Wednesday, 1 August 2018

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
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.
The rule is discharged.
[ MANGESH S. PATIL, J. ]

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