Bombay High Court
Dhanraj S/O. Tukaram Shirsat vs Shalini D/O. Kisan Wankhade And ... on 7 August, 2017
Bench: P.N. Deshmukh
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO. 531 OF 2017
Dhanraj s/o Tukaram Shirsat,
aged about 50 years, occupation :
Driver, r/o 26-South Avenue,
Staff Quarter, New Delhi. ... Petitioner
- Versus -
1) Shalini d/o Kisan Wankhade
(earlier name Shalini w/o Dhanraj
Shirsat), aged 37 years, occupation :
household, r/o c/o Kisan Miraji
Wankhade, Krishi Nagar, Labour
Colony, Akola, Taluq and District
Akola.
2) State of Maharashtra, through
Public Prosecutor, High Court,
Nagpur. ... Respondents
-----------------
Shri A.M. Tirukh, Advocate for petitioner.
Respondent no.1 served.
Smt. G. Tiwari, Additional Public Prosecutor for respondent no.2.
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CORAM : P.N. DESHMUKH, J.
DATED : AUGUST 7, 2017
ORAL JUDGMENT :
Rule, returnable forthwith. Heard finally with consent of
Shri Tirukh, learned Counsel for petitioner, and Smt. Tiwari, learned
Additional Public Prosecutor for respondent no.2. None for respondent
no.1 though served. It is noted that even on the earlier date, none
represented respondent no.1 and with a view to give one more chance to
respondent no.1, matter was adjourned for today.
2) Challenge in this petition is to judgment and order dated
5/5/2017 passed by learned Additional Sessions Judge-2, Akola in
Criminal Appeal No.185/2016 and to order dated 19/12/2016 passed by
learned Judicial Magistrate, First Class, Akola in Miscellaneous Civil
Application No.745/2016 vide which application filed by petitioner in
domestic violence proceedings initiated by respondent no.1 came to be
rejected. In the said application it was brought on record that after
declaration of marriage between parties as null and void, there exists no
relationship of any kind between them and as such, proceedings initiated
by respondent no.1 were prayed to be dismissed.
3) Learned trial Court took a view that there is no specific
provision in the Protection of Women from Domestic Violence Act, 2005
that couple should be married. The view taken by learned trial Court was
upheld by learned appellate Court, thereby holding that considering facts
in the case, prima facie as there was relationship in the nature of
marriage between parties and as they had shared household, complaint
was tenable. Accordingly, appeal was rejected.
4) Perusal of the impugned judgment reveals that learned
appellate Court held that for the purpose of applying provisions of the
Protection of Women from Domestic Violence Act, 2005, a valid marriage
is not a condition precedent for initiating proceedings under the said Act
and whether such relationship in fact exists between the parties is a
matter of evidence and as such, can be considered only after opportunity
is given to both sides to adduce evidence and holding that such a
question having been based on facts can only be considered on leading
evidence, dismissed the appeal.
5) Shri Tirukh, learned Counsel for petitioner, has relied upon
fact of dissolution of marriage having been declared as null and void.
Perusal of judgment dated 30/5/2015 of learned Family Court, Akola,
which is filed with the petition, reveals that by the said judgment,
matrimonial relationship between parties has come to an end as marriage,
which took place between them on 17/2/2013, is declared as null and
void. Respondent no.1 preferred Family Court Appeal No.90/2015 before
Division Bench of this Court thereby questioning legality and correctness
of the judgment of learned Family Court whereby petition filed by
petitioner was allowed, thereby declaring that marriage between
petitioner and respondent no.1 is null and void. The Division Bench of
this Court dismissed the appeal. It is submitted by learned Counsel for
petitioner that the said judgment of Division Bench has attained finality.
As such, it is noted that in view of judgment dated 30/5/2015 passed by
learned Family Court, matrimonial relationship between petitioner and
respondent no.1 has come to an end after their marriage dated 17/2/2013
is declared as null and void.
6) In the background of facts as aforesaid, Shri Tirukh, learned
Counsel for petitioner, has submitted that since there exists no
matrimonial relationship between parties, which is essential condition to
proceed with complaint filed under the Protection of Women from
Domestic Violence Act, 2005, petition is liable to be allowed by quashing
the proceedings and for that purpose, has relied upon the judgment of
Hon'ble Apex Court in the case of D. Velusamy vs. D. Patchalammal
{(2010) 10 SCC 469} where in para 31, it is observed thus :
"31) In our opinion, a "relationship in the nature of
marriage" is akin to a common law marriage. Common law
marriages require that although not being formally married :
(a) The couple must hold themselves out to society as being akin
to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal
marriage, including being unmarried.
(d) They must have voluntarily cohabited and held themselves
out to the world as being akin to spouses for a significant period of
time.
In our opinion, a "relationship in the nature of marriage" under
the 2005 Act must also fulfill the above requirements and in
addition the parties must have lived together in a "shared
household" as defined in Section 2(s) of the Act. Merely spending
weekends together or a one night stand would not make it a
"domestic relationship".
7) In view of legal pronouncement as aforesaid, it goes without
saying that for proceedings under the Protection of Women from Domestic
Violence Act, 2005, it is necessary for the party approaching by way of
complaint to fulfill the above said requirements and in addition, the
parties must have lived together in a shared household as defined under
Section 2(s) of the Act. It is to be noted that in the case in hand,
undisputedly parties were married to each other, their marriage was
declared as null and void by the competent Court, which order has
attained finality as appeal before Division Bench of this Court came to be
dismissed and as such, from the date of said order of the learned Family
Court, there exists no relationship between petitioner and respondent no.1
as husband and wife.
8) In that view of the matter and case of D. Velusamy
(supra), it can thus clearly be seen that the Hon'ble Apex Court in
unequivocal terms held that all live-in relationships will not amount to a
relationship in the nature of marriage to get the benefit of the Act of 2005.
It has been held that to get such benefits, it is necessary to prove that the
couple must hold 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.
9) In that view of the matter, the petition is allowed. The
impugned judgment dated 5/5/2017 passed by learned Additional
Sessions Judge-2, Akola in Criminal Appeal No.185/2016 and impugned
order dated 19/12/2016 passed by learned Judicial Magistrate, First Class,
Akola below Exh. 8 in Misc. Criminal Application No.745/2016 are
quashed and set aside.
10) Rule is made absolute in the above terms. No order as to
costs.
JUDGE
khj
