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No relief, if couple not stayed together as husband and wife

IN THE COURT OF MS. VANDANA;M.M.MAHILA COURT; THC; DELHI

CC No.143/1/14

Chand Tara @ Sonia
Versus
Nirbail Singh

ORDER ON MAINTAINABILITY OF PRESENT PETITION
1.The brief facts of the complaint are as under:The complainant is a widow lady, residing with her minor daughter. She has stated in her complaint that in the month of December 2010 she received a phone call of the respondent and thereafter, both of them started residing together. They used to talk frequently with each other on phone at odd hours. Then respondent trapped the complainant into love and expressed his intention to marry her and stated that he is a bachelor and posted as Constable in Delhi Cantt., Delhi. Thereafter, both of them fell in love and complainant gave her consent to marry him. He started making physical relations also. Thereafter, since 09.04.2011 they started living in a live-­in­ relationship as husband and wife at H.No. 1662/3, Nangal Rai, Lajwanti, Delhi.

It has been further averred that respondent also adopted the daughter of complainant. When they were living together, complainant asked the respondent many a times to marry her but on one pretext or other, he postponed the same. During this period, she got pregnant several times but she got it aborted at the instance of respondent.

On 28.04.2013 respondent joined the Air Force South (Devlali Camp) Maharashtra and after that respondent started sending money into the bank account of complainant every month towards the welfare of the complainant and the child. But in the month of April 2014, the respondent stopped paying the maintenance amount to the complainant and whenever she requested him to give the amount for maintenance then respondent abused her. After some time, he stopped coming to Delhi and finally in the year 2014 the respondent completely abandoned the complainant.

2. Vide detailed reply all the allegations were denied by the respondent. He categorically stated that he got married with woman namely Surjeet Kaur on 05.06.1989 and having three children. He also stated that he is having no concern with the complainant at all, hence present petition be dismissed. He also filed the copy of ration card and copy of Election ID card of his wife.

3. In these circumstances, vide order dated 06.08.2015 preliminary issue was framed as under, “Whether the complainant and respondent no.1 has been residing together in the nature of marriage.” The onus to prove the same was on the complainant.

4. Thereafter, the matter was fixed for evidence on preliminary issue. The complainant examined one witness namely Debashish Dutta as CW­1 from Hotel Sai Palace. He filed the copy of relevant entry of their stay in hotel Sai Palace. He filed the entry dated 12.01.2013, 26.01.2013 and 20.04.2013 reflecting the name of both the complainant and respondent. The name of complainant has been mentioned as Sonia W/o Sh. Nirwail Singh. The said entries are Ex. CW­1/1 to Ex. CW­1/3. She also filed the copy of ID card of Nirbail Singh as Mark A. Thereafter, the complainant close the evidence qua preliminary issue.

5. Arguments heard. Case file perused.

6. Before discussing the issue of maintainability, it is pertinent to mention the relevant provisions of PWDV Act:

Section 2(a) of PWDV Act describes the “aggrieved person” as 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) of PWDV Act defines the “domestic relationship”. It lays down that domestic relationship is a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.”

7. The term “relationship in the nature of marriage” has been defined nowhere in the Act but it was explained in “D.Velusamy Vs. D. Patchaiammal, II (2010) DMC 677 (SC)”. Therein it was observed as under:

“The relation in the nature of marriage” is akin to a common law marriage. Common law marriages require that although not being formally married:

(a) The couple must hold themselves out to society as being akin to spouses.

(b) They must be of legal age to marry.

(c) They must be otherwise qualified to enter into a legal marriage including being unmarried.

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

8. It was further discussed in detail in recent judgment passed by the Hon’ble Apex Court, in “Indra Sharma Vs. V.K.V. Sarma”, AIR 2014 SC

309. Therein it was observed as under:

“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”. 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 live­in relationship is purely an arrangement between the parties unlike, a legal marriage. Once a party to a live­in relationship determines that he / she does not wish to live in such 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”.
9. Further guidelines for testing under what circumstances a live in relationship fall within the expression, relationship in the nature of marriage were described in detail in the above said authority, which are as under:

“We may, on the basis of above discussion cull out some guidelines for testing under what circumstances, a live­in 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 given 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 socialization 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.”

10. Now coming to present facts of the case, the complainant is a widow lady and looking after one child. She is a matured person. She is not a naive. It cannot be believed that complainant is unaware of the difference between residing under the relationship of marriage or living in domestic relationship in the nature of marriage or otherwise.

11. The complainant has alleged that she had been residing with the respondent in a relationship in the nature of marriage. Whether it was a relationship in the nature of marriage, let’s evaluate the present facts in the light of the guidelines laid down by the Hon’ble Apex Court in this regard.

(1) Duration of period of relationship The complainant has stated that she had been residing with the respondent since 09.04.2011 till March 2014. Apart from the mere submission of the complainant there is nothing on record to substantiate the same. Despite given opportunity to lead evidence in this regard, she could not file any documentary evidence that she had been residing with him.

The complainant has relied upon the copy of Voter ID Card wherein the name of husband of complainant has been mentioned as “Nirmal” though the name of respondent is “Nirbail Singh” as mentioned in the complaint by the complainant herself.

(2) Shared household According to the complainant the respondent had been staying with her at rented accommodation. Though she could not file any documentary proof in this regard. Not only this, not even a single witness could be brought by her in support of her submission. She has relied upon the entry made in the register during their stay in hotel. First of all, the stay of both the parties in a hotel for a day or two does not prove the factum of relationship in the nature of marriage. Further if we consider the relevant entries i.e entry no. 8823 dated 12.01.2013 it reflects the time of arrival of both the parties in hotel as 3.35 pm and date of departure 13.01.2013 at 6.15 am, entry no. 8908 dated 26.01.2013 reflects the time of arrival as 11.15 pm and date of departure 27.01.2013 at 2.30 pm and entry no. 7578 dated 20.04.2013 reflects the time of arrival as 2.15 pm and date of departure 21.04.2013 at 9.15 am. The date and time period of their stay itself shows the intention of the parties. Both the persons belong to lower middle class of society. Hence, it is beyond my understanding when they were having the accommodation in Delhi as alleged by the complainant, then for what purpose they stayed in hotel in Delhi that too for certain hours. Further, the entry made with respect to the complainant as wife of Nirwail Singh is not sufficient to prove the fact that the complainant had been residing with the respondent in a live in relationship.

(3) Pooling of Resources and financial Arrangements The complainant has not uttered even a single word qua acquiring of any immovable property in joint name by her or by the respondent. There is no joint bank account or long term investment in joint names.

This also reflect that there was no intention of having long standing relationship.

(4) Domestic Arrangements It has been stated by the complainant that respondent used to deposit money in her account for their maintenance. She relied upon the relevant page of her bank account and certain receipts. First of all, the complainant has not proved the fact that she has received the payment from the account of the respondent only. If for the sake of argument, the averment of the complainant is accepted as gospel truth then also it cannot be considered as a proof of relationship in the nature of marriage in view of the observation made in “D.Velusamy Vs. D. Patchaiammal, II (2010) DMC 677 (SC)”, wherein it was observed:­ “In our opinion not all live in relationships will amount to a relationship in the nature of marriage to get the benefit of Act of 2005. To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence. If man has ‘keep’ whom he maintains financially and uses mainly for sexual purpose and /or as a servant, it would not, in our opinion, be a ‘relationship in the nature of marriage’. No doubt the view we are taking would exclude many women who have had a live in relationship from benefit of 2005 Act, but it is not for this Court to legislate or amend the law. Parliament has used the expression ‘relationship in the nature of marriage’ and not ‘live in relationship’. The Court in the garb of interpretation cannot change language of statute.”

(5) Sexual Relationship It has been further stated by the complainant that both of them shared the same bed many times.

However, it was observed by the Apex Court that, “Marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to given emotional support, companionship and also material affection, caring, etc.”. But apart from having the sexual relationship rest of the ingredients are missing in the present case.

(6) Children Having children has been considered to be a strong indication of having relationship in the nature of marriage. But the complainant has herself stated that at the instance of respondent number of times she got her pregnancy aborted. She also filed the copy of Copper T in this regard. Hence, the intention of having no children out of this relationship is crystal clear. The complainant has further stated in her complaint that respondent had adopted her daughter and she relied one photograph depicting her daughter in the lap of respondent. But the said photograph is not sufficient enough to prove the alleged factum of adoption.

(7) Socialization in Public Socialization in public as husband and wife has been also considered as an important and strong indication to hold the relationship in the nature of marriage.

The complainant has not mentioned even a single incident when they appeared before the public as husband and wife. She could not file any document where her name has been mentioned as the wife of the respondent except the entry of hotel stay. Despite given opportunity for leading evidence, she could not bring any single witness who can depose regarding their relationship or before whom they had represented themselves as husband and wife.

(8) Intention and conduct of the parties They never represented themselves as husband and wife to the public. They never had any intention of having children out of this relationship. Not only this, they neither had any joint account nor owned any immovable property jointly.

12. The Ld. Counsel for complainant has relied upon the authority i.e “Indra Sharma Vs. V.K.V. Sarma”, AIR 2014 SC 309, which does not support her case at all rather it goes against her.

13. In view of above reasoning, I hold that the complainant could not prove the preliminary issue and it is decided against her. Accordingly, the present petition stands dismissed as not maintainable.

14. Copy of order be given Dasti.

(VANDANA) MM (Mahila Court)­01,West, THC/Delhi/03.03.2016

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