum of Rs.49 lakhs paid by the respondent to the petitioner, the
petitioner is still having bank balance of Rs.44 lakhs. According to the respondent, it would
be inconceivable that petitioner has spent only Rs.5 lakhs of rupees (or little more if interest
earned by the petitioner on the aforesaid Rs.49 lakhs is added) in eight years and that shows that
she has other sources of income as well. Other averments in the petitioner’s affidavit was also
denied including her share of expenditure in the neighbourhood of Rs.1 lakh per month or that
respondent is earning Rs.20 lakhs per month. In respect of the particulars given by the petitioner
about the businesses of the respondent, the respondent has denied the same and submits that,
at present, there is no Restaurant or Bar anywhere in India in which respondent has any share
or interest. He has his own explanation and has given alleged circumstances in which he had
to give up his share in certain businesses. The petitioner has controverted his averments in her
rejoinder affidavit. During arguments, the petitioner also tried to demonstrate, by referring to
certain documents filed by her, that the respondent was indulging in falsehood.

9) We have given a glimpse of the respective cases set up by both the parties, without giving details
thereof, as asserted by the petitioner and the manner in which the respondent has refuted the same.

10) After giving conscious and objective consideration to the documents placed on record by both
the sides, we are of the view that it is only after the evidence is led by both the parties, the
veracity and evidential value of such material can be finally adjudged, more particularly, when
the said material and assertions of the parties would be tested with their cross-examination.

11) The present proceedings arise out of the petition which was filed by the petitioner under Section
12 of the DV Act. The trial court had arrived at a figure of maintenance on the basis of affidavits
filed by both the parties along with their respective documents. Same exercise is undertaken by
the learned ASJ in the impugned order while adjudging the correctness of the order passed by
the trial court and, in the process, reducing the maintenance from Rs.2.50 lakhs to Rs.50,000/-
per month. This obviously happened as the proceedings under the DV Act are of summary
nature.

12) In these circumstances, the appropriate course of action would be to allow the petitioner to
file an application for maintenance under the Hindu Adoptions and Maintenance Act, 1956
or under Section 125 of the Code of Criminal Procedure, 1973 so that in these proceedings,
both the parties lead their documentary and oral evidence and on the basis of such material,
appropriate view is taken by the said Court.

13) We accordingly dispose of this petition by granting liberty to the petitioner to move appropriate
application for maintenance, as indicated above. Once such application is moved, same shall be
decided by the concerned Court most expeditiously having regard to the fact that the petitioner
is fighting for her maintenance for last number of years and these proceedings should attain
finality at the earliest. We also make it clear that any maintenance fixed shall not, in any case, be
less than Rs.50,000/- per month which figure of maintenance has already attained finality.

14) As a sequel, the respondent shall continue to pay Rs.50,000/- per month to the petitioner in the
meanwhile. The present petition stands disposed of accordingly.

qqq

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Deoki Panjhiyara versus Shahshi Bhushan Narayan Azad & Anr

Deoki Panjhiyara versus
Shahshi Bhushan Narayan Azad & Anr

Supreme Court of India

Bench: Hon’ble Mr. Justice P. Sathasivam and Hon’ble Mr. Justice Ranjan Gogoi

Deoki Panjhiyara ...Appellant
Versus

Shashi Bhushan Narayan Azad & Anr. Respondents

CRIMINAL APPEAL Nos.2032-2033 of 2012

(Arising out of SLP (Criminal) Nos. 8076-8077 of 2010

Decided on : 12th December, 2012

• The Respondent before us had claimed (before the trial court as well as the High
Court) that the marriage between him and the appellant solemnised on 4.12.2006,
by performance of rituals in accordance with Hindu Law, was void on account of the
previous marriage between the appellant with one Rohit Kumar Mishra. In support
thereof, the respondent relied on a marriage certificate dated 18.4.2003 issued under
Section 13 of the Special Marriage Act, 1954. Acting solely on the basis of the aforesaid
marriage certificate the learned trial court as well as the High Court had proceeded
to determine the validity of the marriage between the parties though both the courts
were exercising jurisdiction in a proceeding for maintenance. However, till date, the
marriage between the parties is yet to be annulled by a competent court. What would
be the effect of the above has to be determined first inasmuch as if, under the law,
the marriage between the parties still subsists the appellant would continue to be
the legally married wife of the respondent so as to be entitled to claim maintenance
and other benefits under the DV Act, 2005. Infact, in such a situation there will be no
occasion for the Court to consider whether the relationship between the parties is in
the nature of a marriage.

• Admittedly, both the appellant and the respondent are governed by the provisions of
the Hindu Marriage Act, 1955. Section 11 of the Hindu Marriage Act makes it clear
that a marriage solemnised after the commencement of the Act “shall be null and void
and may, on a petition presented by either party thereto against the other party, be so
declared by a decree of nullity if it contravenes any one of the conditions so specified
in clauses (i), (iv) and (v) of Section 5.”

• While considering the provisions of Section 11 of the Hindu Marriage Act, 1955 this
Court inYamunabai v. Anantrao[3] has taken the view that a marriage covered by
Section 11 is void-ipso-jure, that is, void from the very inception. Such a marriage has
to be ignored as not existing in law at all. It was further held by this Court that a formal

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landmark judgments of supreme court of india on DOMESTIC violence

declaration of the nullity of such a marriage is not a mandatory requirement though
such an option is available to either of the parties to a marriage.It must, however, be
noticed that in Yamunabai (supra) there was no dispute between the parties either
as regards the existence or the validity of the first marriage on the basis of which the
second marriage was held to be ipso jure void.

• In the present case, however, the appellant in her pleadings had clearly, categorically
and consistently denied that she was married to any person known as Rohit Kumar
Mishra. The legitimacy, authenticity and genuineness of the marriage certificate
dated 18.4.2003 has also been questioned by the appellant. Though Section 11 of the
aforesaid Act gives an option to either of the parties to a void marriage to seek a
declaration of invalidity/nullity of such marriage,

• In the present case, if according to the respondent, the marriage between him and
the appellant was void on account of the previous marriage between the appellant
and Rohit Kumar Mishra the respondent ought to have obtained the necessary
declaration from the competent court in view of the highly contentious questions
raised by the appellant on the aforesaid score. It is only upon a declaration of nullity
or annulment of the marriage between the parties by a competent court that any
consideration of the question whether the parties had lived in a “relationship in the
nature of marriage” would be justified. In the absence of any valid decree of nullity
or the necessary declaration the court will have to proceed on the footing that the
relationship between the parties is one of marriage and not in the nature of marriage.

JUDGMENT

Hon’ble Mr. Justice Ranjan Gogoi :—
1. Leave granted.
2. The appellant, who was married to the respondent in the year 2006, had filed a petition under

Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred
to as the DV Act) seeking certain reliefs including damages and maintenance. During the
pendency of the aforesaid application the appellant filed an application for interim maintenance
which was granted by the learned trial court on 13.02.2008 at the rate of Rs.2000/- per month.
The order of the learned trial court was affirmed by the learned Sessions Judge on 09.07.2008.
As against the aforesaid order, the respondent (husband) filed a Writ Petition before the High
Court of Jharkhand.
3. While the Writ Petition was pending, the respondent sought a recall of the order dated 13.02.2008
on the ground that he could subsequently come to know that his marriage with the appellant
was void on the ground that at the time of the said marriage the appellant was already married
to one Rohit Kumar Mishra. In support, the respondent husband had placed before the learned
trial court the certificate of marriage dated 18.04.2003 between the appellant and the said Rohit
Kumar Mishra issued by the competent authority under Section 13 of the Special Marriage Act,
1954 (hereinafter referred to as the Act of 1954).

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Deoki Panjhiyara versus Shahshi Bhushan Narayan Azad & Anr

4. The learned trial court by order dated 7.8.2009 rejected the aforesaid application on the ground
that notwithstanding the certificate issued under Section 13 of the Act of 1954, proof of existence
of the conditions enumerated in Section 15 of the Act would still required to be adduced and
only thereafter the certificate issued under Section 13 of the Act can be held to be valid.

5. The aforesaid order dated 07.08.2009 was challenged by the respondent-husband in a revision
application before the High Court which was heard alongwith the writ petition filed earlier. Both
the cases were disposed of by the impugned common order dated 09.04.2010 holding that the
marriage certificate dated 18.04.2003 issued under Section 13 of the Act of 1954 was conclusive
proof of the first marriage of the appellant with one Rohit Kumar Mishra which had the effect
of rendering the marriage between the appellant and the respondent null and void. Accordingly,
it was held that as the appellant was not the legally wedded wife of the respondent she was not
entitled to maintenance granted by the learned courts below. It is against the aforesaid order of
the High Court that the present appeals have been filed by the appellant wife.

6. We have heard Shri Gaurav Agarwal, learned counsel for the appellant and Shri Mahesh Tiwari,
learned counsel for the respondent.

7. Learned counsel for the appellant has strenuously urged that the allegation of the earlier marriage
between the appellant and Rohit Kumar Mishra had been denied by the appellant at all stages
and the said fact is not substantiated only by the Marriage Certificate dated 18.04.2003. Even
assuming the marriage between the appellant and the respondent to be void, the parties having
lived together, a relationship in the nature of marriage had existed which will entitle the appellant
to claim and receive maintenance under the DV Act, 2005. Placing the legislative history leading
to the aforesaid enactment, it is urged that in the Bill placed before the Parliament i.e. Protection
from Domestic Violence Bill, 2002 an aggrieved person and relative was, initially, defined in the
following terms :

Section 2
(a) aggrieved person means any woman who is or has been relative of the respondent and
who alleges to have been subjected to act of domestic violence by the respondent;

(b) ( c )

(d).

(e).

(f )

(g)

(h). relative includes any person related by blood, marriage or adoption and living with
(i) the respondent. Thereafter, the different clauses of the Bill were considered by a
Parliamentary Standing Committee and recommendations were made that having
regard to the object sought to be achieved by the proposed legislation, namely, to
protect women from domestic violence and exploitation, clause (2)(i) defining
relative may be suitably amended to include women who have been living in
relationship akin to marriages as well as in marriages considered invalid by law.

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landmark judgments of supreme court of india on DOMESTIC violence

Pursuant to the aforesaid recommendation made by the Standing Committee, in
place of the expression relative appearing in clause 2(i) of the Bill, the expression
domestic relationship came be included in clause (f) of Section 2 of the Act. Learned
counsel by referring to the definition of aggrieved person and domestic relationship
as appearing in the DV Act, 2005 has urged that the legislative intent to include
women, living in marriages subsequently found to be illegal or even in relationships
resembling a marriage, within the protective umbrella of the DV Act is absolutely
clear and the same must be given its full effect. It is submitted that having regard
to the above even if the marriage of the appellant and the respondent was void on
account of the previous marriage of the appellant, the said fact, by itself, will not
disentitle the appellant to seek maintenance and other reliefs under the DV Act,
2005.
8. Before proceeding further it will be appropriate to notice, at this stage, the definition of the
expressions aggrieved person and domestic relationship appearing in Section 2(a) and (f) of the
DV Act, 2005.
Section 2..
(a) aggrieved person means any women 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;

(b)

(c)

d)

(e)
(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.
9. Learned counsel, in all fairness, has also drawn the attention of the court to a decision rendered
by a coordinate Bench in D. Velusamy vs. D.Patchaimmal[1] wherein this court had occasion to
consider the provisions of Section 2(f) of the DV Act to come to the conclusion that a relationship
in the nature of marriage is akin to a common law marriage which requires, in addition to proof
of the fact that parties had lived together in a shared household as defined in Section 2(s) of the
DV Act, the following conditions to be satisfied:
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. [Para 33]
10. Learned counsel has, however, pointed out that in Velusamy (supra) the issue was with regard to
the meaning of expression wife as appearing in Section 125 Cr.P.C. and therefore reference to the

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Deoki Panjhiyara versus Shahshi Bhushan Narayan Azad & Anr

provisions of Section 2(f) of the DV Act, 2005 and the conclusions recorded were not required
for a decision of the issues arising in the case. Additionally, it has been pointed out that while
rendering its opinion in the aforesaid case this Court had no occasion to take into account the
deliberations of the Parliamentary Standing Committee on the different clauses of Protection of
Women from Domestic Violence Bill, 2002. It is also urged that the equation of the expression
relationship in the nature of marriage with a common law marriage and the stipulation of the
four requirements noticed above is not based on any known or acceptable authority or source
of law. Accordingly, it is submitted that the scope and expanse of the expression relationship in
the nature of marriage is open for consideration by us and, at any rate, a reference of the said
question to a larger bench would be justified.
11. Opposing the contentions advanced on behalf of the appellant learned counsel for the respondent
husband has submitted that the object behind insertion of the expression relationship in the
nature of marriage in Section 2(f) of the DV Act is to protect women who have been misled
into marriages by the male spouse by concealment of the factum of the earlier marriage of the
husband. The Act is a beneficial piece of legislation which confers protection of different kinds
to women who have been exploited or misled into a marriage. Learned counsel has pointed out
that in the present case the situation is, however, otherwise. From the marriage certificate dated
18.04.2003 it is clear that the appellant was already married to one Rohit Kumar Mishra which
fact was known to her but not to the respondent. The second marriage which is void and also
gives rise to a bigamous relationship was voluntarily entered into by the appellant without the
knowledge of the husband. Therefore, the appellant is not entitled to any of the benefits under
the DV Act. In fact, grant of maintenance in the present case would amount to conferment
of benefit and protection to the wrong doer which would go against the avowed object of the
Act. Learned counsel has also submitted that the conduct of the appellant makes it clear that
she had approached the court by suppressing material facts and with unclean hands which
disentitles her to any relief either in law or in equity. In this regard the decision of this court in
S.P. Changalvaraya Naidu vs. Jagannath and others[2] has been placed before us.
12. Having considered the submissions advanced by the learned counsels for the contesting parties,
we are of the view that the questions raised, namely, whether the appellant and the respondent
have/had lived together in a shared household after their marriage on 4.12.2006; if the parties
have/had lived together whether the same gives rise to relationship in the nature of marriage
within the meaning of Section 2(f) of the DV Act, 2005; whether the decision of this Court
in Velusamy (supra) is an authoritative pronouncement on the expression relationship in the
nature of marriage and if so whether the same would require reference to a larger Bench, may all
be premature and the same need not be answered for the present. Instead, in the first instance,
the matter may be viewed from the perspective indicated below.
13. The Respondent before us had claimed (before the trial court as well as the High Court) that the
marriage between him and the appellant solemnised on 4.12.2006, by performance of rituals in
accordance with Hindu Law, was void on account of the previous marriage between the appellant
with one Rohit Kumar Mishra. In support thereof, the respondent relied on a marriage certificate
dated 18.4.2003 issued under Section 13 of the Special Marriage Act, 1954. Acting solely on the
basis of the aforesaid marriage certificate the learned trial court as well as the High Court had
proceeded to determine the validity of the marriage between the parties though both the courts
were exercising jurisdiction in a proceeding for maintenance. However, till date, the marriage

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landmark judgments of supreme court of india on DOMESTIC violence

between the parties is yet to be annulled by a competent court. What would be the effect of the
above has to be determined first inasmuch as if, under the law, the marriage between the parties
still subsists the appellant would continue to be the legally married wife of the respondent so as
to be entitled to claim maintenance and other benefits under the DV Act, 2005. Infact, in such
a situation there will be no occasion for the Court to consider whether the relationship between
the parties is in the nature of a marriage.
14. Admittedly, both the appellant and the respondent are governed by the provisions of the Hindu
Marriage Act, 1955. Section 11 of the Hindu Marriage Act makes it clear that a marriage
solemnised after the commencement of the Act shall be null and void and may, on a petition
presented by either party thereto against the other party, be so declared by a decree of nullity if
it contravenes any one of the conditions so specified in clauses (i), (iv) and (v) of Section 5.
15. While considering the provisions of Section 11 of the Hindu Marriage Act, 1955 this Court in
Yamunabai v. Anantrao[3] has taken the view that a marriage covered by Section 11 is void-
ipso-jure, that is, void from the very inception. Such a marriage has to be ignored as not existing
in law at all. It was further held by this Court that a formal declaration of the nullity of such a
marriage is not a mandatory requirement though such an option is available to either of the
parties to a marriage.
It must, however, be noticed that in Yamunabai (supra) there was no dispute between the parties
either as regards the existence or the validity of the first marriage on the basis of which the
second marriage was held to be ipso jure void.
16. A similar view has been expressed by this Court in a later decision in M.M. Malhotra v. Union
of India[4] wherein the view expressed in Yamunabai (supra) was also noticed and reiterated.
17. However, the facts in which the decision in M.M. Malhotra (supra) was rendered would require
to be noticed in some detail:
The appellant M.M. Malhotra was, inter alia, charged in a departmental proceeding for
contracting a plural marriage. In reply to the charge sheet issued it was pointed out that the
allegation of plural marriage was not at all tenable inasmuch as in a suit filed by the appellant
(M.M. Malhotra) for a declaration that the respondent (wife) was not his wife on account of her
previous marriage to one D.J. Basu the said fact i.e. previous marriage was admitted by the wife
leading to a declaration of the invalidity of the marriage between the parties. The opinion of this
court in M.M. Malhotra (supra) was, therefore, once again rendered in the situation where there
was no dispute with regard to the factum of the earlier marriage of one of the spouses.
18. In the present case, however, the appellant in her pleadings had clearly, categorically and
consistently denied that she was married to any person known as Rohit Kumar Mishra. The
legitimacy, authenticity and genuineness of the marriage certificate dated 18.4.2003 has also been
questioned by the appellant. Though Section 11 of the aforesaid Act gives an option to either
of the parties to a void marriage to seek a declaration of invalidity/nullity of such marriage, the
exercise of such option cannot be understood to be in all situations voluntarily. Situations may
arise when recourse to a court for a declaration regarding the nullity of a marriage claimed by
one of the spouses to be a void marriage, will have to be insisted upon in departure to the normal
rule. This, in our view, is the correct ratio of the decision of this Court in Yamunabai (supra) and
M.M. Malhotra (supra). In this regard, we may take note of a recent decision rendered by this

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Deoki Panjhiyara versus Shahshi Bhushan Narayan Azad & Anr

Court in A. Subash Babu v. State of Andhra Pradesh & Anr.[5] while dealing with the question
whether the wife of a second marriage contracted during the validity of the first marriage of
the husband would be a person aggrieved under Section 198 (1)(c) of the Code of Criminal
Procedure to maintain a complaint alleging commission of offences under section 494 and 495
IPC by the husband. The passage extracted below effectively illuminates the issue:
Though the law specifically does not cast obligation on either party to seek declaration of
nullity of marriage and it may be open to the parties even without recourse to the Court to
treat the marriage as a nullity, such a course is neither prudent nor intended and a declaration
in terms of Section 11 of the Hindu Marriage Act will have to be asked for, for the purpose of
precaution and/or record. Therefore, until the declaration contemplated by Section 11 of the
Hindu Marriage Act is made by a competent Court, the woman with whom second marriage
is solemnized continues to be the wife within the meaning of Section 494 IPC and would be
entitled to maintain a complaint against her husband.
19. In the present case, if according to the respondent, the marriage between him and the appellant
was void on account of the previous marriage between the appellant and Rohit Kumar Mishra
the respondent ought to have obtained the necessary declaration from the competent court in
view of the highly contentious questions raised by the appellant on the aforesaid score. It is only
upon a declaration of nullity or annulment of the marriage between the parties by a competent
court that any consideration of the question whether the parties had lived in a relationship in
the nature of marriage would be justified. In the absence of any valid decree of nullity or the
necessary declaration the court will have to proceed on the footing that the relationship between
the parties is one of marriage and not in the nature of marriage. We would also like to emphasise
that any determination of the validity of the marriage between the parties could have been made
only by a competent court in an appropriate proceeding by and between the parties and in
compliance with all other requirements of law. Mere production of a marriage certificate issued
under Section 13 of the Special Marriage Act, 1954 in support of the claimed first marriage of
the appellant with Rohit Kumar Mishra was not sufficient for any of the courts, including the
High Court, to render a complete and effective decision with regard to the marital status of the
parties and that too in a collateral proceeding for maintenance. Consequently, we hold that in
the present case until the invalidation of the marriage between the appellant and the respondent
is made by a competent court it would only be correct to proceed on the basis that the appellant
continues to be the wife of the respondent so as to entitle her to claim all benefits and protection
available under the DV Act, 2005.
20. Our above conclusion would render consideration of any of the other issues raised wholly
unnecessary and academic. Such an exercise must surely be avoided.
21. We, accordingly, hold that the interference made by the High Court with the grant of maintenance
in favour of the appellant was not at all justified. Accordingly, the order dated 09.04.2010 passed
by the High Court is set aside and the present appeals, are allowed.

[1] (2010) 10 SCC 469
[2] AIR 1994 SC 853
[3] AIR 1988 SC 645
[4] 2005 (8) SCC 351
[5] 2011 (7) SCC 616

qqq

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landmark judgments of supreme court of india on DOMESTIC violence

kunapareddy versus kunapareddy swarna kumari

SUPREME COURT OF INDIA

Bench : Hon’ble Dr. Justice A.K. Sikri and Hon’ble Mr. Justice R.K. Agrawal

Kunapareddy @ Nookala Shanka Balaji ...Appellant
Versus

Kunapareddy Swarna Kumari & ANR ...Respondents

Criminal Appeal Nos. 516/2016

Arising out of SLP (CRL.) No. 1537/2016

Decided on : 18th April, 2016

The present Respondent No.1, the wife of the Appellant filed a petition against the
appellant under Protection for Women from Domestic Violence Act, 2005(here referred
as DV Act) under Ss.9(1)(b) and 37(2)(c), DV Act. The present matter was raised when
the petitioner sough amendment in original prayer clause. The Prayer A which was the
original prayer relates to Section 9, DV Act and Prayer B included the relief of grant of
monthly maintenance to her and her children. The same was allowed by the Trial Court
and was also upheld by the High Court. And therefore the appellant approached the apex
court. The major issue that arises for consideration in the instant case is whether a court
dealing with the petition/complaint filed under the provisions of the Protection of Women
from Domestic Violence Act, 2005 can allow amendments. The dispute was also in nature of
proceeding i.e. whether it was of civil or criminal nature. The main contention of the herein
appellant was that Section 28 of DV Act says proceedings under this act should be governed
by CrPC and because CrPC does not allow amendments and allowing amendments under
CPC is violation of the provision, therefore the Trial Court and High Court was mistaken
in allowing the amendments. It was held by the Supreme Court that the order passed for
amendments by the Trial Court was rightly upheld by the High Court. The court said that it
cannot be said that the court dealing with the application under the DV Act has no power
and/or no 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 have the power to permit such an amendment.
Even in the criminal cases governed by the CrPC, the court is not powerless and may allow
amendment in appropriate cases. One of the circumstances where such an amendments is
to be allowed is to avoid the multiplicity of the proceedings.

JUDGMENT

Hon’ble Dr. Justice A.K. Sikri :—
1. Leave granted.
2. Learned counsel for both the parties have been finally heard at this stage.

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kunapareddy versus kunapareddy swarna kumari

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.

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landmark judgments of supreme court of india on DOMESTIC violence

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.

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kunapareddy versus kunapareddy swarna kumari

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

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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.

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kunapareddy versus kunapareddy swarna kumari

(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

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landmark judgments of supreme court of india on DOMESTIC violence

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...”

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kunapareddy versus kunapareddy swarna kumari

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

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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.
qqq

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SAMIR VIDYASAGAR BHARDWAJ Versus NANDITA SAMIR BHARDWAJ

SAMIR VIDYASAGAR BHARDWAJ Versus
NANDITA SAMIR BHARDWAJ

Supreme Court of India

Bench : Hon’ble Mr. Justice Kurian Joseph and Hon’ble Mrs. Justice R. Banumathi

Samir Vidyasagar Bhardwaj ...Appellant
Versus

Nandita Samir Bhardwaj ...Respondent

Criminal Appeal No. 6450 of 2017

(Arising out of SLP(C) No.4385 of 2017)

Decided on : 09th May, 2017

The respondent filed a petition under Sec 27(1)(d) of the Special Marriage Act for divorce
against the appellant in the family court in Mumbai. The respondent sought relief - directing
the appellant to move out of the matrimonial home and hand over the vacant possession of
the same to respondent and to pay a maintenance of Rs.1,00,000 and other consequential
reliefs apart from seeking dissolution of marriage. It is a proved fact that the concerned flat
was purchased in the joint names of the appellant and respondent . The family court arrived
at a finding that prima facie material was available on record to accept the allegation of
the respondent wife on domestic violence . judge concerned had exercised his discretion
under Section 19(1)(b) of the Domestic Violence Act which provides that the Magistrate
on being satisfied that domestic violence has taken place can remove the spouse from the
shared household which in our opinion he has rightly done.[Para 11]. The appellant husband
appealed to High Court contending that the final relief sought in the main petition could not
have been granted at interim stage and also being co-owner of the flat, he cannot be ousted.
The High Court declined to interfere with the order. Supreme Court also decided tthat the
family court has correctly applied its discretion on Section 19(1)(b) of DV Act.

JUDGMENT

Hon’ble Mrs. Justice R. Banumathi :—

Leave granted.
2. An order passed by the High Court of Bombay in Writ Petition(C) No. 169 of 2017 dated

11.01.2017 wherein the High Court affirmed the interim order passed by the Family Court in
and by which the appellant-husband has been directed to remove himself from his own home
and not to visit there until the divorce petition is finally decided is under challenge.
3. This case presents a very unpleasant tale of a couple having daughters who are in their early
twenties witnessing a bitter matrimonial battle between their parents. The appellant and the
respondent herein tied nuptial knot on 05.05.1992. The couple resided in two flats being Flat
No. 102 and Flat No. 103 situated in the building known as “Hi Ville” 29th Road, Bandra(West),

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Mumbai. The said two flats were sold by the couple and they purchased a flat bearing No. 201
situated in “Aashna” Building, 8, St. Martin Road, Bandra (West) Mumbai by way of Agreement
for Sale dated 22.11.2010. The said flat was purchased in the joint names of the appellant and the
respondent herein where they have been residing with their two daughters till date.
4. After more than two decades of marital life, on 09.07.2015 respondent-wife filed a petition under
Section 27(1)(d) of the Special Marriage Act for divorce against the appellant being Petition No.
A-1873 of 2015 in the Family Court at Bandra, Mumbai. The respondent has sought various
other reliefs including a direction to be given to the appellant to move out of the matrimonial
home and handover vacant and peaceful possession of the same to the respondent and to pay
a maintenance of Rs.1,00,000/- and other consequential reliefs apart from seeking dissolution
of marriage. An application being I.A. No.162 of 2015 was filed by the respondent-wife under
Section 19(1)(b) of the Protection of Women from Domestic Violence Act, 2005 (for short ‘the
Domestic Violence Act’) praying for issuance of mandatory injunction against the appellant-
husband to move out of the matrimonial house and handing over the vacant and peaceful
possession of the house. In addition to the above, she had also sought for alimony/maintenance
and the expenses of marriage of her daughters.
5. When the application was taken up by the Family Court, the respondent-wife did not press for
other reliefs and she pressed only for the relief of mandatory injunction to direct the appellant-
husband to move out of the matrimonial house. The application was resisted by the appellant
herein denying all the allegations stating therein that identical relief with regard to injunction
having been sought in the Divorce Petition, the same cannot be granted at an interim stage. The
appellant had also contended before the Family Court that he being the owner of the flat, cannot
be deprived from using his house. It is also the case of the appellant-husband that the allegations
made by the respondent-wife are not supported by way of anything on record and that the wife
owns a flat jointly with her mother at Tardeo and another one on pagadi basis.
6. The Divorce Petition has been filed on the ground of cruelty and the respondent-wife had alleged
in the application seeking interim relief that she had been subjected to mental and physical
cruelty due to which living under one roof with the appellant-husband has become impossible.
Even the daughters who have filed their respective affidavits have supported the stand taken by
their mother namely the respondent. The counsel further stated that the husband was owing a
flat jointly with his mother and is just five minutes walking distance from the matrimonial home
and that no inconvenience would be caused to him.
7. The Family Court passed the interim order on 13.12.2016 directing the appellant-husband to
remove himself out of the matrimonial house and not to visit the same till the decision of the
divorce petition. Aggrieved by the interim order passed by the Family Court, the appellant-husband
approached the High Court by way of a writ petition stating therein that final relief sought in the
main petition could not have been granted at interim stage; he being a co-owner of the premises, he
cannot be evicted from that premises which amounted to his virtual dispossession of the premises
of which he was a co-owner. It was urged that there is no independent/corroborative evidence to
support the claim of domestic violence and impugned order is harsher than temporary injunction.
8. Heard learned counsel for the parties.
9. The only issue to be addressed in this case is whether the order directing appellant-husband to
remove himself from the matrimonial home of which he is a co-owner warrants interference.

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SAMIR VIDYASAGAR BHARDWAJ Versus NANDITA SAMIR BHARDWAJ

10. It is an undisputed fact that the property is a shared household of the parties. The appellant-
husband is working with the Taj Group of Hotels and the respondent-wife is working as an
airhostess with the British Airways. As is seen from the organisations in which they are working,
both the appellant and the respondent are independent and having their own source of income.
We have gone through the allegations of domestic violence made not only by the respondent-
wife but also in the affidavits filed by their grown up daughters wherein they have expressed their
feelings in view of the dispute between their parents and also their feelings as to the conduct of
their father at home. We do not propose to go into those averments in the affidavit sworn in by
the daughters, lest it would prejudice either parties while contesting the main matter.

11. Section 19(1)(b) of the Protection of Women Domestic Violence Act provides that the Court
may direct the appellant-husband to remove himself from the shared household. The order
passed under Section 19 of the Act seeks to maintain continued and undisturbed residence
of the aggrieved party within the shared household and in pursuance of same it directs the
respondent to execute a bond with or without surety or secure an alternate accommodation
for the aggrieved party and pay the rent for the same and restrains the respondent from or
renouncing property rights or valuable security of the aggrieved party.

12. The Family Court arrived at a finding that prima facie material was available on record to accept
the allegation of the respondent-wife on domestic violence wherein the concerned Judge had
exercised his discretion under Section 19(1)(b) of the Domestic Violence Act which provides that
the Magistrate on being satisfied that domestic violence has taken place can remove the spouse
from the shared household which in our opinion he has rightly done. Exercise of discretion
by Family Court cannot be said to be perverse warranting interference. The High Court while
declining to interfere with the order has also considered the factual and legal position.

13. Having gone through the orders of the High Court and the Family Court and considering the
fact that the daughters are grown up, we are not inclined to exercise our discretion under Article
136 of the Constitution of India at the interlocutory stage. The appeal is dismissed. We direct the
Family Court, Bandra, Mumbai to expedite the hearing in the Divorce Petition and dispose the
same expeditiously. We make it clear that we have not expressed any opinion on the merits of
the matter. The Family Court shall try and dispose of the case uninfluenced by any observations
or findings either in the impugned order or this order. No costs.
qqq

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landmark judgments of supreme court of india on DOMESTIC violence

LALITA TOPPO VERSUS THE STATE OF JHARKHAND & ANR.

Supreme Court of India

Bench : Hon’ble Mr. Justice Ranjan Gogoi, CJ, Hon’ble Mr. Justice Uday Umesh Lalit and
Hon’ble Mr. Justice K.M. Joseph

Lalita Toppo ...Appellant(S)
Versus

The State Of Jharkhand & Anr. ...Respondent(S)

Criminal Appeal No(S). 1656/2015

Decided on : 30th October, 2018

The appellant Lalita Toppo claimed maintenance under the provisions of the Protection
of Women from Domestic Violence Act, 2011 despite the fact that she was not a legally
wedded wife and thus was not eligible to claim maintenance under Section 125 of the Code
of Criminal Procedure, 1973.

Held that the maintenance can be claimed under Domestic Violence Act, 2005 even if the
claimant is not a legally wedded wife . Such relief cannot be allowed under section 125 of CrPC.

The bench expanded the definition of the term “domestic violence” contained in Section
3(a) of the DVC Act, 2015 to include economic abuse as domestic violence.

Further, the court held that the estranged wife or live-in-partner would be entitled to extra
relief under the provisions in Section 3(a) of the DVC Act, 2015 than what is provided under
Section 125 of the CrPC i.e. to a shared household also.

ORDER
1. The appellant before us would have an efficacious remedy to seek maintenance under the

provisions of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred
to “DVC Act, 2005”) even assuming that she is not the legally wedded wife and, therefore, not
entitled to maintenance under Section 125 of the Code of Criminal Procedure, 1973.

“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, limp 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
................................”

2. What would be significant to note is that economic abuse also constitutes domestic violence and
economic abuse has been defined by Explanation I(iv) to Section 3 of the DVC Act, 2005 to mean:
“(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

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LALITA TOPPO VERSUS THE STATE OF JHARKHAND & ANR.

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.”

3. In fact, under the provisions of the DVC Act, 2005 the victim i.e. estranged wife or live-in-
partner would be entitled to more relief than what is contemplated under Section 125 of the
Code of Criminal Procedure, 1973, namely, to a shared household also.

4. The questions referred to us by the Referral Order were formulated on the basis of the decisions
of this court rendered in Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav and another1
and Savitaben Somabhai Bhatiya vs.State of Gujarat and others2 which were rendered prior to
the coming into force of the DVC Act, 2005. In view of what has been stated herein before, it
is, therefore, our considered view that the questions referred would not require any answer.
We, therefore, decline to answer the said questions. The appellant is left with the remedy of
approaching the appropriate Forum under the provisions of the DVC Act, 2005, if so advised. If
in the event the appellant moves the appropriate

5. The appeal is disposed of in the above terms.

qqq

1 (1988) 1 SCC 530
2 (2005) 3 SCC 636

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Manmohan Attavar Versus Neelam Manmohan Attavar

Supreme Court of India
Bench : Hon’ble Mr. Justice Rohinton Fali Nariman and Hon’ble Mr. Justice Sanjay Kishan Kaul

Manmohan Attavar ...Appellants
Versus

Neelam Manmohan Attavar …Respondents

CIVIL APPEAL NO.2500 OF 2017

WITH
CIVIL APPEAL NO.2502 OF 2017

Decided on : 14th July, 2017

The respondent was married to another guy but got divorced on 10-10-1996. Her
relationship with the appellant was developed in 1987. But gradually their relationship
get soured and reconciliation did not take place. The respondent initiated proceeding
against the appellant under section 12 of the Protection of women from Domestic Violence
Act, 2005. On the request of the respondent, the case was transferred from Metropolitan
Magistrate VI to the court of Metropolitan Magistrate II. The application was dismissed
there. Then she went for Criminal appeal and prayed for interim relief and the same
was rejected. The respondent again sought for transfer from one court and for this the
respondent prayed in the writ petition in High Court of Karnataka under articles 226 and
227 of the Constitution of India. The learned single judge of the High Court by an ex-parte
order permitted the respondent to occupy Premises belonging to the appellant. And this
interim order is challenged in the Supreme Court under present case through SLP. The
controversy before the Supreme Court was set forth as-

Whether an interim order could have been passed on 19-9-2016 permitting the respondent
to occupy the premises of the appellant ?

Whether the learned Single Judge was right in withdrawing the proceedings pending
before the learned Additional Sessions Judge to the High Court vide the impugned order
dated 24-10-2016?

The Supreme Court was of the view that the nature of the ex-parte order permitting the
respondent to occupy the premises of the appellant cannot be sustained and has to be set
aside because in order for the respondent to succeed, it was necessary that the two parties
had lived in a domestic relationship in the household. However, they never lived together
in the property on question. In the second issue, the Court concluded that a perusal of the
impugned order shows that the learned Single Judge found the remedy sought for by the
respondent to be “misconceived”. Thus the order dated 24-10-2016 was set aside.

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Manmohan Attavar Versus Neelam Manmohan Attavar

JUDGMENT

Hon’ble Mr. Justice Sanjay Kishan Kaul :—
1. The appellant is 84 years old and the respondent is 62 years old. The respondent seeks to establish

her status as the wife/companion of the appellant who has been left high and dry by the appellant
while on the other hand the appellant categorically denies any such status.
2. The admitted facts are that the respondent was married to one Shri Harish Chander Chhabra.
That marriage did not work out and ultimately a consent decree for divorce was obtained
on 10.10.1996. Even in the interregnum period, the respondent claims to have developed a
relationship with the appellant starting from their introduction in 1987. It is her case that there
was continuous interaction between the two and the appellant even proposed to her in December
1993. The appellant earned a National Award on 16.10.1996. The respondent also claims to
have been requested to travel with the appellant to Bangalore on 30.10.1996. The appellant’s
wife was alive when the respondent claims that the appellant took her to No.38/1, Jayanagar,
Bengaluru and that the appellant’s wife was apparently also aware of the relationship between
the two parties. The respondent claims that she resigned from the job with ICAR at the behest of
the appellant. On 10.1.1998, the respondent claims that the appellant applied “kumkum” to her
forehead and soon thereafter he was conferred with the Padma Shri Award and the respondent
accompanied the appellant for the felicitation ceremony on 21.3.1998.
3. It is the respondent’s claim that from 2002-2008 the respondent was made to stay in different
residences hired by the appellant. But apparently the relationship soured. The endeavors for
reconciliation, however, did not succeed. The wife of the appellant was incidentally alive at
that time and she passed away on 22.2.2010. The endeavor, prior to this, by the respondent
seeking remedy for what she claims to be her neglect, through the Women and Child Welfare
Department of State of Karnataka, also did not succeed.
4. The respondent claims to have made various efforts by approaching authorities and high
dignitaries apart from police authorities but to no avail.
5. The respondent initiated proceedings under Section 12 of The Protection of Women from
Domestic Violence Act, 2005 (hereinafter referred to as ‘the D.V. Act’) on 16.9.2013 being
Criminal Misc. Petition No.179 of 2013. This case is stated to have been re-numbered as Crl.
Misc. Application No.139 of 2015. The endeavor of the appellant seeking quashing of these
proceedings before the High Court vide Criminal Writ Petition No.6126/2013 under Section
482 of the Criminal Procedure Code, 1973 (hereinafter referred to as the Cr.P.C.) did not succeed
and petition was dismissed on 2.1.2015. The trial went on and at the request of the respondent
made under Section 410 of the Cr.P.C., the application was transferred from the Court of the
Metropolitan Magistrate–VI to the Court of Metropolitan Magistrate-II at Bangalore. This
application was finally dismissed by the learned Metropolitan Magistrate on 30.7.2015.
6. The respondent, aggrieved by the said order, filed Criminal Appeal No.1070/2015 under Section
29 of the D.V. Act on 18.8.2015 which was assigned to the learned Addl. Sessions Judge presiding
over Court 67. The interim relief prayed for in this petition was, however, rejected by the learned
Addl. Sessions Judge on 5.11.2015.
7. The respondent again sought a transfer from that court and the appeal was transferred to the
Court of the learned Additional Sessions Judge presiding over Court No.53 vide order dated

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16.2.2016. A second application was filed by the respondent for stay of the impugned order for
interim maintenance. The respondent was once again aggrieved by the conduct of the proceedings
during the hearing of the interim application and submitted a complaint to the High Court of
Karnataka. In terms of an administrative order of the Registrar General of the High Court, the
application was called upon to be decided on or before 30.4.2016. The application was rejected
on 21.4.2016 as being not maintainable. The applications filed for additional evidence by the
respondent also met an adverse fate.
8. It is in the aforesaid scenario that the respondent filed Writ petition No.49153 of 2016 under
Articles 226 and 227 of the Constitution of India before the High Court of Karnataka praying
for the transfer of Criminal Appeal No.1070 of 2015 to the High Court itself on the ground that
the order for rejection of the applications for additional evidence did not inspire faith.
9. Learned Single Judge of the High Court by an ex-parte order dated 19.9.2016, while issuing
notice in the petition, stayed all further proceedings and permitted the respondent to occupy
the premises No.38/1, 30th Cross, 3rd Main, 7th Block Jayanagar, Bengaluru, 560082 belonging
to the appellant. This interim order is subject matter of challenge before us in SLP (C) No.
32783/2016 now numbered as Civil Appeal No.2500 of 2017.
10. On service being effected on the appellant, the writ petition was opposed along with the prayer
for vacation of the ex-parte order. It is the case of the appellant that instead of deciding the
Interlocutory Application, the appellant was compelled to pay a lump sum amount of Rs.30,000/-
as a onetime payment. This order is stated to have been challenged in SLP No.33150 of 2016.
In fact the declining of interim relief by the appellate court was not even specifically challenged
before the High Court and yet the High Court granted an ex parte order.
11. Learned Single Judge vide the subsequent order dated 24.10.2016 sought to withdraw the appeal
proceedings from the learned Addl. Sessions Judge to the High Court itself and this order has
been assailed in SLP No.32534/2016 now numbered as Civil Appeal No.2502 of 2017.
12. We have heard the contentions of the learned senior counsel for the appellant and have also heard
the respondent appearing in person, quite elaborately. Written submissions were filed both by
the appellant and by the respondent. We have noticed that a large part of the submissions of the
respondent relate to the merits of the claim as to why the learned Metropolitan Magistrate fell
into error while dismissing the application filed by the respondent on 30.7.2015 under Section
12 of the D.V. Act.
13. We may note at this stage itself that it would neither be advisable nor proper to dwell into the
controversy on merits because the appeal filed by the respondent is yet to be decided. Any
observations by us at this stage could affect either of the parties in the appeal proceedings. The
controversy before us is in a very narrow compass. We thus set forth the controversy -
(i) Whether an interim order could have been passed on 19.9.2016 permitting the respondent

to occupy the premises of the appellant;
(ii) Whether the learned Single Judge was right in withdrawing the proceedings pending

before the learned Addl. Sessions Judge to the High Court vide the impugned order dated
24.10.2016.
14. Insofar as the first question is concerned, reliance has been placed by the respondent on the
provisions of the D.V. Act and the desirability to construe the provisions liberally in favour of

page no. | 418 |

Manmohan Attavar Versus Neelam Manmohan Attavar

women seeking relief, as it is in the nature of a social legislation meant for protection of women’s
rights. In order to appreciate the controversy, we reproduce the relevant provisions as under:-

“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.

…………………………………………

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.
……………………………………………………”

15. A reading of the aforesaid provisions show that it creates an entitlement in favour of the woman
of the right of residence under the “shared household” irrespective of her having any legal
interests in the same. The direction, inter alia, can include an order restraining dispossession or
a direction to remove himself on being satisfied that domestic violence had taken place.

16. The factual matrix of the present case is such that one would have to look to the definition
clauses relevant for the determination of the controversy contained in Section 2 as under:

“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;

………………………………………….

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

page no. | 419 |

landmark judgments of supreme court of india on DOMESTIC violence

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. ………………………………………………………..”

17. The facts of the present case are that the respondent has never stayed with the appellant in
the premises in which she has been directed to be inducted. This is an admitted position even
in answer to a court query by the respondent during the course of hearing. The “domestic
relationship” as defined under Section 2 (f) of the D.V. Act refers to two persons who have lived
together in a “shared household”. A “shared household” has been defined under Section 2(s) of
the D.V. Act. In order for the respondent to succeed, it was necessary that the two parties had
lived in a domestic relationship in the household. However, the parties have never lived together
in the property in question. It is not as if the respondent has been subsequently excluded from
the enjoyment of the property or thrown out by the appellant in an alleged relationship which
goes back 20 years. They fell apart even as per the respondent more than 7 years ago. We may
also note that till 22.2.2010 even the wife of the appellant was alive. We may note for the purpose
of record that as per the appellant, he is a Christian and thus there could be no question of
visiting any temple and marrying the respondent by applying “kumkum”, and that too when the
wife of the appellant was alive.

18. We are thus unequivocally of the view that the nature of the ex-parte order passed on 19.9.2016
permitting the respondent to occupy the premises of the appellant cannot be sustained and has
to be set aside and consequently Civil Appeal No.2500 of 2017 is liable to be allowed.

19. Now turning to the second controversy, a perusal of the impugned order shows that the learned
Single Judge found the remedy sought for by the respondent to be “misconceived”. However, the
learned Judge found it appropriate to treat the petition as one under Section 407 of the Cr.P.C.
The learned Single Judge has expressed the view that the appellate court ought to have called
upon the respondent to argue the appeal rather than spend time on interim reliefs, which was
not maintainable in the face of the earlier order resulting in a predictable order.

20. We fail to appreciate the aforesaid observations when the respondent herself sought once again
to press for interim relief and applications to adduce additional evidence. Learned ASJ can hardly
be faulted on this account. The learned Single Judge has also given latitude to the respondent
on account of her appearing in person whereby she may not have documented the bits and
pieces of her past with the intention of initiating the proceedings which she was pursuing. In the
conspectus of the same, the appeal has been withdrawn to the High Court itself.

21. The grievance of the appellant against this order is that the valuable rights of the appellant of
an additional forum to ventilate his grievance would be lost as against any decision in appeal.
A remedy of revision under Section 327 of the Cr.P.C. would be available or a writ petition
under Article 227 of the Constitution of India. In this behalf reliance has been placed on what is
claimed to be a settled legal position, more particularly, the Constitutional Bench Judgment of 7
Judges of this Court in A.R.Antulay vs. Ram Naik 1.

22. It is also the contention of the appellant that such transfer cannot take place at the whims
and fancy of the respondent. The respondent, whenever she fails to obtain a favourable order,

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Manmohan Attavar Versus Neelam Manmohan Attavar

chooses to file proceedings for transfer whether it be before the (1988) 2 SCC 602 MM or before
the appellate court. It is submitted that this approach ought not to be encouraged.
23. On examination of the issue, we tend to agree with the submission of the learned senior counsel
for the appellant that there was no reason for the proceedings to be withdrawn from the appellate
court to the High Court itself. There is not only absence of the reason for the same but it would
also result in the deprivation of valuable rights of the appellant against the order of an appellate
authority and thus an additional forum for scrutiny was being negated.
24. We are unable to agree with the reasoning of the learned Single Judge nor can we fault the
appellate authority on any account which could have necessitated such withdrawal of the
proceedings to the High Court.
25. We may also note the concession made by the learned senior counsel for the appellant in court
that in the scenario the matter can be entrusted to any ASJ in Bangalore as there are a large
number of the same holding court.
26. We thus set aside even the order dated 24.10.2016 and allow Civil Appeal No.2502/2017. We
request the learned Chief Justice of the High Court on the administrative side to nominate any
of the ASJs in Bangalore to hear the appeal of the respondent and the appellate authority shall
endeavor to conclude the proceedings as expeditiously as possible.
27. The appeals are accordingly allowed leaving the parties to bear their own costs with the hope
that there would be an early end to this contentious dispute between the two parties.

qqq

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Indra Sarma VERSUS V.K.V. Sarma

Supreme Court of India

Bench : Hon’ble Mr. Justice K.S. Radhakrishnan and Hon’ble Mr. Justice Pinaki Chandra Ghose

Indra Sarma … Appellant

Versus

V.K.V. Sarma … Respondent

Criminal Appeal No. 2009 of 2013

(@ Special Leave Petition (Crl.) No.4895 of 2012)
Decided on : 26th November, 2013

“Relationship in the nature of marriage” – Live in relationship – Status – Live-in relationship
simpliciter distinguished from one that could qualify as a “relationship in the nature of
marriage” – Live-in relationship involving a married person – Relevance of opposition to
live-in relationship by family of the married person – Held, all live-in relationships are not
relationships in the nature of marriage – Relationship to qualify as “relationship in the
nature of marriage” should have some inherent or essential characteristics of a marriage
though not a marriage legally recognised – After noticing relevant provisions under foreign
statutes, guidelines laid down by Supreme Court for testing under what circumstances
live-in relationship would fall within expression “relationship in the nature of marriage”
under S. 2 (f) (see Shortnotes C and D for the guidelines) – On facts, held, alleged live-in
relationship between appellant (unmarried woman) and respondent (married male) was
not a relationship in the nature of marriage under S.2(f) – Hence, non-maintenance of
appellant by respondent after he left her, would not amount to “domestic violence” under
S. 3 of DV Act – Further, if any direction is given to respondent to pay maintenance or
monetary consideration to appellant, that would be at the cost of the legally wedded that
relationship and have a cause of action against appellant for alienating the companionship
and affection of the husband/parent, which is an intentional tort.

JUDGMENT
Hon’ble Mr. Justice K.S. Radhakrishnan:­—
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

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Indra Sarma versus V.K.V.Sarma

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;

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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.

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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

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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.

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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.

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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;

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(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:

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“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

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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.

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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:

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“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

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“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.

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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.

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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;

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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:
1 “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,

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(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.”

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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

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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.

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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.

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