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Parveen Tandon vs Tanika Tandon on 7 June, 2021

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 07th JUNE, 2021
IN THE MATTER OF:
+ CRL.M.C. 264/2021 CRL.M.A. 1352/2021 (Stay)
PARVEEN TANDON ….. Petitioner
Through Mr. Utkarsh and Ms. Anshu Priyanka,
Advocates
versus

TANIKA TANDON ….. Respondent
Through Mr. Kamal Anand, Advocate
AND
+ CRL.M.C.420/2021 CRL.M.As. 2196/2021 8859/2021 (Stay)
PARVEEN TANDON ….. Petitioner
Through Mr. Utkarsh and Ms. Anshu Priyanka,
Advocates
versus

TANIKA TANDON ….. Respondent
Through Mr. Kamal Anand, Advocate
CORAM:
HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD

SUBRAMONIUM PRASAD, J.

1. CRL.M.C. 264/2021 is directed against the order dated 14.01.2021,
passed by the learned Additional Sessions Judge-03, West, Tis Hazari
Courts, Delhi in CA No. 110/2020 and CRL.M.C. 420/2021 is directed
against the order dated 14.01.2021, passed by learned Additional Sessions
Judge-03, West, Tis Hazari Courts, Delhi in CA No. 171/2020. Both the

CRL.M.C.264/2021 OTHER Page 1 of 24
petitions have been filed under Section 482 Cr.P.C.

2. Facts, in brief, leading to the present petitions are as under:

a) The respondent herein filed an application under Section 12 of
the Protection of Women from
Domestic Violence Act, 2005
(hereinafter referred to as “the
DV Act”) before the Chief
Metropolitan Magistrate, Tis Hazari Court, stating inter alia that she
was married when she met the petitioner herein in the year 2009. She
got married to him in the year 2014 after obtaining a divorce from her
husband. It is stated that the applicant/respondent herein has a son
namely, Master Jatin, aged 13 years, from her previous marriage. The
child is presently studying in Shadley Public School, Delhi. It is stated
that the petitioner herein is running a business of motor-parts from his
shop. It is also stated that the petitioner herein has other shops which
he has given on rent and he earns about Rs.10 lakhs per month from
his business. It is stated that the petitioner herein had not disclosed his
marital status to the applicant/respondent herein when they both met
so as to induce the respondent to marry him. It is further stated that
the petitioner herein executed a Marriage Agreement to show his
genuineness and responsibility towards the applicant/respondent
herein and her child. It is stated that in the agreement it was
mentioned that the applicant/respondent herein was married and has a
son from her previous marriage. It is stated that later the petitioner
herein told the respondent that his wife is on dialyses and would not
survive long and therefore he is looking for a life partner and that he

CRL.M.C.264/2021 OTHER Page 2 of 24
is going to marry the applicant/respondent herein. It is stated that the
applicant/respondent herein took divorce from her husband and got
married to the petitioner herein on 21.11.2014. It is stated that another
Agreement-cum-Marriage Deed was entered into between the
petitioner herein and the applicant/respondent herein on 22.11.2014. It
is stated that the petitioner herein had arranged a rental
accommodation and both of them were living as husband and wife. It
is further mentioned that the name of the petitioner herein is shown as
the father of the child of the applicant/respondent herein in the school
records. It is also stated that in the bank accounts of the respondent
herein, the petitioner is shown as a nominee. It is stated that
differences arose between the parties and the applicant/respondent
was subjected to physical and mental abuse by the petitioner herein. It
is stated that the applicant/respondent herein filed an FIR against the
petitioner herein. The applicant/respondent herein therefore prayed for
an order restraining the petitioner herein from evicting the
applicant/respondent herein from the rented accommodation. An
application for grant of interim maintenance has also been filed by the
respondent herein.

b) Summons were issued to the petitioner herein. The learned
Metropolitan Magistrate by an order dated 31.07.2020 restrained the
petitioner herein from dispossessing the applicant/respondent herein
from the property bearing House No.435, Indra Vihar, Mukherjee
Nagar, Delhi. An application for the rectification of the said order was

CRL.M.C.264/2021 OTHER Page 3 of 24
filed stating that the address in the order was not correct.

c) The petitioner herein prayed for recall of summons and
dismissal of the application filed by the respondent herein contending
that the respondent herein is not entitled to any relief under the
DV
Act because the respondent herein is not an aggrieved person
inasmuch as the petitioner and the respondent had never been in a
domestic relationship which is the sine qua non for maintaining an
application under the
DV Act.

d) On 17.08.2020, the learned Metropolitan Magistrate corrected
the address and restrained the petitioner herein from dispossessing
the respondent herein from property bearing No. B22, First Floor,
Hari Nagar, New Delhi 110064. However, the learned Metropolitan
Magistrate rejected the plea of the petitioner herein to dismiss the case
on the ground of maintainability stating that the question as to
whether the respondent herein is an aggrieved person or not and
whether she was in a domestic relationship with the petitioner herein
or not cannot be decided at the present stage without leading
evidence. The learned Metropolitan Magistrate also directed the
parties to file their income certificates along with supporting
documents as warranted by the judgment of this Court in
Kusum
Sharma v. Mahinder Kumar Sharma, 2015 SCC OnLine Del 6793.

e) By an order dated 26.10.2020, the learned Metropolitan
Magistrate directed the petitioner herein to pay an ad-interim
maintenance of Rs.10,000/- per month from 26.10.2020, to the

CRL.M.C.264/2021 OTHER Page 4 of 24
respondent herein towards maintenance of child and also towards the
rent/accommodation.

f) The order dated 17.08.2020, dismissing the prayer of the
petitioner for recalling his summoning order under the
DV Act was
challenged by the petitioner herein by filing an appeal being CA
No.110/2020 before the Sessions Court. The order dated 26.10.2020,
directing the petitioner herein to pay ad-interim maintenance of
Rs.10,000/- to the respondent herein, was challenged by the petitioner
by filing an appeal being CA No.171/2020 before the Sessions Court.

g) The learned Additional Session Judge, vide order dated
14.01.2020 dismissed CA No.110/2020 and upheld the order dated
17.08.2020 by observing that the issue as to whether the parties were
residing in a shared household and were enjoying a domestic
relationship in the nature of marriage, could not be decided without
leading evidence.

h) By another order of the same date, the learned Additional
Session Judge refused to interfere with the order dated 26.10.2020 and
dismissed CA No.171/2020 and upheld the order dated 26.10.2020
directing the petitioner herein to pay ad-interim maintenance of
Rs.10,000/- per month to the respondent herein for the maintenance of
the child and also for the rent/accommodation.

i) CRL.M.C. 264/2021 is directed against the order dated
14.01.2021 in CA No. 110/2020 and CRL.M.C. 420/2021 is directed
against the order dated 14.01.2021 in CA No. 171/2020.

CRL.M.C.264/2021 OTHER Page 5 of 24

3. The learned counsel for the petitioner contends that an application
under
Section 12 of the DV Act can be filed only by an aggrieved person.
An aggrieved person has been defined under
Section 2(a) of the DV Act. An
aggrieved person has been defined as any woman who is, or has been, in a
domestic relationship with a person and who alleges to have been subjected
to any act of domestic violence by that person. He states that the term
domestic relationship is defined in
Section 2(f) of the DV Act. Domestic
relationship has been defined as 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. He states that shared household has been defined in
Section 2(s) of
the DV Act which states that a shared household would mean a household
where the aggrieved person has lived in a domestic relationship with the
other person. He states that the respondent herein in her application has
admitted that both the parties were married when they met. He states that
when the respondent knew that the petitioner was married to somebody else
the respondent cannot claim any relief under the
DV Act. He states that till
the issue of maintainability is not decided, the learned Metropolitan
Magistrate ought not to have directed the petitioner herein to pay ad-interim
maintenance of Rs.10,000/- per month to the respondent. It is also contended
by the learned counsel for the petitioner that when the application filed by
the respondent itself stated that the petitioner is married to somebody else,
the summons ought not to have been issued to the petitioner. The learned

CRL.M.C.264/2021 OTHER Page 6 of 24
counsel for the petitioner places strong reliance on the judgments of the
Supreme Court in
Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755, and
D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469.

4. Per contra, Mr. Kamal Anand, learned counsel for the respondent
contends that the petitioner and the respondent got together in the year 2009
and got married in the year 2014 and they resided together for six years
before the disputes arose between them in the year 2020. He contends that it
was not as if the petitioner was a casual visitor to the house. He contends
that the petitioner had proclaimed to the world at large that they are both
husband and wife. The learned counsel for the respondent states that the
petitioner has filed an affidavit and entered into agreement with the
respondent stating that he has married the respondent and that he would take
care of the respondent and the child. He further states that in school records
the petitioner is shown as the father of the child. He further states that in the
bank accounts of the respondent, petitioner is shown as the nominee. The
learned counsel for the respondent therefore contends that the application
filed by the respondent was maintainable and the orders of the learned
Metropolitan Magistrate and the Additional Sessions Judge rejecting the
application of the petitioner for recalling the summons and directing the
petitioner herein to pay ad-interim maintenance of Rs.10,000/- per month to
the respondent, does not warrant any interference.

5. Heard Mr. Utkarsh, learned counsel for the petitioner and Mr. Kamal
Anand, learned counsel for the respondent and perused the material on
record.

CRL.M.C.264/2021 OTHER Page 7 of 24

6. Sections 2(a), 2(f), 2(q) and 2(s) of the DV Act reads as under:

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

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

*****

(f) “domestic relationship” means a relationship
between two persons who live or have, at any point
of time, lived together in a shared household, when
they are related by consanguinity, marriage, or
through a relationship in the nature of marriage,
adoption or are family members living together as
a joint family;

*****

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

*****

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

CRL.M.C.264/2021 OTHER Page 8 of 24
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.”

7. The DV 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.
The Act enables the wife or the female living in
a relationship in the nature of marriage to file a complaint under the
proposed enactment against any relative of the husband or the male partner.

The Act is meant to provide 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 a
Magistrate.

8. In order to maintain a petitioner under the DV Act the aggrieved
person has to show that the aggrieved person and the respondent (man) lived
together in a shared household and this could be even from a relationship in
the nature of marriage. The material placed on record shows that the
petitioner had entered into a marriage agreement in the year 2012 wherein it
is stated that both the parties intend to marry each other. The agreement
shows that the petitioner undertook to discharge all liabilities/obligations
towards the respondent herein and similarly the respondent undertook to

CRL.M.C.264/2021 OTHER Page 9 of 24
discharge all liabilities/obligations towards the petitioner herein. The
affidavit has been signed by both the parties. After the respondent herein
obtained divorce from her husband, another agreement-cum-marriage deed
was entered into between the parties on 22.11.2014, wherein it is stated that
the petitioner and the respondent are residing together for the last five years
in a live-in relationship and are now getting married to each other according
to Hindu rites and ceremonies and the marriage was solemnized in an Arya
Samaj Mandir at Delhi. The marriage deed also records that after
solemnization of marriage both the parties will reside together as husband
and wife and will be faithful towards each other. The marriage deed has
been signed by both the parties. There are photographs of the petitioner and
the respondent which gives an impression that the parties were living
together as husband and wife and have married each other. The school
records of the child have been filed wherein the petitioner has been shown as
the father of the child. Copies of the bank accounts have been filed wherein
the petitioner has been shown as a nominee of the account held by the
respondent.

9. Great emphasis has been placed by the learned counsel for the
petitioner on para 31 of the judgment of the Supreme Court in
D. Velusamy
v. D. Patchaiammal, (2010) 10 SCC 469, which reads as under:

“31. In our opinion a “relationship in the nature of
marriage” is akin to a common law marriage. Common
law marriages require that although not being formally
married:

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

CRL.M.C.264/2021 OTHER Page 10 of 24

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

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

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

(See “Common Law Marriage” in Wikipedia on Google.)
In our opinion a “relationship in the nature of marriage”
under the 2005 Act must also fulfil the above
requirements, and in addition the parties must have lived
together in a “shared household” as defined in
Section
2(s) of the Act. Merely spending weekends together or a
one night stand would not make it a “domestic
relationship”.”

Other relevant paras of the abovementioned judgment read as under:

“32. In our opinion not all live-in relationships will
amount to a relationship in the nature of marriage to get
the benefit of the Act of 2005. To get such benefit the
conditions mentioned by us above must be satisfied, and
this has to be proved by evidence. If a man has a “keep”
whom he maintains financially and uses mainly for
sexual purpose and/or as a servant it would not, in our
opinion, be a relationship in the nature of marriage.

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

34. In feudal society sexual relationship between man
and woman outside marriage was totally taboo and

CRL.M.C.264/2021 OTHER Page 11 of 24
regarded with disgust and horror, as depicted in Leo
Tolstoy’s novel Anna Karenina, Gustave Flaubert’s novel
Madame Bovary and the novels of the great Bengali
writer Sharat Chandra Chattopadhyaya.

35. However, Indian society is changing, and this
change has been reflected and recognised by Parliament
by enacting the Protection of Women from
Domestic
Violence Act, 2005.”

10. The Supreme Court in Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC
755, has observed as under:

“Relationship in the nature of marriage

34. Modern Indian society through the DV Act
recognises 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.

35. The definition clause mentions only five categories
of relationships which exhausts itself since the expression
“means”, has been used. When a definition clause is
defined to “mean” such and such, the definition is prima
facie restrictive and exhaustive.
Section 2(f) has not used
the expression “include” so as to make the definition
exhaustive. It is in that context we have to examine the
meaning of the expression “relationship in the nature of

CRL.M.C.264/2021 OTHER Page 12 of 24
marriage”

36. 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 recognised, 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.

37. The distinction between the relationship in the
nature of marriage and marital relationship has to be
noted first. The 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”.

38. 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

CRL.M.C.264/2021 OTHER Page 13 of 24
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:

38.1.(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.

38.2.(b) Domestic relationship between an
unmarried woman and a married adult male.–Situations
may arise when an unmarried adult woman 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.

38.3.(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”.

38.4.(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

CRL.M.C.264/2021 OTHER Page 14 of 24
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.

38.5.(e) Domestic relationship between same sex
partners (gay and lesbians).–
The DV Act does not
recognise such a relationship and that relationship
cannot be termed as a relationship in the nature of
marriage under the Act. The 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 (UK),
have recognised the relationship between the same sex
couples and have brought these relationships into the
definition of domestic relationship.

*****

41. 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.

42. 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 de facto
relationship, marriage-like relationship, cohabitation,
couple relationship, meretricious relationship (now
known as committed intimate relationship), etc.

*****

CRL.M.C.264/2021 OTHER Page 15 of 24

53. 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. [(2006) 5 SCC 475 : (2006) 2 SCC (Cri) 478] 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.

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

55. We have already stated, when we examine whether
a relationship will fall within the expression
“relationship in the nature of marriage” within the

CRL.M.C.264/2021 OTHER Page 16 of 24
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.

56. 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:

56.1.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.

56.2.Shared household.–The expression has been
defined under
Section 2(s) of the DV Act and, hence,
needs no further elaboration.

56.3.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.

CRL.M.C.264/2021 OTHER Page 17 of 24

56.4.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.

56.5.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.

56.6.Children.–Having children is a strong
indication of a relationship in the nature of marriage.
The parties, therefore, intend to have a long-standing
relationship. Sharing the responsibility for bringing up
and supporting them is also a strong indication.

56.7.Socialisation in public.–Holding out to the
public and socialising 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.

56.8.Intention and conduct of the parties.–
Common intention of the 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.”

11. The Supreme Court in Lalita Toppo v. State of Jharkhand, (2019) 13
SCC 796, has observed as under:

“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

CRL.M.C.264/2021 OTHER Page 18 of 24
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 v.
Anantrao Shivram Adhav [Yamunabai Anantrao Adhav v.
Anantrao Shivram Adhav, (1988) 1 SCC 530 : 1988 SCC
(Cri) 182] and Savitaben Somabhai Bhatiya v. State of
Gujarat [Savitaben Somabhai Bhatiya v. State of
Gujarat, (2005) 3 SCC 636 : 2005 SCC (Cri) 787] which
were rendered prior to the coming into force of the DVC
Act, 2005. In view of what has been stated hereinbefore,
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 forum
under the provisions of the DVC Act, 2005, we would
request the said forum to decide the matter as
expeditiously as possible.”

12. The documents placed before this Court shows that the couple has
held themselves out in the society as being akin to spouses which fact is
evident from the marriage-cum-agreement deed, affidavits, the school
records of the child and the bank statements of the respondent. The parties
are majors, they have voluntarily cohabited for a significant period of time.
The respondent has already taken divorce from her husband.

13. The tests laid down in Indra Sarma (supra) i.e. the duration of the
period of the relationship, the question as to whether there was a shared
household or not, the pooling of the resources and financial arrangements,

CRL.M.C.264/2021 OTHER Page 19 of 24
the domestic arrangements, the socialisation in public, the intention and the
conduct of the parties, are all questions of fact which have to be established
by leading evidence. In Indra Sarma (supra), the judgment of the High
Court, which denied protection of the
DV Act to the lady on the ground that
the lady knew that the man, with whom she was living in a relationship, was
already married, can be distinguished on facts. In that case the wife of the
man/respondent therein had opposed the relationship of the respondent
therein and the petitioner therein. The evidence led in that case showed that
the family of the lady/petitioner therein including her father, brother and
sister had also opposed the live-in relationship. After evidence was led, it
was found that the lady/petitioner therein had not given any evidence of
mutual support and companionship between the parties. There was no
projection of their relationship in the public. It was the specific case of the
respondent therein (man) that he never held out to the public that the
petitioner therein (lady) was his wife. There was no evidence of pooling of
resources or of financial arrangements between the parties. The specific case
of the respondent therein (man) was that no joint account was opened and no
document was executed in jointly and that the petitioner therein (lady) was
never permitted to affix the name/surname of the respondent therein. The
conclusions were arrived at after the parties led evidence.

14. In the present case, the specific allegation is that the respondent herein
was told that the wife of the petitioner is on dialysis and that she would die
soon. It is the specific case that for six long years the petitioner and the
respondent were living as husband and wife. Materials in the form of

CRL.M.C.264/2021 OTHER Page 20 of 24
photographs and other documents showing that the petitioner and the
respondent have married each other have been produced. The school records
of the child show that the petitioner herein is shown as the father of the
child. The petitioner herein is shown as a nominee in the bank account held
by the respondent. All these materials have to be examined. It is the
contention of the petitioner that he has not entered into any rental agreement
and that the agreements, affidavits and the photographs produced by the
respondent herein are not genuine. All these facts can be established only
after evidence is led. The question as to whether the respondent herein has
been duped by the petitioner or whether she was a party to an adulterous and
bigamous relationship or not and whether her conduct would not entitle her
for any protection under the
DV Act can be determined only after the
evidence is led, as was done in the case of Indra Sarma (supra).

15. The learned Metropolitan Magistrate vide order dated 26.10.2020, has
directed the petitioner to pay a sum of Rs.10,000/- per month to the
respondent herein as an interim arrangement. The memorandum of grounds
does not challenge the figure of Rs.10,000/- awarded by the learned
Metropolitan Magistrate. The principle challenge is that the order could not
be passed since the application under the
DV Act was not maintainable as
the respondent is not an aggrieved person. Since the case is only at an
interim stage this Court is not inclined to interfere with the direction of the
courts below awarding interim maintenance to the respondent herein towards
maintenance of child and also towards the rent/accommodation.

16. The scope of the revision petition under Sections 397/401 Cr.P.C.

CRL.M.C.264/2021 OTHER Page 21 of 24

read with Section 482 Cr.P.C. is narrow. In State v. Manimaran, reported as
(2019) 13 SCC 670, the Supreme Court observed as under:

“16. As held in State of Kerala v. Puttumana Illath
Jathavedan Namboodiri [State of Kerala v. Puttumana
Illath Jathavedan Namboodiri, (1999) 2 SCC 452 : 1999
SCC (Cri) 275] , ordinarily it would not be appropriate
for the High Court to reappreciate the evidence and
come to its own conclusion on the same when the
evidence has already been appreciated by the
Magistrate as well as by the Sessions Court in appeal.

When the courts below recorded the concurrent
findings of fact, in our view, the High Court was not
right in interfering with the concurrent findings of fact
arrived at by the courts below and the impugned order
cannot be sustained.” (emphasis supplied)

In State of Haryana v. Rajmal, reported as (2011) 14 SCC 326, the Supreme
Court observed as under:

“14. In State of A.P. v. Pituhuk Sreeinvanasa
Rao [(2000) 9 SCC 537 : 2001 SCC (Cri) 642] this
Court held that the exercise of the revisional
jurisdiction of the High Court in upsetting the
concurrent finding of the facts cannot be accepted
when it was without any reference to the evidence on
record or to the finding entered by the trial court and
the appellate court regarding the evidence in view of the
fact that revisional jurisdiction is basically supervisory
in nature.

It has been also held by this Court in Amar Chand
Agarwalla v. Shanti Bose [(1973) 4 SCC 10 : 1973 SCC
(Cri) 651 : AIR 1973 SC 799] that the revisional
jurisdiction of the High Court under
Section 439 CrPC
is to be exercised, only in an exceptional case, when

CRL.M.C.264/2021 OTHER Page 22 of 24
there is a glaring defect in the procedure or there is a
manifest error on a point of law resulting in a flagrant
miscarriage of justice. (SCC p. 20, para 17 of the
Report.)” (emphasis supplied)

In State of Kerala v. Puttumana Illath Jathavedan Namboodiri, reported as
(1999) 2 SCC 452, the Supreme Court observed as under:

“5. Having examined the impugned judgment of the High
Court and bearing in mind the contentions raised by the
learned counsel for the parties, we have no hesitation to
come to the conclusion that in the case in hand, the High
Court has exceeded its revisional jurisdiction. In its
revisional jurisdiction, the High Court can call for and
examine the record of any proceedings for the purpose of
satisfying itself as to the correctness, legality or propriety
of any finding, sentence or order. In other words, the
jurisdiction is one of supervisory jurisdiction exercised
by the High Court for correcting miscarriage of justice.
But the said revisional power cannot be equated with
the power of an appellate court nor can it be treated
even as a second appellate jurisdiction. Ordinarily,
therefore, it would not be appropriate for the High
Court to re-appreciate the evidence and come to its own
conclusion on the same when the evidence has already
been appreciated by the Magistrate as well as the
Sessions Judge in appeal, unless any glaring feature is
brought to the notice of the High Court which would
otherwise tantamount to gross miscarriage of justice.
On scrutinizing the impugned judgment of the High
Court from the aforesaid standpoint, we have no
hesitation to come to the conclusion that the High Court
exceeded its jurisdiction in interfering with the conviction
of the respondent by re-appreciating the oral evidence.
The High Court also committed further error in not
examining several items of evidence relied upon by the

CRL.M.C.264/2021 OTHER Page 23 of 24
Additional Sessions Judge, while confirming the
conviction of the respondent. In this view of the matter,
the impugned judgment of the High Court is wholly
unsustainable in law and we, accordingly, set aside the
same. The conviction and sentence of the respondent as
passed by the Magistrate and affirmed by the Additional
Sessions Judge in appeal is confirmed. This appeal is
allowed. Bail bonds furnished stand cancelled. The
respondent must surrender to serve the sentence.”

(emphasis supplied)
It cannot be said that the order of the courts below warrants interference of
this Court by exercising its revisional jurisdiction.

17. In case the Metropolitan Magistrate, after evidence is led, comes to a
conclusion that the respondent herein was not entitled to the protection of
the
DV Act then adequate safeguards must be made to ensure that the
respondent returns the amount received by her as interim maintenance in
terms of the order dated 26.10.2020, passed by the learned Metropolitan
Magistrate back to the petitioner with interest. The rate of interest is to be
fixed by the Metropolitan Magistrate. The learned Trial Court is directed to
hear the matter and decide the matter finally within a period of one year.

18. With these observations, the petitions are dismissed along with all the
pending applications.

SUBRAMONIUM PRASAD, J.

JUNE 07, 2021
Rahul

CRL.M.C.264/2021 OTHER Page 24 of 24

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