It is clear from the averments made in the application itself
the respondent.
that the respondent has never claimed to be living together with the
petitioner and has also not claimed that at any point of time before
filing of the application, she had lived together with the petitioner.
Living together with another person in a shared household is an
essential ingredient of the domestic relationship as contemplated
under Section 2(f) of the Act, 2005. That apart, the applicant should
also have lived in a shared house hold with a man in a relationship
which is akin to a marriage, if she is claiming herself to be wife or
marriage partner. Then, if she is already a married woman, she cannot
enter into domestic relationship with a man. It is an admitted position
in the instant case that the respondent is a married woman, who has
not obtained any legal divorce from her husband Chandan. Therefore,
by accepting the case of the respondent as it is, I am of the view that
the proceedings initiated under Section 12 of the Act, 2005 cannot be
sustained in law.
Of course, learned Counsel for the respondent submits that
Section 2(f) of the Act, 2005 does not require that a woman should be
a wife and it is enough that she is living with a man in relationship,
which is similar that of a marriage. He is right. But there is a rider to
it. She should be unmarried and be otherwise qualified to marry.
I have already found from the admitted position that the respondent is
a married woman, whose marriage with her husband Chandan is still
subsisting and this being the position, her relationship whatever it
might be with the petitioner, cannot be termed as domestic
relationship under Section 2(f) of the Act, 2005.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO. 773 OF 2014
Narayan Jangluji Thool, V Sou. Mala w/o Chandan Wani,
CORAM : S. B. SHUKRE, J.
DATED : 27TH JANUARY, 2015.
2. Rule, made returnable forthwith. Heard finally by consent
of the parties.
By this petition, the petitioners are seeking quashing and
3.
setting aside of the complaint filed under the provisions of the
Protection of Women from Domestic Violence Act, 2005 (hereinafter
referred to as “the Act, 2005”) by the respondent together with order
dated 24/7/2014 passed by the learned Judicial Magistrate, First Class,
4.
Yavatmal granting interim maintenance to the respondent.
According to learned Counsel for the petitioners, the
respondent has nowhere averred in the petition that she has been
living or at any point of time before filing of the application under the
Act, 2005 was living with petitioner No.1 in a relationship arising from
marriage or that was similar to a marriage. He also submits that even
otherwise, the respondent could not have entered in such a
relationship, called the domestic relationship under Section 2 of the
Act, 2005 as it is an admitted fact that the respondent is a married
woman and her marriage still subsists. In support, he places reliance
upon the cases of Durgesh Yuvraj Rahangdale Vs. Rajni Krushnadatta
Ukey – 2014(1) ABR (Cri) 339 and Indra Sarma Vs. V.K.V. Sarma–
2014 (1) ABR 615.
5.
Learned Counsel for the respondent has strongly opposed
the petition. He submits that these are all factual aspects of the case,
which can be decided only after detailed evidence is available and,
therefore, this objection should be left for it's appropriate consideration
by the trial Court. He submits that whether the respondent was in
domestic relationship or not with petitioner No.1 can be appropriately
decided in the light of the contentions and evidence brought on record
only by the trial Court. Therefore, he submits that this petition may
In the case of Durgesh Yuvraj Rahangdale (supra), Division
6.
be dismissed.
Bench of this Court, following the law laid down by the Hon'ble Apex
Court in the case of D. Velusamy Vs. D. Patchaiammal – AIR 2011 SC
479, has held that all liveinrelationships do not amount to
relationships in the nature of marriage so as to get the benefit of the
Act, 2005. It further held that it is necessary for the applicant and the
nonapplicant to live in such a way that they are treated by the society
at large as husband and wife and not only that they should also
otherwise be qualified to enter into a legal marriage, with both of them
being of legal age to marry, both of them being unmarried at the time
when they enter into a relationship which is akin to a marriage and so
on.
7.
It is thus clear that in order to attract the provisions of the
Act, 2005, the applicant must not only show existence of a livein
relationship with the nonapplicant which is akin to a marriage which
is visible from the fact that applicant and nonapplicant are living
together by holding out as husband and wife, and should also show
that they are otherwise legally qualified to marry.
8.
In the case of Indra Sarma (supra), the Hon'ble Apex Court
clarified the issue as to whether or not a concubine or a mistress, who
is living together with a man for a considerably long period of time,
would be entitled to derive benefits of the provisions of the Act, 2005
by contending that she is in “domestic relationship” with that man.
The Hon'ble Apex Court has held that even though long standing
relationship as a concubine deserves some protection in order to
provide her financial stability, her such relationship not being in the
nature of marriage cannot be termed as domestic relationship as
contemplated by the Act, 2005. Hon'ble Apex Court has categorically
held that the provisions of the Act, 2005 do not take care of such a
relationship because the definition of Section 2(f) of the Act, 2005 is
restricted and exhaustive. Hon'ble Apex Court has also expressed a
view that perhaps this definition may call for an amendment.
9.
So, it is crystal clear that a woman, who is married, cannot
enter into a domestic relationship as contemplated under Section 2(f)
of the Act, 2005 and even if she establishes a long standing
relationship with a man as his concubine or mistress, she would not be
10.
entitled for protection under the provisions of the Act, 2005.
Having considered the legal position settled by the Hon'ble
Apex Court in the above referred cases and also by the Division Bench
of this Court, now, it will be necessary for us to examine the case of
It is clear from the averments made in the application itself
11.
the respondent.
that the respondent has never claimed to be living together with the
petitioner and has also not claimed that at any point of time before
filing of the application, she had lived together with the petitioner.
Living together with another person in a shared household is an
essential ingredient of the domestic relationship as contemplated
under Section 2(f) of the Act, 2005. That apart, the applicant should
also have lived in a shared house hold with a man in a relationship
which is akin to a marriage, if she is claiming herself to be wife or
marriage partner. Then, if she is already a married woman, she cannot
enter into domestic relationship with a man. It is an admitted position
in the instant case that the respondent is a married woman, who has
not obtained any legal divorce from her husband Chandan. Therefore,
by accepting the case of the respondent as it is, I am of the view that
the proceedings initiated under Section 12 of the Act, 2005 cannot be
sustained in law.
Of course, learned Counsel for the respondent submits that
12.
Section 2(f) of the Act, 2005 does not require that a woman should be
a wife and it is enough that she is living with a man in relationship,
which is similar that of a marriage. He is right. But there is a rider to
it. She should be unmarried and be otherwise qualified to marry.
I have already found from the admitted position that the respondent is
a married woman, whose marriage with her husband Chandan is still
subsisting and this being the position, her relationship whatever it
might be with the petitioner, cannot be termed as domestic
relationship under Section 2(f) of the Act, 2005.
13.
In the circumstances, I am of the view that the case of the
therefore, if the proceedings are allowed to be continued, it would be
nothing but abuse of the process of law. The petition, therefore,
deserves to be allowed.
respondent is completely out of the purview of the Act, 2005 and,
The petition is allowed.
Impugned order dated 24/7/2014 is hereby quashed
and set aside.
The complaint filed being Domestic Violence Case
No. 1 of 2014 is quashed and set aside.
Rule is made absolute accordingly.
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