Vishal Bohra vs State Of U.P. & Another
2015 Latest Caselaw 3965 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 58
 
Case :- MATTERS UNDER ARTICLE 227 No. - 6547 of 2015
 
Petitioner :- Vishal Bohra
 
Respondent :- State Of U.P. & Another
 
Counsel for Petitioner :- Uma Nath Pandey
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Suneet Kumar,J.

The second respondent filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 20051 alleging that she was married to the applicant on 25 May 1997 as per Hindu rites and customs, after marriage, she started residing with her in-laws at Noida until 2004, thereafter, in-laws shifted to Ghaziabad; from their wedlock three daughters were begotten. It is further alleged that since no son was born, second respondent was subjected to physical and mental harassment by the applicant after consuming alcohol. In May 2011, the applicant abandoned the second respondent, upon enquiry, it transpired that the applicant was living with another woman, namely, Pooja at Indira Puram, Ghaziabad as husband and wife. On visiting the premises, the applicant and the lady used criminal force, the second respondent was mercilessly thrashed. On 6 June 2011, the second respondent lodged a F.I.R. against the applicant and Pooja at Police Station Indira Puram being Case Crime No. 1048 of 2011, under Sections 494, 498-A, 323, 325, 504 and 506 I.P.C. It was contended that the applicant is engaged in a business of tent house in Village Hoshiyarpur and earns approximately Rs. 25,000/- per month, therefore, can maintain the second respondent and her minor children.

The applicant contested by filing objections denying the allegations, it was alleged that the second respondent was never married to the applicant, she is not legally wedded wife, therefore, it was sought to be contended that she has no right, nor is she an aggrieved person within the meaning of the Act, therefore, not entitled to maintenance.

The Judicial Magistrate, Gautam Budh Nagar, granted interim maintenance to the second respondent and her minor children @ Rs. 10,000/- per month, aggrieved, the applicant preferred revision before the District and Sessions Judge, Gautam Budh Nagar, which was rejected by order dated 12 October 2015. The aforementioned orders are being assailed under Article 227 of the Constitution.

Learned counsel for the applicant has made two-fold submission; (i) that the second respondent has already been granted maintenance @ Rs. 6000/- per month under Section 125 Cr.P.C. by the Family Court, Gautam Budh Nagar, which needs to be set off against the maintenance granted by the Magistrate; (ii) the second respondent is not an aggrieved person being not legally wedded wife, therefore, is not entitled to any protection under the Act, 2005.

Learned counsel for the applicant would submit that the applicant was never married to the second respondent, therefore, they are not husband and wife, however, would admit that the children begotten from the relationship are his. In the objections filed by the applicant, it is admitted that the applicant and the second respondent were living as man and woman in the residence of his father at NOIDA. It is further admitted that the relationship continued until 2011 when the applicant shifted to another residence at Ghaziabad allegedly with another woman. The children were born at the residence of the applicant's father. The parents of the second respondent were also residing at NOIDA barely 50 meters from the in-law's residence.

The first question that requires determination is as to whether the second respondent falls within the meaning and definition of 'aggrieved person'.

The Act 2005 was enacted to provide for more effective protection of the rights of human guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.

The statement of objects and reasons would note that domestic violence is a human right issue and a serious deterrent to development. The phenomenon of domestic violence in India is widely prevalent but has remained largely invisible in the public domain. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under Section 498-A of the Indian Penal Code. The civil law does not, however, address this phenomenon in its entirety. It is, therefore, proposed to enact a law keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.

"Aggrieved person" is defined under sub-clause (a) of Section 2 of the Act, 2005 which 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; sub-clause (f) defines "domestic relationship" which 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; sub-clause (q) defines "respondent" to mean any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act, 2005 which also include the relatives of the husband or male partner.

Chapter II deals with domestic violence, section 3 defines domestic violence. Any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it (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; sub-clause (iii) of Explanation 1 defines "verbal and emotional abuse" as follows:-

"a. insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

b. repeated threats to cause physical pain to any person in whom the aggrieved person is interested."

"Economic abuse" includes deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom and maintenance.

Having referred the relevant provision of Act, 2005, I proceed to examine whether the applicant was involved in domestic relationship with the second respondent. Section 2(f) refers to five categories of relationship, such as, related by consanguinity, marriage, relationship in the nature of marriage, adoption, family members living together as a joint family, of which we are, in this case, concerned with an alleged relationship in the nature of marriage.

Before examining the term "relationship in the nature of marriage", I have to first examine what is "marriage" as understood in law. Marriages in India take places either following the personal law of the religion to which a party belongs or following the provisions of the Special Marriage Act. Marriage and the family are social institutions of vital importance. Entering into marriage, therefore, is to enter into a relationship that has public significance as well.

Parties in the present case are Hindus 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 Section 7 deals with the "ceremonies for a hindu marriage" (Refer Pinakin Mahipatray Rawal v. State of Gujarat2).

The Supreme Court in Indra Sharma Versus V.K.V. Sharma3, explained what is meant by the phrase "relationship in the nature of marriage" and marital relationship. For the first time, the Act, 2005 has recognized a "relationship in the nature of marriage" and not a live-in relationship simplicitor. Paragraphs 37, 38, 39 and 53 are reproduced:-

"37. 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 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.

38.4. (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.

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 DV Act.

53. Live-in relationship, as such, as already indicated, is a relationship which has not been socially accepted in India, unlike many other countries. In Lata Singh v. State of U.P.4 it was observed that a live-in relationship between two consenting adults of heterosexual sex does not amount to any offence even though it may be perceived as immoral. However, in order to provide a remedy in Civil Law for protection of women, from being victims of such relationship, and to prevent the occurrence of domestic violence in the society, first time in India, the DV Act has been enacted to cover the couple having relationship in the nature of marriage, persons related by consanguinity, marriages etc. We have few other legislations also where reliefs have been provided to woman placed in certain vulnerable situations."

The Supreme Court culled 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) which would include:-

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 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."

In the facts of the present case, it is not the case of the applicant that he is in "live in" relationship with the second respondent nor is the case of the second respondent, on the contrary, second respondent has categorically stated that she was married to the applicant as per hindu rites and customs in 1997, upon marriage she came to the in-laws house at NOIDA, there they continued to live and from their wedlock three daughters were begotten.

The Privy Council in Andrahennedige Dinohamy Versus Wijetunge Liyanapatabendige Balahamy5, laid down that where a man or 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.

The Privy Council in Mohabbat Ali Khan v. Ibrahim Md. Khan6, held that the law presumes in favour of marriage and against concubine, when a man and a woman have cohabited continuously for a number of years.

In Gokal Chand Versus Parvin Kumari7 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 rebuttable.

Arising of a presumption, though rebuttable, has also been noticed in S.P.S. Balasubramanyam vs Suruttayan8 and in Ranganath Parmeshwar Panditrao and another Versus Eknath Gajanan Kulkarni and another9.

In the facts of the present case, it cannot be held, as alleged by the applicant that the second respondent is not in relationship in the nature of marriage nor is she having status of a concubine. It is admitted between the parties that they came together as man and woman, after marriage, the couple started residing in the home of the applicant's father, their daughters were begotten from the relationship. In this background, coupled with the fact that the parents of the second respondent are also resident of the same locality living in the vicinity at NOIDA would reflect the social acceptance/sanction of the relationship. It is, therefore, not possible to accept the plea raised by the applicant that they are not married which is not tenable in the admitted facts, hence, rejected.

Coming to the second point as to whether the court below committed an error in not setting off the maintenance granted to the second respondent in proceedings under Section 125 Cr.P.C. while considering the claim for interim maintenance of second respondent and her children.

Chapter IV of Act, 2005 provides for procedure for obtaining orders of relief under Section 12 and other provisions contained thereunder; an aggrieved person or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more relief under the Act.

Section 17 confers right upon the women to reside in a shared household; under section 18 aggrieved person can obtain protection orders from the Magistrate to prohibit the respondent from committing act of domestic violence, entering the place of employment, school of the child, attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact; alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate; causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence; committing any other act as specified in the protection order.

Under Section 19, the aggrieved person can obtain residence orders and under Section 20 while disposing of an application under sub- section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to the aggrieved person to meet the expenses incurred and losses suffered by the aggrieved person as a result of the domestic violence and such relief may include:-

"(a)................

(b)...............

(c)...............

(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."

The monetary reliefs so granted under this section should be adequate, fair, reasonable and consistent with the standard of living to which an aggrieved person is accustomed, further the Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance as the circumstances of the case may require. Thus, it is evident from the scheme of Act, 2005, Magistrate has ample and wide ranging power to protect the interest of the aggrieved person and any child.

Section 20(1)(d) clearly provides that maintenance shall not be limited to the maintenance granted under any other law including under Section 125 Cr.P.C. would clearly mean that the Magistrate can grant maintenance in addition to the maintenance being received by the aggrieved person either under Section 125 or under any other law for the time being in force. The provision has to be read with Section 26 which provides for relief in other suit and legal proceedings. Any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a Civil Court, Family Court or a Criminal Court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of Act, 2005. Sub-section (2) would provide that any relief referred to under sub-section (1) may be sought for in addition to and along with any other reliefs that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. The provision to set off is provided under proviso to sub-clause (2) of Section 12 which provides that where a decree for any amount of compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any paid or payable in pursuance of order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in Code of Civil Procedure, 1908 or any other law for time being in force be executable for the balance amount if any left after set off. Section 22 provides that in addition to other reliefs as may be given under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay the compensation for acts of domestic violence committed by that respondent.

It is evident from the joint reading of the proviso to sub-section (2) of section 12 and section 22, the set off is only confined to decree for the payment of compensation and damages for injuries including mental torture and emotional distress, it nowhere refers to set off any sum granted towards interim maintenance or maintenance to the aggrieved person which the Magistrate can pass in addition thereto as contemplated under Section 20(1)(d). Therefore, the plea of the applicant that the maintenance granted under Section 125 Cr.P.C. as a matter of rule is to be set off cannot be accepted.

The learned counsel for the applicant placed reliance upon a judgment dated 3 August 2010 of the Delhi High Court rendered in Rachna Kathuria Versus Ramesh Kathuria (Criminal Misc. Case No. 130 of 2010), wherein the court observed that the Act, 2005 does not create additional right to claim maintenance on the part of the aggrieved person. It only puts the enforcement of existing right of maintenance available to an aggrieved person on fast track. The Court observed as follows:-

"If a woman living separate from her husband had already filed a suit claiming maintenance and after adjudication maintenance has been determined by a competent court either in civil suit or by Court of MM in an application under Section 125 Cr.P.C. she does not have a right to claim additional maintenance under the Act. " (Act, 2005)

I am unable to accept the proposition sought to be propounded by the Dehli High Court. No provisions of the Act, 2005 was noticed nor has been referred to in the judgment. The opinion of the learned Judge does not subscribe to the provisions of the Act, 2005 which has been considered in detail hereinabove.

The obligation of the husband is on a higher pedestal when the question of maintenance of wife and children arises. When the woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort. Sometimes the faith in life reduces. At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort. Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife's right to receive maintenance, is an absolute right. Thus, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning.

The principle of sustenance gets more heightened when the children are with her. Be it clarified that sustenance does not mean and can never allow to mean a mere survival. A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance, it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar. (Refer-Shamima Farooqui Versus Shahid Khan10).

For the reasons and law stated hereinabove, the petition being devoid of merit is accordingly dismissed.

No costs.

Order Date :- 6.11.2015

kkm