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Smt. Kala Devi vs Shri Mehar Singh And Ors on 9 December, 2019

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 183 of 2019
Reserved on : 25.11.2019
Date of Decision: 9 .12.2019.
__
[

.
Smt. Kala Devi ………Petitioner.

Versus
Shri Mehar Singh and Ors. ……….Respondents.

Coram

Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
For the petitioner: Mr. J.L. Bhardwaj, Advocate.
For the respondents: Mr. Vijay K. Verma, Advocate.
__

Sandeep Sharma, J. (Oral)

Petitioner-applicant (hereinafter referred to as “the applicant”)

filed an application under Section 12 of the Protection of Women from

Domestic Violence Act, 2005 (in short “the Act”) in the Court of learned

Judicial Magistrate Kullu, District Kullu, H.P., praying therein; (i) protection order

under Section 18 of the Women from Domestic Violence; (ii) residence order

under Section 19 of the Women from Domestic Violence; and (iii) monetary

relief under Section 20 of the Women from Domestic Violence i.e. medical

expenses to the tune of Rs. 50,000/- and physical and mental harassment Rs.

1,00,000/-. Apart from above, applicant also prayed for sum of Rs. 1,50,000/-

on account of food, clothes and other necessities. In total, the applicant

beside claiming monthly maintenance in the sum of Rs. 5,000/- claimed Rs.

7,00,000/-.

2. The applicant claimed that her marriage with respondent No.1

was solemnized in the month of July, 2012, according to Hindu Rites and

Customs and as such, she being legally wedded wife of respondent No.1 is

Whether reporters of the Local papers are allowed to see the judgment?

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entitled for maintenance under the Act. Applicant claimed that after

solemnization of her marriage, she lived with respondent No.1 as legally

wedded wife and performed her marital obligations sincerely towards her

.

husband i.e. respondent No.1 and his family members. She also stated in the

application that she is a divorcee and out of her first marriage, two children

were born, who at presently are living with their maternal grandmother.

Applicant claimed that her relationship with respondent No.1 was cordial for

about 3-4 months, whereafter he started demanding money from the

applicant but when she expressed her inability to fulfill the demands made by

the respondent, respondent No.1 allegedly under the influence of liquor

started beating, maltreating and torturing her without any reason at the

instance of respondents No. 2 to 4. The applicant also claimed that she was

not provided with proper food and clothing. In the second week of

December, 2013, applicant/petitioner escaped from the house of respondent

No.1 and started living at village namely Sarabai, P.O. Bhuntar, District Kullu,

H.P. Complainant claimed that she repeatedly requested the respondents to

provide monthly maintenance to her, but her such request was not acceded

to. Complainant claimed that her mother is a very poor person and is unable

to provide proper food, medical expenses and clothing to her, whereas

respondent No.1 belongs to a very rich family having sufficient movable and

immovable property and is earning more than Rs. 40,000/- p.m. The applicant

claimed that she has no source of income and is unable to maintain herself

and as such, appropriate orders may be passed.

3. The aforesaid application filed by the applicant came to be

resisted by the respondent, who in his reply stated that the applicant is not his

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legally wedded wife. Respondent No.1 also denied factum, if any, with regard

to solemnization of marriage inter-se him and the applicant. Respondent also

denied the allegation of beatings, maltreating or torturing of the applicant.

.

4. Learned CJM, Kullu, District Kullu, H.P., vide order dated 21.6.2018,

dismissed the application of the applicant on the ground that applicant has

not been able to prove that she is legally wedded wife of respondent No.1 or

she is in domestic relationship with respondent No.1 (Annexure P-4).

5. Being aggrieved and dissatisfied with aforesaid order passed by

the learned CJM, Kullu, the applicant preferred an appeal under Section 29 of

the Act i.e. criminal appeal No. 19 of 2018 in the court of learned Additional

Sessions Judge, Kullu, H.P., who vide order dated 4.12.2018, dismissed the

appeal, as a consequence of which, aforesaid order passed by the CJM

came to be upheld. In the aforesaid background, the applicant has

approached this Court in the instant proceedings filed under Section 397 read

with Section 401 Cr.PC, praying therein to allow her application under Section

12 of the Act, after setting aside impugned order and judgment passed by the

courts below.

6. I have heard the learned counsel for the parties and gone

through the records.

7. Having heard learned counsel for the parties and perused

material available on record, this Court finds that though in the case at hand,

respondent claimed that applicant is not his legally wedded wife, but both the

courts below on the basis of cogent and convincing evidence led on record

by the applicant arrived at a definite conclusion that marriage inter-se

applicant and respondent No.1 was solemnized.

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8. Since there is no challenge to the finding recorded by both the

courts below with regard to solemnization of marriage inter-se applicant and

respondent No.1 on behalf of the respondent-husband, there is no occasion

.

for this Court to go into that aspect of the matter. Otherwise also, having

carefully perused material adduced on record by the applicant to

substantiate her marriage with respondent No.1, this court sees no reason to

differ with the aforesaid findings returned by both the courts below.

9. Though, in the case at hand, both the courts below have

categorically held that it stands duly established on record that respondent

No.1 had solemnized marriage with the applicant, but since the applicant was

unable to prove on record that she had not solemnized marriage with

respondent No.1 during the subsistence of her earlier marriage with person

namely Jai Singh, both the courts below held that applicant is neither legally

wedded wife of respondent No.1 nor she is in domestic relationship with him.

Material available on record reveals that applicant prior to her marriage with

respondent No.1 had solemnized marriage with two persons namely Jai Singh

and Hari Ram, respectively

10. RW3 Hari Ram deposed before the court below that he

contracted marriage with the applicant about 10 to 12 years back and

thereafter took divorce in the year, 2006 as per local custom. This witness in his

cross-examination admitted that no entry ever came to be made in the record

of Panchayat qua his marriage with the applicant. This witness also admitted

that no issue was born out of their wedlock.

11. The applicant Kala Devi while appearing as AW3 tendered her

evidence by way of affidavit Ext.AW3/A and deposed that she is legally

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wedded wife of respondent No.1 and her marriage with respondent No.1 was

solemnized in the month of July, 2012 according to Hindu Rites and Customs.

The applicant also deposed that she is a divorcee and out of her first marriage,

.

two children were born, who at presently, are living with their maternal

grandmother. In her cross-examination, the applicant admitted that she had

contracted two marriages; one with Jai Singh; and other with Mehar

Chand/Singh (respondent No.1), whereas it has come on record that prior to

contracting marriage with Jai Singh, the applicant had also contracted

marriage with RW2 Hari Ram. Though the applicant denied the suggestion put

r to
to her that in the year, 2004, she had contracted marriage with Hari Ram, but

RW3 Hari Ram categorically stated before the court below that he had

contracted marriage with the applicant about 10 to 12 years back. The

applicant Kala Devi with a view to prove her divorce with her earlier husband

Jai Singh also placed on record divorce deed Ext. AW1/A. With a view to

prove the aforesaid deed, the applicant examined AW1 Shri Narayan Dass,

Document Writer, who deposed that divorce deed Ext. AW1/A was written by

him at the instance of the applicant Kala Devi and respondent Jai Singh in the

presence of witness namely Shri Balwant, Pyaru Ram and identifier Daya Ram.

This witness deposed that he had read over and explained the contents of the

divorce deed Ext. AW1/A to both the parties, which were accepted by them

to be correct. This witness also deposed that entry of divorce deed in register is

at Sr. No. 350 and 351 dated 26.6.2012(ExtAW1/B). In his cross-examination, this

witness feigned ignorance that the applicant had not disclosed to him that she

had already contracted marriage. He also admitted that he did not ask the

applicant about her earlier marriage. AW2 Daya Ram, Lambardar, also

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deposed that at the instance of both the parties i.e. Kala Devi and Jai Singh,

divorce deed Ext. AW1/A was written by Narayan Dass, Document Writer. In

his cross-examination, this witness also feigned ignorance with regard to the

.

applicant’s earlier marriage with Hari Ram/Hari Singh.

12. If the statement of the applicant is read juxtaposing the

statements having been made by AW1 Sh. Narayan Dass and AW2 Daya

Ram, it clearly emerges that the applicant prior to her marriage with

respondent No.1 had also contracted marriage with Jai Singh, but thereafter

they both by way of customary divorce separated from each other on

26.6.2012 (Ext.AW1/A).

13.

In the case at hand, though it clearly emerges from the evidence

collected on record by the applicant that applicant before contracting

marriage with respondent No.1 had taken customary divorce from her earlier

husband Jai Singh, but such fact with regard to her having taken customary

divorce from Jai Singh never came to be pleaded nor proved in accordance

with law. As has been taken note herein above, the applicant in her

application though has disclosed factum with regard to her earlier marriage,

but there is no specific pleading with regard to her having taken customary

divorce from her earlier husband Jai Singh. In para-3 of the application, the

applicant has simply averred that she is a divorcee and out of her first

marriage, two children were born, who at presently, are living with their

maternal grandmother. As per the applicant, she is legally wedded wife of

respondent No.1 and she had taken divorce from her previous husband. She

has further stated that she is Hindu and her marriage with respondent No.1 was

solemnized as per Hindu Rites. Needless to say, marriage inter-se Hindus can

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be dissolved by way of decree of divorce passed by the competent court

strictly in terms of provisions contained in the SectionHindu Marriage Act or by

customary divorce.

.

14. It is well settled that when plea of customary divorce is taken,

custom is to be pleaded and proved in accordance with law. In the case at

hand the applicant has neither pleaded custom nor has been able to prove

that she took customary divorce from her earlier husband Jai Singh. Since

applicant failed to plead any custom, execution of divorce deed Ext. AW1/A is

of no relevance and it cannot be said that marriage of the applicant with Jai

Singh was dissolved in accordance with law. The applicant deposed that she

was having two children from her first marriage, who are living with their

material grandmother, whereas RW3 Hari Ram, deposed that he had

contracted marriage with the applicant about 10 to 12 years back and

thereafter took divorce in the year, 2006. This witness in his cross-examination

admitted that no issue was born from their wedlock, meaning thereby, the

applicant prior to her marriage with Jai Singh was also married with one

another person.

15. As per Section 12 of the Act, an aggrieved person can file

application/complaint under Section 12 of the Act against the respondent. As

per provisions contained under Section 2 (a) of the act, “an aggrieved person”

means any woman, who is in domestic relationship with the respondent and

alleges that she has been subjected to domestic violence by the respondent.

In the instant proceedings, precisely the question needs to be determined is

“whether relationship of the applicant and respondent No.1 can be said to be

relationship in the nature of marriage and thus falls within the definition of

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domestic relationship as defined under Section 2 (f) of the Act?” Though in the

case at hand, material available on record suggests that marriage of the

applicant with respondent No.1 was solemnized, but since dissolution of her

.

earlier marriage with person namely Jai Singh was not proved in accordance

with law, courts below have rightly held that applicant was not competent to

enter legal marriage with respondent No.1. The expression “domestic

relationship” includes not only the relationship of marriage, but also a

“relationship in the nature of marriage”.

16. Unfortunately, expression “relationship in the nature of marriage”

has not been defined in

the Act. Hon’ble Apex Court,

noticed/observed aforesaid discrepancy/shortcoming in the Act and necessity

to interpret the aforesaid expression, made an endeavor to define the
having

expression “relation in nature of marriage” in the case titled D. Velusamy v. D.

Patchaiammal, 2010 (10) SCC 469. In the aforesaid judgment, the Hon’ble

Apex Court held that all living relationships will amount to relationship in the

nature of marriage to get the benefit of the Act, of 2005, but to get such

benefit, following conditions must be satisfied, which need to be proved by the

evidence; (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 and (d)

They must have voluntarily cohabited and held themselves out to the world as

being akin to spouses for a significant period of time.

17. Apart from above, the Hon’ble Apex Court also held that if a

man has a `keep’ whom he maintains financially and uses mainly for sexual

purpose and/or as a servant, it would not be a relationship in the nature of

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marriage’. Most importantly, the Hon’ble Apex Court in the aforesaid judgment

held that to have benefit of Act of 2005, it must be proved that couple was

otherwise qualified to enter into a legal marriage, including being unmarried.

.

In the case at hand, though subsequent marriage of the applicant with the

respondent stands proved to certain extent, but since there is no evidence

with regard to customary divorce, if any, taken by the her prior to her marriage

with respondent No.1, she cannot be said to be legally qualified to enter into

legal marriage, which she subsequently solemnized with respondent No.1.

Hence, applicant cannot claim benefit if any, of the Act, of 2005. Relevant

reproduced herein below:

r to
paras of aforesaid judgment (SectionD. Velusamy v. D. Patchaiammal’s case) are

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

person has not even been married obviously that person could not be
divorced. Hence the respondent herein cannot claim to be the wife
of the appellant herein, unless it is established that the appellant was
not married to Lakshmi.

14. However, the question has also be to be examined from the point
of view of The Protection of Women from SectionDomestic Violence Act,

2005. Section 2(a) of the Act states:

“2(a) “aggrieved person” means any woman who is, or has
been, in a domestic relationship with the respondent and who

alleges to have been subjected to any act of domestic
violence by the respondent”;

Section 2(f) states :

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

15. Section 2(s) states:

“2(s) “shared household” means a household where the person
aggrieved lives or at any stage has lived in a domestic relationship
either singly or along with the respondent and includes such a
household whether owned or tenanted either jointly by the aggrieved
person and the respondent, or owned or tenanted by either of them

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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.”

16.Section 3(a) states that an act will constitute domestic violence in

.

case it-

“3(a) harms or injures or endangers the health, safety, life, limb or well-

being, whether mental or physical, of the aggrieved person or tends
to do so and includes causing physical abuse, sexual abuse, verbal
and emotional abuse and economic abuse;” or (emphasis supplied)

17. The expression “economic abuse” has been defined to include :
“(a) deprivation of all or any economic or financial resources to which
the aggrieved person is entitled under any law or custom whether
payable under an order of a court or otherwise or which the
aggrieved person requires out of necessity including, but not limited
to, household necessities for the aggrieved person and her children, if

any, stridhan, property, jointly or separately owned by the aggrieved
person, payment of rental related to the shared household and
maintenance”.

(emphasis supplied)

18. An aggrieved person under the Act can approach the Magistrate
under Section 12 for the relief mentioned in Section 12(2). Under

Section 20(1)(d) the Magistrate can grant maintenance while

disposing of the application under Section 12(1). Section
26(1) provides that the relief mentioned in Section 20 may also be
sought in any legal proceeding, before a civil court, family court or a
criminal court.

19. Having noted the relevant provisions in The Protection of Women

from SectionDomestic Violence Act, 2005, we may point out that the
expression `domestic relationship’ includes not only the relationship of
marriage but also a relationship `in the nature of marriage’. The
question, therefore, arises as to what is the meaning of the expression

`a relationship in the nature of marriage’. Unfortunately this expression
has not been defined in the Act. Since there is no direct decision of
this Court on the interpretation of this expression we think it necessary

to interpret it because a large number of cases will be coming up
before the Courts in our country on this point, and hence an
authoritative decision is required.

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

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

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

23. In USA the expression `palimony’ was coined which means grant of

.

maintenance to a woman who has lived for a substantial period of
time with a man without marrying him, and is then deserted by him

(see `palimony’ on Google). The first decision on palimony was the
well known decision of the California Superior Court in Marvin vs.
Marvin (1976) 18 C3d660. This case related to the famous film actor
Lee Marvin, with whom a lady Michelle lived for many years without

marrying him, and was then deserted by him and she claimed
palimony. Subsequently in many decisions of the Courts in USA, the
concept of palimony has been considered and developed. The US
Supreme Court has not given any decision on whether there is a legal
right to palimony, but there are several decisions of the Courts in
various States in USA. These Courts in USA have taken divergent views,

some granting palimony, some denying it altogether, and some
granting it on certain conditions. Hence in USA the law is still in a state
of evolution on the right to palimony.

24. Although there is no statutory basis for grant of palimony in USA,

the Courts there which have granted it have granted it on a
contractual basis. Some Courts in USA have held that there must be a

written or oral agreement between the man and woman that if they
separate the man will give palimony to the woman, while other Courts
have held that if a man and woman have lived together for a
substantially long period without getting married there would be
deemed to be an implied or constructive contract that palimony will
be given on their separation.

25. In Taylor vs. Fields (1986) 224 Cal. Rpr. 186 the facts were that the
plaintiff Taylor had a relationship with a married man Leo. After Leo
died Taylor sued his widow alleging breach of an implied agreement

to take care of Taylor financially and she claimed maintenance from
the estate of Leo. The Court of Appeals in California held that the
relationship alleged by Taylor was nothing more than that of a married

man and his mistress. It was held that the alleged contract rested on
meretricious consideration and hence was invalid and
unenforceable. The Court of Appeals relied on the fact that Taylor did
not live together with Leo but only occasionally spent weekends with

him. There was no sign of a stable and significant cohabitation
between the two.

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

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27. Thus, there are widely divergent views of the Courts in U.S.A.
regarding the right to palimony. Some States like Georgia and
Tennessee expressly refuse to recognize palimony agreements.

28. Written palimony contracts are rare, but some US Courts have
found implied contracts when a woman has given up her career, has
managed the household, and assisted a man in his business for a

.

lengthy period of time. Even when there is no explicit written or oral
contract some US Courts have held that the action of the parties

make it appear that a constructive or implied contract for grant of
palimony existed. However, a meretricious contract exclusively for
sexual service is held in all US Courts as invalid and unenforceable.

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

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

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.

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

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

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

period of time.

(see `Common Law Marriage’ in Wikipedia on Google) In our
opinion a `relationship in the nature of marriage’ under the
2005 Act must also fulfill the above requirements, and in
addition the parties must have lived together in a `shared

household’ as defined in Section 2(s) of the Act. Merely
spending weekends together or a one night stand would not
make it a `domestic relationship’.

32. In our opinion not all live in relationships will amount to a
relationship in the nature of marriag8e to get the benefit of the Act of
2005. To get such benefit the conditions mentioned by us above must
be satisfied, and this has to be proved by evidence. If a man has a
`keep’ whom he maintains financially and uses mainly for sexual
purpose and/or as a servant it would not, in our opinion, be a
relationship in the nature of marriage’

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,

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but then it is not for this Court to legislate or amend the law.
Parliament has used the expression `relationship in the nature of
marriage’ and not `live in relationship’. The Court in the grab of
interpretation cannot change the language of the statute.

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

.

horror, as depicted in Leo Tolstoy’s novel `Anna Karenina’, Gustave
Flaubert’s novel `Madame Bovary’ and the novels of the great Bengali

writer Sharat Chandra Chattopadhyaya.”

18. Reliance is also placed on judgment passed by the Bombay High

Court in case titled Narayan Jangluji Thool and Ors v. Mala Chandan Wani, AIR

2015 Bombay 36, which reads as under:

“5. Learned Counsel for the respondent has strongly opposed the
petition. He submits that these are all factual aspects of the
case, cwp773.14.odt 3/6 which can be decided only after detailed
evidence is available and, therefore, this objection should be left for
it’s appropriate consideration by the trial Court. He submits that

whether the respondent was in domestic relationship or not with
petitioner No.1 can be appropriately decided in the light of the

contentions and evidence brought on record only by the trial Court.
Therefore, he submits that this petition may be dismissed.

6. In the case of Durgesh Yuvraj Rahangdale (supra), Division Bench of
this Court, following the law laid down by the Hon’ble Apex Court in

the case of D. Velusamy Vs. D. Patchaiammal – AIR 2011 SC 479, has
held that all live-in-relationships do not amount to relationships in the
nature of marriage so as to get the benefit of the Act, 2005. It further
held that it is necessary for the applicant and the non-applicant to
live in such a way that they are treated by the society at large as

husband and wife and not only that they should also otherwise be
qualified to enter into a legal marriage, with both of them being of
legal age to marry, both of them being unmarried at the time when

they enter into a relationship which is akin to a marriage and so on.

7. It is thus clear that in order to attract the provisions of the Act, 2005,

the applicant must not only show existence of a live-in-

cwp773.14.odt 4/6 relationship with the non-applicant which is akin to
a marriage which is visible from the fact that applicant and non-
applicant are living together by holding out as husband and wife, and
should also show that they are otherwise legally qualified to marry.

8. In the case of Indra Sarma (supra), the Hon’ble Apex Court clarified
the issue as to whether or not a concubine or a mistress, who is living
together with a man for a considerably long period of time, would be
entitled to derive benefits of the provisions of the Act, 2005 by
contending that she is in “domestic relationship” with that man.

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The Hon’ble Apex Court has held that even though long standing
relationship as a concubine deserves some protection in order to
provide her financial stability, her such relationship not being in the
nature of marriage cannot be termed as domestic relationship as
contemplated by the Act, 2005. Hon’ble Apex Court has categorically
held that the provisions of the Act, 2005 do not take care of such a
relationship because the definition of Section 2(f) of the Act, 2005 is

.

restricted and exhaustive. Hon’ble Apex Court has also expressed a
view that perhaps this definition may call for an amendment.

9. So, it is crystal clear that a woman, who is married, cannot enter into
a domestic relationship as contemplated under Section 2(f) of the
Act, 2005 and even if she establishes a long standing cwp773.14.odt

5/6 relationship with a man as his concubine or mistress, she would not
be entitled for protection under the provisions of the Act, 2005.”

Emphasis supplied

19. Reliance is also placed on judgment passed by the Hon’ble

Supreme Court in case titled SectionIndra Sarma v. V.K. V. Sarma, (2013) 15 SCC 755,

which reads as under:

“29. The parties in the present case are Hindus by religion and are
governed by the SectionHindu Marriage Act, 1955. The expression
“marriage”, as stated, is not defined under the SectionHindu 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.”

30. 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.”

.

31. Entering into a marriage, therefore, either through the SectionHindu

Marriage Act or the SectionSpecial 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).

32. 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.

33. 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:

34. Modern Indian society through the SectionDV 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.

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

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definition is prima facie restrictive and exhaustive. Section 2(f) has not
used the expression “include” so as to make the definition exhaustive.
It is in that context we have to examine the meaning of the expression
“relationship in the nature of marriage”.

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 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.

37. The 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”.

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 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 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.

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

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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 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): SectionDV 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 SectionDomestic 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
r Domestic relationship.

39. 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 SectionDV Act.

40. 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.

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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 defacto relationship,
marriage – like relationship, cohabitation, couple relationship,
meretricious relationship (now known as committed intimate

relationship) etc.

STATUS OF THE APPELLANT

57. 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 SectionBadri Prasad v. Director
of Consolidation 1978 (3) SCC 527 and SectionTulsa v. Durghatiya 2008 (4)
SCC 520.

58. 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.

59. 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

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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.

60. 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.

61. 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.

62. American Jurisprudence, Second Edition, Vol. 24 (2008) speaks of
Rights and Remedies of property accumulated by man and woman
living together in illicit relations or under void marriage, which reads as
under:

“Although the courts have recognized the property rights of persons
cohabiting without benefit of marriage, these rights are not based on
the equitable distribution provisions of the marriage and divorce laws
because the judicial recognition of mutual property rights between

unmarried cohabitants would violate the policy of the state to
strengthen and preserve the integrity of marriage, as demonstrated
by its abolition of common-law marriage.”

63. Such relationship, it may be noted, may endure for a long time
and can result pattern of dependency and vulnerability, and

increasing number of such relationships, calls for adequate and
effective protection, especially to the woman and children born out
of that live-in-relationship. Legislature, of course, cannot promote pre-
marital sex, though, at times, such relationships are intensively
personal and people may express their opinion, for and against. SectionSee S.
Khushboo v. Kanniammal and another (2010) 5 SCC 600.

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

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65. We may now consider whether the tests, we have laid down, have
been satisfied in the instant case. We have found that the appellant
was not ignorant of the fact that the respondent was a married
person with wife and two children, hence, was party to an adulterous
and bigamous relationship. Admittedly, the relationship between the
appellant and respondent was opposed by the wife of the
respondent, so also by the parents of the appellant and her brother

.

and sister and they knew that they could not have entered into a
legal marriage or maintained a relationship in the nature of marriage.

Parties never entertained any intention to rear children and on three
occasions the pregnancy was terminated. Having children is a strong
circumstance to indicate a relationship in the nature of marriage. No
evidence has been adduced to show that the parties gave each

other mutual support and companionship. No material has been
produced to show that the parties have ever projected or conducted
themselves as husband and wife and treated by friends, relatives and
others, as if they are a married couple. On the other hand, it is the
specific case of the appellant that the respondent had never held out
to the public that she was his wife. No evidence of socialization in

public has been produced. There is nothing to show that there was
pooling of resources or financial arrangements between them. On the
other hand, it is the specific case of the appellant that the respondent
had never opened any joint account or executed any document in
the joint name. Further, it was also submitted that the respondent
never permitted to suffix his name after the name of the appellant. No

evidence is forthcoming, in this case, to show that the respondent had

caused any harm or injuries or endangered the health, safely, life, limb
or well- being, or caused any physical or sexual abuse on the
appellant, except that he did not maintain her or continued with the
relationship.

20. Careful perusal of aforesaid exposition of law laid down by the

Hon’ble Supreme Court, reveals that ‘domestic relationship’ would mean

relationship between two persons who live or have, at any point of time, lived

together in a shared household through a relationship in the nature of

marriage. Though the expression “relationship in the nature of marriage” has

been described as de facto relationship, marriage-like relationship,

cohabitation, couple relationship, meretricious relationship, but as has been

observed herein above, person intending to have benefit of Act of 2005 is

necessarily required to prove that he/she is/was otherwise qualified to enter

into a legal marriage. In Gokal Chand v. Parvin Kumari AIR 1952 SC 231, which

has been otherwise taken note in the judgment referred herein above, the

Hon’ble Supreme Court has held that continuous cohabitation of man and

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woman as husband and wife may raise the presumption of marriage, but the

presumption which may be drawn from long cohabitation is a rebuttable one

and if there are circumstances which weaken and destroy that presumption,

.

the Court cannot ignore them. A relationship by way of a bigamous marriage

i.e. someone already married to another and maintaining an adulterous

relationship, cannot be said to be relationship in the nature of marriage. In the

case at hand, it stands duly proved on record that the petitioner solemnized

marriage with the respondent during the subsistence of her earlier marriage

and as such, marriage of the petitioner with respondent would definitely

21.

r to
amount to bigamous marriage and such, marriage definitely cannot be said to

be relationship in the nature of marriage.

Consequently, in view of the above, this Court sees no illegality

and infirmity in the impugned judgments passed by the courts below, which

otherwise appear to be based upon proper appreciation of material available

on record, and as such, same is upheld. Accordingly, present petition is

dismissed being devoid of any merits.

9th December, 2019 (Sandeep Sharma),

manjit Judge.

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