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: P&H HC

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
Crl. Revision No. (F) 166 of 2015 (O&M)
Date of Decision: November 23rd , 2016
Ajay Bhardwaj
…Petitioner
Versus
Jyotsna and others
…Respondents
CORAM:- HON’BLE MS. JUSTICE JAISHREE THAKUR
Present: Mr. Ajay Bhardwaj, petitioner in person.
Ms. Jyotsna, respondent in person.
JAISHREE THAKUR, J.
Aggrieved against the order dated 4.5.2015, passed by the
learned District Family Court, Gurgaon, granting interim maintenance @
`20,000/- per month to respondent No.1 and `10,000/- per month each to
the two children, this revision petition has been preferred.
In brief the facts, as alleged by respondent No.1, are that
respondent No.1 came to know the petitioner in the year 2007, while still
being married to one Gaurav Sharda. The petitioner herein projected himself
to be a divorcee and expressed his willingness to get married to the
respondent/complainant. The petitioner herein and respondent No.1 started
residing together, out of which relationship, the respondent No.1 bore him
twins on 19.3.2011. While residing with the petitioner, respondent No.1 also
obtained a decree of divorce from her previous husband under Section 13-B
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of the Hindu Marriage Act on 1.8.2011. The respondent No.1 herein
requested the petitioner time and again to marry her but came to be informed
that no such marriage could take place on account of the fact that the
petitioner was still married and had not obtained a decree of divorce. Left
with no option, respondent No.1 herein made a complaint to the police and
after investigation, FIR No. 341 dated 26.1.2014 came to be registered under
Sections 376 and 506 IPC.
It is also alleged that respondent No.1 had got `40 lakhs as
permanent alimony from her previous husband, but the same has been
misappropriated by the petitioner, who had taken a sum of `20 lakhs to
make investment out of the same. Since, respondent No.1 had no
independent source of income and that the petitioner had refused to marry
her while abandoning the children born out of this relationship, she
preferred a petition under Section 125 of the Code of Criminal Procedure
(for short ‘Cr. P. C.’ ) on 28.1.2015, wherein the learned District Judge
(Family Court) Gurgaon, awarded interim maintenance @ `20,000/- to
respondent No.1 and a sum of `10,000/- each to the children from the date
of filing of the petition i.e. 28.1.2015. At the same time, it was ordered that
in order to settle the dispute between the parties with regard to the
maintenance to an early date, the parties were directed to place on record
evidence by way of affidavit supported by documents, if any.
The petitioner, who appears in person, argues that the impugned
order, as passed, is wholly unsustainable on account of the fact that
respondent No.1 herein is not entitled to maintenance under Section 125 of
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Cr.P.C. since said maintenance is only available to a destitute wife, or minor
children. It is urged that in the instant case, the parties herein are not legally
married and in fact, at best it can be called a live in relationship. It is also
argued that without dealing with the issue whether or not there has been a
valid marriage between the parties, the Family Court has awarded
maintenance. It is further argued that respondent No.1 has been given `40
lakhs as permanent alimony by her previous husband and, therefore, she has
adequate source of income to maintain herself. The petitioner relies on
Indra Sarma Versus V.K.V. Sarma (2013) 15 SCC 755 to contend that
until and unless there is a valid marriage, maintenance under Section 125
Cr.P.C. could not be maintained .
The petitioner also submits that respondent No.1 had got the
petitioner arrested in the aforesaid FIR and he had been subjected to
imprisonment and humiliation on this count. It is urged that none of these
points were dealt with by the trial court while determining interim
maintenance of `40,000/- per month payable to the respondent No.1 and the
children.
Per contra, respondent No.1, who appears in person, has
vehemently argued that the impugned order does not suffer from vice since
it is interim maintenance that has been awarded. She also argues that she
cohabited with the petitioner and they lived together as husband and wife
and in the eyes of Society she appeared as his wife . It is submitted that two
children were born out of this relationship, thus, it cannot be said that the
said relationship had no meaning. She also alleges that the permanent
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alimony that has been awarded to her by her previous husband has been
usurped by the petitioner and, thus, she has no ways and means to maintain
herself. She relies on Chanmuniya Vs. Chanmuniya Virendra Kumar
Singh Kushwaha and another (2011) 1 SCC 141 to contend that the
Hon’ble Apex Court has recognized the factum of live in relationship in
which it has been held that a woman, who is party to a live in relationship,
would have the status of a wife should be awarded maintenance and the
partner could not derive any benefit from denying maintenance on the
ground that there was no valid marriage.
I have heard learned counsel for the parties and have also
perused various documents filed in this petition during the pendency of the
petition.
Undoubtedly, Section 125 Cr. P.C. pertains to maintenance to a
destitute wife, minor children and old aged parents. Section 125 Cr.P.C. is a
beneficial provision to ensure that maintenance is granted to the persons
mentioned as above in order to avoid vagrancy and stopping a person from
becoming a destitute. There is no ambiguity in the provision that a husband
has a legal and a moral duty to maintain his wife and minor children. The
term ‘wife’ as can be understood in normal parlance would be a legally
wedded wife. The term ‘wife’ has been defined under Section 125 the Code
of Criminal Procedure, which includes a woman who has been divorced by,
or has obtained a divorce from, her husband and had not remarried, but such
term has not been defined under the Hindu Marriage Act. Further Black’s
Law Dictionary (10th Edition page 1832), has defined ‘wife’ as “a married
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woman; a woman who has a lawful spouse living”.
Over the years there has been a marked change in the trend of
society where live in relationship has come to be accepted, and such a
relationship is not out of the ordinary. Some of these couples, who are
residing together, never contract a legally binding marriage within the
parameters and definition of a ‘marriage’ as defined under the Hindu
Marriage Act. Various issues have arisen out of this relationship, one of
them being ‘whether living together of a man and woman as husband and
wife for a considerable period of time would raise the presumption of a valid
marriage’ . This question came to be answered in a judgment rendered by
the Hon’ble Apex Court in Chanmuniya (supra) where the Hon’ble Apex
Court held “where partners live together as husband and wife, a presumption
would arise in favour of a wedlock.” The Hon’ble Apex Court was seized of
a matter where the appellant and the respondent therein were related and
lived in the same house by a social customs and were treated as husband and
wife. In fact, the appellant was the younger brother of the husband of the
respondent-wife. On the death of the husband of the respondent, the
marriage of the appellant and the respondent was solemnized by social
custom with katha and sindur. The Hon’ble Apex Court, relying on
judgments of the House of Lords, came to the conclusion that there was a
strong presumption in favour of the marriage. Several other judgments were
also relied upon while holding that where a man and woman have lived
together for a long time and even though they may not have undergone legal
necessities of a valid marriage, if the man deserts her, he should be made
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liable to pay the woman maintenance. It was also further held that a man
should not be allowed to benefit from the legal loopholes by enjoying the
advantages of a de facto marriage without undertaking the duties and
obligations. Any other interpretation would lead the woman to vagrancy and
destitution, which the provision of maintenance in Section 125 is meant to
prevent.
The Committee on Reforms of Criminal Justice System, headed
by Dr. Justice V.S. Malimath, in its report of 2003 opined that evidence
regarding a man and woman living together for a reasonably long period
should be sufficient to draw the presumption that the marriage was
performed according to the customary rites of the parties. Thus, it
recommended that the word ‘wife’ in Section 125 Cr.P.C. should be amended
to include a woman who was living with the man like his wife for a
reasonably long period.
In D. Velusamy V. D. Patchaiammal 2010 (10) SCC 469, the
Hon’ble Apex Court, while looking into the question whether the appellanthusband
therein would be entitled to maintain the respondent -wife, gave
certain findings with regard to holding a live in relationship to be valid that
is, if the couple held themselves out to society as being akin to spouses; they
must be of legal age to marry; they must be otherwise qualified to enter into
a legal marriage, including being unmarried; and they must have voluntarily
cohabited and held themselves out to the world as being akin to spouses for
a significant period of time. What is note worthy in this judgment is the
opinion that the parties must be otherwise qualified to enter into a legal
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marriage.
In the case of Badri Prasad V. Dy. Director of Consolidation
and others 1978 AIR (SC) 1557, the Hon’ble Apex Court held that there
was a presumption in favour of wedlock and that law leaned in favour of
legitimacy and frowned upon bastardy in a situation where the parties had
been in live in relationship for about 50 years.
In the judgment of Indra Sarma (supra), the Hon’ble Apex
Court went into the question whether a “live in relationship” would
amounts to a “relationship in the nature of marriage”, falling within the
definition of “domestic relationship” under Section 2 (F) of the Protection of
Women from Domestic Violence Act, 2005 and whether the failure to
maintain a women involved in such a relationship amounts to “domestic
violence” within Section 3 of the DV Act.
In the case referred to above, both the appellant and the
respondent were working together in a private company and the respondent
was a married person having two children, whereas the appellant was
unmarried. The appellant left the job and started residing with the
respondent in a shared household. As dispute arose, the respondent left the
company of the appellant, which led to her filing a petition under Section 12
of the DV Act seeking several reliefs therein, one of them being permanent
maintenance. The Hon’ble Apex Court, delineated upon the definition of
“domestic relationship”, “domestic violence”, “marriage”, as well as
“relationship in the nature of marriage” and on the basis of discussion culled
out some guidelines for testing under what circumstances a live in
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relationship would fall within the expression “relationship in the nature of
marriage” as under:-
“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.
(1) Duration of period of relationship
Section 2(f) of the DV Act has used the expression “at any point
of time”, which means a reasonable period of time to maintain
and continue a relationship which may vary from case to case,
depending upon the fact situation.
(2) Shared household
The expression has been defined under Section 2(s) of the DV
Act and, hence, need no further elaboration.
(3) Pooling of Resources and Financial Arrangements
Supporting each other, or any one of them, financially, sharing
bank accounts, acquiring immovable properties in joint names
or in the name of the woman, long term investments in
business, shares in separate and joint names, so as to have a
long standing relationship, may be a guiding factor.
(4) Domestic Arrangements
Entrusting the responsibility, especially on the woman to run
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the home, do the household activities like cleaning, cooking,
maintaining or upkeeping the house, etc. is an indication of a
relationship in the nature of marriage.
(5) Sexual Relationship
Marriage like relationship refers to sexual relationship, not
just for pleasure, but for emotional and intimate relationship,
for procreation of children, so as to give emotional support,
companionship and also material affection, caring etc.
(6) Children
Having children is a strong indication of a relationship in the
nature of marriage. Parties, therefore, intend to have a long
standing relationship. Sharing the responsibility for bringing
up and supporting them is also a strong indication.
(7) Socialization in Public
Holding out to the public and 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.
(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.”
Ultimately, by applying the test, as laid down, it came to be
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held that the appellant was fully aware that the respondent was a married
person with a wife and children and, therefore, was a party to bigamy.
While also noting that the parties never entertained any intention to rear
children and, thus, by holding that the appellant could not have entered into
a live in relationship in the nature of marriage, would not be entitled to any
relief under the DV Act.
In the instant case, admittedly, the parties resided together live
in relationship since year 2008, out of which relationship two children were
born. The petitioner herein, as alleged by respondent No.1, had held himself
out to be a divorcee whereas the respondent No.1 herein was undergoing a
process of getting divorce from her husband Ajay Sharda, which divorce
was finalized in August 2011. Before the said divorce, twins were born in
March 2011. On refusal of the petitioner to marry, the differences arose
leading to the filing of a petition under Section 125 Cr.P.C. claiming
maintenance for respondent No.1 and two minor children.
The question that needs to be determined herein is: whether the
respondent No.1 would be entitled to maintenance under Section 125 Cr.P.C.
on account of live in relationship, not being a wife. There is no valid
marriage between the parties as on the date the petition was preferred.
There can be no dispute about the fact that the children being born out of
this relationship would be entitled to receive maintenance. This Court,
therefore, is not inclined to interfere regarding the quantum of interim
maintenance that has been awarded by the Family Court to the children.
As regards maintenance that has been awarded to respondent
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No.1, the Family Court has to determine whether or not the relationship was
akin to a marriage or not. It has been argued before this Court that
respondent No.1 herein was aware of the fact that the petitioner was a
married man and hence was legally not competent to enter into a matrimony,
as has been alleged by the respondent herein. This Court cannot lose sight
of the fact that twins were born out of this relationship which would be of
some indication that the couple had gone for this relationship to give it some
permanence and that can entitle respondent No.1 to claim interim
maintenance, based on the evidence added. However, since all these matters
are matter of evidence and the Family Court is seized of it, it would be in the
interest of justice to allow the final orders to be passed, while reducing the
amount of maintenance that has been awarded to respondent No.1 to sum of
`10,000/-, so that she is in a position to maintain herself. The sum of
`10,000 is being awarded in order to tide over the immediate difficulty that
respondent No.1 is put to on account of the fact that the petitioner is no
longer supporting her financially. Section 125 Cr.P.C was incorporated in
order to avoid vagrancy and destitution for a wife/minor children/old age
parents, and the same has now been extended by judicial interpretation to
partners of a live-in relationship . But the Apex court has also opined that
the nature of the live in relationship has to be looked into while determining
the entitlement. During the course of arguments, it has also come on record
that respondent No.1 herein had preferred a petition under the Protection of
Women from Domestic Violence Act, which came to be dismissed, against
which order an appeal has been preferred pending adjudication. It has also
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been brought on record that respondent No.1 herein, along with her children,
is residing in the property bearing No. C-73, Ground Floor, Ardee City,
Sector 52, Gurgaon, belonging to the mother of the petitioner, hence
respondent No.1 is not without a roof over her head and as such she is
secure in that sense. The Family Court seized of the matter will also have to
see whether or not respondent No.1 herein is able to maintain herself on
account of the fact that she had been granted `40 lakhs as permanent
alimony from her earlier divorce proceedings. In case the court comes to
conclusion that Respondent No 1 is not entitled to maintenance then
necessary deductions are permitted from the amounts already paid.
In view of the afore-stated facts, this revision is partly allowed
and disposed of with the directions mentioned above. However, it is made
clear that the Family Court shall not be influenced by the observations made
hereinabove and would decide the case on its merits.
November 23rd, 2016 (JAISHREE THAKUR)
prem JUDGE
Whether speaking/reasoned Yes
Whether reportable No
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