Important Supreme Court and Bombay HC Judgments on 'relationship in the nature of marriage' provided under Domestic violence Act

 

1) Whether is distinction between a 'relationship in the nature of marriage' provided under Domestic violence Act and live- in relationship?

33. 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.

(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'.

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What is Alienation of affection under matrimonial law and whether it is a tort?

ALIENATION OF AFFECTION

64. Appellant had entered into this relationship knowing well that the Respondent was a married person and encouraged bigamous relationship. By entering into such a relationship, the Appellant has committed an intentional tort, i.e. interference in the marital relationship with intentionally alienating Respondent from his family, i.e. his wife and children. If the case set up by the Appellant is accepted, we have to conclude that there has been an attempt on the part of the Appellant to alienate Respondent from his family, resulting in loss of marital relationship, companionship, assistance, loss of consortium etc., so far as the legally wedded wife and children of the Respondent are concerned, who resisted the relationship from the very inception. Marriage and family are social institutions of vital importance. Alienation of affection, in that context, is an intentional tort, as held by this Court in Pinakin Mahipatray Rawal case (supra), which gives a cause of action to the wife and children of the Respondent to sue the Appellant for alienating the husband/father from the company of his wife/children, knowing fully well they are legally wedded wife/children of the Respondent..

  IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2009 of 2013 

Decided On: 26.11.2013

Indra Sarma Vs. V.K.V. Sarma

Hon'ble Judges/Coram:

K.S. Panicker Radhakrishnan and Pinaki Chandra Ghose, JJ.

Author: K.S. Panicker Radhakrishnan, J.

Citation: MANU/SC/1230/2013,AIR2014SC309,(2013)15SCC755,[2013]14SCR1019.

Read full Judgment here :Click here

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Supreme Court Guidelines to ascertain when a live-in relationship will fall within "relationship in the nature of marriage" as per provisions of Domestic violence Act

We may, on the basis of above discussion cull out some guidelines for testing under what circumstances, a live-in relationship will fall within the expression "relationship in the nature of marriage" Under Section 2(f) of the DV Act. The guidelines, of course, are not exhaustive, but will definitely give some insight to such relationships.

(1) Duration of period of relationship

Section 2(f) of the DV Act has used the expression "at any point of time", which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation.

(2) Shared household

The expression has been defined Under Section 2(s) of the DV Act and, hence, need no further elaboration.

(3) Pooling of Resources and Financial Arrangements

Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long term investments in business, shares in separate and joint names, so as to have a long standing relationship, may be a guiding factor.

(4) Domestic Arrangements

Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or up keeping the house, etc. is an indication of a relationship in the nature of marriage.

(5) Sexual Relationship

Marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring etc.

(6) Children

Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long standing relationship. Sharing the responsibility for bringing up and supporting them is also a strong indication.

(7) Socialization in Public

Holding out to the public and socializing with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.

(8) Intention and conduct of the parties

Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship.{Para 55}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2009 of 2013 

Decided On: 26.11.2013

Indra Sarma Vs. V.K.V. Sarma

Hon'ble Judges/Coram:

K.S. Panicker Radhakrishnan and Pinaki Chandra Ghose, JJ.

Author: K.S. Panicker Radhakrishnan, J.

Citation: MANU/SC/1230/2013,AIR2014SC309,(2013)15SCC755,[2013]14SCR1019.

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Whether is distinction between a 'relationship in the nature of marriage' provided under Domestic violence Act and live- in relationship?

 Some countries in the world recognize common law marriages. A common law marriage, sometimes called de facto marriage, or informal marriage is recognized in some countries as a marriage though no legally recognized marriage ceremony is performed or civil marriage contract is entered into or the marriage registered in a civil registry (see details on Google). {Para 32}

33. 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.

(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'.

34. 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'

35. 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.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2028-2029 of 2010 

Decided On: 21.10.2010

D. Velusamy Vs. D. Patchaiammal

Hon'ble Judges/Coram:

Markandey Katju and T.S. Thakur, JJ.

Author:Markandey Katju, J.

Citation:MANU/SC/0872/2010,AIR2011SC479,(2010)10SCC469,(2011)1SCC(Cri)59.

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Supreme Court guidelines for testing when live in relationship is in nature of marriage

We may, on the basis of above discussion cull out some guidelines for testing under what circumstances, a live-in relationship will fall within the expression "relationship in the nature of marriage" Under Section 2(f) of the DV Act. The guidelines, of course, are not exhaustive, but will definitely give some insight to such relationships.

(1) Duration of period of relationship

Section 2(f) of the DV Act has used the expression "at any point of time", which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation.

(2) Shared household

The expression has been defined Under Section 2(s) of the DV Act and, hence, need no further elaboration.

(3) Pooling of Resources and Financial Arrangements

Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long term investments in business, shares in separate and joint names, so as to have a long standing relationship, may be a guiding factor.

(4) Domestic Arrangements

Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or up keeping the house, etc. is an indication of a relationship in the nature of marriage.

(5) Sexual Relationship

Marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring etc.

(6) Children

Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long standing relationship. Sharing the responsibility for bringing up and supporting them is also a strong indication.

(7) Socialization in Public

Holding out to the public and socializing with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.

(8) Intention and conduct of the parties

Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2009 of 2013 

Decided On: 26.11.2013

 Indra Sarma  Vs.  V.K.V. Sarma

Hon'ble Judges/Coram:

K.S. Panicker Radhakrishnan and Pinaki Chandra Ghose, JJ.

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Whether Live in relationship with married person amounts to relationship in the nature of marriage as per provisions of DV Act?

Supreme Court: Dealing with a pivotal question that whether a ‘live-in-relationship’ would amount to ‘relationship in the nature of marriage’ under Section 2(f) of the Protection of Women from Domestic Violence Act, 2005 (DV Act), the Court held that all live-in-relationships are not relationships in the nature of marriage and when the woman is aware of the fact of the marital status of her partner, she commits an intentional tort i.e. interference in the marital relationship with intentionally alienating respondent from his family, hence, she could not be said to have entered into a live-in-relationship in the nature of marriage.

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Supreme court: All live-in- relationships are not relationships in the nature of marriage

 We are, therefore, of the view that the appellant, having been fully aware of the fact that the respondent was a married person, could not have entered into a live-in relationship in the nature of marriage. All live-in- relationships are not relationships in the nature of marriage. Appellant’s and the respondent’s relationship is, therefore, not a “relationship in the nature of marriage” because it has no inherent or essential characteristic of a marriage, but a relationship other than “in the nature of marriage” and the appellant’s status is lower than the status of a wife and that relationship would not fall within the definition of “domestic relationship” under Section 2(f) of the DV Act. If we hold that the relationship between the appellant and the respondent is a relationship in the nature of a marriage, we will be doing an injustice to the legally wedded wife and children who opposed that relationship. Consequently, any act, omission or commission or conduct of the respondent in connection with that type of relationship, would not amount to “domestic violence” under Section 3 of the DV Act.

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.

67. We are conscious of the fact that if any direction is given to the respondent to pay maintenance or monetary consideration to the appellant, that would be at the cost of the legally wedded wife and children of the respondent, especially when they had opposed that relationship and have a cause of action against the appellant for alienating the companionship and affection of the husband/parent which is an intentional tort.1

Supreme Court of India

Indra Sarma vs V.K.V.Sarma on 26 November, 2013

Hon'ble Judges/Coram:

K.S. Panicker Radhakrishnan and Pinaki Chandra Ghose, JJ.

Citation:  MANU/SC/1230/2013

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