High Court
Legal Reasoning
Cri-WP**-306-2019.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 306 OF 20191]Anand s/o Dinkar Vharkate Age: 35 years, Occu:- Labour,R/o Say Gavhan, Tq. Paithan,Dist. Aurangabad2]Dinkar s/o Vaman VharkateAge:- 65 years, Occu:- AgriculturistR/o Say Gavhan, Tq. Paithan,Dist. Aurangabad 3]Hirabai w/o Dinkar VharkateAge:- 60 years, Occu:- Household,R/o. Say Gavhan, Tq. Paithan,Dist. Aurangabad4]Santosh s/o Dinkar VharkateAge:- 40 years, Occu:- Labour,R/o Say Gavhan, Tq. Paithan,Dist. Aurangabad5]Mira w/o Santosh VharkateAge:- 35 years, Occu:- Household,R/o Say Gavhan, Tq. Paithan,Dist. Ahrangabad … PETITIONERS [ORIGINAL OPPONENTS] V E R S U SMadhra claimed w/o Anand VharkateAge:-32 years, Occu:- Household,R/o Nandiwali, Tq. Shirur Kasar,Dist. Beed ...RESPONDENT [ORIGINAL APPLICANT] 1 of 15 (( 2 ))Cri-WP**-306-2019.…Mr. H. V. Tungar, Advocate for the Petitioners Mr. R. C. Brahmankar, h/f Mr. N. L. Jadhav, Advocate for theRespondent sole.…CORAM: Y. G. KHOBRAGADE, J.DATE: 15.04.2025JUDGMENT :- 1.Rule. Rule made returnable forthwith. With consent ofboth sides, heard finally at the stage of admission.2.By the present petition under Article 227 of theConstitution of India, the Petitioners assailed the judgment and orderdated 11.01.2019 passed by the learned Sessions Judge, Beed inCriminal Appeal No.16 of 2018, thereby affirmed the judgment andorder dated 14.02.2018 passed by the learned J.M.F.C. Shirur Kasar inMiscellaneous Criminal Application No.106 of 2015. 3.The Petitioners are the original non-applicant Nos. 1 to 5and the Respondent is the original Applicant in MiscellaneousCriminal Application No.106 of 2015 filed under Section 12 of theProtection of Women from Domestic Violence Act (in short, D.V. Act).For the sake of brevity, I would like to refer the parties to the present 2 of 15 (( 3 ))Cri-WP**-306-2019petition in their original capacity as Applicant/aggrieved party andPetitioners/original non-applicants. 4.Having regard to the submissions canvassed on behalf ofboth the sides, I have gone through the record. 5.The aggrieved party/applicant instituted MiscellaneousCriminal Application No.106 of 2015 under Section 12 of the D.V. Act,alleging that, on 14.12.2014, her marriage was solemnized with non-applicant No.1 as per the customs and rites prevailing in their society.The said marital tie is still in existence. Non-applicant Nos. 2 to 4 arethe family members of her husband, non-applicant No.1. Aftermarriage, she cohabited with her husband-non-applicant No. 1 in thejoint family. Initially, she was treated properly for two months.Thereafter, the non-applicant No.1 husband demanded Rs.2,00,000/-(Rupees Two Lakh) from her parents for purchase of Tractor and dueto non fulfillment of said illegal demand, she was left to suffer inagony. So also, she was not allowed to visit the neighbours’ house,because the non-applicant No.1-husband deceived her and herparents about his first marriage and its dissolution and got marriedwith her. In spite of said facts, she co-habited with non-applicantNo.1. On 26.02.2015, she visited her parental house and disclosed 3 of 15 (( 4 ))Cri-WP**-306-2019her parents about demand of Rs.2,00,000/- (Rupees Two Lakh) by thenon-applicants. On 08.03.2015, her parents and relatives visited thenon-applicants and requested them to treat the applicant properlyand they also agreed to fulfill said demand in next year. Thereafter,the non-applicants agreed to maintain the applicant, if Rs.2,00,000/-paid to them.6.On 17.07.2015, at about 06.00 p.m., the non-applicantsvisited parental house of the applicant, at that time, the non-applicants abused her parents and demanded Rs.2,00,000/- andthreatened to give divorce to the applicant, if the demand is notfulfilled. It is further alleged that Non-Applicant No. 2 stated that themarriage of Non-Applicant No. 1 had earlier been performed, but theparents of that bride did not pay the money. Therefore, Non-ApplicantNo. 1’s second marriage was performed with the applicant. If theapplicant’s parents fail to pay the amount, Non-Applicant No. 1 wouldperform another marriage. It is further alleged that non-applicantNo.2 manhandled the applicant's father and the non-applicant No.4issued life threat. Thereafter on hearing commotion, neighbours cameand rescued them. On the next day, the applicant visited Shirur PoliceStation, but no cognizance was taken by the Police. The Applicant 4 of 15 (( 5 ))Cri-WP**-306-2019further alleged that, the non-applicants raised domestic violence dueto non-fulfillment of illegal demand of dowry defined under Section 3of the D.V. Act. Therefore, she prayed for monetary relief as describedin paragraph No.10 of the application. 7.After service of summons, the non-applicants appearedand filed their reply at Exh. 16. The Non-applicants denied alladverse allegations made against them. According to the non-applicants, the applicant has filed false and vexatious complaintunder Section 12 of the D.V. Act without any basis. According to theNon-applicants, the applicant is not wife of the non-applicant no. 1and their marriage was never performed. There is no existence ofmatrimonial relations between the applicant and non-applicant No.1nor domestic relations between them. So also, they never raiseddomestic violence against the applicant. The applicant is maternalcousin sister of non-applicant No.5. On 04.11.2014, the applicant’sfather, her paternal uncle Bhausaheb and cousin Subhash visited theirhouse and proposed the non-applicant no. 1 for marriage althoughthe fact of divorce of non-applicant’s no. 1 was disclosed. On09.11.2014, non-applicant Nos.1, 4 & 5 and their relative, namely,Gokul Halnor went to Nandewali to see the applicant. Thereafter, 5 of 15 (( 6 ))Cri-WP**-306-2019non-applicant no. 1 agreed to marry with the applicant and on thesame day engagement ceremony was performed in haste. However,date of marriage to be fixed after 2-3 months. On 18.11.2014, theapplicant informed non-applicant no. 1 over the phone that herparents were arranging her marriage against her wishes. She was in alove affair with another boy and desired to marry him; hence, sherequested non-applicant no. 1 to refuse the marriage proposal.Although non-applicant no. 1 disclosed this fact to his familymembers, the applicant’s father compelled him to proceed with themarriage. Non-applicant no. 1 further alleged that the applicant’sfather threatened to kill him if he refused to marry the applicant.8.He further claimed that he had firmly refused to marrythe applicant. Later, he came to know that the applicant and herparamour were severely assaulted by her relatives. Moreover, theapplicant’s relatives allegedly threatened the non-applicants with falsecriminal cases and imprisonment. Despite this, non-applicant no. 1remained firm in his decision. However, due to this annoyance, theapplicant has filed a false application, and therefore, he prays for itsrejection 6 of 15 (( 7 ))Cri-WP**-306-20199.In order to prove marriage ceremony and cohabitation,the applicant examined herself at Exh.6. The applicant examined AW-2 Uttam at Exh.19 and her parental uncle Nivrutti AW-3 at Exh.20.The non-applicant No.1 husband examined himself at Exh.24 andanother witness Shri Jitendra NAW-2 at Exh.25.10.On 14.02.2018, the learned J.M.F.C., Shirur Kasar, passedthe judgment and order holding that, due to non fulfillment ofdemand of Rs.2,00,000/-, the applicant was subjected domesticviolence and non-applicant No.1 concealed his first marriage anddeceived the applicant, in spite of said fact that, the applicantcohabited with non-applicant no. 1 for two months and maritalrelations between the applicant and non-applicant No.1 is inexistence. The applicant and non-applicant no. 1 lived together in ashared house and they are in domestic relations. There is no reason todisbelieve the applicant that on 26.02.2015, non-applicant No.1raised demand of Rs. 2,00,000/- for purchasing Tractor, andtherefore, the applicant lodged the complaint for the offence u/s 498-A. The non-applicant no. 1 was not maintaining the applicant since26.02.2015 and flatly denied marital tie with applicant, which 7 of 15 (( 8 ))Cri-WP**-306-2019constitute domestic violence against the applicant. Therefore,considering the evidence available on record as well as earningcapacity, the learned Trial Court directed the non-applicant No.1 topay Rs.3,000/- per month to the applicant towards maintenance fromthe date of the application.11.Being aggrieved by the said order, the non-applicants hadfiled Criminal Appeal No.16 of 2018 under Section 29 of the D.V. Act.On 11.01.2019, the learned Appellate Court passed the impugnedorder holding that, the non-applicant No.1 husband disputed aboutsolemnization of marriage with the applicant wife. However,evidence available on record proves that, the marriage between theapplicant and non-applicant No.1 solemnized on 14.12.2014 andtheir marital relations still exist. Therefore, considering the evidenceavailable on record the Appellate Court affirmed the judgment andorder dated 14.02.2018 passed by the learned J.M.F.C. in Misc.Criminal Application No.106 of 2015. 12.The learned counsel appearing for the petitionerscanvassed that both the Courts below erred in holding that themarriage between the applicant and non-applicant no. 1 had been 8 of 15
Legal Reasoning
(( 9 ))Cri-WP**-306-2019solemnized, despite the absence of sufficient evidence on record.Furthermore, both Courts failed to appreciate material contradictions,as no engagement ceremony had taken place, and the applicant cameto know about her marriage only on the previous day. The applicant’sfather, Shri Uttam, stated that the applicant and non-applicant no. 1had not seen each other prior to the marriage; however, theirengagement allegedly took place on 09.09.2014, and the marriagewas fixed on the same day. Contrarily, the applicant’s uncle admittedthat the marriage had been fixed 15 days prior to its solemnization.Although the applicant claimed that more than 50 persons werepresent at the wedding but other witnesses during cross-examinationadmitted that 500–600 invitees were present at the marriageceremony. Therefore, the factum of marriage was not duly proved.Despite this, both the Courts below recorded perverse findings andgranted monetary benefits. Hence, the petitioners prayed for bothjudgments to be quashed and set aside13.Per contra, the learned Counsel appearing for theRespondent supported the findings recorded by both the courts below.It is canvassed that, on 14.12.2014, marriage between applicant andnon-applicant No.1 solemnized. Since then the applicant and non- 9 of 15 (( 10 ))Cri-WP**-306-2019applicant no. 1 are in domestic relations. After marriage, theapplicant cohabited with her husband Non-applicant No. 1 in the jointfamily. Initially, she was treated properly for two months butsubsequently, non-applicant No.1 husband demanded Rs.2,00,000/-(Rupees Two Lakh) from parents of the applicant for purchase ofTractor and due to non fulfillment of said illegal demand, domesticviolence raised against the applicant. The non-applicant no. 1 haddeceived the applicant on account of his first marriage and divorceand did not allow her to visit neighbours. On 26.02.2015, applicantvisited her parental house and disclosed her parents about raising ofdemand of Rs.2,00,000/- (Rupees Two Lakh) by the non-applicants.On 08.03.2015, her parents and relatives visited house of the non-applicants and requested them to treat the applicant properly and wasassured to fulfill said demand in the next year. Thereafter, the non-applicants agreed to maintain the applicant only if Rs.2,00,000/- paidto them. However, on 17.07.2015, at about 06.00 p.m., the non-applicants visited parental house of the applicant and at that time, thenon-applicants abused her parents and demanded Rs.2,00,000/- andissued threat to give divorce to the applicant, if the demand is notfulfilled. So also, the non-applicant No.1 would perform another 10 of 15 (( 11 ))Cri-WP**-306-2019marriage, if the applicant’s parents failed to pay said amount andissued life threat. On the next day, the applicant visited Shirur PoliceStation and lodged the complaint, but no cognizance was taken bythe Police. The non-applicants raised domestic violence due to non-fulfillment of illegal demand of dowry defined under Section 3 of theD.V. Act. Both the Courts below concurrently held that, marriagebetween the applicant wife and non-applicant no. 1 solemnized on14.12.2014 and the non-applicants raised domestic violence.Therefore, prayed for dismissal of the petition. 14.Since the Petitioners/ori. Non-applicants denied the factof solemnization of marriage between the applicant-wife and non-applicant no. 1-husband. I have gone through the evidence led byboth the sides. The A. W. 1 stated in her evidence affidavit Exh. 6 that,her marriage solemnized with the Non-applicant no. 1 on 14.12.2014.In the cross-examination of the applicant, the defence suggested thatno marriage was solemnized, but the applicant denied the saidsuggestion. The Non-applicant no. 1 admitted in his crossexamination that, Shri Uttam (A. W. 2) did not compel him to marrywith applicant and no threat was given to him. The applicant deposedthat she cohabited with the non-applicant no. 1 at her matrimonial 11 of 15 (( 12 ))Cri-WP**-306-2019house for two months. Therefore it proves that, marriage between theapplicant and non-applicant no. 1 was solemnized on 14.12.2014.Therefore, I do not find any substance in the submissions canvassedon behalf of the petitioners. 15.Sec. 2 (f) of D. V. Act, provides definition of “domesticrelation’ means a relationship between two persons who live of have,at any point of time, lived together in a shared household, when theyare related by consanguinity, marriage, or through a relationship inthe nature of marriage, adoption or family members living together asa joint family. Domestic relationship continues so long as the partieslive under the same roof and enjoy living together in a sharedhousehold. So where living together has been given up and separatehousehold is established, belongings are removed, domesticrelationship comes to an end and relationship of being relatives ofeach other only survives. Sec. 3 of the D. V. Act, provides that, anyform of abuse causing harm or injury to the physical and/or mentalhealth of the woman or compromising her life and safety or anyharassment for dowry or to meet any other unlawful demand or issuethreats to cause injury or harm. 12 of 15 (( 13 ))Cri-WP**-306-201916.In D. Velusawy-Vs- D. Patchaiammal, (2010) 10 SCC 469,the Hon’ble Apex Court has explained the expression ‘relationship inthe nature of marriage’ by observing in para 33 that, relationship inthe nature of marriage is akin to a common law marriage. Commonlaw marriages required although not being formally married:a) The couple must hold themselves out to society as being akin to pouses.b) They must be legal age to marryc)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. Therefore, ‘relationship’ in the nature of marriage underD. V. Act, 2005 must also fulfill the above requirements, and inaddition, the parties must have lived together in a ‘shared household’as defined in section 2 (f) of the Act. 17.Needless to say, both the Courts below have dulyconsidered the documentary as well as oral evidence available onrecord and have concurrently held that, on 14.12.2014, the marriagebetween the applicant and non-applicant no. 1 (husband) wassolemnized, and that matrimonial relations between them are still in 13 of 15 (( 14 ))Cri-WP**-306-2019existence. However, on 17.07.2015 at about 6:00 p.m., non-applicantno. 1, along with his relatives, visited Nandiwali and demanded2,00,000/-. They stated that the applicant (wife) would not be₹allowed to cohabit with non-applicant no. 1 unless the said amountwas paid. They further threatened that if the money was not paid,they would divorce the applicant and allow non-applicant no. 1 tomarry another woman. They also assaulted the applicant. Therefore,the applicant filed a complaint with the Shirur Kasar Police Station.18.Needless to say, the applicant-wife has no source ofincome, whereas non-applicant no. 1 (husband) is cultivating jointfamily land and engaged in the milk business, earning a substantialincome of 5,00,000/- per year. Therefore, considering the elements₹of domestic violence as defined under Section 3 of the DomesticViolence Act and the existence of a domestic relationship, the learnedAppellate Court, vide its judgment and order dated 11.01.2019,affirmed the judgment and order passed by the learned J.M.F.C. on14.02.2018, which does not appear to be perverse. Hence, I do notfind any substantial grounds to interfere with the findings recordedby both the Courts below. 14 of 15
Decision
(( 15 ))Cri-WP**-306-201919.In view of the above discussion, the Criminal Writ Petitionis dismissed. Rule is discharged. No order as to costs. [ Y. G. KHOBRAGADE, J. ] SMS 15 of 15