Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.1306 of 2010 ====================================================== Sardhanand Sharma, S/o Late Yadu Chand Sharma, Resident of village- Mohoddipur, P.S.-Siwan Muffasil, District-Siwan at Present posted as Generator Supervisor Mangalam Cement Factory, P.O.-Morak Aditya Nagar, District-Kota, Rajasthan. …. …. Petitioner/s 1. The State of Bihar. 2. Manorama Devi, W/o alleged Sardhanand Sharma, Resident of village- Versus Mohoddipur, P.S.-Siwan Muffasil, District-Siwan. .... .... Respondent/s ====================================================== Appearance: For the Petitioner/s : Mr. Chandrakant, Adv.
Legal Reasoning
Mr. Ajay Kumar Tiwary, Adv. Mr. Subhash Patel, Adv. : Mr. Raghav Prasad, Adv. : For the Opp. Party For the State ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI C.A.V. ORDER Mrs. Asha Devi, A.P.P. 9. 27-06-2013 Petitioner / O.P. challenged the order dated 23.07.2010 passed by Principal Judge, Family Court, Siwan in Maintenance Case No.95 of 2000 whereby and whereunder the learned court below had directed to pay Rs.1500/- per month as maintenance which was directed to be operative from the date of filing of petition that means to say since 17-08-2000. It has been contended on behalf of petitioner that from the pleadings itself, it is evident that O.P. / applicant Manorama Devi herself claimed to be the second wife and on account thereof the learned lower court held that she was not at all to be considered as legally wedded wife. However, taking into account Section 26 of the Protection of Women from Domestic Violence Act granted the maintenance which was not at all attracted in the background of the 2 fact that there happens to be no finding on the score on domestic relationship by the court below. So submitted that the order impugned happens to be illegal, perverse and is fit to be set aside. At the other hand the learned layer for the Opposite Party No.2 submitted that whatever reliefs were permissible under Chapter-IV of the said Act which includes the order of maintenance is to be granted even by the Family Court in case there happens to be pendency of lis. As such granting of maintenance with the aid of Section 26 of the Act is legal just proper and is fit to be confirmed. Because of the fact that status of the O.P. / applicant on account of her own admission being the second wife of petitioner /O.P. falling away from the definition of wife had itself been accepted by the learned court below and on account thereof she was found to be disentitled from claiming maintenance. Now the only scope of Section 26 of the Protection of Women from Domestic Violence Act has to be seen and for that first of all the relevant definitions are to be taken note of. Section 2 contains definition. Under (a) aggrieved persons has been defined as means any women who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondents. Domestic relationship has been defined under 2(f) means a relationship between two persons who live or have, at any point of time, lived together in a share household, when they are related by consanguinity, marriage, or through a relationship in the 3 nature of marriage, adoption or are family members living together as a joint family. On account of discrediting the status of O.P. / applicant from the status of wife on her own admission showing second wife of petitioner / O.P. could not be considered as a wife. Now the relationship in between both has to be seen under the theme of “relationship in a nature of marriage” which has not been defined under the Act. However, the aforesaid issue has been subject to consideration in a case D. Velusamy Vs. D. Patchaiammal reported in 2011 Cr.L.J. 320. For better appreciation para-31, 32, 33, 34 and 35 is quoted below:- 31. In the case before us we are not called upon to decide whether in our country there can be a valid claim for palimony on the basis of a contract, express or implied, written or oral, since no such case was set up by the respondent in her petition under Section 125 CrPC. 32. Some countries in the world recognise common law marriages. A common law marriage, sometimes called de facto marriage, or informal marriage is recognised in some countries as a marriage though no legally recognised marriage ceremony is performed or civil marriage contract is entered into or the marriage registered in a civil registry (see details on Google). 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 4 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 garb of interpretation cannot change the language of the statute. Now adverting to the facts of the case, it is evident that there happens to be lack of the finding of the learned lower court on this score and so, the order impugned could not justify its continuity. Consequent thereupon the same is set aside. Petition is allowed. The matter is remitted back to the learned lower court to decide the matter afresh in accordance with law more particularly in the light of the observation laid down by the Hon’ble Apex Court as referred above. (Aditya Kumar Trivedi, J.) Patna High Court Dated, the 27th day of June, 2013 Prakash Narayan/AFR