the part of respondent no.2 on vital facts of the case, clearly indicate that
respondent no.2 knew that the applicant was a married person and he had
children from his wife. Respondent no.2 also knew that the applicant had
been staying with his wife. Despite that, she had maintained relationship
with the applicant. In my opinion, the said relationship cannot be relationship
in the nature of marriage. Therefore, it cannot be said that respondent no.2
was “aggrieved person” within the meaning of Section 2(q) of the Act. She
was obviously therefore, not entitled for any relief under Protection of
Women from Domestic Violence Act, 2005. Learned Magistrate should have
rejected her prayer. The appeal should have been dismissed by the
appellate court. If respondent no.2 was not entitled for any relief under the
Act, it follows that her children are also not entitled for the relief under the
said Act. It is another thing that the children may be entitled for relief under
section 125 of Code of Criminal Procedure.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO. 341 OF 2014
Deepak @ Gajanan Ramrao Kanegaonkar,
V
The State of Maharashtra
CORAM : M.L. TAHALIYANI, J.
DATED : JULY 01, 2015
Citation: 2015(4)BomCR(Cri)406, 2015CriLJ4833, 2015(4)JCC2551, 2015(3)RCR(Civil)1037, 2015(3)RCR(Criminal)1002
This revision application impugns the order passed by the learned
Additional Sessions Judge, Thane in Criminal Appeal No.150/2013
dismissing the appeal of the applicant. The applicant was the original
respondent before the Judicial Magistrate, First Class, Thane in O.M.A. No.
662 of 2009. The said application was filed before the Magistrate by
respondent No. 2 Sonia Gajanan Kanegaonkar under section 12 of the
Protection of Women from Domestic Violence Act, 2005 (hereinafter referred
to as “Domestic Violence Act”).
2. Learned Magistrate while deciding the said application has passed
the following order :
“The application is partly allowed.
2. The opponent is hereby directed to pay Rs.7,000/-
per month to the applicant for day to day expenses, household
expenses and all other expenses including residential
expenses.
3. The opponent is hereby directed to pay Rs.6,500/-
each per moth for both daughter Tania and Antra day to day
expenses, education expenses, residential expenses and all
other expenses.
4. Copy of the order be sent to the concern protection
officer and be given to the parties as per law.
5. Judgment dictated and pronounced in open court.”
3. The applicant filed an appeal against the judgment and order
passed by the Magistrate. The said appeal has been dismissed.
4. The core issue before both the courts below was as to whether
the applicant and respondent no. 2 had lived together for reasonably long
period of time in a relationship which was in the nature of marriage. Learned
Magistrate while framing the points for determination has framed following
issues :
1. Whether the applicant and opponent had lived together for reasonably
long period of time in a relationship which was in the nature of
marriage?
2. Whether the Taniya and Antra begotten to the applicant from the nonapplicant?
3. Whether the opponent committed Domestic Violence against the
applicant and her children?
4. Whether applicant and her children are entitled to the relief under the
Act as claimed for?
5. What order?
5. The points were answered in the affirmative on the basis of
evidence of respondent no. 2. After having considered the facts of the case
and law on the point learned Magistrate came to the same conclusion, that
there was immense intimate relationship between the applicant and
respondent no. 2 and that therefore it could be said that they had lived
together in a relationship in the nature of marriage.
6. Learned Appellate court had also framed similar points for
determination and came to the same conclusion.
7. During the course of hearing present application also, the core
issue was whether there was sufficient material before the trial court to come
to the conclusion that the respondent no. 2 and applicant had lived in the
relationship in the nature of marriage.
8. At the outset it may be mentioned here that since this court is
dealing with the revision application, findings given by the two courts below,
cannot be disturbed unless the court finds something seriously wrong with the
findings.
9. In this regard, it may be noted here that the person entitled for the
relief under the Domestic Violence Act is defined as “aggrieved person” under
section 2(a) of the Domestic Violence Act. Section 2(a) of the Act reads as
under :
“(a) “aggrieved person” means any woman who is, or has
been in domestic relationship with the respondent and who
alleges to have been subjected to any act of domestic
violence by the respondent”
The “domestic relationship” has been defined in section 2(f) of the
said Domestic Violence Act which reads as under :
“(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 joint family”
The Word “respondent” has been defined under section 2Q of the
said Act which reads thus :
“(a) “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.”
10. As such respondent No. 2 was under an obligation to prove that
she had been living together with the applicant in relationship which was in
the nature of marriage. While dealing with the similar issue in the case of D.
Velusamy Versus D. Patchaiammal1
, the Hon'ble Supreme Court has
observed 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.
1 (2010) 10 SC 469,
(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.
(see 'Common Law Marriage' in Wikipedia on Google)
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'.
32. In our opinion 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 by
us above must be satisfied, and this has to be proved by
evidence. 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 the
nature of marriage'
33. No doubt the view we are taking would exclude
many women who have had a live in relationship from the
benefit of the 2005 Act, but then it is not for this Court to
legislate or amend the law. Parliament has used the
expression 'relationship in the nature of marriage' and not
'live in relationship'. The Court in the grab of interpretation
cannot change the language of the statute.”
11. Similar issue was raised before the Hon'ble Supreme Court in the
matter of Indra Sarma Vs. V.K.V. Sarma2
. Dealing with the live in
relationship, the Hon'ble Supreme Court in the said judgment at paragraph
Nos. 61, 62, 63 and 66 had observed as under
“ 61. Such relationship, it may be noted, may endure for
a long time and can result pattern of dependency and
vulnerability, and increasing number of such
2 Criminal Appeal No. 2009 of 2013
relationships, calls for adequate and effective protection,
especially to the woman and children born out of that
live-in-relationship. Legislature, of course, cannot
promote pre-marital sex, though, at times, such
relationships are intensively personal and people may
express their opinion, for and against. See S.Khushboo
v. Kanniammal and another (2010) 5 SCC 600.
62. Parliament has to ponder over these issues, bring in
proper legislation or make a proper amendment of the
Act, so that women and the children, born out of such
kinds of relationships be protected, though those types
of relationship might not be a relationship in the nature of
a marriage.
63. We may now consider whether the tests, we have
laid down, have been satisfied in the instant case. We
have found that the appellant was not ignorant of the fact
that the respondent was a married person with wife and
two children, hence, was party to an adulterous and
bigamous relationship. Admittedly, the relationship
between the appellant and respondent was opposed by
the wife of the respondent, so also by the parents of the
appellant and her brother and sister and they knew that
they could not have entered into a legal marriage or
maintained a relationship in the nature of marriage.
Parties never entertained any intention to rear children
and on three occasions the pregnancy was terminated.
Having children is a strong circumstance to indicate a
relationship in the nature of marriage. No evidence has
been adduced to show that the parties gave each other
mutual support and companionship. No material has
been produced to show that the parties have ever
projected or conducted themselves as husband and wife
and treated by friends, relatives and others, as if they
are a married couple. On the other hand, it is the specific
case of the appellant that the respondent had never held
out to the public that she was his wife. No evidence of
socialization in public has been produced. There is
nothing to show that there was pooling of resources or
financial arrangements between them. On the other
hand, it is the specific case of the appellant that the
respondent had never opened any joint account or
executed any document in the joint name. Further, it was
also submitted that the respondent never permitted to
suffix his name after the name of the appellant. No
evidence is forthcoming, in this case, to show that the
respondent had caused any harm or injuries or
endangered the health, safely, life, limb or well-being, or
caused any physical or sexual abuse on the appellant,
except that he did not maintain her or continued with the
relationship.
ALIENATION OF AFFECTION
64. …...
65. …...
66. We have, on facts, found that the appellant’s status
was that of a mistress, who is in distress, a survivor of a
live-in relationship which is of serious concern,
especially when such persons are poor and illiterate, in
the event of which vulnerability is more pronounced,
which is a societal reality. Children born out of such
relationship also suffer most which calls for bringing in
remedial measures by the Parliament, through proper
legislation.”(emphasis supplied)”
12. Keeping in view the definition of “aggrieved person”, “domestic
relationship” and the pronouncements made by the Hon'ble Supreme Court
in the above stated two cases, let me now examine the evidence of
respondent no. 2 and the applicant in the present application. Respondent
no.2 in her evidence has stated that she developed relationship with
applicant while she was working in his company namely Gandh-Sugandh. It
is further stated that separate accommodation was made available to her by
the applicant at Edward Nagar, Chunabhatti, Mumbai and that they had been
staying there as husband and wife. She has conceived from the applicant
and delivered a female child. It is stated by her that the applicant did not like
birth of child and thereafter there used to be frequent quarrels. Respondent
no.2 therefore shifted to Mumbra at the place of one Mr. Kapadia where she
was given separate room for herself. She had delivered the second child
conceived from the applicant.
13. In the evidence of the applicant, it has come that respondent no. 2
was working in his company and that she was appointed by the wife of the
applicant. The wife of the applicant was the Managing Director of the
company known as Gandh-sugandh. As such, it is the contention of the
applicant that respondent no.2 knew that the applicant was married and she
also knew that the wife of the applicant was a Managing Director of the
company. It is stated by the applicant that in fact respondent no.2 was
introduced to the applicant by his own wife. As such the issue which needs to
be examined is as to whether respondent no.2 knew that the applicant was
married and that she maintained relationship with the applicant despite the
knowledge that the applicant was a married person. Since this issue decides
the whole area of dispute, it was necessary for me to examine the evidence
of respondent no. 2 on this point very minutely.
14. I have carefully examined the evidence of respondent no. 2.
Respondent no. 2 has schemingly kept silence as to whether she had made
enquiries regarding the marital status of the applicant. It may be noted here
that the applicant is at present 61 years old. He was about 46 to 47 years old
when he allegedly developed relationship with respondent no. 2. Common
sense therefore, required that respondent no. 2 should have made enquiries
about the marital status of the applicant before entering into alleged
marriage at Ganpati Temple. Since respondent no. 2 has maintained silence
on very vital issue of marital status of the applicant and has also maintained
silence about as to where the applicant was staying during the period when
he was not staying with respondent no. 2, it can be safely inferred that
respondent no. 2 knew that the applicant was married. Respondent no.2
maintained physical relationship with the applicant despite her knowledge
that the applicant was a married person and that his wife was the Managing
Director of the company. The evidence of applicant that he was introduced to
respondent no. 2 by his wife has not been rebutted. It is brought to my notice
that Exh. 62 is an appointment letter issued to respondent no.2 by the wife of
the applicant.
15. The wife of the applicant has also been examined as witness on
behalf of the applicant. She has categorically stated in her evidence in para 2
that respondent no. 2 was appointed by her on 13th March, 2000 as a Sales
Girl in Gandh-sugandh. The learned counsel for respondent no. 2 before the
trial court had tried to demolish the case of the applicant that respondent no.
2 was appointed by the wife of the applicant. Exh. 62 was shown to the
witness (wife of the applicant) and she was asked whether there was
signature of respondent no. 2 on the said appointment letter giving her
acceptance for the job. It was suggested to her that this document Exh. 62
was prepared later on to support the case of the applicant. Even if it is
assumed for the sake of argument that the document Exh. 62 was prepared
latter on, the fact remains that respondent no.2 was employee of the
applicant. The only question which remains for the scrutiny was whether
respondent no. 2 knew the wife of the applicant. I had already stated that
respondent no.2 willfully kept her silence on the vital issue in this regard
while giving evidence. She has not stated whether she had made any
enquiry about the marital status of the applicant before entering into
marriage. It has come on record that the applicant had been staying with
respondent no. 2 intermittently. Respondent no. 2 has not bothered to find
out as to where the applicant had been staying during the period when he
was not in the company of respondent no. 2. Material is sufficient enough to
infer that respondent no. 2 knew that the applicant was a married person.
The facts of the present case in my opinion are similar to the case in the
mater of Indra Sharma Vs. Shara (supra) decided by the Hon'ble Supreme
Court. The Hon'ble Supreme Court has while dealing with the similar facts
had come to the conclusion that the appellant was not ignorant of the fact
that respondent was a married person having wife and two children and
hence, was party to an adulterous and bigamous relationship.
16. In the present case, though it has come in the evidence of
respondent no.2 that she had conceived and delivered two children out of
the relationship with the applicant and though she has stated that they were
posing themselves to be married couple, she has not been able to give a
single instance where they have appeared as husband and wife in the
society on any occasion of marriage or party. The bald statement on behalf
of the respondent no. 2 that she had posed herself to be wife of the applicant
and applicant had posed himself to be husband of respondent no.2 will not be
sufficient to come to the conclusion that the relationship between the
applicant and respondent no. 2 was in the nature of marriage.
17. It has come in the evidence of the wife of the applicant that she
had later on came to know that respondent no. 2 had been blackmailing the
applicant. As such wife of the applicant was opposed to the relationship of
the applicant with respondent no. 2.
18. Over all view of the evidence of all the witnesses and silence on
the part of respondent no.2 on vital facts of the case, clearly indicate that
respondent no.2 knew that the applicant was a married person and he had
children from his wife. Respondent no.2 also knew that the applicant had
been staying with his wife. Despite that, she had maintained relationship
with the applicant. In my opinion, the said relationship cannot be relationship
in the nature of marriage. Therefore, it cannot be said that respondent no.2
was “aggrieved person” within the meaning of Section 2(q) of the Act. She
was obviously therefore, not entitled for any relief under Protection of
Women from Domestic Violence Act, 2005. Learned Magistrate should have
rejected her prayer. The appeal should have been dismissed by the
appellate court. If respondent no.2 was not entitled for any relief under the
Act, it follows that her children are also not entitled for the relief under the
said Act. It is another thing that the children may be entitled for relief under
section 125 of Code of Criminal Procedure.
19. With these observations, the application is allowed. The orders of
the learned Magistrate being O.M.A. No. 662 of 2009 and Sessions Court
being Criminal Appeal No. 250 of 2013 are set aside. Application accordingly
stands disposed of.
(JUDGE)
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