Full Text
HIGH COURT OF DELHI
Date of Decision: 07th JUNE, 2021 IN THE MATTER OF:
PARVEEN TANDON ..... Petitioner
Through Mr. Utkarsh and Ms. Anshu Priyanka, Advocates
Through Mr. Kamal Anand, Advocate AND
PARVEEN TANDON ..... Petitioner
Through Mr. Utkarsh and Ms. Anshu Priyanka, Advocates
Through Mr. Kamal Anand, Advocate
JUDGMENT
1. CRL.M.C. 264/2021 is directed against the order dated 14.01.2021, passed by the learned Additional Sessions Judge-03, West, Tis Hazari Courts, Delhi in CA No. 110/2020 and CRL.M.C. 420/2021 is directed against the order dated 14.01.2021, passed by learned Additional Sessions Judge-03, West, Tis Hazari Courts, Delhi in CA No. 171/2020. Both the 2021:DHC:1862 petitions have been filed under Section 482 Cr.P.C.
2. Facts, in brief, leading to the present petitions are as under: a) The respondent herein filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the DV Act”) before the Chief Metropolitan Magistrate, Tis Hazari Court, stating inter alia that she was married when she met the petitioner herein in the year 2009. She got married to him in the year 2014 after obtaining a divorce from her husband. It is stated that the applicant/respondent herein has a son namely, Master Jatin, aged 13 years, from her previous marriage. The child is presently studying in Shadley Public School, Delhi. It is stated that the petitioner herein is running a business of motor-parts from his shop. It is also stated that the petitioner herein has other shops which he has given on rent and he earns about Rs.10 lakhs per month from his business. It is stated that the petitioner herein had not disclosed his marital status to the applicant/respondent herein when they both met so as to induce the respondent to marry him. It is further stated that the petitioner herein executed a Marriage Agreement to show his genuineness and responsibility towards the applicant/respondent herein and her child. It is stated that in the agreement it was mentioned that the applicant/respondent herein was married and has a son from her previous marriage. It is stated that later the petitioner herein told the respondent that his wife is on dialyses and would not survive long and therefore he is looking for a life partner and that he is going to marry the applicant/respondent herein. It is stated that the applicant/respondent herein took divorce from her husband and got married to the petitioner herein on 21.11.2014. It is stated that another Agreement-cum-Marriage Deed was entered into between the petitioner herein and the applicant/respondent herein on 22.11.2014. It is stated that the petitioner herein had arranged a rental accommodation and both of them were living as husband and wife. It is further mentioned that the name of the petitioner herein is shown as the father of the child of the applicant/respondent herein in the school records. It is also stated that in the bank accounts of the respondent herein, the petitioner is shown as a nominee. It is stated that differences arose between the parties and the applicant/respondent was subjected to physical and mental abuse by the petitioner herein. It is stated that the applicant/respondent herein filed an FIR against the petitioner herein. The applicant/respondent herein therefore prayed for an order restraining the petitioner herein from evicting the applicant/respondent herein from the rented accommodation. An application for grant of interim maintenance has also been filed by the respondent herein. b) Summons were issued to the petitioner herein. The learned Metropolitan Magistrate by an order dated 31.07.2020 restrained the petitioner herein from dispossessing the applicant/respondent herein from the property bearing House No.435, Indra Vihar, Mukherjee Nagar, Delhi. An application for the rectification of the said order was filed stating that the address in the order was not correct. c) The petitioner herein prayed for recall of summons and dismissal of the application filed by the respondent herein contending that the respondent herein is not entitled to any relief under the DV Act because the respondent herein is not an aggrieved person inasmuch as the petitioner and the respondent had never been in a domestic relationship which is the sine qua non for maintaining an application under the DV Act. d) On 17.08.2020, the learned Metropolitan Magistrate corrected the address and restrained the petitioner herein from dispossessing the respondent herein from property bearing No. B22, First Floor, Hari Nagar, New Delhi 110064. However, the learned Metropolitan Magistrate rejected the plea of the petitioner herein to dismiss the case on the ground of maintainability stating that the question as to whether the respondent herein is an aggrieved person or not and whether she was in a domestic relationship with the petitioner herein or not cannot be decided at the present stage without leading evidence. The learned Metropolitan Magistrate also directed the parties to file their income certificates along with supporting documents as warranted by the judgment of this Court in Kusum Sharma v. Mahinder Kumar Sharma, 2015 SCC OnLine Del 6793. e) By an order dated 26.10.2020, the learned Metropolitan Magistrate directed the petitioner herein to pay an ad-interim maintenance of Rs.10,000/- per month from 26.10.2020, to the respondent herein towards maintenance of child and also towards the rent/accommodation. f) The order dated 17.08.2020, dismissing the prayer of the petitioner for recalling his summoning order under the DV Act was challenged by the petitioner herein by filing an appeal being CA No.110/2020 before the Sessions Court. The order dated 26.10.2020, directing the petitioner herein to pay ad-interim maintenance of Rs.10,000/- to the respondent herein, was challenged by the petitioner by filing an appeal being CA No.171/2020 before the Sessions Court. g) The learned Additional Session Judge, vide order dated 14.01.2020 dismissed CA No.110/2020 and upheld the order dated 17.08.2020 by observing that the issue as to whether the parties were residing in a shared household and were enjoying a domestic relationship in the nature of marriage, could not be decided without leading evidence. h) By another order of the same date, the learned Additional Session Judge refused to interfere with the order dated 26.10.2020 and dismissed CA No.171/2020 and upheld the order dated 26.10.2020 directing the petitioner herein to pay ad-interim maintenance of Rs.10,000/- per month to the respondent herein for the maintenance of the child and also for the rent/accommodation. i) CRL.M.C. 264/2021 is directed against the order dated 14.01.2021 in CA No. 110/2020 and CRL.M.C. 420/2021 is directed against the order dated 14.01.2021 in CA No. 171/2020.
3. The learned counsel for the petitioner contends that an application under Section 12 of the DV Act can be filed only by an aggrieved person. An aggrieved person has been defined under Section 2(a) of the DV Act. An aggrieved person has been defined as any woman who is, or has been, in a domestic relationship with a person and who alleges to have been subjected to any act of domestic violence by that person. He states that the term domestic relationship is defined in Section 2(f) of the DV Act. Domestic relationship has been defined as 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. He states that shared household has been defined in Section 2(s) of the DV Act which states that a shared household would mean a household where the aggrieved person has lived in a domestic relationship with the other person. He states that the respondent herein in her application has admitted that both the parties were married when they met. He states that when the respondent knew that the petitioner was married to somebody else the respondent cannot claim any relief under the DV Act. He states that till the issue of maintainability is not decided, the learned Metropolitan Magistrate ought not to have directed the petitioner herein to pay ad-interim maintenance of Rs.10,000/- per month to the respondent. It is also contended by the learned counsel for the petitioner that when the application filed by the respondent itself stated that the petitioner is married to somebody else, the summons ought not to have been issued to the petitioner. The learned counsel for the petitioner places strong reliance on the judgments of the Supreme Court in Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755, and
4. Per contra, Mr. Kamal Anand, learned counsel for the respondent contends that the petitioner and the respondent got together in the year 2009 and got married in the year 2014 and they resided together for six years before the disputes arose between them in the year 2020. He contends that it was not as if the petitioner was a casual visitor to the house. He contends that the petitioner had proclaimed to the world at large that they are both husband and wife. The learned counsel for the respondent states that the petitioner has filed an affidavit and entered into agreement with the respondent stating that he has married the respondent and that he would take care of the respondent and the child. He further states that in school records the petitioner is shown as the father of the child. He further states that in the bank accounts of the respondent, petitioner is shown as the nominee. The learned counsel for the respondent therefore contends that the application filed by the respondent was maintainable and the orders of the learned Metropolitan Magistrate and the Additional Sessions Judge rejecting the application of the petitioner for recalling the summons and directing the petitioner herein to pay ad-interim maintenance of Rs.10,000/- per month to the respondent, does not warrant any interference.
5. Heard Mr. Utkarsh, learned counsel for the petitioner and Mr. Kamal Anand, learned counsel for the respondent and perused the material on record.
6. Sections 2(a), 2(f), 2(q) and 2(s) of the DV Act reads as under:
which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.”
7. The DV Act has been enacted to provide a remedy in civil law for protection of women from being victims of domestic violence and to prevent occurrence of domestic violence in the society. The DV Act has been enacted also to provide an effective protection of the rights of women guaranteed under the Constitution, who are victims of violence of any kind occurring within the family. The Act enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner. The Act is meant to provide for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by a Magistrate.
8. In order to maintain a petitioner under the DV Act the aggrieved person has to show that the aggrieved person and the respondent (man) lived together in a shared household and this could be even from a relationship in the nature of marriage. The material placed on record shows that the petitioner had entered into a marriage agreement in the year 2012 wherein it is stated that both the parties intend to marry each other. The agreement shows that the petitioner undertook to discharge all liabilities/obligations towards the respondent herein and similarly the respondent undertook to discharge all liabilities/obligations towards the petitioner herein. The affidavit has been signed by both the parties. After the respondent herein obtained divorce from her husband, another agreement-cum-marriage deed was entered into between the parties on 22.11.2014, wherein it is stated that the petitioner and the respondent are residing together for the last five years in a live-in relationship and are now getting married to each other according to Hindu rites and ceremonies and the marriage was solemnized in an Arya Samaj Mandir at Delhi. The marriage deed also records that after solemnization of marriage both the parties will reside together as husband and wife and will be faithful towards each other. The marriage deed has been signed by both the parties. There are photographs of the petitioner and the respondent which gives an impression that the parties were living together as husband and wife and have married each other. The school records of the child have been filed wherein the petitioner has been shown as the father of the child. Copies of the bank accounts have been filed wherein the petitioner has been shown as a nominee of the account held by the respondent.
9. Great emphasis has been placed by the learned counsel for the petitioner on para 31 of the judgment of the Supreme Court in D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469, which reads as under:
(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 fulfil 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”.” Other relevant paras of the abovementioned judgment read as under:
10. The Supreme Court in Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755, has observed as under: “Relationship in the nature of marriage
34. Modern Indian society through the DV Act recognises in reality, various other forms of familial relations, shedding the idea that such relationship can only be through some acceptable modes hitherto understood. Section 2(f), as already indicated, deals with a relationship between two persons (of the opposite sex) who live or have lived together in a shared household when they are related by: (a) Consanguinity (b) Marriage
(c) Through a relationship in the nature of marriage
(d) Adoption
35. The definition clause mentions only five categories of relationships which exhausts itself since the expression “means”, has been used. When a definition clause is defined to “mean” such and such, the definition is prima facie restrictive and exhaustive. Section 2(f) has not used the expression “include” so as to make the definition exhaustive. It is in that context we have to examine the meaning of the expression “relationship in the nature of marriage”
36. We have already dealt with what is “marriage”, “marital relationship” and “marital obligations”. Let us now examine the meaning and scope of the expression “relationship in the nature of marriage” which falls within the definition of Section 2(f) of the DV Act. Our concern in this case is of the third enumerated category, that is, “relationship in the nature of marriage” which means a relationship which has some inherent or essential characteristics of a marriage though not a marriage legally recognised, and, hence, a comparison of both will have to be resorted, to determine whether the relationship in a given case constitutes the characteristics of a regular marriage.
37. The distinction between the relationship in the nature of marriage and marital relationship has to be noted first. The relationship of marriage continues, notwithstanding the fact that there are differences of opinions, marital unrest, etc., even if they are not sharing a shared household, being based on law. But live-in relationship is purely an arrangement between the parties unlike, a legal marriage. Once a party to a live-in relationship determines that he/she does not wish to live in such a relationship, that relationship comes to an end. Further, in a relationship in the nature of marriage, the party asserting the existence of the relationship, at any stage or at any point of time, must positively prove the existence of the identifying characteristics of that relationship, since the legislature has used the expression “in the nature of”.
38. Reference to certain situations, in which the relationship between an aggrieved person referred to in Section 2(a) and the respondent referred to in Section 2(q) of the DV Act, would or would not amount to a relationship in the nature of marriage, would be apposite. Following are some of the categories of cases which are only illustrative: 38.1.(a) Domestic relationship between an unmarried adult woman and an unmarried adult male.— Relationship between an unmarried adult woman and an unmarried adult male who lived or, at any point of time lived together in a shared household, will fall under the definition of Section 2(f) of the DV Act and in case, there is any domestic violence, the same will fall under Section 3 of the DV Act and the aggrieved person can always seek reliefs provided under Chapter IV of the DV Act. 38.2.(b) Domestic relationship between an unmarried woman and a married adult male.—Situations may arise when an unmarried adult woman knowingly enters into a relationship with a married adult male. The question is whether such a relationship is a relationship “in the nature of marriage” so as to fall within the definition of Section 2(f) of the DV Act. 38.3.(c) Domestic relationship between a married adult woman and an unmarried adult male.—Situations may also arise where an adult married woman, knowingly enters into a relationship with an unmarried adult male, the question is whether such a relationship would fall within the expression relationship “in the nature of marriage”. 38.4.(d) Domestic relationship between an unmarried woman unknowingly enters into a relationship with a married adult male.—An unmarried woman unknowingly enters into a relationship with a married adult male, may, in a given situation, fall within the definition of Section 2(f) of the DV Act and such a relationship may be a relationship in the “nature of marriage”, so far as the aggrieved person is concerned. 38.5.(e) Domestic relationship between same sex partners (gay and lesbians).—The DV Act does not recognise such a relationship and that relationship cannot be termed as a relationship in the nature of marriage under the Act. The legislatures in some countries, like the Interpretation Act, 1984 (Western Australia), the Interpretation Act, 1999 (New Zealand), the Domestic Violence Act, 1998 (South Africa), the Domestic Violence, Crime and Victims Act, 2004 (UK), have recognised the relationship between the same sex couples and have brought these relationships into the definition of domestic relationship. *****
41. We have, therefore, come across various permutations and combinations, in such relationships, and to test whether a particular relationship would fall within the expression “relationship in the nature of marriage”, certain guiding principles have to be evolved since the expression has not been defined in the Act.
42. Section 2(f) of the DV Act defines “domestic relationship” to mean, inter alia, a relationship between two persons who live or have lived together at such point of time in a shared household, through a relationship in the nature of marriage. The expression “relationship in the nature of marriage” is also described as de facto relationship, marriage-like relationship, cohabitation, couple relationship, meretricious relationship (now known as committed intimate relationship), etc. *****
53. Live-in relationship, as such, as already indicated, is a relationship which has not been socially accepted in India, unlike many other countries. In Lata Singh v. State of U.P. [(2006) 5 SCC 475: (2006) 2 SCC (Cri) 478] it was observed that a live-in relationship between two consenting adults of heterosexual sex does not amount to any offence even though it may be perceived as immoral. However, in order to provide a remedy in civil law for protection of women, from being victims of such relationship, and to prevent the occurrence of domestic violence in the society, first time in India, the DV Act has been enacted to cover the couple having relationship in the nature of marriage, persons related by consanguinity, marriages, etc. We have few other legislations also where reliefs have been provided to woman placed in certain vulnerable situations.
54. Section 125 CrPC, of course, provides for maintenance of a destitute wife and Section 498-A IPC is related to mental cruelty inflicted on women by her husband and in-laws. Section 304-B IPC deals with the cases relating to dowry death. The Dowry Prohibition Act, 1961 was enacted to deal with the cases of dowry demands by the husband and family members. The Hindu Adoptions and Maintenance Act, 1956 provides for grant of maintenance to a legally wedded Hindu wife, and also deals with rules for adoption. The Hindu Marriage Act, 1955 refers to the provisions dealing with solemnisation of marriage also deals with the provisions for divorce. For the first time, through, the DV Act, Parliament has recognised a “relationship in the nature of marriage” and not a live-in relationship simpliciter.
55. We have already stated, when we examine whether a relationship will fall within the expression “relationship in the nature of marriage” within the meaning of Section 2(f) of the DV Act, we should have a close analysis of the entire relationship, in other words, all facets of the interpersonal relationship need to be taken into account. We cannot isolate individual factors, because there may be endless scope for differences in human attitudes and activities and a variety of combinations of circumstances which may fall for consideration. Invariably, it may be a question of fact and degree, whether a relationship between two unrelated persons of the opposite sex meets the tests judicially evolved.
56. 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:
56.1. 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.
56.2. Shared household.—The expression has been defined under Section 2(s) of the DV Act and, hence, needs no further elaboration.
56.3. 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.
56.4. Domestic arrangements.—Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or upkeeping the house, etc. is an indication of a relationship in the nature of marriage.
56.5. 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.
56.6. Children.—Having children is a strong indication of a relationship in the nature of marriage. The parties, therefore, intend to have a long-standing relationship. Sharing the responsibility for bringing up and supporting them is also a strong indication.
56.7. Socialisation in public.—Holding out to the public and socialising 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.
56.8. Intention and conduct of the parties.— Common intention of the 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.”
11. The Supreme Court in Lalita Toppo v. State of Jharkhand, (2019) 13 SCC 796, has observed as under:
12. The documents placed before this Court shows that the couple has held themselves out in the society as being akin to spouses which fact is evident from the marriage-cum-agreement deed, affidavits, the school records of the child and the bank statements of the respondent. The parties are majors, they have voluntarily cohabited for a significant period of time. The respondent has already taken divorce from her husband.
13. The tests laid down in Indra Sarma (supra) i.e. the duration of the period of the relationship, the question as to whether there was a shared household or not, the pooling of the resources and financial arrangements, the domestic arrangements, the socialisation in public, the intention and the conduct of the parties, are all questions of fact which have to be established by leading evidence. In Indra Sarma (supra), the judgment of the High Court, which denied protection of the DV Act to the lady on the ground that the lady knew that the man, with whom she was living in a relationship, was already married, can be distinguished on facts. In that case the wife of the man/respondent therein had opposed the relationship of the respondent therein and the petitioner therein. The evidence led in that case showed that the family of the lady/petitioner therein including her father, brother and sister had also opposed the live-in relationship. After evidence was led, it was found that the lady/petitioner therein had not given any evidence of mutual support and companionship between the parties. There was no projection of their relationship in the public. It was the specific case of the respondent therein (man) that he never held out to the public that the petitioner therein (lady) was his wife. There was no evidence of pooling of resources or of financial arrangements between the parties. The specific case of the respondent therein (man) was that no joint account was opened and no document was executed in jointly and that the petitioner therein (lady) was never permitted to affix the name/surname of the respondent therein. The conclusions were arrived at after the parties led evidence.
14. In the present case, the specific allegation is that the respondent herein was told that the wife of the petitioner is on dialysis and that she would die soon. It is the specific case that for six long years the petitioner and the respondent were living as husband and wife. Materials in the form of photographs and other documents showing that the petitioner and the respondent have married each other have been produced. The school records of the child show that the petitioner herein is shown as the father of the child. The petitioner herein is shown as a nominee in the bank account held by the respondent. All these materials have to be examined. It is the contention of the petitioner that he has not entered into any rental agreement and that the agreements, affidavits and the photographs produced by the respondent herein are not genuine. All these facts can be established only after evidence is led. The question as to whether the respondent herein has been duped by the petitioner or whether she was a party to an adulterous and bigamous relationship or not and whether her conduct would not entitle her for any protection under the DV Act can be determined only after the evidence is led, as was done in the case of Indra Sarma (supra).
15. The learned Metropolitan Magistrate vide order dated 26.10.2020, has directed the petitioner to pay a sum of Rs.10,000/- per month to the respondent herein as an interim arrangement. The memorandum of grounds does not challenge the figure of Rs.10,000/- awarded by the learned Metropolitan Magistrate. The principle challenge is that the order could not be passed since the application under the DV Act was not maintainable as the respondent is not an aggrieved person. Since the case is only at an interim stage this Court is not inclined to interfere with the direction of the courts below awarding interim maintenance to the respondent herein towards maintenance of child and also towards the rent/accommodation.
16. The scope of the revision petition under Sections 397/401 Cr.P.C. read with Section 482 Cr.P.C. is narrow. In State v. Manimaran, reported as (2019) 13 SCC 670, the Supreme Court observed as under:
In State of Haryana v. Rajmal, reported as (2011) 14 SCC 326, the Supreme Court observed as under:
17. In case the Metropolitan Magistrate, after evidence is led, comes to a conclusion that the respondent herein was not entitled to the protection of the DV Act then adequate safeguards must be made to ensure that the respondent returns the amount received by her as interim maintenance in terms of the order dated 26.10.2020, passed by the learned Metropolitan Magistrate back to the petitioner with interest. The rate of interest is to be fixed by the Metropolitan Magistrate. The learned Trial Court is directed to hear the matter and decide the matter finally within a period of one year.
18. With these observations, the petitions are dismissed along with all the pending applications.
SUBRAMONIUM PRASAD, J. JUNE 07, 2021 Rahul