Calcutta High Court (Appellete Side)

Biswajit Samanta vs Arati Samanta on 7 April, 2021

                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL REVISIONAL JURISDICTION
                          APPELLATE SIDE


The Hon'ble JUSTICE BIBEK CHAUDHURI


                            C.R.R 717 of 2019

                            Biswajit Samanta
                                   -Vs-
                               Arati Samanta

      For the Petitioner:            Mr. Ayan Bhattacharya,
                                     Mr. Syed Nurul Arefin,
                                     Mr. Rahul Singh.

      For the Opposite Party :       Mr. Shayak Chakraborty.



Heard on: 23 March, 2021.
Judgment on: 07 April, 2021.

BIBEK CHAUDHURI, J. : -


1.    Appellate order dated 31st January, 2019 passed by the learned

Sessions Judge, Fast Track, 2nd Court at Contai under Section 29 of the

Protection of Women from Domestic Violence Act, 2005 (hereafter

described as the PWDV Act for short) is under challenge in the instant

revision.

2.    The opposite party as petitioner filed an application under Section

12 of the PWDV Act against the petitioner herein praying for reliefs under

the provisions of Sections 18/19/20/21/22/23 of the PWDV Act before
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the learned Additional Chief Judicial Magistrate, Contai which was

registered as Misc Case No.144 of 2016. In the said proceeding, the

learned Judicial Magistrate, 3rd Court at Contai passed an order on 20th

March, 2018 directing the present petitioner to pay interim monetary

relief at the rate of Rs.15000/- per month from the date of order in favour

of his wife/opposite party under Section 23 of the PWDV Act.

3.    The said order was assailed by the husband/petitioner in Criminal

Appeal No.5 of 2018. The learned Judge in the court of Appeal was

pleased to dismiss the appeal affirming the order passed by the learned

Judicial Magistrate in Misc Case No.144 of 2016.

4.    In order to adjudicate legality, validity and propriety of the

impugned order, it is important to narrate the following facts leading to

the dispute between the parties:

            1. The opposite party as petitioner has claimed that her

               marriage with the present petitioner was soleminsed on

               14th August, 2013.

            2. The husband/petitioner has challenged the factum of

               marriage between him and the opposite party. He has filed

               a suit for declaration of nullity of marriage against the

               opposite party in the jurisdictional Civil Court which was

               registered as O.S No.143 of 2016.

            3. The opposite party/wife filed an application under Section

               125 of the Code of Criminal Procedure against the

               petitioner. Initially, application for interim maintenance
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               was rejected by the learned Magistrate and the said order

               was affirmed by this Court in revision being CRR No.1722

               of 2017. Subsequently however, the application under

               Section 125 of the Coder of Criminal Procedure was

               allowed on contest directing the present petitioner to pay

               maintenance under Section 125 of the Code of Criminal

               Procedure at the rate of Rs.8000/- per month. The said

               order passed in Misc Case No.81 of 2016 by the learned

               Judicial Magistrate, 1st Court at Contai is affirmed by this

               Court in revision.

5.    The opposite party has filed affidavit in opposition denying the

allegations made out by the petitioner in the revisional application. She

has further reiterated that she is the married wife of the petitioner and

filed certain documents in support of her claim.

6.    The petitioner in turn has also filed affidavit in reply and

supplementary affidavit denying the opposite party's claim and marital

status with him.

7.   Mr. Ayan Bhattacharya, learned Advocate for the petitioner submits

that the opposite party has claimed to be the married wife of the petitioner

on the strength of her ration card where the name of the petitioner is

recorded as her husband, a certificate issued by the Contai Municipality

and an LIC Policy standing in the name of the opposite party. None of the

above documents are proof of marriage between the petitioner and the

opposite party. It is also submitted by him that all the abovementioned
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documents are in the nature of private documents. Therefore, the trial

Court as well as the Court of Appeal below committed gross illegality by

accepting those documents even as prima facie proof of marriage. Mr.

Bhattacharya draws my attention to the following observation of a Co-

ordinate Bench of this Court in the judgment passed in CRR No.1722 of

2017. The said judgment was passed by this Court upon an application

under Sections 397 read with 401 of the Code of Criminal Procedure filed

by the opposite party challenging an order of refusal of interim

maintenance under Section 125 of the Code of Criminal Procedure. The

following observation made by a Coordinate Bench in the aforesaid

revision is referred by the learned counsel for the petitioner:-

            "It is evident from the documents on record that there is a
            dispute between the parties with regard to the matrimonial
            relation between the petitioner and the opposite party no.1
            though admittedly there was love affairs between them. The
            authenticity of the documents produced by the petitioner in
            support of her claim of marriage with the opposite party no. 1
            has been questioned by the opposite party no.1 on the plea
            that those have been created only for the purpose of this case
            and have not been tested in trial. It is true that proceeding
            under Section 125 of Cr.P.C. do not require the factum of
            marriage to be proved strictly but at the same time claimant
            must establish factum of marriage or living together for
            sustaining her claim of maintenance. In the instant case the
            factum of marriage between the parties has been denied by
            the   opposite   party   no.   1   and   as   such     under   the
            circumstances in the absence of any evidence of the parties it
            will be very difficult to draw any such inference on the basis
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            of the documents which have not been tested in trial. Learned
            court below taking into account the above circumstances was
            of the opinion that in the absence of any evidence it will not
            be proper to pass any order of interim maintenance in a haste
            as there will be chance of causing prejudice to the party.
            Taking into account the above situation there appears no
            illegality or irregularity in the order impugned. Admittedly,
            case is at the stage of evidence and as such I am the view in
            order to set the controversy at rest evidence is required and
            for this reason learned Magistrate be requested to expedite
            the hearing of the main application under Section 125 Cr.P.C.
            and dispose of the same within a stipulated period and this
            will also not cause any prejudice to either of the parties."


8.   Mr. Bhattacharya next draws my attention to the following definitions

of the PWDV Act, 2005:

            Section 2(a) of the PWDV Act defines "aggrieved person"

     in the following words:-

                   (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;

Section 2(f) of the Act defines "domestic relationship" which

runs thus:-

(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;"

Section 2(q) of the Act speaks of the expression "respondent"

in the following words:-

(q) "respondent" means 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: Provided

that an aggrieved wife or female living in a relationship

in the nature of a marriage may also file a complaint

against a relative of the husband or the male partner.

9. It is submitted by the learned advocate for the petitioner that the

opposite party was never in a domestic relationship with the petitioner.

She has failed to prove even prima facie, that her marriage was

soleminsed with the petitioner or they lived together "through a

relationship in the nature of marriage". Therefore, an application praying

for interim monetary relief under Section 23 of the PWDV Act is not

maintainable against the petitioner and the impugned order cannot be

sustained.

10. Learned Advocate for the petitioner refers to an observation made by

the learned Judicial Magistrate, 3rd Court at Contai in his order dated 20th

March, 2018. The said observation runs thus:

"More so, the Domestic Incident Report (DIR) prima

facie establishes the domestic violence upon the

petitioner and the live in relation between the petitioner

and the OP no.1 as husband and wife in a same

residence".

11. It is pointed out by the Learned Advocate for the petitioner that the

learned Magistrate committed patent illegality in holding that there was

live-in relationship between the parties. In order to substantiate his

contention, learned Advocate for the petitioner refers to the decision of the

Hon'ble Supreme Court in the case of Indra Sharma vs V.K.V Sharma

reported in (2013) 15 SCC 755. Paragraph 37 of the said report in

relevant and quoted below:

The distinction between the relationship in the nature of marriage and marital relationship has to be noted first. The relationship of marriage continues, notwithstanding the fact that there are differences of opinions, marital unrest, etc., even if they are not sharing a shred 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".

12. In paragraph 56 of the aforesaid judgment, the Hon'ble Supreme

Court has formulated certain guidelines for testing under what

circumstances, a live in relationship will fall within the expression

"relationship in the nature of marriage". These are :-

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. The 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.

13. Thus, Mr. Bhattacharya concludes submitting that the opposite

party has failed to prove her marital relationship or live in relationship in

the nature of marriage. Therefore in the absence of any domestic

relationship with the petitioner, the opposite party cannot claim any relief

under the PWDV Act.

14. Mr. Sayak Chakraborty, learned Advocate for the opposite party, on

the other hand, submits that in a proceeding under the PWDV Act, strict

proof of marriage between the parties is not necessary. If the Domestic

Incident Report (DIR) shows that there is domestic relationship between

the parties and the aggrieved person was subjected to domestic violence,

she is entitled to relief under various provisions of the statute.

15. In the instant case, the learned Magistrate came to the finding that

the opposite party was in domestic relationship with the petitioner and

she was subjected to domestic violence from DIR. At the stage of interim

relief, the opposite party does not require to prove anything more.

16. It is also pointed out by the learned Advocate for the opposite party

that the opposite party as petitioner filed Misc Case No.81 of 2016 under

Section 125 of the Code of Criminal Procedure. The learned Judicial

Magistrate, 1st Court, Contai by a judgment dated 10th May, 2018 allowed

the said prayer for maintenance under Section 125 of the Code of

Criminal Procedure. In the said proceeding also the husband/opposite

party took a specific defence that there was no marriage between him and

the wife/petitioner. The learned Magistrate on conclusion of trial held that

the petitioner is the legally married wife of the opposite party.

17. The said order was affirmed by this Court in CRR No. 1722 of 2017.

18. Thus, in a coordinate proceeding, the opposite party was held to be

the legally married wife of the petitioner. The said order is upheld by this

Court. Therefore, the petitioner cannot claim at this stage that there is no

domestic relationship between the parties.

19. In Dwarika Prasad Satpathy vs Bidyut Prava Dixit and Another

reported in AIR 1999 SC 3348, the Hon'ble Supreme Court held that no

strict proof of marriage is required; if the claimant prima facie satisfied

the court that claimant and her husband lived as husband and wife, she

is entitled to maintenance under Section 125 (1) of the Code of Criminal

Procedure. The Hon'ble Supreme Court also observed that the standard of

proof of marriage in proceedings under Section 125(1) of the Cr.P.C is not

as strict as requires in trial of offences under Section 494 of the Indian

Penal Code. The same principle is also laid down in Sethurathinam Pillai

vs Barbara reported in (1971) 3 SCC 923.

20. The same principle is applicable in a proceeding under Section 12

read with Section 23 of the PWDV Act in deciding a question as to

whether a woman is having domestic relationship with a man by

marriage. I have already stated that in a proceeding under Section 125 of

the Code of Criminal Procedure between the parties, the opposite party

was held to be the wife of the petitioner. The said order was affirmed by

this Court in CRR No. 1722 of 2019.

21. Therefore, this Court has no hesitation to hold that there exists

domestic relationship between the parties. The petitioner has failed and

neglected to provide maintenance to the opposite party which is obviously

instances of economic abuse and accordingly domestic violence.

22. At the same time I am not unmindful to note that since the opposite

party was awarded maintenance in a proceeding under Section 125 of the

Code of Criminal Procedure, the petitioner is entitled to have adjustment

of the amount of maintenance already paid by him to the opposite party

under Section 125 of the Code of Criminal Procedure against the amount

of interim monetary relief to be paid by the petitioner under the DV Act.

23. In Rajnesh vs. Neha & Anr. reported in (2021) 2 SCC 324 it is

observed by Hon'ble Supreme Court as hereunder:-

"It is well settled that a wife can make a claim for

maintenance under different statutes. For instance, there

is no bar to seek maintenance both under the D.V.

Act and Section 125 of the Cr.P.C., or under H.M.A. It

would, however, be inequitable to direct the husband to

pay maintenance under each of the proceedings,

independent of the relief granted in a previous proceeding.

If maintenance is awarded to the wife in a previously

instituted proceeding, she is under a legal obligation to

disclose the same in a subsequent proceeding for

maintenance, which may be filed under another

enactment. While deciding the quantum of maintenance in

the subsequent proceeding, the civil court/family court

shall take into account the maintenance awarded in any

previously instituted proceeding, and determine the

maintenance payable to the claimant

To overcome the issue of overlapping jurisdiction, and avoid

conflicting orders being passed in different proceedings, we

direct that in a subsequent maintenance proceeding, the

applicant shall disclose the previous maintenance proceeding,

and the orders passed therein, so that the Court would take into

consideration the maintenance already awarded in the previous

proceeding, and grant an adjustment or set-off of the said

amount. If the order passed in the previous proceeding requires

any modification or variation, the party would be required to

move the concerned court in the previous proceeding."