Pratibha vs Bapusaheb
2012 Latest Caselaw 315 Bom

                                                           Cri.W.P. No. 676/11
                                       1




                                                                          
                   IN THE HIGH COURT AT BOMBAY
               APPELLATE SIDE, BENCH AT AURANGABAD




                                                  
              CRIMINAL WRIT PETITION NO. 676 OF 2011

           Pratibha w/o. Bapusaheb Andhare,
           Age 38 years, Occu. Household,
           R/o. Mankeshwar, Tq. Bhoom,




                                                 
           Dist. Osmanabad, At present
           Dahitana, Tq. Paranda, Dist.
           Osmanabad.                                      ....Petitioner.




                                    
                 Versus

     1.    Bapusaheb s/o. Bhimrao Andhare,
                      
           Age 53 years, Occu. Service,
           R/o. Mankeshwar, Tq. Bhoom,
           Dist. Osmanabad.
                     
     2.    The State of Maharashtra                        ....Respondents.
      

     Mr. S.J. Salunke, Advocate for petitioner.
     Mr. Shambhuraje Deshmukh h/f. Mr. V.D. Salunke, Advocate for
   



     respondent No. 1.
     Mr. N.R. Shaikh, APP for respondent No. 2/State.





                              CORAM        :      T. V. NALAWADE, J.
                              Reserved on :       23rd October 2012.
                              Declared on :       2nd November 2012.





     JUDGMENT :

1. Rule. Rule made returnable forthwith. By consent,

heard both the sides for final disposal.

2. The petition is filed under Articles 226 and 227 of the

Cri.W.P. No. 676/11

Constitution of India, to challenge the judgment and order of

Criminal Appeal No. 35/2009, which was pending in the Court of

Additional Sessions Judge, Osmanabad. The appeal challenging

the order made by J.M.F.C., Bhoom in Criminal Mis. Application No.

141/2008 filed under section 12 of the Domestic Violence Act,

2005 [hereinafter referred as the "Act" for short] is allowed by the

Sessions Court. The protection order and maintenance order

made by J.M.F.C. in favour of the petitioner are set aside by

Sessions Court.

3. It is the case of the petitioner that she is the second

wife of respondent. She cohabited with respondent for 4-5 years

after the marriage in his house, where he was living with first wife.

It is her case that the respondent and his first wife drove her out

of the matrimonial house on 1.11.2007 after giving severe

illtreatment to her. It is her case that, respondent was asking her

to bring money and gold ornaments from her parents and was

compelling her to do hard labour work. It is her case that she was

mentally and physically harassed by the respondent and his first

wife and they were demanding Rs. 50,000/- from her parents for

purchasing the motorcycle.

3. It is the case of wife that she has no source of income

Cri.W.P. No. 676/11

and she is unable to maintain herself and the husband has

refused and neglected to maintain her. It is her case that she is

living in a rented house. She had claimed relief like protection

order, allowance for making payment of rent and compensation

amount. It is her case that the husband is in a position to give

such allowance as he owns 20 Acres of agricultural land and as he

is in service.

4.

The respondent has denied the relationship. He has

denied that there was cohabitation with the petitioner. He has

admitted that he is in service. It is the case of respondent that

due to the contention of the petitioner that she is the second wife,

the proceeding under section 12 of the Act is not tenable.

5. Before J.M.F.C. the petitioner examined herself, her

father, one priest of marriage and one Chagan to give evidence

on the factum of marriage. She has examined one Dr. Yadav to

show that the respondent had taken her to the dispensary of this

lady doctor for medical check up and there was the cohabitation

between her and the respondent.

6. The respondent did not examine himself to give

evidence in rebuttal. No evidence at all is given in defence by the

Cri.W.P. No. 676/11

present respondent. The tenor of cross examination of the

witnesses shows that the respondent has no issue from first wife.

The tenor shows that the petitioner is a relative of respondent and

defence is taken that the petitioner and her father were insisting

the respondent to perform marriage with the petitioner as the

respondent had no issue from first wife. From the evidence given,

it can be said that the petitioner also did not conceive, though

there was cohabitation of 4-5 years.

7. The evidence of Dr. Yadav, Gynecologist, examined by

the petitioner shows that the respondent had taken the petitioner

to this lady doctor for medical check up. The circumstance that

the respondent is not having any issue from the first wife needs to

be kept in mind while appreciating the evidence given against

him. There was no reason for the lady doctor to create false

record of case papers or to give false evidence in favour of the

present petitioner. The proceeding under section 12 of the Act

needs to be decided in summary manner and so the Court should

look for the nature and extent of proof accordingly.

8. The petitioner has given evidence that her marriage

with the respondent was performed on 20.11.1999. She has

deposed that there was the total cohabitation of around 6 years

Cri.W.P. No. 676/11

and during last 2 years of the cohabitation, illtreatment was given

to her. She has deposed that she cohabited with the respondent in

the same house, where the first wife of the respondent was living.

She has given evidence that the respondent was asking her to

bring Rs. 50,000/- from her parents as he wanted to purchase a

motorcycle. She has deposed that the respondent was compelling

her to do hard work in the field and he was harassing her mentally

also. She has given evidence that as the demand of money was

not met with, illtreatment was given to her and so she is living

separate in a rented room. The evidence is given about filing of a

case for offence punishable under section 498-A of Indian Penal

Code also.

9. Masu, father of petitioner, has given evidence that the

respondent married with the petitioner as he had no issue from

the first wife. He has given evidence that the first wife of

respondent had given consent for this second marriage of the

respondent and all rites and customs were followed and

ceremonies were performed at the time of marriage. He has

deposed that illtreatment was started to the petitioner as she also

did not conceive after many years of the marriage. He has given

evidence that the respondent then started making demand of

money and then respondent deserted petitioner.

Cri.W.P. No. 676/11

10. Chagan Andhare is resident of village of respondent.

He has given evidence on marriage between petitioner and

respondent and also on the cohabitation. Nothing is brought on

the record to show that he is interested witness or he has some

enmity against the respondent.

                                       
     11.           Dilip   Kulkarni,
                            ig         the   priest,     who       solemnized         the

marriage, has given evidence on the ceremonies of the marriage.

He has given evidence that all the rites and ceremonies were

performed. He is from the village of father of petitioner, but only

due to this circumstance, he cannot be disbelieved. The evidence

shows that it was known to him that it was the second marriage of

respondent.

12. The evidence of Dr. Yadav is more specific and it

shows that on 28.6.2001 the respondent and the petitioner had

come to her dispensary. In her evidence, the prescription and

record of treatment is proved as Exhs. 32 and 33. This record

shows that not only the petitioner, but the respondent was also

examined. She is a gynecologist and in view of the aforesaid

circumstances, her evidence needs to be given due weight. All

this evidence has created a probability that the respondent

Cri.W.P. No. 676/11

married with the petitioner as he was not having issue from the

first wife, but the petitioner did not conceive and so the dispute

started. This Court holds that there is sufficient evidence on the

factum of marriage and also on the cohabitation between the

parties. The denial of the relationship by the husband and the

absence of evidence in rebuttal is sufficient to infer that it is a

case of domestic violence. It does not look probable that only to

get some amount from the respondent, false allegations are made

by the petitioner, when respondent was already related with her

from prior to the date of marriage.

13. In the cross examination of the petitioner, it is brought

on the record that grandmother of petitioner is a sister of

respondent. In cross examination of Masu, father of petitioner, it is

brought on the record that there is no practice of marriage

between descendants of the same person in his community.

However, it needs to be kept in mind that in this region there is a

practice of marriage of a person with a relative from maternal

side. This Court holds that it was necessary to bring specific

admission or evidence on record to show that the marriage

between the petitioner and respondent is prohibited due to

customs of the community. So not much weight can be given to

this isolated admission atleast for the present matter.

Cri.W.P. No. 676/11

14. In view of the aforesaid evidence, the J.M.F.C. held

that the relationship as required under section 2 (f) of the Act is

proved. As against this decision, the Sessions Court has relied on

the case reported as AIR 2011 SC 479 [D. Velusamy Vs. D.

Patchaiammal]. The Sessions Court has relied on the

observations made by the Apex Court at para No. 33, which are 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.

(see `Common Law Marriage' in Wikipedia on Google)

Cri.W.P. No. 676/11

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'."

15.

This Court has gone through the facts of the aforesaid

reported case. The petition was filed under section 125 of Criminal

Procedure Code and there was the contention of marriage in the

year 1986. The husband had taken defence that he had already

married with other lady and his marriage had taken place in the

year 1980. It is observed by the Apex Court that behind the back

of the first wife Lakshmi, the Court ought not to have held that

there was no marriage between Lakshmi and the respondent of

the proceeding. By making such observation, the matter was

remanded back. The Apex Court directed the Court to give finding

on points like :-

(i) Whether Lakshmi had married with applicant,

the man involved in the proceeding ?

(ii) Whether the petitioner of 125 proceeding had

married with the same person ? and

Cri.W.P. No. 676/11

(iii) Whether the petitioner had lived with this man

in a relationship which was in the nature of marriage ?

This case was decided by the Apex Court on 21.10.2010.

16. For present petitioner, wife, reliance was placed on

the case reported as 2011 CRI.L.J. 1996 Supreme Court

[Chanmuniya Vs. virendra Kumar Singh Kushwaha and

Anr.]. This was again a proceeding under section 125 of Cr.P.C. In

view of the provision of the Act and change in social attitude and

values, the Supreme Court has expressed a view that a broad and

expansive interpretation should be given to the term 'wife' used in

section 125 of Cr.P.C. It is observed that the term 'wife' need to

include even those cases where a man and a woman have been

living together as husband and wife for reasonably long period of

time and strict proof of marriage should not be pre-condition for

granting maintenance under section 125 of Cr.P.C. In view of the

previous conflicting decisions of Supreme Court on the

interpretation of term 'wife' used in section 125 of Cr.P.C., in this

case, the Apex Court made request to Hon'ble the Chief Justice of

India to refer few points to larger bench for interpretation of the

provision of section 125 of Cr.P.C. having regard to the provisions

of the Act. At paragraph No. 45, there are the points which are

referred to larger bench.

Cri.W.P. No. 676/11

"1. Whether the 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 between them and whether such a presumption would entitle the woman to

maintenance under Section 125 Cr.P.C?

2. Whether strict proof of marriage is

essential for a claim of maintenance under Sectionig 125 Cr.P.C. having regard to the provisions of Domestic Violence Act, 2005?

3. Whether a marriage performed according to customary rites and ceremonies, without strictly fulfilling the requisites of Section 7(1)

of the Hindu Marriage Act, 1955, or any other personal law would entitle the woman to

maintenance under Section 125 Cr.P.C.?"

17. At paragraph Nos. 41 and 42 in the case cited supra

following observations are made by the Apex Court.

"41. Most significantly, the Act gives a very

wide interpretation to the term 'domestic

relationship' as to take it outside the confines of

a marital relationship, and even includes live-in

relationship in the nature of marriage within the

definition of 'domestic relationship' under

Cri.W.P. No. 676/11

Section 2 (f) of the Act.

42. Therefore, women in live-in relationships

are also entitled to all the reliefs given in the

said Act."

This case was decided by the Apex Court on 7.10.2010, prior to

the decision given in D. Velusamy's case cited supra. In D.

Velusamy's case, the previously decided case of Chanmuniya

was not shown to the Apex Court probably as the Chanmuniya's

case was decided just 15 days prior to the decision of D.

Velusamy's case. The case of D. Velusamy's case was decided

by other bench of the Apex Court.

18. If the observations made by the Apex Court in the two

cases cited supra are considered, it can be said that in both cases

(different benches), the Court was considering the effects of

provisions of the Act on the right of maintenance, which can be

claimed by a lady under section 125 of Cr.P.C. It can also be said

that the Apex Court was considering the proceeding filed under

section 125 of Cr.P.C. and those cases were not filed under the

provisions of the Act. The case in which reference is made to the

larger Bench shows that the Apex Court has formed an opinion

Cri.W.P. No. 676/11

that the provisions of section 125 of Cr.P.C. also need to be looked

into from a different angle now.

19. Section 26 of the Act shows that the reliefs under

sections 18 to 22 of the Act can be claimed in 'any legal

proceeding' pending before the Civil or Criminal Court. It can be

said that in view of this liberty given to the parties, in a

proceeding filed under section 125 of Cr.P.C., application can be

filed under section 12 of the Act and relief of maintenance can be

claimed under the Act. Even if the interpretation of term 'wife' is

not changed for the purpose of section 125 of Cr.P.C. and the

claimant in a proceeding filed under section 125 of Cr.P.C. fails to

establish that she is 'wife' as required for section 125 of Cr.P.C.,

she can establish that she falls under the definition of 'domestic

relationship' given in section 2 (f) of the Act. In that case, if there

is the application filed under section 12 of the Act, she can get the

relief of maintenance in view of the provisions of the Act. Thus, at

present, in a case like present one, it is sufficient for the claimant

to establish her relationship with the respondent as defined in

section 2 (f) of the Act. The Sessions Court has picked up some

observations made by the Apex Court in the case of D. Velusamy

for setting aside the order made by the J.M.F.C. This Court has no

hesitation to hold that the Sessions Court has committed error in

Cri.W.P. No. 676/11

doing so.

20. The provisions of section 12 (4) and 12 (5) of the Act

show that the proceeding is expected to be disposed of as

expeditiously as possible and endeavour of Magistrate should be

to see that such proceeding is disposed of within 60 days from the

date of first hearing. The provision of section 28 of the Act shows

that the proceeding for the reliefs under the Act shall be governed

by the provisions of Cr.P.C., but section 28 (2) of the Act shows

that wide powers are given to Magistrate to lay down its own

procedure for disposal of the proceeding filed under section 12

and 23 (2) of the Act. These provisions show that the Magistrate is

expected to deal with the proceedings filed under section 12 and

23 of the Act in a summary manner, so that the proceeding is

disposed of expeditiously. Considering the purpose behind the Act,

which is discussed in the case of Chanmuniya cited supra, the

detail examination of rival cases like Civil Court is not expected.

21. For getting the reliefs under sections 18 to 22 of the

Act, the application is required to be moved under section 12 of

the Act. Such proceeding can be filed by 'aggrieved person'. The

definition of the term 'aggrieved person' is given in section 2 (a)

of the Act and it is as under :-

Cri.W.P. No. 676/11

"(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; "

The term 'domestic relationship' is defined in section 2 (f) of the

Act and it is as under :-

"(f) "domestic ig 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; "

In the definition of 'domestic relationship' it is provided that

relationship by marriage or relationship in the nature of marriage

need to be proved. Thus, it can be said that the factum of

marriage is not expected to be proved for getting reliefs and the

claimant may lead evidence only on the relationship in the nature

of marriage. In view of the procedure, which the Magistrate is

expected to follow, this Court holds that such relationship can be

proved to the satisfaction of the Magistrate.

Cri.W.P. No. 676/11

22. Sections 2 (a), 3 and 12 of the Act show that for

getting the reliefs, the person like the present petitioner is

required to prove that she had lived together with the respondent

in a 'shared household'. Such evidence is given by petitioner in

this case and there is nothing in rebuttal. When the respondent

like the husband from the present case denies the relationship

itself, it can be used as one of the circumstances against him for

the proof of 'domestic violence' as defined in section 3 of the Act.

This Court has no hesitation to hold that in the present case, there

is evidence on the factum of marriage and there is evidence on

cohabitation and so the wife has proved that she falls under

section 2 (f) of the Act. Thus, the J.M.F.C. had not committed any

error in granting the relief of maintenance allowance to the

petitioner. In view of the facts and circumstances of the present

case, the observations made in the case of D. Velusamy cited

supra cannot come in the way of the petitioner to get relief of

maintenance under the Act. No argument was advanced on the

quantum of allowance in this proceeding. So, the order.

                                  ORDER

                 (i)    The petition is allowed.

(ii) The judgment and order of Criminal Appeal No.

35/2009 delivered by the Sessions Court, Osmanabad

is hereby quashed and set aside.

Cri.W.P. No. 676/11

(iii) The judgment and order of J.M.F.C. Bhoom in

Criminal Misc. Application No. 141/2008 is hereby

restored.

(iv) Rule is made absolute in aforesaid terms.

[ T. V. NALAWADE, J. ]

ssc/