Kerala High Court
Siby vs Sophi on 15 July, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
Crl.Rev.Pet.No. 30 of 2019
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 15TH DAY OF JULY 2025 / 24TH ASHADHA, 1947
CRL.REV.PET NO. 30 OF 2019
AGAINST THE JUDGMENT DATED 07.12.2018 IN Crl.A NO.16 OF 2018
OF SESSIONS COURT, THODUPUZHA ARISING OUT OF THE ORDER DATED
30.10.2017 IN MC NO.76 OF 2008 OF JUDICIAL MAGISTRATE OF
FIRST CLASS - I, DEVIKULAM
PETITIONERS/APPELLANTS/
RESPONDENTS:
1 SIBY,
AGED 40 YEARS, S/O GEORGE,
MANJUMMELKUDI HOUSE, MANJAKKUZHI,
RAJAKUMARY P.O.,
UDUMBANCHOLA TALUK,
IDUKKI DISTRICT.
2 MARIYAKUTTY
W/O GEORGE, MANJUMMELKUDI HOUSE,
MANJAKKUZHI, RAJAKUMARY P.O.,
UDUMBANCHOLA TALUK,
IDUKKI DISTRICT.
3 SINDHU
W/O JOSEPH,
KANDAMKULANGARA HOUSE,
MANJAKKUZHI, RAJAKUMARY P.O,
UDUMBANCHOLA TALUK,
IDUKKI DISTRICT.
BY ADV SRI.LATHEESH SEBASTIAN
Crl.Rev.Pet.No. 30 of 2019
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RESPONDENTS/RESPONDENTS/
PETITIONER & STATE:
1 SOPHI
W/O SIBY, UPPUMACKAL HOUSE,
DEVIKULAM KARA, DEVIKULAM P.O.,
KDH VILLAGE, IDUKKI DISTRICT-685585.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM-682 031.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.P.M.RAFIQ
SRI.M.REVIKRISHNAN
SRI.VIPIN NARAYAN
SRI.AJEESH K.SASI
SRI.V.C.SARATH
SMT.POOJA PANKAJ
SMT.SRUTHY N. BHAT
SRI.E.C.BINEESH-SR.PP
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 15.07.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.Rev.Pet.No. 30 of 2019
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ORDER
This revision petition has been filed challenging the
judgment of the Sessions Court, Thodupuzha (for short, the
appellate court) in Crl.A.No.16/2018 dated 7.12.2018 as well
as the order of the Judicial First Class Magistrate Court,
Devikulam (for short, the trial court) in M.C.No.76/2008
dated 30.10.2017.
2. The 1st respondent herein filed a petition under
Section 12 of the Protection of Woman from the Domestic
Violence Act, 2005 (for short, the DV Act) against the
petitioners seeking residential order and maintenance as MC
No.76/2008. The case of the 1 st respondent in the
maintenance case is that she is the wife of the 1 st petitioner.
However, she has admitted that she married the 1 st petitioner
when the marriage of the 1 st petitioner with another lady was
subsisting. The petitioners 2 and 3 are the mother and sister
of the 1st petitioner. Admittedly, two children were born in
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the relationship between the 1st petitioner and 1st respondent.
The 1st respondent sought maintenance for herself and her
children. She also sought for a residential order. The 1 st
petitioner filed objection to the petition, for himself and for
and on behalf of the 2nd and 3rd petitioners. The 1st petitioner
has denied the marriage or relation in the form of marriage
with the 1st respondent. In short, the domestic relationship
between them was specifically denied. However, the 1 st
petitioner has admitted the paternity of the two children.
3. Before the trial court, the 1st respondent was
examined as PW1 and Exts.P1 to P3 were marked. On the
side of the petitioners, two witnesses were examined as DW1
and DW2 and Exts.D1 and D2 were marked. After trial, the
trial court entered into a finding that the 1st respondent has
the status of the wife of the 1st petitioner and directed the 1st
petitioner to provide maintenance at the rate of ₹3,000/- per
month to the 1st respondent and ₹2,000/- each per month to
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the children. The petitioners were also restrained from
causing any obstruction to the 1st respondent and children to
reside in the shared household belonging to the father of the
1st petitioner. The petitioners challenged the order of the trial
court before the appellate court in Crl.A.No.16/2018. The
appellate court confirmed the order of the trial court with
respect to the maintenance and modified the residential
order, directing the 1st petitioner to provide alternative
accommodation on rent to the 1st respondent and her two
daughters and directed to pay ₹3,000/- per month for rent.
4. I have heard the learned counsel for the petitioners
and the learned counsel for the 1st respondent.
5. The learned counsel for the petitioners submitted
that he confines his challenge in this revision petition only to
the maintenance awarded to the 1st respondent. According to
the learned counsel, since there is no marriage or domestic
relationship in the nature of a marriage, the petition under
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Section 12 of the DV Act is not maintainable against the 1 st
petitioner. In support of his submission, he placed reliance
on the decision of the Supreme Court in Indra Sarma v.
Sarma [2013 (4) KLT 763 (SC)]. On the other hand, the
learned counsel for the 1st respondent submitted that there is
evidence to show that the 1st respondent and the 1st
petitioner have been living together as husband and wife for
a long period and hence, the domestic relationship has been
established.
6. In the petition, the 1st respondent has averred that
she and the 1st petitioner got married on 9.6.2005 at
Devikulam Sub Registrar office in the presence of witnesses.
Admittedly, there is no ceremonial or customary marriage in
accordance with the personal law governing the parties. In
the petition, the 1st respondent has admitted that while she
contracted the registered marriage with the 1 st petitioner as
stated above, the 1st petitioner was already married. It is
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specifically admitted that the 1st petitioner had married a
native of Silent Valley namely Giji and since that marriage
was not legally dissolved, her marriage with the 1 st petitioner
was not performed in accordance with law. The same
averment has been reiterated by the 1st respondent in her
chief affidavit. Thus, it is an admitted fact that there is no
legal marriage between the 1st petitioner and the 1st
respondent. However, it has come out in evidence that they
have been living together since 2005 and two children were
born out of the said relationship. The crucial question is
whether that relationship would amount to the 'relationship in
the form of marriage' to attract the definition of domestic
relationship under Section 2(f) of the DV Act. The Supreme
Court in Indra Sarma (supra) has explained the distinction
between a relationship in the nature of marriage and the
marital relationship. It was held that all live-in relationships
are not relationship in the nature of marriage. It was further
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held that relationship which are polygamous, bigamous and
adulterous cannot be said to be relationship in the nature of
marriage and that a concubine cannot maintain a relationship
in the nature of marriage. It was also held that a concubine
cannot maintain a relationship in the nature of marriage
because such a relationship will not have exclusivity and will
not be monogamous in character and DV Act does not take
care of such relationship. Ultimately, it was found that if one
person enters into a relationship with another with the
knowledge that the other one is married, the said relationship
will not amount to a relationship in the nature of marriage.
Here also, admittedly, the 1st respondent had entered into a
relationship with the 1st petitioner with the knowledge that
the 1st petitioner was already married. Therefore, their
relationship cannot be said to be a relationship in the nature
of marriage. Hence, there is no domestic relationship
between the 1st petitioner and the 1st respondent. Accordingly,
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the maintenance awarded by the trial court and confirmed by
the appellate court to the 1st respondent alone is hereby set
aside.
7. It is submitted by the learned counsel for the 1 st
respondent that the 1st petitioner has failed to pay
maintenance awarded to the children. The 1st petitioner is
directed to pay the entire arrears of maintenance, if any, due
to the minor within three months from today.
The criminal revision petition is disposed of as above.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
kp/APA
