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2013 DIGILAW 260 (PAT)

Krishna Murari Singh v. State of Bihar

2013-02-26

RAJENDRA KUMAR MISHRA

body2013
ORDER 1. The petitioner has preferred this Criminal Revision, under Section 19(4) of the Family Courts Act, 1984, against the Judgment dated 6.4.2010 passed in Maintenance Case No.55(M) of 2002 by the court of Principal Judge, Family Court, Patna, whereby the Principal Judge, Family Court, Patna, while held that the opposite party no.2 is not entitled for maintenance under Section 125 of the Code of Criminal Procedure as she is not legally wedded wife of the petitioner but exercising the power under Section 26 of the Protection of Women from Domestic Violence Act, 2005, directed the petitioner to pay Rs.3000/- per month to the opposite party no.2 by way of monetary relief towards maintenance from the date of the order under Section 20 of the Protection of Women from Domestic Violence Act, 2005. 2. It appears that the opposite party no.2, Smt. Madhuri Devi, filed a petition under Section 125 of the Code of Criminal Procedure before the Principal Judge, Family Court, Patna, in which she has alleged that she is legally wedded wife of the petitioner as her marriage was performed with the petitioner in the year 2000 as per Hindu rites and customs at the house of the petitioner at Patna. After the marriage, a joint affidavit was also sworn by both the parties in proof of the marriage. It is further alleged that the petitioner has also one wife from before, namely, Jayanti Devi, and out of their wedlock, there are two sons to the petitioner. It is further alleged by the opposite party no.2 that due to illness of his first wife, Jayanti Devi, the petitioner was disturbed. She was also deserted by his previous husband since 10-12 years and she was in search of some helping hand for her livelihood. As such, she and the petitioner have decided to marry with each other and in such decision, Jayanti Devi, the first wife of the petitioner, had also given her consent for their marriage. After the marriage, she and the petitioner and the first wife of the petitioner, Jayanti Devi, and her children were remained happy. After few months of marriage, the petitioner sent to his first wife, Jayanti Devi, and his both sons to his village home and, thereafter, the petitioner again became ready to marry with another girl, on which she made protest and due to that reason, the petitioner started torturing her. After few months of marriage, the petitioner sent to his first wife, Jayanti Devi, and his both sons to his village home and, thereafter, the petitioner again became ready to marry with another girl, on which she made protest and due to that reason, the petitioner started torturing her. She made complaint before the Mahila Kosang, Patna, Superintendent of Police, Patna City, Patna, Senior Superintendent of Police, Patna, Deputy Superintendent of Police, Patna, and several other officers and since then she is living separate from the petitioner. The opposite party no.2 has further alleged that due to action taken by the higher authorities, the dispute was settled in between them through compromise but in spite of that there was no effect on the petitioner and on 7.2.2001, she was brutally assaulted by the petitioner regarding which she filed Complaint Case No.117(C) of 2001 against the petitioner in the court of Additional Chief Judicial Magistrate, Patna City, Patna, on which basis Alamganj P.S. Case No.81 of 2001 was instituted and the petitioner was sent in jail. Thereafter, the petitioner executed an affidavit in that period accepting to her as wife with the averment that she will have every rights over his movable or immovable property. On 15.12.2001, the petitioner again executed an affidavit in presence of his first wife and both sons to the effect that he will pay Rs.3000/- to her towards her monthly maintenance but the said amount has not been given by the petitioner to her. The petitioner filed his show cause in the proceeding under Section 125 of the Code of Criminal Procedure with the contention that the opposite party no.2 is a married lady, whose first husband is Prem Kumar, who is posted as orderly, A.D.R.M. Railway, Danapur Division, Patna. The petitioner has further stated in his show cause that under the pressure of his first wife, Jayanti Devi, he performed the marriage with the opposite party no.2 on 5.4.2000 before the Notary Public and also sworn an affidavit jointly and since then both were living jointly as wife and husband but later on, the opposite party no.2 started blackmailing him making demand of huge money and the opposite party no.2 also filed the several cases only to put undue pressure upon him. 3. 3. On consideration of the application filed on behalf of the opposite party no.2 under Section 125 of the Code of Criminal Procedure, the show cause filed on behalf of the petitioner and the evidence adduced on behalf of both the parties, the learned Principal Judge, Family Court, Patna, while held that the opposite party no.2 is not entitled for maintenance under Section 125 of the Code of Criminal Procedure as she is not legally wedded wife of the petitioner, however, invoking the jurisdiction under Section 26 of the Protection of Women from Domestic Violence Act, 2005, ordered under Section 20 of the Protection of Women from Domestic Violence Act, 2005, to the petitioner to pay Rs.3000/- per month to the opposite party no.2 by way of monetary relief towards maintenance from the date of the order as relationship of the opposite party no.2 and the petitioner will come under the definition of domestic relationship as defined under Section 2(f) of the Protection of Women from Domestic Violence Act, 2005, and the opposite party no.2 is aggrieved person as defined under Section 2(a) of the Protection of Women from Domestic Violence Act, 2005. 4. Learned counsel for the petitioner submitted that the learned Principal Judge, Family Court, Patna, while held in the impugned order that the opposite party no.2 is not entitled for maintenance under Section 125 of the Code of Criminal Procedure as she is not legally wedded wife of the petitioner arriving at the conclusion that the marriage of the opposite party no.2 was solemnized with the petitioner while the spouses of both are subsisting but illegally ordered to pay Rs.3000/- per month to the opposite party no.2 by way of monetary reliefs towards maintenance treating the domestic relationship in between the petitioner and the opposite party no.2 through the relationship in the nature of marriage. Learned counsel for the petitioner placed reliance, in support of his submission, on a decision in the case of D. Velusamy Vs. D. Patchaiammal {(2010) 10 Supreme Court Cases 469}. 5. Learned counsel for the petitioner placed reliance, in support of his submission, on a decision in the case of D. Velusamy Vs. D. Patchaiammal {(2010) 10 Supreme Court Cases 469}. 5. On the other hand, learned counsel for the opposite party no.2 controverted the submission of the learned counsel for the petitioner and submitted that while the opposite party no.2 is not legally wedded wife of the petitioner as both are already married and their spouses are alive but it is established from the show cause as filed on behalf of the petitioner in the proceeding under Section 125 of the Code of Criminal Procedure that the petitioner has performed marriage with the opposite party no.2 and the opposite party no.2 had resided in the house of the petitioner after the marriage as the wife of the petitioner, so the relationship in between the petitioner and the opposite party no.2 is domestic relationship through the relations ship in the nature of marriage, as such, the impugned order does not suffer from any illegality. 6. It appears from the averments of the application of the opposite party no.2 filed under Section 125 of the Code of Criminal Procedure and the show cause filed on behalf of the petitioner in that proceeding that the opposite party no.2 and the petitioner were already married from before and their spouses are alive. Now, the point for consideration is that whether the opposite party no.2 is aggrieved person having a domestic relationship with the petitioner or not. The word “aggrieved person” and the “domestic relationship” are defined in Sections 2(a) and 2(f) of the Protection of Women from Domestic Violence Act, 2005. Sections 2(a) and 2(f) of the Protection of Women from Domestic Violence Act, 2005, are 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; 2(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. The words “relationship in the nature of marriage” has not been defined anywhere in the Protection of Women from Domestic Violence Act, 2005. In the case of D. Velusamy Vs. D. Patchaiammal {(2010) 10 Supreme Court Cases 469}, the Hon’ble Apex Court has explained the words “relationship in the nature of marriage”. The relevant paragraphs-31, 32 and 33 of the said judgment are 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. (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. 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”. 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 garb of interpretation cannot change the language of the statute.” 8. 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.” 8. In view of the decision of the Hon’ble Apex Court in the case of D. Velusamy (supra), in domestic relationship through the “relationship in the nature of marriage”, there is no need of formal marriage between couple but they should be qualified to enter into legal marriage. 9. Admittedly, the opposite party no.2, who claims to have performed the marriage with the petitioner and lived with him, is already married and she is only deserted by her husband. The petitioner is also already married. Therefore, the opposite party no.2 is not qualified to perform the marriage with the petitioner as per Section 5(i) of the Hindu Marriage Act, 1955, and she will not come under the definition of an aggrieved person in a domestic relationship through relationship in the nature of marriage. As such, the opposite party no.2 is not entitled for monetary relief under Section 20 of the Protection of Women from Domestic Violence Act, 2005. 10. In the result, the impugned Judgment dated 6.4.2010 passed in Maintenance Case No.55(M) of 2002 by the Principal Judge, Family Court, Patna, is set aside and this Criminal Revision is allowed.