Law Web: When woman in live in relationship can not claim relief under domestic violence Act?

Perusal of these decisions makes it abundantly clear that not

all the live in relationships are covered by the provision of Section 2 [f] of

the D.V. Act. It is only those which qualify to be the relationship in the

nature of marriage which are governed by that provision. In order to

constitute such relationship, a legal marriage between the two must be

possible.

11. There is one more aspect which needs such an interpretation

to be put to words 'relationship in the nature of marriage' contained in

Section 2 [f] of the D.V. Act. It is well recognized principle of

interpretation of statute that a statute should be interpreted in a manner

which would not promote illegality. It has made a provision to enable a

woman in a relationship in the nature of marriage to seek various remedies

under the D.V. Act. One cannot put an interpretation to Section 2 [f] of the

D.V. Act which would promote an adulterous relationship which is an

offence punishable under Section 494 of the Indian Penal Code. Therefore,

these words will have to be interpreted in a conducive and harmonious

manner so as not to offend a penal provision contained in the Code.

Therefore looked at from this angle, one cannot interpret this provision

which would offend any law. The legislature in its wisdom has enacted the

Law so as to cover and protect not only a legally wedded wife but has gone

a step further to bring in its ambit a woman who has been in a relationship

in the nature of marriage. Use of word 'marriage' to qualify the relationship

is conspicuous and the only interpretation that can be put is that the

marriage between the couple must be legally possible. Any other

interpretation which would offend any other law would not be permissible.

12. Once it is clear that in order to enable the applicant to claim

any relief under the D.V. Act the relation between her and the respondent

No.2 was not in the nature of marriage, she is clearly not entitled to claim

any relief under that Act. Admittedly, on her own admission, her first

marriage was still in subsistence, and if that be so, she could not have

married legally with the respondent No.2 albeit he is a Muslim and his

personal law permits him to solemnize the second marriage. In view of

such state of factual matrix and the evidence, the observation and the

conclusion drawn by the learned Addl. Sessions Judge that the relationship

between these two did not fall into the 'domestic relationship' as defined

under Section 2 [f] of the D.V. Act is unassailable. The Revision is

dismissed.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL REVISION APPLICATION NO. 82 OF 2017

Reshma Begum W/o Gajanfar Kazi,

V E R S U S

[1] The State of Maharashtra RESPONDENTS

[2] Gajanfar Kazi @ Jawed S/o Kazi

CORAM : MANGESH S. PATIL, J.

Pronounced On : 25 July 2018

Rule. Rule is made returnable forthwith. By consent, the

matter is heard finally.

2. Very short issue that arises for determination in this Revision is

as to the interpretation of provision of Section 2 [f] of the Protection of

Women from Domestic Violence Act, 2005 [hereinafter referred to as 'the

D.V. Act']. The factual matrix leading to revision can be put in a short

compass.

3. The applicant who belongs to Jain Hindu community was

married to one Shantaram Mahadu Ughade and the couple begotten a

child out of the wedlock. It was averred that, that marriage was brought to

an end by virtue of a customary divorce on 15.10.2011. It is averred that

she thereafter came in contact with the respondent No.2 who is a Muslim

by religion. The acquaintance blossomed into an affair. He was already

married and was having children. She got converted to Islam and the

couple entered into a marital tie in presence of a Kazi on 21.07.2012. The

couple also got a child out of such relation on 29.04.2013. However, a

dispute arose and the couple separated. She filed a proceeding under

Section 12 of the D.V. Act against him in the Court of Judicial Magistrate

First Class at Aurangabad bearing Criminal Misc. Application No.28 of

2013.

4. The respondent No.2 contested the proceeding primarily on

the ground that the applicant was already married and so was he. The

marriage between the two was not legally possible, since they were already

having subsisting marital relation. He also denied even that she was

staying with him in some kind of relation.

5. The learned Magistrate allowed the application holding that

the relationship between the two was in the nature of marriage and was

covered by Section 2 [f] of the D.V. Act and granted various reliefs.

6. Being aggrieved, the respondent No.2 preferred Appeal under

Section 29 of the D.V. Act bearing Criminal appeal No. 156 of 2015. The

learned Addl. Sessions Judge by the impugned Judgment and order dated

12.01.2017 relying upon Judgment of the Supreme Court in the case of

Velusamy Vs. D. Patchaiammal; 2010 (3) Bom. C.R. (Cri.) 764 (S.C.)

concluded that the applicant and the respondent No.2 were not qualified

to enter into a legal marriage since they were already married and their

marriages were in subsistence. The relationship was not covered by

Section 2 [f] of the D.V. Act. She was not entitled to take recourse to the

provision of Section 12 of the D.V. Act. The appeal was allowed and the

Judgment and order passed by the Magistrate was set aside. Hence, this

Revision.

7. The learned Advocate for the applicant submitted that since

the applicant had already got the customary divorce in the form of

execution of Notarized Deed on 15.11.2011, her first marriage had come to

an end. Since the respondent No.2 is Muslim, his personal Law permits

him to solemnize the second marriage. Since there is evidence in the form

of testimony of Kazi and a Nikahnama demonstrating that the marriage

was solemnized between the applicant and respondent No.2, the

relationship between the two was in the nature of marriage within the

meaning of Section 2 [f] of the D.V. Act. The couple had also has a child

out of the relation. There was a birth certificate of the child which

demonstrated that the couple was holding themselves out as husband and

wife and the relationship was duly covered under that provision. The

observation and the conclusion drawn by the Magistrate was unassailable.

The learned Addl. Sessions Judge has ignored these aspects and without

any cogent and convincing reason, quashed and set aside the Judgment of

the Magistrate. There is no sufficient legal basis to substantiate the

interpretation of the learned Addl. Sessions Judge. The impugned

Judgment and order is not tenable in law and be quashed and set aside,

thereby restoring the Judgment and order passed by the Magistrate.

8. Though the respondent No.2 has been disputing all the

averments, there is enough material to show that the applicant and the

respondent No.2 had established a kind of relationship. They had entered

into marriage ceremony in presence of a Kazi [PW 2]. A Nikahnama was

executed [Exhibit 35]. There is also a Birth Certificate showing that a child

was born to the applicant and the respondent No.2 was shown as the

father of the child.

9. However, it is necessary to ascertain, whether such kind of

relationship is covered by the definition of domestic relationship as

contained in Section 2 [f] of the D.V. Act. The definition reads thus :

“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.

It is important to note that the interpretation put on the definition and

particularly the words 'relationship in the nature of marriage' by the

Supreme Court in the case of Velusamy [supra] to mean :

[a] The couple must hold themselves out to society as being akin

to spouses.

[b] They must be of legal age of 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.

Even in the case of Indra Sarma v. V.K.V. Sarma; AIR 2014 S.C. 309, a

comparison has been made between the relations which are in the nature

of marriage and live in relationship and guidelines have been culled out to

distinguish between the two.

10. Perusal of these decisions makes it abundantly clear that not