Can Unmarried Girl Live In Relationship With Married Man?

IN THE HIGH COURT OF JUDICATURE AT BOMBAY.

CRIMINAL APPELLATE JURISDICTION

CRIMINAL REVISION APPLICATION NO. 341 OF 2014

Deepak @ Gajanan Ramrao Kanegaonkar,

Versus

 The State of Maharashtra

 CORAM : M.L. TAHALIYANI, J.
 DATED : JULY 01, 2015
 Citation: 2015(4)BomCR(Cri)406, 2015CriLJ4833, 2015(4)JCC2551, 2015(3)RCR(Civil)1037, 2015(3)RCR(Criminal)1002

This revision application impugns the order passed by the learned Additional Sessions Judge, Thane in Criminal Appeal No.150/2013 dismissing the appeal of the applicant. The applicant was the original respondent before the Judicial Magistrate, First Class, Thane in O.M.A. No. 662 of 2009. The said application was filed before the Magistrate by respondent No. 2 Sonia Gajanan Kanegaonkar under section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “Domestic Violence Act”).

1. Learned Magistrate while deciding the said application has passed the following order :

“The application is partly allowed.

2. The opponent is hereby directed to pay Rs.7,000/ per month to the applicant for day to day expenses, household expenses and all other expenses including residential expenses.

3. The opponent is hereby directed to pay Rs.6,500/- each per moth for both daughter Tania and Antra day to day expenses, education expenses, residential expenses and all other expenses.

4. Copy of the order be sent to the concern protection officer and be given to the parties as per law.

5. Judgment dictated and pronounced in open court.”

3. The applicant filed an appeal against the judgment and order passed by the Magistrate. The said appeal has been dismissed.

4. The core issue before both the courts below was as to whether the applicant and respondent no. 2 had lived together for reasonably long period of time in a relationship which was in the nature of marriage. Learned Magistrate while framing the points for determination has framed following issues :

1. Whether the applicant and opponent had lived together for reasonably long period of time in a relationship which was in the nature of marriage?

2. Whether the Taniya and Antra begotten to the applicant from the non-applicant?

3. Whether the opponent committed Domestic Violence against the applicant and her children?

4. Whether applicant and her children are entitled to the relief under the Act as claimed for? What order? 

5. The points were answered in the affirmative on the basis of evidence of respondent no. 2. After having considered the facts of the case and law on the point learned Magistrate came to the same conclusion, that there was immense intimate relationship between the applicant and respondent no. 2 and that therefore it could be said that they had lived together in a relationship in the nature of marriage.

6. Learned Appellate court had also framed similar points for determination and came to the same conclusion.

7. During the course of hearing present application also, the core issue was whether there was sufficient material before the trial court to come to the conclusion that the respondent no. 2 and applicant had lived in the relationship in the nature of marriage.

8. At the outset it may be mentioned here that since this court is dealing with the revision application, findings given by the two courts below, cannot be disturbed unless the court finds something seriously wrong with the findings.

9. In this regard, it may be noted here that the person entitled for the relief under the Domestic Violence Act is defined as “aggrieved person” under section 2(a) of the Domestic Violence Act. Section 2(a) of the Act reads as under : “(a) “aggrieved person” means any woman who is, or has been in domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent” The “domestic relationship” has been defined in section 2(f) of the said Domestic Violence Act which reads as under : “(f) “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 joint family” The Word “respondent” has been defined under section 2Q of the said Act which reads thus : “(a) “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act.”

10. As such respondent No. 2 was under an obligation to prove that

she had been living together with the applicant in relationship which was in the nature of marriage. While dealing with the similar issue in the case of D.Velusamy Versus D. Patchaiammal1, the Hon'ble Supreme Court hasobserved as under :“31. 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.1 (2010) 10 SC 469,

(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'.

32. 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'

33. 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.”

11. Similar issue was raised before the Hon'ble Supreme Court in the matter of Indra Sarma Vs. V.K.V. Sarma 2. Dealing with the live in relationship, the Hon'ble Supreme Court in the said judgment at paragraph Nos. 61, 62, 63 and 66 had observed as under“ 61. Such relationship, it may be noted, may endure for a long time and can result pattern of dependency and vulnerability, and increasing number of such 2 Criminal Appeal No. 2009 of 2013 relationships, calls for adequate and effective protection, especially to the woman and children born out of that live-in-relationship. Legislature, of course, cannot promote pre-marital sex, though, at times, such relationships are intensively personal and people may express their opinion, for and against. See S.Khushboo v. Kanniammal and another (2010) 5 SCC 600.

62. Parliament has to ponder over these issues, bring in proper legislation or make a proper amendment of the Act, so that women and the children, born out of such kinds of relationships be protected, though those types of relationship might not be a relationship in the nature of a marriage.

63. We may now consider whether the tests, we have laid down, have been satisfied in the instant case. We have found that the appellant was not ignorant of the fact that the respondent was a married person with wife and two children, hence, was party to an adulterous and bigamous relationship. Admittedly, the relationship between the appellant and respondent was opposed by the wife of the respondent, so also by the parents of the appellant and her brother and sister and they knew that they could not have entered into a legal marriage or maintained a relationship in the nature of marriage. Parties never entertained any intention to rear children and on three occasions the pregnancy was terminated. Having children is a strong circumstance to indicate a relationship in the nature of marriage. No evidence has been adduced to show that the parties gave each other mutual support and companionship. No material has been produced to show that the parties have ever projected or conducted themselves as husband and wife and treated by friends, relatives and others, as if they are a married couple. On the other hand, it is the specific case of the appellant that the respondent had never held out to the public that she was his wife. No evidence of socialization in public has been produced. There is nothing to show that there was pooling of resources or financial arrangements between them. On the other hand, it is the specific case of the appellant that the respondent had never opened any joint account or executed any document in the joint name. Further, it was also submitted that the respondent never permitted to suffix his name after the name of the appellant. No evidence is forthcoming, in this case, to show that the respondent had caused any harm or injuries or endangered the health, safely, life, limb or well-being, or caused any physical or sexual abuse on the appellant, except that he did not maintain her or continued with the relationship.

ALIENATION OF AFFECTION

66. We have, on facts, found that the appellant’s status was that of a mistress, who is in distress, a survivor of alive-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.”(emphasis supplied)”

12. Keeping in view the definition of “aggrieved person”, “domestic

relationship” and the pronouncements made by the Hon'ble Supreme Court in the above stated two cases, let me now examine the evidence of respondent no. 2 and the applicant in the present application. Respondentno.2 in her evidence has stated that she developed relationship with applicant while she was working in his company namely Gandh-Sugandh. Itis further stated that separate accommodation was made available to her by the applicant at Edward Nagar, Chunabhatti, Mumbai and that they had been staying there as husband and wife. She has conceived from the applicant and delivered a female child. It is stated by her that the applicant did not like birth of child and thereafter there used to be frequent quarrels. Respondentno.2 therefore shifted to Mumbra at the place of one Mr. Kapadia where she was given separate room for herself. She had delivered the second child conceived from the applicant.

13. In the evidence of the applicant, it has come that respondent no. 2was working in his company and that she was appointed by the wife of the applicant. The wife of the applicant was the Managing Director of the company known as Gandh-sugandh. As such, it is the contention of the applicant that respondent no.2 knew that the applicant was married and she also knew that the wife of the applicant was a Managing Director of the company. It is stated by the applicant that in fact respondent no.2 was introduced to the applicant by his own wife. As such the issue which needs to be examined is as to whether respondent no.2 knew that the applicant was married and that she maintained relationship with the applicant despite the knowledge that the applicant was a married person. Since this issue decides the whole area of dispute, it was necessary for me to examine the evidence of respondent no. 2 on this point very minutely.

14. I have carefully examined the evidence of respondent no. 2.Respondent no. 2 has schemingly kept silence as to whether she had made enquiries regarding the marital status of the applicant. It may be noted here that the applicant is at present 61 years old. He was about 46 to 47years old when he allegedly developed relationship with respondent no. 2. Common sense therefore, required that respondent no. 2 should have made enquiries about the marital status of the applicant before entering into alleged marriage at Ganpati Temple. Since respondent no. 2 has maintained silence on very vital issue of marital status of the applicant and has also maintained silence about as to where the applicant was staying during the period when he was not staying with respondent no. 2, it can be safely inferred that respondent no. 2 knew that the applicant was married. Respondent no.2maintained physical relationship with the applicant despite her knowledge that the applicant was a married person and that his wife was the Managing Director of the company. The evidence of applicant that he was introduced to respondent no. 2 by his wife has not been rebutted. It is brought to my notice that Exh. 62 is an appointment letter issued to respondent no.2 by the wife of the applicant.

15. The wife of the applicant has also been examined as witness on behalf of the applicant. She has categorically stated in her evidence in para 2that respondent no. 2 was appointed by her on 13th March, 2000 as a Sales Girl in Gandh-sugandh. The learned counsel for respondent no. 2 before the trial court had tried to demolish the case of the applicant that respondent no.2 was appointed by the wife of the applicant. Exh. 62 was shown to the witness (wife of the applicant) and she was asked whether there was signature of respondent no. 2 on the said appointment letter giving her acceptance for the job. It was suggested to her that this document Exh. 62was prepared later on to support the case of the applicant. Even if it is assumed for the sake of argument that the document Exh. 62 was prepared latter on, the fact remains that respondent no.2 was employee of the applicant. The only question which remains for the scrutiny was whether respondent no. 2 knew the wife of the applicant.

I had already stated that respondent no.2 will fully kept her silence on the vital issue in this regard while giving evidence. She has not stated whether she had made any enquiry about the marital status of the applicant before entering into marriage. It has come on record that the applicant had been staying with respondent no. 2 intermittently. Respondent no. 2 has not bothered to find out as to where the applicant had been staying during the period when he was not in the company of respondent no. 2. Material is sufficient enough to infer that respondent no. 2 knew that the applicant was a married person. The facts of the present case in my opinion are similar to the case in the mater of Indra Sharma Vs. Shara (supra) decided by the Hon'ble Supreme Court. The Hon'ble Supreme Court has while dealing with the similar facts had come to the conclusion that the appellant was not ignorant of the fac that respondent was a married person having wife and two children and hence, was party to an adulterous and bigamous relationship.

16. In the present case, though it has come in the evidence of respondent no.2 that she had conceived and delivered two children out of the relationship with the applicant and though she has stated that they were posing themselves to be married couple, she has not been able to give a single instance where they have appeared as husband and wife in the society on any occasion of marriage or party. The bald statement on behalf of the respondent no. 2 that she had posed herself to be wife of the applicant and applicant had posed himself to be husband of respondent no.2 will not be sufficient to come to the conclusion that the relationship between the applicant and respondent no. 2 was in the nature of marriage.

17. It has come in the evidence of the wife of the applicant that she had later on came to know that respondent no. 2 had been blackmailing the applicant. As such wife of the applicant was opposed to the relationship of the applicant with respondent no. 2.

18. Over all view of the evidence of all the witnesses and silence on the part of respondent no.2 on vital facts of the case, clearly indicate that respondent no.2 knew that the applicant was a married person and he had children from his wife. Respondent no.2 also knew that the applicant had been staying with his wife. Despite that, she had maintained relationship with the applicant. In my opinion, the said relationship cannot be relationship in the nature of marriage. Therefore, it cannot be said that respondent no.2was “aggrieved person” within the meaning of Section 2(q) of the Act. She was obviously therefore, not entitled for any relief under Protection of Women from Domestic Violence Act, 2005. Learned Magistrate should have rejected her prayer. The appeal should have been dismissed by the appellate court. If respondent no.2 was not entitled for any relief under the Act, it follows that her children are also not entitled for the relief under the said Act. It is another thing that the children may be entitled for relief undersection 125 of Code of Criminal Procedure.

19. With these observations, the application is allowed. The orders of the learned Magistrate being O.M.A. No. 662 of 2009 and Sessions Court being Criminal Appeal No. 250 of 2013 are set aside. Application accordingly stands disposed of.

(JUDGE)

25 useful judgments to deny maintenance for wife

S. N. Pattnayak
Chief Executive
Legalsindia


When the divorce procedure is taking a long time to finalise or when one of the spouses is a homemaker then law provides a mechanism that can be used to assist spouse until the divorce is finalized.

DELHI HIGH COURT: “Unemployed man cannot be forced to pay maintenance” on 27 August, 2010

MUMBAI HIGH COURT: “Maintenance not granted as it is proved that wife wants to reside separately” on 4 Feb 2005

MUMBAI HIGH COURT:“Maintenance not granted as it is proved no reason to leave husbands”  on Apr 2008

CHENNAI HIGH COURT :” No maintenance for working women “ on 21 Feb 2003

MADHYA PRADESH HIGH COURT : “No maintenance for capable working Women” on 24 March 2000 

DELHI HIGH COURT  : “She was earning and she had not come to the Court with clean hands” on 28 July 2008

MADRAS HIGH COURT: S.Chandra vs C.V.Sridharan on 21 February 2007 Claim alimony within 6 Months of Divorce


MADRAS HIGH COURT :” Wife troubled -No Maintenance” on 22 Feb 2008 

SUPREME COURT  : “Wife working no maintenance” on 23 March, 2009

BOMBAY HIGH COURT :  “Rigorous imprisonment for False Case” on 14 March 2011 

ADDITIONAL SESSIONS JUDGE HAZARI COURTS, DELHI: “Maintenance claim based on Affidavit dismissed” on 15 April 2011

DELHI HIGH COURT  : “Claim of high status of husband not sufficient for interim maintenance” on1 September, 2010

DELHI HIGH COURT  : “Multiple Maintenance petitions are not allowed” on 30 August, 2010 

SUPREME COURT OF INDIA : “Reduced Intrim Maintenance” on 20 July, 2010 

MUMBAI HIGH COURT :  “No Maintenance to Wife if RCR By Husband Succeed” on 18 July, 2009 

MUMBAI HIGH COURRT: “Income tax returns cannot decide Maintenance” on 18 November 2010 

DELHI HIGH COURT: “Father In Law not responsible for Residence” on 16 November 2004

BOMBAY HIGH COURT: “Return of Shtreedhan, Alimony and Hidding Past” on 15 September, 2004 

 UTTARANCHAL HIGH COURT : “No Maintenance u/s125Crpc for working Women” on 25 October 2010

MADRAS HIGH COURT: “Mother is not always right person for custody” on  20 November 2006

SUPREME COURT: “Rules for Child Custody” on 2 March 2001

SUPREME COURT: “Illegitimacy of child is not with Family court” on 23 March 2004

SUPREME COURT: “Wife has no right on mother in law's property “ on15 December, 2006

DELHI HIGH COURT : “Family members of NRI husband cannot be accused in DV case” on 29 July, 2010

54. DELHI HIGH COURT : “No maintenance to earning spouse Violence to be Proved” on 18 September, 2008

FIR must be on sites within 24 hours:SC

Satya Narayan Pattnayak

Chief Executive

Legalsindia

NEW DELHI: In a move that will bring about transparency in police administration, the Supreme Court on Wednesday ruled that FIRs must be made public within 24 hours after they are lodged at police stations. 

The apex court asked all states and Union Territories to to ensure that copy of FIR is uploaded on official website within 24 hours. However, the apex court allowed 48 hours time to states like Nagaland, Mizoram and Jammu & Kashmir, which face problem of internet connectivity due to their goegraphical location. The apex court also exempted the state police authorities from uploading the FIRs on sensitive cases pertaining to insurgency and sexual offences against women and children. 

Various High Courts have directed the state governments to upload FIR on website but the order is not being implemented. Delhi, Odisha, Allahabad HCs have passed similar orders few years back. 

With SC approving the judgments of HCs, it becomes binding on all state government, making them liable for contempt if it is not implemented.

Is it illegal to allow an unmarried couple in hotels?

There is no law that prohibits unmarried couples from staying together in hotels. Choosing to stay together is a personal choice and falls under freedom of movement, which cannot be restricted in India, there are a lot of illegal restrictions that men and women associate with one another, and alone share a room.  India considers the idea of love, pre-marital sex, casual sex, etc. between men and women. At the same time couples have been harassed in public spaces.

     There are no definite rules laid down by the government about renting a room in a hotel to male and female who are unmarried'. Hotels have such rules, mostly are unsure about renting rooms to a man and a woman who are unmarried. The hotel will also fall into some major trouble if the couple is caught engaging in illegal activities. It is to avoid situation, that hotels may include such a policy. In India it is important to understand what is truly illegal, and what is merely immoral. Legally speaking there is no law in India that prohibits unmarried to rent a room in any hotel.

   In India there is no provision in justice recognized that getting a room by unmarried couple is not illegal. Police officers have often harassed innocent people for choosing to have a different ideology. Several hotels reserve the right to refuse admission to a lot of people. In most scenarios, hotels do that to prevent unnecessary police interference, and for safety reasons. This is an acceptable practice in India, there is no discrimination involved, in terms of religion, race, caste, sex, place of birth etc.

Satya Narayan Pattnayak

Chair Person-cum-Chief Executive

Legalsindia

When daughter in law is liable to pay maintenance to mother in law under S125 of CRPC?

Equivalent Citation: 2009(111)BOMLR1831, 2010(1)Crimes1, 2009(4)MhLj665,MANU/MH/0180/2009
IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)
Criminal Revision Application No. 86 of 2007
Decided On: 06.03.2009
 Smt. Saroj W/o Govind Mukkawar
Vs.
Smt. Chandrakalabai Polshetwar and The State of Maharashtra
Hon'ble Judges/Coram:
S.S. Shinde, J.

Criminal - Maintenance - Claim of - Entitlement of Mother-in-law - Section 20 of Hindu Adoptions and Maintenance Act, 1956 - Sections 125 and 125(1) of Code of Criminal Procedure, 1973 - Section 125 of Code of Civil Procedure, 1908 - Respondent No. 1 mother-in-law of present applicant - Applicant got job on compassionate grounds on death of her husband - Also received gratuity etc. - Neglected to maintain Respondent No. 1 - Application claiming maintenance filed by Respondent No. 1 - Application dismissed by learned J.M.F.C. on the ground that mother-in-law not entitled to claim maintenance from daughter-in-law under Section 125 Cr.PC - Revision filed by Respondent No. 1 allowed and applicant directed to pay Rs. 1,000/- per month as maintenance to Respondent No. 1 - Hence, present Revision application - Held, at the time of obtaining appointment on compassionate grounds present applicant gave undertaking to support Respondent No. 1 - Deceased only son of Respondent No. 1 - Respondent No. 1 aged person and has no source of income - Respondent No. 1 entitled to claim maintenance from present Applicant - Revision application dismissed 

Mother-in-law, who is aged and has no source of income, is entitled to claim maintenance from her daughter-in-law.



1. This application is filed praying for quashing and setting aside the judgment and order dated 12.1.2007 passed by the Sessions Judge, Nanded in Criminal Revision Application No. 139 of 2006 and restoration of the judgment and order dated 11.8.2005 passed by the J.M.F.C., 2nd Court Nanded in M.C.A. No. 177/2004.
2. The brief facts of the case are as under:
The present respondent No. 1 filed Misc. Criminal Application No. 177/2004 against the present applicant for maintenance under Section 125 of Cr.P.C. The present applicant is daughter-in-law of respondent No. 1 herein. It is the case of the original applicant - respondent No. 1 herein that she is widow of 65 years old. Her sole son died on 14.3.1995. Her daughter-in-law got employment in Zilla Parishad on compassionate ground after death of her sole son Venkatesh. The present applicant/petitioner is getting salary of Rs. 10,000/- per month. Respondent No. 1 herein is unable to maintain herself. The applicant, besides her monthly salary, has received a sum of Rs. 1,56,000/- from Zilla Parishad towards gratuity etc. of her deceased husband and thereby she is able to pay separate maintenance. The applicant has driven the present respondent No. 1 from her house and thereby refused to maintain her. Therefore, the original applicant - respondent No. 1 herein claimed a sum of Rs. 1500/- per month towards maintenance.
3. The learned J.M.F.C. rejected the application of the respondent No. 1 herein on the ground that the mother-in-law is not entitled to claim maintenance from her daughter-in-law and said provision does not exist under Section 125 of Cr.P.C.
4. Being aggrieved, the present respondent No. 1 filed criminal Revision Petition No. 139 of 2006. The revisional Court framed necessary points for its determination and held that the respondent No. 1 herein is entitled for maintenance under Section 125 of C.P.C. and directed the present applicant to pay Rs. 1000/- per month the respondent No. 1 herein.
5. Being aggrieved by the said order, the present application is filed by the applicant.
6. The learned Counsel for the applicant submitted that the application which was filed by respondent No. 1 herein was not maintainable under Section 125(1)(d) of Cr.P.C. against the present applicant, who is daughter-in-law of the respondent No. 1. The learned Counsel further invited my attention to the reported judgment of the Supreme Court in case of Kirtikant D. Vadodaria v. State of Gujarat and Anr. MANU/SC/1159/1996 : (1996)4SCC479 and submitted that in the said judgment the Apex Court has held that the stepmother is not entitled for maintenance. The expression "mother" in Section 125(1)(d) of Cr.P.C. means only real or natural mother and does not include stepmother. Stepmother is a distinct and separate entity and cannot be equated with the natural mother who has given birth to the child.
The learned Counsel further submitted that the present applicant being daughter-in-law of respondent No. 1, the revision application of respondent No. 1 should not have been entertained by the revisional Court since it was rightly rejected by the J.M.F.C.
7. The learned Counsel for respondent No. 1 submitted that the son of the respondent No. 1 namely Venkatesh, who was husband of the applicant, was working in a school run by Zilla Parishad, Nanded. On 14.3.1995 Venkatesh died and the present applicant received Rs. 1,56,000/- towards gratuity etc. and also she got appointment on compassionate ground against service of Venkatesh. The applicant is earning Rs. 10,000/- per month. He further submitted that at the time of obtaining said compassionate appointment, the applicant had given an undertaking that she will support the present respondent No. 1 - mother-in-law. However, the applicant has not provided any financial assistance to the respondent No. 1 and she is residing separately. He further submitted that both the Courts have given a finding that the present applicant is earning Rs. 10,000/- per month and neglected to maintain the present respondent No. 1. he further submitted that the J.M.F.C. has rejected the application of respondent No. 1 only on the ground that the application filed by respondent No. 1 against daugter-in-law is not maintainable under Section 125(1)(d) of the Cr.P.C.
He further submitted that the respondent No. 1 is old lady, having no source of income, she is surviving on sympathy of her neighbours and is not capable to do any work and to earn her livelihood. He submitted that in the peculiar facts and circumstances of this case, this Court may not interfere with the impugned judgment and order passed by the revisional court.
8. Heard learned Counsel for the parties, perused the contents of the application, annexures thereto and the judgment of the Supreme Court in the case of Kirtikant D. Vadodaria (supra). I am of the considered view that the revision application deserves to be rejected.
9. Firstly, the respondent No. 1 is old lady having age of more than 65 years and the courts below has recorded the findings that she is not able to maintain herself, she has no source of income. It is pertinent to note that Venkatesh was the only son of respondent No. 1 who died and the present applicant has been appointed on compassionate ground against service of Venkatesh in the Zilla Parishad, Nanded. It does not fit in the mouth of the applicant that respondent No. 1 being her mother-in-law, is not entitled to claim maintenance under Section 125(1)(d) of Cr.P.C. Moreover, as rightly contended by the learned Counsel for respondent No. 1 that at the time of obtaining the appointment on compassionate ground, the present applicant had given an undertaking that she will support the present respondent No. 1. The deceased Venkatesh being the only son of respondent No. 1 and the applicant had got the employment on compassionate ground and she is earning Rs. 10,000/- per month, respondent No. 1 is rightly held by the revisional Court as entitled to claim separate maintenance at the rate of Rs. 1000/- per month from the present applicant.
10. I have perused the judgment of the Hon'ble Supreme Court in the case of Kirtikant D. Vadodaria (supra). In the peculiar facts and circumstances of that case, the Apex Court came to the conclusion that surviving real and natural born sons who are well to do, the stepmother was not entitled to claim maintenance from stepson. In paragraph 15 of the said judgment, the Supreme Court, while dealing with the benevolent provision and ambit of Section 125 of Cr.P.C., observed:
...Consequently to achieve this object a childless stepmother may claim maintenance from her stepson provided she is a widow or her husband, if living, is also incapable of supporting and maintaining her. The obligation of the son to maintain his father, who is unable to maintain himself, is unquestionable. When she claims maintenance from her natural born children, she does so in her status as their 'mother'. Such an interpretation would be in accord with the explanation attached to Section 20 of the Hindu Adoptions and Maintenance Act, 1956 because to exclude altogether the personal law applicable to the parties from consideration in matters of maintenance under Section 125 of the Code may not be wholly justified. However, no intention of legislature can be read in Section 125 of the Code that even though a mother has her real and natural born son or sons and a husband capable of maintaining her, she could still proceed against her stepson to claim maintenance.
11. In that case, the stepmother preferred to claim maintenance only from stepson leaving out her natural born sons and husband who were well to do and, therefore, the Apex Court, in the facts of that case, held that the stepmother is not entitled to claim maintenance from her stepson.
12. In the present case, it is admitted position that the applicant has secured the employment on the compassionate ground in place of Venkatesh who was the only son of the respondent No. 1 and that too, by filing an undertaking that she will take care of respondent No. 1. Apart from that, the fact that the respondent No. 1 is an old aged person having age of more than 65 years and not able to maintain herself and has no source of livelihood, is not disputed by the applicant herein. The peculiar facts of this case warrants that respondent No. 1 is entitled to get maintenance from the present applicant. The revisional Court has recorded the reasons in paragraph 11 and 12 of the judgment and I fully agree with the reasoning given by the revisional Court.
13. In the facts and circumstances of the case, respondent No. 1 is entitled for maintenance from the applicant. The learned Counsel for the applicant submitted that in pursuant to the order dated 19th April, 2007, the applicant has deposited some amount in the Court out of the amount which was received towards gratuity etc. The respondent No. 1 is entitled to withdraw the said amount from the Court.
The revision application is rejected.

GUIDELINES TO POLICE AND MAGISTRATES IN 498A CASES

For many years, Supreme Court has been giving judgments on misuse of IPC 498a and they had even asked the law ministry to consider amending it.  Many states have police circulars already on doing investigation or taking permission of higher police like DCP before arresting under 498a, but there is no guarantee that these rules are followed. 

Justice Chandramauli Kr. Prasad along with Justice Pinaki Chandra Ghosh delivered their judgment. In the recent years various matrimonial cases came up. The main object of Section 498-A of IPC is to act as a shield against the harassment to a women at the hands of her husband and relatives. The fact that Section 498-A is a cognizable and non-bailable offence, many disrespectful and sly wives use this section as a weapon rather than a shield. There are cases where old grandparents of the husband were put behind the bars. The simplest way to harass the family of in laws by the wives are to use this provision as a weapon.

The Courts with has expressed it disapproval as to how the power of arrest and detention is dealt by Police and Magistrates. The power to arrest by is a vital power which are imposed on the public servant. But unfortunately we have seen various cases where this power is not exercised with the seriousness it deserves. In order to prevent unnecessary arrest

 and casual detention, the court has issued the following directions:-

The Governments of all state will guide the police officers not to arrest automatically when any case under section 498-A of IPC is registered. They will make sure that such arrest must satisfy the the provisions laid down under section 41 of Civil Procedure Code.
All the police officers will be provided with check list containing specified sub-clauses under section 41(1)(b)(ii).
The police officer shall forward the check list along with the reasons and materials which necessitated such arrest,while producing the accused before the Magistrate for any further arrest.

The Magistrate while authorizing custody of the accused shall examine the report furnished by the police officer and only after being satisfied will authorize further detention.
 

If the police officer decides not to arrest any accused,then such decision should be forwarded to the Magistrate in writing along with the reasons behind such decision within two weeks from the date of the institution of such case.  A copy of it shall be forwarded to the Magistrate which may be extended by the Superintendent of police of the district.
Notice to appear in terms of Section 41-A of CrPC shall be served to the accused within two weeks of the institution of the case which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing.
 

If the police officer fails to comply with the aforesaid directions,then they will be liable for departmental actions and shall also be liable for to be punished for Contempt Of Court. Such cases should be instituted before the High Court having territorial jurisdiction.
 

If a Judicial Magistrate authorizes custody without recording the reasons as aforesaid, then he shall be liable for departmental action by the appropriate High Court.
 

The aforesaid directions shall not only apply to cases under section 498-A of Indian Penal Code,1860 and section 4 of the Dowry Prohibition Act,1961 but also in such cases where offence is punishable with punishment for a term which may be less than seven years or which may extend to seven years,whether with or without fine.
 

A copy of this judgment  shall be forwarded to the Chief Secretaries as also the Director Generals of Police of all State Governments and the Union Territories and  the Registrar General Of all High Courts for onward transmission and ensuring its compliance.

Whether mother in law can file domestic violence proceeding against daughter in law?

As a matter of fact, para „4(i)‟ clarifies that even those women who are sisters, widows, mothers, single woman or living with the abuser are entitled to legal protection under the proposed legislation. A mother who is being maltreated and harassed by her son would be an "aggrieved person". If the said harassment is caused through the female relative of the son i.e. his wife, the said female relative will fall within the ambit of the „respondent‟. This phenomenon of the daughters-in-law harassing their mothers-in-law especially who are dependent is not uncommon in the Indian society.

10. In view of the authoritative pronouncement of the Hon‟ble Supreme Court, para „4‟ of the Statement of Objects and Reasons cannot be stated to have excluded a female relative of the male partner or a respondent and thus, a mother-in-law being an "aggrieved person" can file a complaint against the daughter-in-law as a respondent.

Delhi High Court

Kusum Lata Sharma vs State & Anr. on 2 September, 2011

Author: Mukta Gupta

1. The Petitioner, one of the Respondents in a Complaint Case No. 40/2011, PS Hauz Khas, New Delhi titled as "Ms. Shakuntala Sharma vs. Nagender Vashishtha & Ors" received summons from the Court of learned Metropolitan Magistrate under Section 12 of the Protection of Women from Domestic Violence Act, 2005(in short the „Act‟) to appear on 8th March, 2011. The Petitioner states that the Complainant/Respondent No. 2 is her mother-in- law who is having property dispute with the Petitioner‟s husband since 2005 and in order to coerce the Petitioner‟s husband to forego his share in the property left behind by Petitioner‟s father-in-law, the Respondent no.2 has filed the complaint.

2. It is contended that the object of the Act was for redressal of married women who were subjected to cruelty by their husband or in-laws. The object of the Act clearly states that it does not enable any relative of the husband or the male partner to file a complaint against the wife or the female partner. Thus in a nutshell the contention is that a mother-in-law cannot take recourse to the proceedings under Section 12 of the Act to file a complaint against the daughter-in-law.

3. The learned counsel for the Petitioner relies upon the object of the Act and contends that as per para „2‟ and „4‟ of the Statements of Objects & Reasons of the Act, the Act was enacted to address to the phenomena of cruelty inflicted under Section 498A IPC in its entirety. It is further contended that as per Section 2, the Respondent means any adult male person who is or has been in a relationship with the aggrieved person and against whom any relief has been sought under this Act. The proviso to Section 2(q) which provides that an aggrieved wife or female living in a relationship in the nature of marriage may also file a complaint against a relative or the husband or the male partner does not include a female relative.

4. The issue whether the „females‟ are included or not in the definition of „Respondent‟ inSection 2(q) of the Act came up for consideration before the Hon‟ble Supreme Court in Sou.Sandhya Manoj Wankhade vs. Manoj Bhimrao Wankhade & Ors., 2011 (3) SCC 650 wherein their Lordships held:-

13. It is true that the expression "female" has not been used in the proviso to Section 2(q) also, but, on the other hand, if the Legislature intended to exclude females from the ambit of the complaint, which can be filed by an aggrieved wife, females would have been specifically excluded, instead of it being provided in the proviso that a complaint could also be filed against a relative of the husband or the male partner. No restrictive meaning has been given to the expression "relative", nor has the said expression been specifically defined in the Domestic Violence Act, 2005, to make it specific to males only.

14. In such circumstances, it is clear that the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act, 2005.

15. In our view, both the Sessions Judge and the High Court went wrong in holding otherwise, possibly being influenced by the definition of the expression "Respondent" in the main body of Section 2(q) of the aforesaid Act.

16. The Appeal, therefore, succeeds. The judgments and orders, both of the learned Sessions Judge, Amravati, dated 15 th July, 2009 and the Nagpur Bench of the Bombay High Court dated 5th March, 2010, in Crl. Writ Petition No. 588 of 2009 are set aside.

Consequently, the trial Court shall also proceed against the said Respondent Nos. 2 and 3 on the complaint filed by the Appellant"

5. Division Bench of this Court in "Varsha Kapoor vs. UOI & Ors. 2010 VI AD(Delhi) 472 interpreting Section 2(q) of the Act also came to the same conclusion. Thus the issue whether under Section 2(q) of the Act "the female relative" would be inclusive in the definition is no more res integra. The Division Bench held as under:-

"12. When we interpret the provisions of Section 2 (q) in the context of the aforesaid scheme, our conclusion would be that the petition is maintainable even against a woman in the situation contained in proviso to Section 2(q) of the DV Act. No doubt, the provision is not very satisfactorily worded and there appears to be some ambiguity in the definition of „respondent‟ as contained in Section 2 (q). The Director of Southern Institute for Social Science Research, Dr. S.S. Jagnayak in his report has described the ambiguity in Section 2(q) as "Loopholes to Escape the Respondents from the Cult of this Law" and opined in the following words:

"As per Section 2 Clause (q) the respondent means any adult male person who is or has been in a domestic relationship. Hence, a plain reading of the Act would show that an application will not lie under the provisions of this Act against a female. But, when Section 19(1) proviso is perused, it can be seen that the petition is maintainable, even against a lady. Often this has taken as a contention, when ladies are arrayed as respondents and it is contended that petition against female respondents are not maintainable. This is a loophole which should be plugged."

13. But then, Courts are not supposed to throw their hands up in the air expressing their helplessness. It becomes the duty of the Court to give correct interpretation to such a provision having regard to the purpose sought to be achieved by enacting a particular legislation. This so expressed by the Supreme Court in the case of Ahmedabad Municipal Corpn. Anr. Vs. Nilaybhai R. Thakore & Anr. [(1999) 8 SCC 139 in the following words:

"14. Before proceeding to interpret Rule 7 in the manner which we think is the correct interpretation, we have to bear in mind that it is not the jurisdiction of the court to enter into the arena of the legislative prerogative of enacting laws. However, keeping in mind the fact that the Rule in question is only a subordinate legislation and by declaring the Rule ultra vires, as has been done by the High Court, we would be only causing considerable damage to the cause for which the Municipality had enacted this Rule. We, therefore, think it appropriate to rely upon the famous and oft-quoted principle relied by Lord Denning in the case of Seaford Court Estates Ltd. v. Asher [1994] 2 All ER 155 wherein he held : "When a defect appears a judge cannot simply fold his hand and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written words so as to give 'force and life' to the intention of the Legislature. A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases". This statement of law made by Lord Denning has been consistently followed by this Court starting in the case of M. Pentiah and Ors. v. Muddala Veeramallappa and Ors. : [1961]2SCR295 and followed as recently as in the case of S. Gopal Reddy v. Slate of Andhra Pradesh : 1996CriLJ3237 . Thus, following the above Rule of interpretation and with a view to iron out the creases in the impugned Rule which offends Article 14, we interpret Rule 7 as follows : "Local student means a student who has passed H.S.C./New S.S.C.

examination and the qualifying examination from any of the High Schools or Colleges situated within the Ahmedabad Municipal Corporation limits and includes a permanent resident student of Ahmedabad Municipality who acquires the above qualifications from any of the High School or College situated within Ahmedabad Urban Development Area."

14. This Court also followed the aforesaid principles in the case of Star India P. Ltd. Vs. The Telecom Regulatory Authority of India and Ors. [146 (2008) DLT 445 (DB) in the following words:

"28. It is also a firmly entrenched principle of interpretation of statutes that the Court is obliged to correct obvious drafting errors and adopt the constructive role of 'finding the intention of Parliament... not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it' as enunciated in State of Bihar v. Bihar Distillery Ltd.: AIR1997SC1511 . The Court should also endeavor to harmoniously construe a statute so that provisions which appear to be irreconcilable can be given effect to, rather than strike down one or the other. It must also not be forgotten that jural presumption is in favor of the constitutionality of a statute."

15. Having regard to the purpose which the DV Act seeks to achieve and when we read Section 2 (q) along with other provisions, out task is quite simple, which may in first blush appear to be somewhat tricky. We are of the considered view that the manner in which definition of „respondent‟ is given under Section 2(q) of DV Act, it has to be segregated into two independent and mutually exclusive parts, not treating proviso as adjunct to the main provision. These two parts are:

a) Main enacting part which deals with those aggrieved persons, who are „in a domestic relationship‟. Thus, in those cases where aggrieved person is in a domesticrelationship with other person against whom she has sought any relief under the DV Act, in that case, such person as respondent has to be an adult male person. Given that aggrieved person has to be a female, such aggrieved person in a domestic relationship can be a mother, a sister, a daughter, sister-in-law, etc.

b) Proviso, on the other hand, deals with limited and specific class of aggrieved person, viz. a wife or a female living in relationship in the nature of marriage. First time by this legislation, the legislator has accepted live in relationship by giving those female who are not formally married, but are living with a male person in a relationship, which is in the nature of marriage, also akin to wife, though not equivalent to wife. This proviso, therefore, caters for wife or a female in a live in relationship. In their case, the definition of „respondent‟ is widened by not limiting it to „adult male person‟ only, but also including „a relative of husband or the male partner‟, as the case may be.

What follows is that on the one hand, aggrieved persons other than wife or a female living in a relationship in the nature of marriage, viz., sister, mother, daughter or sister-in-law as aggrieved person can file application against adult male person only. But on the other hand, wife or female living in a relationship in the nature of marriage is given right to file complaint not only against husband or male partner, but also against his relatives.

16. Having dissected definition into two parts, the rationale for including a female/woman under the expression „relative of the husband or male partner‟ is not difficult to fathom. It is common knowledge that in case a wife is harassed by husband, other family members may also join husband in treating the wife cruelty and such family members would invariably include female relatives as well. If restricted interpretation is given, as contended by the petitioner, the very purpose for which this Act is enacted would be defeated. It would be very easy for the husband or other male members to frustrate the remedy by ensuring that the violence on the wife is perpetrated by female members. Even when Protection Order under Section 18 or Residence Order under Section 19 is passed, the same can easily be defeated by violating the said orders at the hands of the female relatives of the husband.

19. It is also well-recognized principle of law that while interpreting a provision in statute, it is the duty of the Court to give effect to all provisions. When aforesaid provisions are read conjointly keeping the scheme of the DV Act, it becomes abundantly clear that the legislator intended female relatives also to be respondents in the proceedings initiated by wife or female living in relationship in the nature of marriage."

6. The next issue which arises for consideration is whether the word „aggrieved person‟ inSection 2(a) of the Act has to be given a restricted meaning in view of the Statement of Objects & Reasons so as to include the daughter-in-law only and excludes only a mother-in-law, sister-in-law or daughter from its ambit. The relevant Sections read as under:-

"2(a) "aggrieved person" means any woman 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 respondent;

(b).......................

(c).......................

(d)......................

(e)......................

(f) "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;"

7. Thus, a perusal of Section 2(a) and 2(f) of the Act shows that any woman who is in a domestic relationship, the said domestic relationship being one between two persons who lived at any point of time together in a shared household related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or family members living as a joint family and alleges that she has been subjected to any domestic violence by the Respondent is entitled to relief under the Act.

8. The word „aggrieved person‟ cannot be given a restricted meaning in view of para „2‟ of the Statement of Objects & Reasons which states that:-

"The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under Section 498A of the Indian Penal Code. The civil law does not however address this phenomenon in its entirety.

Thus, it is evident that phenomenon which was sought to be addressed was "domestic violence" and not "domestic violence qua the daughter-in-law or the wife only as contemplated underSection 498A.

9. As a matter of fact, para „4(i)‟ clarifies that even those women who are sisters, widows, mothers, single woman or living with the abuser are entitled to legal protection under the proposed legislation. A mother who is being maltreated and harassed by her son would be an "aggrieved person". If the said harassment is caused through the female relative of the son i.e. his wife, the said female relative will fall within the ambit of the „respondent‟. This phenomenon of the daughters-in-law harassing their mothers-in-law especially who are dependent is not uncommon in the Indian society.

10. In view of the authoritative pronouncement of the Hon‟ble Supreme Court, para „4‟ of the Statement of Objects and Reasons cannot be stated to have excluded a female relative of the male partner or a respondent and thus, a mother-in-law being an "aggrieved person" can file a complaint against the daughter-in-law as a respondent.

11. Thus, I find that no case for quashing of the complaint is made out. Petition and application are dismissed.

(MUKTA GUPTA) JUDGE SEPTEMBER 02, 2011 vkm