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Smt. Shikharani vs Hitendra Chudasma on 27 February, 2020

THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Hon’ble Shri Justice Rajendra Kumar Srivastava

Cr.R. No. 2299/2019

Smt. Shikharani

Vs

Hitendra Chudasma

————————————————————————————
Shri Shafiqullah, learned counsel for the petitioner.
Shri Abhishek Acharya, learned counsel for the respondent.
———————————————————————————–

ORDER

(27.02.2019)

Petitioner has filed this Criminal Revision under

Section 397/401 of Cr.P.C. against the order dated 23.04.2019,

passed by the Additional Sessions Judge, Jabalpur (MP), in

Criminal Appeal No. 432/2017 450/2017arising out of the

order dated 02.11.2017 in criminal Case No. 3200024/12,

passed by JMFC Jabalpur, whereby the learned JMFC has

considered the application filed by the petitioner under Section

12 of Protection of Women from Domestic Violence Act, 2005

(hereinafter referred as ‘Act 2005’) and order to pay

maintenance amount of Rs. 3000/- per month to the petitioner

and Rs. 2000/- per month to her son. Further, it is also directed

that the respondent shall also pay Rs. 5000/- as compensation

and Rs. 1000/- per month for arranging the residence of the
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petitioner. In appeal, the learned Appellate Court has set aside

the order dated 02.11.2017.

2. According to case, petitioner/applicant has preferred

an application under Section 12 of Act, 2005 stating that her

marriage was solemnized with the respondent/non-applicant on

13.04.2011 according to Hindu rites and rituals and they have

been blessed with one male child namely Ayush Kumar. The

respondent and his family members maltreated the petitioner and

they demanded one Maruti Car, one gold Chain and Rs.7,00,000/-

as dowry. She further contended that the respondent has blamed

on her character and committed sexual assault with her. The

respondent has not fulfilled basic need of the petitioner. Her son-

Ayush is studying and she has no source of income to take care

of him properly. She further stated that the respondent restricted

her to go out from the house, moreover, without taking her

consent, the respondent had sold her stridhan and other valuable

article. She further alleged that the respondent tried to throw her

son from the terrace. She also prays to give interim compensation

under the act.

3. On reply, the respondent stated that the petitioner has

filed a false case against him and the facts narrated by her are

concocted. The petitioner had suppressed the fact that she was

already married with one Dhananjay Mandal and she is having

two daughter to him. When this fact came to knowledge of the

respondent, the petitioner started quarrel with him. He further

stated that the petitioner demanded Rs. 4,00,000/- and threatened

him to falsely implicate in the case. The family members of the
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respondent were not involved in the case in any manner even

then the petitioner has also implicated them. He stated about his

income saying that he is under suspension period whereas the

petitioner is earning Rs. 20,000/- to 25,000/- from her beauty

parlour work.

4. After evaluating the evidence available in the case,

the learned JMFC found that the respondent committed domestic

violence with the petitioner and her son. The JMFC has directed

the respondent to pay the maintenance and compensation amount

as aforesaid.

5. Being aggrieved by the order passed by learned

JMFC, both the parties have approached the Appellate Court by

filing the appeals. By the impugned order, the learned ASJ has

allowed the appeal filed by the respondent and dismissed the

another which was filed by the petitioner. The ASJ has set aside

the order dated 02.11.2017 on the ground that the relation

between the petitioner and respondent is not akin to marriage.

6. Learned counsel for the petitioner submits that the

learned Appellate Court erred in reversing the order passed by

the learned trial Court by giving the finding that there is no

relation of marriage between the petitioner and respondent. The

learned ASJ failed to consider that the parties have performed

marriage on 13.04.2011 and they have been blessed with one

child also. The order passed by the learned Appellate Court is

based upon the assumption and presumption only. The Court has

also overlooked the fact that the validity of marriage between the

parties is still under adjudication before the High Court. In this
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proceeding of Domestic Violence Act, the Court cannot decide

the validity of marriage, same is only be decided by appropriate

Court of law. He further submits that the learned Appellate Court

ignored the provision of Section 2(f), 20 and 26 of the Act 2005.

Apart from that the petitioner have no source of income and she

needs of money for welfare of her son. With the aforesaid, he

prays for allowing this petition. In support of his contention, he

has relied on the judgments of Hon’ble Apex Court in the case of

D. Velusamy Vs. D. Patchaiammal reported in 2011 CRI. L. J.

320, Chanmuniya Vs. Virendra Kumar Singh Kushwaha

another reported in 2011 Cri. L.J. 96 and Lalita Toppo Vs.

State of Jharkhan reported in 2018 SCC Online SC 2301.

7. On the other hand, learned counsel for the respondent

opposes the submission made by learned counsel for the

petitioner and submits that the learned Appellate Court has

passed the order in accordance with law. He submits that

undisputedly the petitioner is already married with one

Dhananjay Mandal even then she performed second marriage

with the respondent without taking legal divorce from her earlier

husband. Thus , the marriage of petitioner performed with the

respondent, is void. He further submits that when the respondent

has sent a legal notice of divorce to the petitioner, the petitioner

has filed a false complaint against the respondent. The petitioner

herself admitted that she has not taken divorce from her earlier

husband and two daughter of her is residing at Andhra Pradesh.

Since the petitioner and respondent are not living as husband and

wife in society as well as the petitioner is already married with
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another man, her marriage with the respondent, without taking

divorce, cannot be recognized. He submits that the Appellate

Court has rightly relied on the pronouncement of Hon’ble the

Supreme Court in the case of D.Velusamy Vs. D Patchaiammal

reported in (2010) 1 SCC 469. Section 5(1) of Hindu Marriage

Act bar the marriage between the two in case of a spouses living

at the time of marriage. In the case, earlier husband of the

petitioner namely Dhananjay Mandal is still alive. Apart from

that to establish the case under Section 12 of Domestic Violence

Act it is necessary to prove that the women was tortured mentally

and physically, merely to say that women was tortured, is not

sufficient to bring the case under the Act 2005. The complaint

filed by the petitioner is also time barred as same was filed after

one year whereas the time limit of one year is prescribed for

filing the complaint under the Act 2005. Under Section 2(a), the

definition of aggrieved person is provided and under the same,

the child does not come, thus the child of petitioner is not

entitled to get any maintenance under the Act 2005. He also

submits that vide the judgment and decree dated 29.10.2018, the

Court has declared, the marriage void ab intio of the petitioner

and respondent. With the aforesaid he prays for dismissal of this

petition. In support of his contention, he has relied on the

judgments of Hon’ble Apex Court in the case of D. Velusamy

(Supra), Gullipilli Sowria Raj Vs. Bandaru Pavani @ Gulli

Pilli Pavani reported in 2009(1) MPWN 76. He has also relied

on the judgments of Bombey High Court in the case of Narayan

Janluji Thool and other Vs. Sou. Mala passed in W.P. No.
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773/2014 and Reshma Begum Vs. The State of Maharashtra

and another passed in Criminal Revision Application No.

82/2017.

8. Heard both the parties and perused the record.

9. As the learned counsel for the respondent raised the

ground of limitation, It would be appropriate to decide the same

first. According to respondent, there is limitation period of one

year is prescribed for filing the application under Act 2005. On

careful reading of the Act, there is no limitation period is

prescribed for filing the same. In the case of Anthony Jose Vs.

State of NCT, reported in 2018 SCC Online Del 12956 the High

Court of Delhi held that the matrimonial offences are continuing

offences and can not be discarded on the ground of limitation. It

is held by the High Court of Delhi that not giving the

maintenance is continuing offence and wife can not be debarred

from seeking maintenance under the Act 2005 even after three

years.

10. Now I shall consider other merits of the case. On

perusal of record, undisputedly, the marriage of respondent was

solemnized with the petitioner on 13.04.2011 and they have been

blessed with one male child. It is also not in dispute that the

petitioner was already married with one Dhananjay Mandal and

she had not taken a valid divorce from him. Although, she stated

that under the mutual consent, according to her conventions, she

had taken divorce from earlier husband. On perusal of order

passed by learned JMFC, it appears that the JMFC found that the

petitioner was residing at shared household of the respondent’s
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family and there was well domestic relationship was established

between the petitioner and respondent. The learned Magistrate

does not find prove any case against the family members of the

respondent but the Magistrate found that the respondent has

committed domestic violence against the petitioner. In appeal the

learned Appellate Court has reversed the order of the learned

JMFC by relying the several pronouncements of the Hon’ble

Supreme Court as well as various High Court. By relying the

judgment of the Hon’ble Supreme Court in the case of

D.Velusamy (Supra), it is observed that the relationship of the

petitioner and respondent not in the nature of marriage to get the

benefit of Act 2005. Herein necessary to mention that the learned

JMFC has also relied on the judgment of D.Velusamy (Supra)

but the Magistrate has overlooked the fact that the earlier

husband of the petitioner is still alive and she performed

marriage without taking divorce to him which violated the

condition No. 3 of said pronouncement.

11. Before proceeding further, it is necessary to consider

the legal aspects first. Under the Act 2005, Section 2(a), 2(f) and

2(s) defines the definition of aggrieved person, domestic

relationship and shared household, which are relevant to this

case and quoted as under:-

“(a) “aggrieved person”.- In the Act the ” aggrieved

person” denotes 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 as described under the Act by the respondent;

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(f) “domestic relationship”- Any 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;

(s) “shared household”- According to Section 2(s),

a household where the aggrieved person lives in a

domestic relationship, either singly or along with the

respondent, is a shared household.

This applies whether the household is owned or

tenanted, either jointly by the person aggrieved and he

respondent, or by either of them, where either the person

aggrieved or the respondent or both jointly or singly have

any right, title, interest or equity.

Share household also includes a household which

may belong to the joint family of which the respondent is a

member, irrespective of whether the respondent or person

aggrieved has any right, title or interest in the share

household.”

12. On careful reading of the above definition, it seems that the

Act has wider scope for women and not only covers those women who

are or have been relationship with the accused/abuser but it also covers

those women who have lived together in a shared household and are

related by consanguinity, marriage, relationship in the nature of

marriage. Further, on perusal of definition of “shared household”, it

appears that a shared household would only mean belonging to or taken

on rent by the husband, or the house which belongs to the joint family

of which the husband is a member. The another one definition of

domestic relationship says about the relationship between two person
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who lives or have, at any point of time, lived together in a shared

household when they are related by consanguinity, marriage, or through

a relationship akin to marriage, adoption or are family members living

together as a joint family.

13. The both Courts below have relied on the pronouncement

of the Hon’ble Apex court in the case D.Velusamy (Supra), but

gave a different finding, thus, it is necessary to read the same,

relevant para is quoted as under :

33. In our opinion a `relationship in the nature of
marriage’ is akin to a common law marriage.
Common law marriages require that although not
being formally married :-

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

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

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

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

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’.

14. In the above referred case, the Hon’ble Supreme

Court describes a wider meaning of aggrieved person and

observed that not all live-in-relationship will amount to a

relationship in the nature of marriage to get the benefit of

Domestic Violence Act. The learned Appellate Court has given

its findings that there was no marital relationship between the

aggrieved person and respondent and to establish the

relationship in the nature of marriage, they must be fulfilled the
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four conditions as enumerated in the case of D.Velusamy

(Supra). The learned Appellate Court has reversed the finding

of the trial Court on the point that the relationship between the

parties is not akin to marriage as the condition enumerated in

point 3 for being un-married, was not fulfilled.

15. Subsequently, In the case of Indra Sharma Vs.

V.K.V. Sharma reported in 2013(15) SCC 755, the Hon’ble

Apex Court has relied on the D. Velusamy’s case and laid down

some guidelines for testing under what circumstance, a live in

relationship will fall within the expression “relationship in the

nature of marriage” under Section 2(f) of the D.V. Act, same are

quoted herein under:-

“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,
need 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.
(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
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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.
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) Socialization in Public- Holding out to the
public and socializing with friends, relations and
others, as if they are husband and wife is a strong
circumstance to hold the relationship is in the nature
of marriage.

(56.8) 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.”

16. Herein, the Hon’ble Apex has not observed the

condition of being unmarried as essential ingredients to fall a

live in relationship within the expression of relationship in the

nature of marriage.

17. Now, I examine the facts of the case whether the

petitioner and her son are entailed to get the shadow of the Act,

2005 ?

18. On perusal of statements of the respondent, it appears that

the respondent admitted the fact that their marriage was fixed through

publication and the petitioner has shown her marital status as

“divorcee”. He also admitted that the petitioner has disclosed about her

two daughter. He has also not disputed the fact that the petitioner was in

cohabitation with him for certain period and they have blessed with one

child. In his reply, in point No. 6, respondent himself admitted that he

has sent a notice to the petitioner for dissolution of marriage. In such
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circumstance, it can not be said that the respondent was not aware about

the marriage and two daughter of the petitioner. Although, under Hindu

Law, a women can’t marry again until and unless she takes divorce from

earlier one but the petitioner has been saying since beginning that he

took the divorce from his husband under her conventions, moreover, it

is informed by the petitioner’s counsel that the petitioner has preferred

an appeal against the judgment and decree dated 29.10.2018, which has

been admitted for final hearing. Even then if it is presumed that the

petitioner had not taken the mutual divorce from her earlier husband

and living with the respondent after performed marriage, in my opinion,

the petitioner was living the status of “not legally wedded wife” not

“live-in-relationship”. The learned counsel for the respondent does not

argue that the earlier husband of the petitioner had initiated any

proceeding against the petitioner under any law that the petitioner left

him without any reason, thus, possibility of her conventions divorce can

also not be ruled out, same is subjected to outcome of the first appeal,

filed by the petitioner. The status of not legally wedded wife does not

affect the remedies of aggrieved person under Act, 2005 if the condition

of domestic relationship and shared household is fulfilled. In a recent

verdict of larger bench of the Hon’ble Apex Court in the case of Lalita

Toppo (Supra), it is held by the Hon’ble Court that “under the

provisions of the DV Act, 2005, the estranged wife or live-in-partner

would be entitled to more relief than what is contemplated under

Section 125 of the Cr.P.C, namely, to a shared household also.”

19. Undisputedly, the petitioner was residing in the shared

household of the respondent and by their co-habitation, she had born a

child. In view of the pronouncement of the Hon’ble Apex Court in the
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case of Lalita Toppo (Supra) and Indra Sharma (Supra), prima-facie,

her relation with the respondent is not appeared like a marriage but not

less than marriage, thus, she is entitled to get the relief under DV Act

2005.

20. Now, the questions remain, first, whether there is any

domestic violence committed by the respondent towards the petitioner if

yes then is she entitled to get the maintenance ? Second, the son of the

petitioner can get the maintenance under the Act 2005 ?

21. On perusal of statements of the petitioner, it appears that

after her marriage with the respondent, she delivered one child, who

used to ill and the respondent would not take care of him. It also

appears from her statements that the respondent did not come to take

her to his home, the respondent has also not challenged this fact. It is

also stated by the petitioner that the respondent and his family members

came her parental house and tried to throw her child from terrace.

After considering all the evidence available on the record, I am

persuaded with the findings of the learned JMFC that the petitioner has

sufficient reason to live separate with the respondent as well as looking

to the other circumstance of the case, I am of the opinion that the

learned JMFC has rightly decided that the act of the respondent, not

providing maintenance and other basic need like medical facility etc.

would comes under the purview of domestic violence, thus she is

entitled to get the maintenance.

22. So far as maintenance to the child of the petitioner is

concerned, there is specific provision of Section 20 under the Act 2005

therein while disposing of an application under Section 12(1), the

Magistrate may direct the respondent to pay monitory relief to meet the
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expenses incurred and loses suffered by the aggrieved person and any

child of the aggrieved person as a result of the domestic violence. The

provision is also quoted as under:-

20. Monetary reliefs.–

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

(a) the loss of earnings;

(b) the medical expenses;

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

(d) the maintenance for the aggrieved person as well
as her children, if any, including an order under or in
addition to an order of maintenance under section 125
of the Code of Criminal Procedure, 1973 (2 of 1974)
or any other law for the time being in force.
(2) The monetary relief granted under this section
shall be adequate, fair and reasonable and consistent
with the standard of living to which the aggrieved
person is accustomed.

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

(4) The Magistrate shall send a copy of the order for
monetary relief made under sub-section (1) to the
parties to the application and to the in-charge of the
police station within the local limits of whose
jurisdiction the respondent resides.
(5) The respondent shall pay the monetary relief
granted to the aggrieved person within the period
specified in the order under subsection (1).
(6) Upon the failure on the part of the respondent to
make payment in terms of the order under subsection
(1), the Magistrate may direct the employer or a
debtor of the respondent, to directly pay to the
aggrieved person or to deposit with the court a portion
of the wages or salaries or debt due to or accrued to
the credit of the respondent, which amount may be
adjusted towards the monetary relief payable by the
respondent.

23. Accordingly, the judgment of the Appellate Court dated

23.04.2019 in Criminal Appeal No. 432/2017 450/2017 is hereby set
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aside. Consequently, the judgment passed by learned JMFC dated

02.11.2017 in Criminal Case No. 3200024/2012 is hereby by restored.

24. Accordingly, this petition is hereby allowed. The

respondent is directed to pay the maintenance amount as awarded by the

learned JMFC vide order dated 02.11.2017 without making any fault.

He shall also pay the arrears, if any, within a period of 6 months. I also

make it abundantly clear that any findings of this Court does not effect

any other proceeding, pending between the parties, before any authority

or Court of Law.

(Rajendra Kumar Srivastava)
Judge

L.R.

Digitally signed by LALIT
SINGH RANA
Date: 2020.02.28 17:04:16
+05’30’

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