Domestic violence relief was denied where the petitioner failed to plead and prove customary dissolution of her earlier marriage. The court held that her subsequent bigamous marriage did not qualify as a relationship in the nature of marriage and dismissed the revision petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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?
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
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.
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
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 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
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
be dissolved by way of decree of divorce passed by the competent court strictly in terms of provisions contained in the Hindu 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
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, having noticed/observed aforesaid discrepancy/shortcoming in the Act and necessity to interpret the aforesaid expression, made an endeavor to define the 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
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 paras of aforesaid judgment ( D. Velusamy v. D. Patchaiammal’s case) are reproduced herein below:
“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.
"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";
"2(s) "shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them
in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household."
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 wellbeing, 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)
(emphasis supplied)
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.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.(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'.
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.
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.
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 nonapplicant are living together by holding out as husband and wife, and should also show that they are otherwise legally qualified to marry.
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.
Emphasis supplied
19. Reliance is also placed on judgment passed by the Hon’ble
Supreme Court in case titled Indra 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 Hindu Marriage Act, 1955. The expression “marriage”, as stated, is not defined under the Hindu Marriage Act, but the “conditions for a Hindu marriage” are dealt with in Section 5 of the Hindu Marriage Act and which reads as under:
“5. Conditions for a Hindu marriage - A marriage may be solemnized between any two hindus, if the following conditions are fulfilled, namely:-
(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.”
“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.”
RELATIONSHIP IN THE NATURE OF MARRIAGE:
a) Consanguinity
b) Marriage
c) Through a relationship in the nature of marriage d) Adoption
e) Family members living together as joint family.
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”.
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
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): DV Act does not recognize such a relationship and that relationship cannot be termed as a relationship in the nature of marriage under the Act. Legislatures in some countries, like the Interpretation Act, 1984 (Western Australia), the Interpretation Act, 1999 (New Zealand), the Domestic Violence Act, 1998 (South Africa), the Domestic Violence, Crime and Victims Act, 2004 (U.K.), have recognized the relationship between the same sex couples and have brought these relationships into the definition of Domestic relationship.
STATUS OF THE APPELLANT
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.
“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.”
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
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 amount to bigamous marriage and such, marriage definitely cannot be said to be relationship in the nature of marriage.
21. 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.
2 issues framed by the court
Did the divorce deed establish dissolution of the petitioner's earlier marriage without pleading and proving the alleged custom?
Could the petitioner's subsequent marriage during a subsisting earlier marriage qualify as a relationship in the nature of marriage under the Domestic Violence Act?
Colour shows how this judgement treated each authority
D. Velusamy v. D. PatchaiammalApplied¶36
D. Velusamy v. D. Patchaiammal, 2010 (10) SCC 469. · Who else cites this
Narayan Jangluji Thool and Ors v. Mala Chandan WaniRelied on¶80
Narayan Jangluji Thool and Ors v. Mala Chandan Wani, AIR 2015 Bombay 36 · Who else cites this
Indra Sarma v. V.K. V. SarmaRelied on¶92
Indra Sarma v. V.K. V. Sarma, (2013) 15 SCC 755, · Who else cites this
Gokal Chand v. Parvin KumariRelied on¶148
Gokal Chand v. Parvin Kumari AIR 1952 SC 231 · Who else cites this
4 provisions across 2 enactments
Kala Devi
Mehar Singh
Sandeep Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court