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Bombay High Court
Smt.Anita Advani vs Smt.Dimple Jatin Khanna And Ors. on 1 April, 2026
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2026:BHC-AS:15469
SHAGUFTA
SHAGUFTA QUTBUDDIN
QUTBUDDIN PATHAN FA-616-2025-J
PATHAN Date:
2026.04.01
18:46:04
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.616 OF 2025
IN
S.C. SUIT NO.3109 OF 2015
Anita Advani,
Age 52 years, Flat No.504, B-Wing,
5th Floor, Marian House, 29th Road, ... Appellant
Bandra (W), Mumbai-400 050 Org. Plaintiff
Versus
1. Dimple Jatin Khanna,
201-A, Vastu Building,
Military Road, Juhu,
Mumbai-400 049
2. Twinkle Rajiv Bhatia,
Palm Beach Apartment,
Ground Floor, Gandhi Gram Road,
Juhu, Mumbai-400049
3. Rajiv Hari Om Bhatia,
Palm Beach Apartment,
Ground Floor, Gandhi Gram Road,
Juhu, Mumbai-400049
4. Rinki Samir Saran,
201-A, Vastu Building, ... Respondents/
Military Road, Juhu, Org. Defendant
Mumbai - 400 049 Nos. 1 to 4
_______________________
Ms. Preeti Singh a/w Mr. Sunklan Porwal, Ms. Kajal Solanki and Mr. Ashwin
Pimpale i/b SSB Legal & Advisory for the Appellant
SQ Pathan 1/14
::: Uploaded on - 01/04/2026 ::: Downloaded on - 01/04/2026 21:34:09 :::
FA-616-2025-J
Ms. Pooja Kane a/w Mr. Ishaan Choudhary and Mr. Dhir Pandit i/b IC Legal
for the Respondents
_______________________
CORAM : SHARMILA U. DESHMUKH, J.
RESERVED ON : 26th MARCH 2026
PRONOUNCED ON : 1st APRIL 2026
JUDGMENT :
1. The First Appeal is at the instance of the original Plaintiff, being
aggrieved by the order dated 15th July 2017 passed by the City Civil
Court at Dindoshi, Borivali Division, Goregaon, Mumbai, dismissing the
suit on an application filed under Order VII Rule 11(d) of the Code of
Civil Procedure (for short, `CPC').
2. The Plaintiff filed S.C. Suit No 3109 of 2015 in the City Civil Court
against the wife, daughters and son in law of the deceased Jatin Khanna
seeking a declaration that the Plaintiff was in a relationship with the
deceased in nature of marriage and is the widow of the deceased. The
Defendant No 2 filed an application under Order VII Rule 11 of CPC
seeking dismissal of the suit on the ground that the suit is barred by law
broadly on the ground that (a) the marriage between the deceased and
the Defendant No 1 was not dissolved and under Hindu Marriage Act,
there can be no marriage if one of the party had a spouse living and
FA-616-2025-J
hence there can be no declaration granted that the Plaintiff was a
widow of the deceased (b) both parties were not qualified to enter into
legal marriage as per judicial pronouncement and resultantly there can
be no declaration sought of the relationship being in nature of marriage
and (c) the Bombay High Court had quashed the complaint filed under
the Protection of Women from Domestic Violence Act, 2005 (for short,
"D.V.Act") holding that the Plaintiff has failed to make out any case that
she is living in a relationship in nature of marriage with the deceased.
The application came to be opposed by the Plaintiff by filing its reply
Affidavit dated 22nd June, 2017.
3. Vide the impugned order, the application came to be allowed by
the Trial Court dismissing the suit leading to the filing of the present
Appeal.
4. Ms. Preeti Singh, Learned Counsel appearing for the Plaintiff
would draw attention of this Court to prayer clause (a) of the plaint to
contend that the relief sought was in two distinct parts i.e. declaration
that the Plaintiff was in relationship with the deceased in the nature of
marriage and that the Plaintiff is the widow of the deceased. She
submits that even if the latter part of relief of being declared as widow
cannot be sustained, there are sufficient averments in the plaint to
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sustain the relief sought as regards the declaration of the relationship
being in nature of marriage.
5. She has taken this Court in detail through the averments of the
plaint to submit that since the year 1984, there was a breakdown of the
marriage between the deceased and the Defendant No. 1, that the
deceased was staying separately from his legally wedded wife, that it
was the Plaintiff and deceased who were living under one roof since
several years and had projected to the society at large about their
relationship being in nature of marriage. She submits that there are
specific pleadings in the plaint that the deceased and the Plaintiff have
celebrated all festivals together and that the Plaintiff had also
advanced financial help to the deceased for the purpose of renovating
their premises. She submits that there are different kinds of live in
relationship and in the present case, the deceased and the Plaintiff
were living together sharing a common residence and the estranged
wife was living separately. She submits that the relationship between
the Plaintiff and deceased was thus monogamous in character.
6. She submits that the impugned order rejects the plaint on the
ground that no fruitful purpose would be served by going ahead with
the matter for evidence, without specifying the specific bar in law. She
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submits that the decision in the case of D. Velusamy v. D.
Patchaiammal1 will not apply, as in that case, the facts were completely
different and the Hon'ble Apex Court was considering the issue of a
claim of palimony. She would further submit that the decision in the
case of Indra Sarma v. V.K.V. Sarma2 is clearly distinguishable on facts.
7. Per contra, Ms. Kane, Learned Counsel appearing for the
Respondent would point out the pleadings in the plaint to submit that
the relief sought in the plaint was for a declaration of the relationship
being in the nature of marriage and that the Plaintiff is widow of the
deceased. She submits that it is an admitted position in the pleadings
that the deceased had a subsisting marriage, and in view thereof, no
such declaration could have been sought and provisions of Section 5
and Section 17 of the Hindu Marriage Act militate against grant of such
relief. She submits that the Trial Court has rightly considered the
decision in the case of D. Velusamy v. D. Patchaiammal (supra). She
would submit that the Hon'ble Apex Court, in the case of Dahiben v.
Arvindbhai Kalyanji Bhanusali3, has held that the Court, under Order
VII Rule 11 could determine if the assertions made in the plaint are
contrary to statutory law, or judicial dicta, for deciding whether a case
1 (2010) 10 SCC 469
2 (2013) 15 SCC 755
3 (2020) 7 SCC 366
FA-616-2025-J
for rejecting the plaint at the threshold is made out. She submits that,
as the suit was contrary to the judicial dicta, such proceedings were
required to be nipped in the bud, which is the finding of the Trial Court
in opining that no fruitful purpose would be served by going ahead with
the matter for evidence.
8. The issue which arises for consideration is, whether the suit could
have been dismissed under Order VII Rule 11(d) of the CPC as being
barred by law.
9. Vide the impugned order, the Trial Court noted the pleadings in
the plaint and considered the provisions of Section 5 and Section 7 of
Hindu Marriage Act providing for conditions of valid marriage. The Trial
Court noted the decision of the Hon'ble Apex Court in the case of D.
Velusamy v. D. Patchaiammal (supra), setting out the requirements for
granting of declaration as to relationship being in nature of marriage,
the decision of Bombay High Court in proceedings seeking quashing of
D.V. proceedings and held that in view of the specific bar in law to grant
any relief to the Plaintiff, no fruitful purpose would be served by going
ahead with the matter for evidence, and allowed the application and
disposed of the suit.
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10. The application was filed under Order VII Rule 11 of CPC which
permits the Court to summarily dismiss the suit where the eventualities
set out therein are satisfied. The power of summary disposal under
Order VII and Rule 11 of CPC was considered by the Hon'ble Apex Court
in Dahiben v. Arvindbhai Kalyanji Bhanusali (supra), and it held that
the remedy is an independent and special remedy wherein the Court is
empowered to summarily dismiss the suit at the threshold if it is
satisfied that the action should be terminated on any of the grounds
contained in this provision. In paragraph 23.9, the Hon'ble Apex Court
recognised the power of the Court to determine if the assertions made
in the plaint are contrary to statutory law, or judicial dicta, for deciding
whether a case for rejecting the plaint at the threshold is made out.
11. Ms. Singh cited the decision of Indra Sarma v. V.K.V. Sarma
(supra), and strangely sought to distinguish the said decision. Neither
the Trial Court nor Ms. Kane had relied upon the said decision. Be that
as it may. In the said decision, the Hon'ble Apex Court discussed the
characteristics of marriage and marital relationship and analysed the
concept of relationship in nature of marriage. It held in paragraph 57 as
under:
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"57. The appellant, admittedly, entered into a live-in relationship with
the respondent knowing that he was a married person, with wife and
two children, hence, the generic proposition laid down by the Privy
Council in Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige
Balahamy - (1928) 27 LW 678 : AIR 1927 PC 185, that where a man and a
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 will not apply and, hence, the relationship between the
appellant and the respondent was not a relationship in the nature of a
marriage, an the status of the appellant was that of a concubine. A
concubine cannot maintain a relationship in the nature of marriage
because such a relationship will not have exclusively and will not be
monogamous in character. Reference may also be made to the
judgments of this Court in Badri Prasad v. Director of Consolidation-
(1978) 3 SCC 527 and Tulsa v. Durghatiya-(2008) 4 SCC 520."
12. The decision was attempted to be distinguished by Ms. Singh on
the ground that in present case, the relationship between the Plaintiff
and the deceased was monogamous. Pertinently, the Hon'ble Apex
Court noted the decision of Gokal Chand vs Parvin Kumari 4 that
relationship by way of a bigamous marriage that is maintaining an
adulterous relationship cannot be said to be a relationship in nature of
marriage.
13. The decision of D. Velusamy vs D. Patchaiammal (supra), arose
out of proceedings under Section 125 of the Code of Criminal
Procedure, where the claim was that the Applicant was married to the
Appellant therein and that he had left her after two or three years of
living together with her in her father's house. The Family Court and the
4 AIR 1952 SCC 520
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High Court had held that Appellant was married to the Applicant and
not to one Lakshmi as claimed by Appellant. As Lakshmi was not party
to the proceedings, the Hon'ble Apex Court did not consider the
Applicant as wife of the Appellant and examined the issue from the
aspect of D.V Act as regards relationship in nature of marriage. The
Hon'ble Apex Court specifically held that, in facts therein, it was not
called upon to decide whether in India there could be a valid claim for
palimony on the basis of contract, express or implied as no such case
was made out. The Hon'ble Apex Court crystallised the tests required to
be satisfied where a relationship in the nature of marriage is claimed, in
paragraph 31, as under:
"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.
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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"."
14. The Hon'ble Apex Court held in paragraph 32 that not all live in
relationships will amount to a relationship in the nature of marriage to
get the benefit of the Act of 2005. To get such benefit the conditions
mentioned above must be satisfied. It held that if a man has a "keep"
whom he maintains financially and uses mainly for sexual purpose
and/or as a servant it would not, in our opinion, be a relationship in
nature of marriage. The decision will have to be read for the tests which
have been formulated by the Hon'ble Apex Court in case where
relationship in nature of marriage is claimed. In the present case, the
relief sought is precisely of declaration that the relationship between
the Plaintiff and deceased was in nature of marriage. Having asked for
the declaration, the Plaintiff's case will have satisfy the tests laid down
in D. Velusamy v. D. Patchaiammal (supra).
15. With this background, the plaint is perused, it is pleaded that the
Plaintiff and the deceased were in a relationship akin to marriage in a
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shared household, and that the declaration sought in prayer clause (a)
reads as under:
"(a) That this Hon'ble Court may be pleased to pass an order
declaring that the Plaintiff was in a relationship with the Deceased in
the nature of marriage and is the widow of the deceased, Mr. Rajesh
Khanna alias Mr. Jatin Khanna."
16. The frame of the suit is that the relationship between the
deceased and the Plaintiff had the essential characteristics of marriage
and constituted a relationship in nature of marriage and upon death of
the deceased, the Plaintiff is a widow of the deceased. Ms. Singh would
attempt to dissect the composite prayer clause (a) into two parts:; one
for declaration of relationship being in nature of marriage and the other
part of declaration of being widow of the deceased. She would submit
that even if the latter declaration could not be granted, the former
relief is substantiated from the pleadings. The distinction would restrict
the suit to a declaration of relationship in nature of marriage and such
claim would be hit by the proviso to Section 34 which provides that no
such declaration shall be made where the Plaintiff being able to seek
further relief than mere declaration omits to do so. The declaration of
being a widow of deceased is the further relief which the Plaintiff seeks
and it is Ms. Singh's contention that the relief may not be granted. It
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would also be material to note the pleadings in paragraph 39 of the
plaint, which refers to the Will of the deceased alleged to have been
fraudulently obtained by Defendant Nos. 1 and 2, and that Defendant
Nos. 1 and 2 have fraudulently obtained the Will so as to deprive the
Plaintiff of her legal rights, for which she is still entitled to as spouse of
the deceased. In paragraph 42, the Plaintiff has set out the details of
the probate petition filed by the Defendant and that the Plaintiff is in
the process of taking steps for revocation of the probate. In view of the
pleadings, it is evident that the substantive relief sought is of being
declared as widow of the deceased which is a necessary sequitur of the
declaration that the Plaintiff was in relationship with the deceased in
the nature of marriage.
17. Even accepting that the relief sought in prayer clause (a) are two
distinct reliefs, the admitted position of the subsistence of the marriage
between the deceased and Defendant No 1, the relief would be barred
by law and judicial dicta. In absence of requirements of valid marriage as
set out in the provisions of Hindu Marriage Act as the essential
conditions of valid marriage under Section 5 and Section 7 are not
satisfied, the relationship partakes the character of live in relationship.
The concept of a live-in relationship was statutorily recognized upon the
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enactment of the D.V. Act by introducing Section 2(f), which defined
"domestic relationship" to mean a relationship between two persons
who live or have, at any point of time, lived together in a shared
household through a relationship in the nature of marriage.
18. The declaration of the relationship being in nature of marriage
would require applicability of the tests as laid down in the decision of
D. Velusamy v. D. Patchaiammal (supra). There has to be cumulative
satisfaction of the tests laid down in Paragraph 31 of the said decision
and sub paragraph (c) of Paragraph 31, which lays down the criteria that
the parties must be otherwise qualified to enter into a legal marriage,
including being unmarried, is clearly not satisfied in the present case.
The tests formulated by the Hon'ble Apex Court would indicate that the
declaration of this nature seeks equivalence with marriage and marital
relationship and must therefore also satisfy the essential tests for valid
marriage although not formally married. The distinction between
monogamous or polygamous live in relationship cannot exclude the
satisfaction of the tests laid down in D. Velusamy v. D. Patchaiammal
(supra), which is clearly not satisfied in present case.
19. The Learned Trial Court has rightly considered the decision in the
case of D. Velusamy v. D. Patchaiammal (supra) and has examined the
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pleadings of the plaint in light of the said decision to hold that the
requirement is not satisfied in the present case and that no fruitful
purpose would be served by going ahead with the matter for evidence,
which is in consonance with the judicial pronouncement in the case of
Dahiben v. Arvindbhai Kalyanji Bhanusali (supra), and in particular
paragraph 23.9, which provides for rejection of the plaint where the
assertions made in the plaint are contrary to the judicial dicta. It is held
that in such cases, it would be futile to permit the suit to proceed for
trial and unnecessarily protract the proceedings, which is precisely what
has been done by the Trial Court in exercise of powers under Order VII
Rule 11 of the CPC.
20. In light of the above, there is no merit in the First Appeal.
Resultantly, the Appeal stands dismissed.
21. The interim application, if any, does not survive for consideration
and stands disposed of.
SHARMILA U. DESHMUKH, J.
