Bombay High Court
Sau. Anita Ambadas @ Ambu ... vs Ambadas @ Ambu Mallu Shivarkar on 19 October, 2023
Bench: G. A. Sanap
2023:BHC-NAG:15380
1 REVN.96.19 (J).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL REVISION APPLICATION NO. 96 OF 2019
APPLICANT : Sau. Anita Ambadas @ Ambu Shivarkar,
Aged 38 years, Occu. Household,
R/o C/o Sarkar Anna Raje, Shelgaon Atol,
Tah. Chikhali, Dist. Buldhana.
VERSUS
NON-APPLICANTS : 1] Ambadas @ Ambu Mallu Shivarkar,
Aged 56 years, Occu. Business,
2] Lilabai Ambadas @ Ambu Shivarkar,
Aged 51 years, Occu. General Store,
3] Dipak Ambadas @ Ambu Shivarkar,
Aged 29 years, Occu. Education.
4] Gajanan Ambadas @ Ambu Shivarkar,
Aged 26 years, Occu. Education,
5] Govinda Mallu Shivarkar,
Aged 66 years, Occu. Agriculture,
6] Ashok Govinda Shivarkar,
Aged 27 years, Occu. Agriculture,
All R/o Near Ajintha Guest House,
(Durgapur Colony), Deulgaon Raja,
Tah. Deulgaon Raja, Dist. Buldhana.
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Mr. Akshay Pandya, Advocate for the applicant.
Mr. Pushkar Deshpande, Advocate for the non-applicants
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CORAM : G. A. SANAP, J.
Date of Reserving Judgment : APRIL 28, 2023.
Date of Pronouncement of Judgment : OCTOBER 19, 2023
2 REVN.96.19 (J).odt
JUDGMENT
1. In this revision application, challenge is to the judgment
and order dated 17.08.2018 passed by learned Sessions Judge, Buldhana
whereby learned Sessions Judge dismissed the appeal filed by the
applicant against the judgment and order dated 13.01.2015, passed by
learned Judicial Magistrate, First Class, 2nd Court, Buldhana. Learned
Judicial Magistrate, First Class, by order dated 13.01.2015 had
dismissed the application filed by the applicant under Section 12 of the
Protection of Women from Domestic Violence Act, 2005 (hereinafter
referred to as "the D.V.Act" for short)
2. Background facts :
The applicant and the non-applicants belong to Vaidu
community. Non-applicant nos.1 and 5 are the brothers. Deceased
mother of the applicant was the sister of non-applicant nos.1 and 5.
Non-applicant no.2 is the wife of non-applicant no.1. Non-applicant
nos.3 and 4 are the children of non-applicant nos.1 and 2. Non-
applicant no.6 is the son of non-applicant no.5. Non-applicant no.1 is
the maternal uncle of the applicant.
3 REVN.96.19 (J).odt
3. According to the applicant, in Vaidu community, there is a
custom of 'sate-lote' (giving of daughter in marriage in families of two
relatives). Marriage of the applicant was solemnized with non-applicant
no.1 as per the custom of sate-lote in 1998. It is stated that marriage of
the sister of non-applicant no.1 was solemnized with the father of the
applicant. As per the custom of sate-lote, marriage of cousin of the
applicant by name Gangabai was solemnized with non-applicant no.1.
At that time, Gangabai was minor. She was not sent to the house of
non-applicant no.1 for cohabitation. She resided with her parents.
Non-applicant no.1, taking advantage of this situation, without
knowledge of the applicant's family, performed second marriage with
non-applicant no.2 in 1983. Non-applicant no.2 begotten two children
namely, non-applicant nos.3 and 4. The family of the applicant did not
like this and therefore, divorce took place between Gangabai and non-
applicant no.1. It is the case of the applicant that non-applicant no.1
was deeply hurt by this divorce. He, therefore, insisted that daughter
from the applicant's father's family be given in marriage to him. After
knowing reluctance of the family of the applicant, non-applicant no.1
insisted that the applicant's father should give divorce to her mother.
The mother of the applicant declined this suggestion of non-applicant
4 REVN.96.19 (J).odt
no.1. It is stated that, therefore, the members of their Caste Panchayat
came together and pressurized the parents of the applicant to perform
her marriage with non-applicant no.1. When they refused to do so,
non-applicants and their Caste Panchayat ostracized the family of her
parents from the caste and community. An attempt was made to kill
them. It is stated that by applying such pressure, the parents of the
applicant were forced to perform her marriage with non-applicant no.1.
4. After marriage, the applicant went to the house of non-
applicant no.1. Non-applicant no.1 is doing business of cutlery (sale of
needle, threads and beads). Non-applicant no.1 made the applicant to
sell cutlery articles in the adjoining villages. Unfortunately, the
applicant, two years before filing of the application, suffered brain
hemorrhage. Non-applicant no.1 and his family members realized that
she was not of any use and was a liability and therefore, non-applicant
nos.1 and 2 driven her out of their house. The applicant, thereafter
took shelter at her parents house. She was in need of money to spend
for her surgery. Non-applicant no.1 did not make any provision for the
same. She, therefore, lodged report with the police. Police registered a
case for the offence under Section 498-A of the Indian Penal Code
5 REVN.96.19 (J).odt
against the non-applicants. It is the case of the applicant that she has no
source of income. She is entitled to get maintenance for herself. She
was tortured and ill-treated. Non-applicant no.1, according to the
applicant, owns sufficient land. He has house property. He has
sufficient means to pay maintenance to the applicant. She, therefore,
prayed for grant of maintenance and other consequential reliefs, as
provided under the D.V. Act.
5. Non-applicant no.1 filed written statement and opposed
the application. Non-applicant nos.5 and 6 adopted the reply filed by
non-applicant no.1. Non-applicant nos.2 to 4 did not appear and
therefore, the matter was proceeded ex-parte against them. Non-
applicant no.1, in sum and substance, has denied material facts pleaded
by the applicant. According to him, the case of marriage of the
applicant with him, as sought to be put forth, is not correct. The
applicant is his niece. Father of non-applicant no.1 is the maternal
grandfather of the applicant. The applicant used to reside with her
maternal grandfather during her childhood. It is stated that two years
prior to filing of the application by the applicant, the mother of the
applicant and sister of non-applicant no.1, died. Father of the applicant
6 REVN.96.19 (J).odt
demanded share in the property of the father of non-applicant no.1.
Father of non-applicant no.1 refused to give share in the property and
therefore, to pressurize the family of non-applicant no.1, this false story
was cooked up. It is further contended that in the year 1998, the
applicant was hardly 12-13 years old. Marriage of non-applicant no.1
with non-applicant no.2 was solemnized in 1983. Non-applicant no.2
begotten two children. Marriage of non-applicant no.1 with non-
applicant no.2 has been in subsistence. It was contended that therefore,
the case of the applicant that she was the wife of non-applicant no.1,
cannot be sustained in the eye of law. It is further contended that so
called marriage was not legal and valid, inasmuch as they were in the
prohibited degree of relationship. It is denied that there was any
custom or usage of sate-lote, as alleged.
6. Learned Magistrate, on consideration of the evidence
adduced by the parties, found that there was no substance in the
application and therefore, dismissed the said application. The appeal
filed against the order of learned Magistrate was dismissed by learned
Sessions Judge. The applicant is, therefore, before this Court in
revision.
7 REVN.96.19 (J).odt
7.. I have heard Mr. Akshay Pandya, learned advocate for the
applicant and Mr. Pushkar Deshpande, learned advocate for the non-
applicants. Perused the record and proceedings.
8. Learned advocate Mr. Akshay Pandya for the applicant
submitted that on the basis of evidence of the applicant and other
witnesses, the custom of sate-lote has been established. Learned
advocate submitted that in view of this custom of sate-lote, marriage of
the applicant with non-applicant no.1 could not be said to be void.
Learned advocate submitted that there is ample oral and documentary
evidence of marriage of the applicant with non-applicant no.1. Learned
advocate submitted that the Courts below have rejected the evidence in
the form of photographs on wrong premise. Learned advocate
submitted that the photographs were taken by brother of the applicant,
who has been examined as AW-2. Learned advocate submitted that oral
evidence of AW2 - Suresh Raje has been fully supported by the
photograph. Learned advocate submitted that evidence of AW4 -
Tatya Hatkar, who is an independent witness, has corroborated the case
of the applicant on the point of custom and usage of sate-lote marriage,
as stated by her. Learned advocate submitted that there is ample
8 REVN.96.19 (J).odt
evidence on record to prove that the applicant resided with non-
applicant no.1 as his wife and therefore, the said relationship was in the
nature of marriage. Learned advocate submitted that in this case,
evidence on record is sufficient to prove the 'domestic relationship' as
understood by Section 2(f) of the D.V. Act. Learned advocate
submitted that when the applicant was fit and fine, non-applicant no.1
used her for earning money by doing business of sell of cutlery articles.
Learned advocate submitted that when the applicant became
handicapped due to brain hemorrhage, she was thrown out of the
house. Learned advocate submitted that therefore, the provisions of the
D.V. Act has to be liberally interpreted and on doing so the relief as
prayed for be granted in favour of the applicant. Learned advocate
submitted that there is ample evidence on record to prove that on the
date of marriage of the applicant with non-applicant no.1, she was not
minor. Learned advocate submitted that the Courts below have not
properly appreciated the evidence of her brother (AW2). The Courts
below have considered the solitary admission given by AW5 Gangabai,
which is totally out of context.
9. Learned advocate Mr. Pushkar Deshpande for non-
applicants submitted that as per the provisions of the Hindu Marriage
9 REVN.96.19 (J).odt
Act, 1955 (hereinafter referred to as "the Act of 1955" for short) and
particularly, Section 4, the Act has an overriding effect over the 'custom'
or 'usage'. It is submitted that the custom with regard to the marriage
cannot be pleaded because there is express provision stipulating
Conditions for a Hindu Marriage, under Section 5 of the Act of 1955.
It is further submitted that even the custom has not been properly
pleaded and proved. Learned advocate further submitted that non-
applicant no.1 is the maternal uncle of the applicant. Learned advocate,
therefore, submitted that the applicant and non-applicant no.1 are
within the degree of prohibited relationship. Learned advocate
submitted that in order to come out of this defence of degree of
prohibited relationship, the applicant was required to prove the custom
or usage of such sate-lote marriage and that too the marriage of niece
with maternal uncle. Learned advocate, therefore, submitted that the
marriage in this case, as sought to be contended by the applicant, was
void ab-initio. Learned advocate further submitted that at the time of
alleged marriage, the marriage of non-applicant no.1 with non-applicant
no.2 was subsisting. It is submitted that therefore, the so called
marriage or relationship in the nature of marriage, was void ab-initio.
Learned advocate submitted that AW5 Gangabai has categorically
10 REVN.96.19 (J).odt
admitted that at the time of marriage, the applicant was 12-13 years old.
Learned advocate submitted that the Courts below have properly
appreciated the evidence and has rightly rejected the claim of the
applicant.
10. In order to appreciate the rival submissions, I have gone
through the record and proceedings. The applicant has pleaded the
custom and usage of sate-lote marriage. In this case, non-applicant no.1
has denied his marriage with the applicant, as contended by the
applicant. The second stand of the applicant is that there was domestic
relationship between her and non-applicant no.1 because she lived with
non-applicant no.1 and said relationship was in the nature of marriage.
As far as age of the applicant in the year 1998 is concerned, in my view,
the evidence on record is sufficient to accept her contention that at the
relevant time she was not minor. It is seen that the Courts below have
given undue importance to the solitary admission given by AW5
Gangabai. In her cross-examination, she has stated that at the time of
alleged marriage of the applicant with non-applicant no.1, the applicant
was 12-13 years old. The question is whether the solitary admission is
sufficient to discard the other evidence. AW2 is the elder brother of the
11 REVN.96.19 (J).odt
applicant. The applicant has two sisters and one brother. In order to
substantiate the contention with regard to the minority of the applicant,
an attempt was made in the cross-examination of all witnesses. Cross-
examination of AW2 would be relevant. In his cross-examination, he
has stated that on the date of his evidence, the applicant was 33 years
old. He has stated that he does not know her birth date. However, he
has stated that the applicant is younger to him by two years. He was
asked about his birth date. He has stated that his birth date is
05.08.1978. He has stated that he does know the age of the applicant
on the date of her marriage with non-applicant no.1. These two
admissions given by AW2, in my view, are very vital. He has given his
birth date. He has stated that the applicant is his younger sister. She is
younger to him by two years. If this admission is taken into
consideration, then it would show that the applicant was born
somewhere in 1980-81. The alleged marriage of the applicant with
non-applicant no.1 took place in 1998. It, therefore, goes without
saying that on the date of the alleged marriage, the applicant was more
than 18 years old. I do not see any reason to discard and disbelieve this
evidence. It is further pertinent to note that AW5 Gangabai is the
cousin sister of the applicant. She is the same Gangabai, whose
12 REVN.96.19 (J).odt
marriage was initially performed with non-applicant no.1. On
appreciation of the evidence of AW2, brother of the applicant and AW5
Gangabai together, it would show that the evidence of AW2 carries
weight. The solitary admission, given without any other foundational
support, cannot be made the basis to accept the contention of non-
applicant no.1 on this point.
11. The next important question is whether marriage of the
applicant with non-applicant no.1 was solemnized as alleged. In my
view, even if it is accepted for the sake of argument that marriage was
solemnized as alleged, it would be a void marriage. The marriage would
not have legal sanctity under the law. In this context, it would be
necessary to consider whether the relationship of such kind could be
covered by the definition of "domestic relationship", contained in
Section 2(f) of the D.V. Act. It is extracted below :
"2. Definitions -
(a) to (e) .........
(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".
13 REVN.96.19 (J).odt
12. The Hon'ble Supreme Court has interpreted this definition
and particularly the words "relationship in the nature of marriage" in the
case of D. Velusamy .vs. D. Patchaiammal, reported at (2010) 10 SCC
469. In this case, the Hon'ble Supreme Court has held that 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. 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'.
13. In the subsequent decision of the Hon'ble Supreme Court
in Indra Sarma .vs. V.K.V. Sarma, reported at (2013) 15 SCC 755, the
question of interpretation of relationships, which are in the nature of
14 REVN.96.19 (J).odt
marriage and live-in relationship, fell for consideration. The Hon'ble
Supreme Court has laid down the guidelines and distinction between
two concepts. As per the law laid in Indra Sarma's case (supra), all
live-in relationships are not covered by the definition under Section 2(f)
of the D.V. Act. The Hon'ble Apex Court has held that the
relationships, which qualify to be of the nature of marriage, are the only
relationships governed by the definition. As per clause (c) of the
decision in the case of D. Velusamy (supra), the parties must be
otherwise qualified to enter into a legal marriage, including being
unmarried. The marriage, therefore, must be possible under the law. If
the marriage is not possible under the law or if it is prohibited by law or
if it is void under the law, then the same could not be said to be a
marriage permissible under law. At this stage, one more dimension that
is required to be considered in the light of the law laid down above, is
the interpretation required to be put to words 'relationship in the nature
of marriage', provided under Section 2(f) of the D.V. Act. The
fundamental rule of interpretation is that while interpreting the Statute,
plain and simple language must be first understood. The interpretation,
which is in direct conflict with law, which has tendency to promote
illegality, has to be avoided. In my view, if the words 'relationship in the
15 REVN.96.19 (J).odt
nature of marriage' is interpreted in the manner sought to be contended
by the applicant, it would be directly offending the provisions of the
other laws. In the facts and circumstances, this aspect needs to be kept
in mind.
14. In this case, the first and foremost, the applicant was
required to plead and prove the custom of sate-lote marriage, as alleged.
Besides the custom of sate-lote, the applicant was required to prove that
there was a custom of giving niece in marriage to the maternal uncle
because apparently, maternal uncle and niece fall within the prohibited
degree of relationship as per the provisions of the Act of 1955. I have
perused the evidence of the applicant and evidence of other witnesses.
There is hardly any evidence to prove the custom of sate-lote. The very
fact of giving the applicant in marriage to non-applicant no.1 is ex-facie
unbelievable. It is the case of the applicant that AW5 Gangabai was
given in marriage, in view of this custom of sate-lote, to non-applicant
no.1. Gangabai is admittedly the cousin sister of the applicant. It is
stated that Gangabai was not sent for cohabitation with non-applicant
no.1 because she was minor and therefore, behind the back of their
family, non-applicant no.1 performed second marriage with non-
16 REVN.96.19 (J).odt
applicant no.2 in the year 1983. It is their case that her uncle and her
father forced non-applicant no.1 to give divorce to Gangabai. The
parties are closely related. After this incident, the parents of the
applicant would not have performed marriage of the applicant with
non-applicant no.1. It is the case of the applicant that her mother had
refused to give divorce to her father when non-applicant no.1 insisted
her to do so. It is their case that the Caste Panchayat people and the
non-applicants ostracized them from caste and community. They were
pressurized. An attempt was made to kill them. In my view, this
statement cannot be believed. If they were pressurized and any attempt
was made to kill them, they would have reported the matter to police.
It has come on record that the parents of the applicant in 1998 knew
that non-applicant no.1 had married with non-applicant no.2 and non-
applicant no.2 had begotten children. In my view, therefore, the case of
the applicant appears unbelievable. This is one aspect which makes me
to agree with the Courts below.
15. According to the applicant, when she became ill, two years
prior to filing of the application, she was driven out of the house. It is
to be noted that even if we go by the statement of the non-applicant
17 REVN.96.19 (J).odt
no.1, prior to 2010, she had attained majority. If there was a marriage as
contended, then non-applicant no.1 would have established physical
relationship with the applicant. The applicant has admitted in her
cross-examination that she and non-applicant no.1 had no physical
relations. In my view, this is the vital and most important aspect against
the applicant.
16. The next important aspect is that in the year 1998,
marriage of non-applicant no.1 with non-applicant no.2 was subsisting.
It is not the case of the applicant that in their community, there is a
custom of second marriage. Even as per Section 5, sub-clause (i) of the
Act of 1955, the alleged marriage of the applicant with non-applicant
no.1 during subsistence of his marriage with non-applicant no.2, was
void ab-initio. In my view, this is the crux of this matter. The
contention of the applicant, therefore, cannot be accepted keeping in
mind the law laid down in the case of D. Velusamy (supra).
17. The another important aspect that makes the alleged
marriage void ab initio, is that the applicant and non-applicant no.1 falls
within the degree of prohibited relationship. Even if the custom of
18 REVN.96.19 (J).odt
sate-lote is accepted, the marriage of niece and maternal uncle in this
manner, unless sanctioned by custom, would be void ab-initio. In this
case, the applicant and the other witnesses have not uttered a word
about prevalence of such custom. Even if it is assumed that marriage of
Gangabai was solemnized with non-applicant no.1, it would not be a
ground to accept the contention of the applicant. There is no evidence
to prove that there is a custom in Vaidu community that niece is given
in marriage to maternal uncle. In my view, on this ground also, the
alleged marriage or relationship could not be said to be legal.
18. The Courts below have properly considered the legal issues
involved in the matter. Therefore, I do not see any reason to interfere
with the findings of fact recorded by the Courts below. As such, there is
no substance in the application. The revision application, therefore,
stands dismissed.
( G. A. SANAP, J. )
Diwale
Signed by: DIWALE
Designation: PS To Honourable Judge
Date: 19/10/2023 17:55:17
