2015 ALL MR (Cri) JOURNAL 28


Smt. Pushpa Vishwanathan Vs. State of Uttarakhand & Anr.

Criminal Misc. Application No.300 of 2012

9th July, 2014

Petitioner Counsel: Mr. LOKENDRA DOBHAL
Respondent Counsel: Mr. R.K. SHAH, Mr. SHOBHIT SAHARIA

Protection of Women from Domestic Violence Act (2005), S.12 - Criminal P.C. (1973), S.125 - Maintenance - Claim under DV Act - Respondent husband contending that they had not cohabitated together for a significant period - Marriage solemnized between parties on 20.01.2008 - Husband sent to jail on 16.02.2008 for certain other reasons - Then also he remained in company of petitioner under the same roof for not less than 26 days - This cannot be said to be insignificant period - Furthermore, husband at several places and on various dates made admissions with regard to their marriage - He cannot retract from his own admissions - In view of said reasons wife's petition for maintenance allowed. (Paras 14, 16)

Cases Cited:
D. Velusamy Vs. D. Patchalammal, 2010 ALL SCR 2639=(2010) 10 SCC 469 [Para 9]
Deoki Panjhiyara Vs. Shashi Bhushan Narayan Azad & Anr., 2013 ALL MR (Cri) 1099 (S.C.)=(2013) 2 SCC 137 [Para 10]
Badshah Vs. Urmila Badshah Godse & Anr., 2013 ALL SCR 3713=(2014) 1 SCC 188 [Para 11,12]
Shankar Vishwanathan Vs. Smt. Pushpa Vishwanathan, Cri.A./52/2011, Dt.18/10/2011 [Para 18]


JUDGMENT :- The challenge herein is to the judgment and order passed by the Appellate Court on 24.02.2012 rendered by learned Additional Sessions Judge, Tehri Garhwal, whereby the petition filed by the petitioner in the Court of Chief Judicial Magistrate, Tehri Garhwal, praying the relief under the Protection of Women from Domestic Violence Act, 2005 (hereinafter will be referred to as the Act), was dismissed. The said petition was filed by the petitioner on 13.01.2009, with the prayer that her husband/private respondent should be directed to pay Rs.50,000/- per mensem to her and that he should also be restrained from alienating the property bearing no.C-8, Laxman Jhula Enclave, Tapovan, located within the territorial jurisdiction of Police Station Muni-Ki-Reti, District Tehri Garhwal, in any manner whatsoever. It was also prayed that the respondent/husband should be directed not to cause any damage to the said property.

2. The said petition was decreed by the learned Judicial Magistrate on 18.10.2011, thereby granting maintenance to the tune of Rs.5,000/- per month to the petitioner, whereas no relief was granted in respect of the house, as highlighted above.

3. The appeal was preferred by the private respondent-husband which met with the fate, as aforementioned. It is also pertinent to mention here that a cross-appeal was also filed by the petitioner because the relief sought by her regarding the house, in question, was denied by the Magistrate. But this time too, her relief was not accorded by the Appellate Court. So, now the controversy is before this Court.

4. Having heard the rival contentions put forth by learned counsel for the parties, in brief, the facts of the case are that respondent-husband allegedly came in contact with the petitioner as a patient, whereas the lady was in the nursing services. Somehow, the courtship developed between the two and they settled to augment their relations by way of entering into the marriage. Advancing the said settlement, petitioner and the private respondent solemnized their marriage by way of exchange of garlands in front of some priest and close relatives of either party, as displayed in the photographs available on record. The marriage was got registered in the concerned office on 23.02.2008 through the application sent by registered post along with the requisite fee.

5. It transpires that somehow the private respondent-husband was sent to the gaol on 16.02.2008 and remained in caption till 28.08.2008. During this period of six and a half months, petitioner went to jail to arrange her meetings with her husband/private respondent. These meetings were several, as has been certified by the Jail Superintendent vide Annexure No.3 to the petition.

6. The rejoice of matrimonial life could not be prolonged any further and they started living separately. Petitioner continued her dwelling in the premises, as aforementioned, and launched the proceedings under the Act, as stated above.

7. It can significantly be noted that the husband-private respondent, before entering into the alleged wedlock with the petitioner, had a living spouse and did not seek any valid decree of divorce or annulment of marriage from his previous wife Ms. Sharda Devi. But the application sent to the Registrar for registration of marriage, under the signature of the duo, showed the private respondent as the divorcee, whereas the status of petitioner was adverted as a widow.

8. In this backdrop, the contention of learned counsel for the private respondent is that since his client already had a living spouse, hence his marriage (if any), with the petitioner, was void, as contemplated u/s 11 of the Hindu Marriage Act, and this way, she was not entitled to claim any maintenance from the husband-private respondent under the Act.

9. Learned counsel for the private respondent has vehemently relied upon the law laid down by the Hon'ble Apex Court in the case of 'D. Velusamy v. D. Patchalammal' reported in (2010) 10 SCC Page 469 : [2010 ALL SCR 2639]. In paragraph no.31 thereof, the Supreme Court has interpreted the phrase 'relationship in the nature of marriage' and has stated that it is akin to a common law marriage. It was also held that 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 cohabitated and held themselves out to the world as being akin to spouses for a significant period of time.

10. In the opinion of this Court, the concept of 'common law marriage' is foreign to India and further, as has been held by the Hon'ble Apex Court itself in the case of 'Deoki Panjhiyara v. Shashi Bhushan Narayan Azad and another' (2013) 2 SCC 137 : [2013 ALL MR (Cri) 1099 (S.C.)], that the expression 'relationship in the nature of marriage' with a common law marriage and the stipulation of the four requirements, noticed above, is not based on any known or acceptable authority or source of law. Though, this was the contention of learned counsel in that case but the same was indirectly accepted by the Apex Court in the words as stated in paragraph nos.22 and 23 of the judgment. It had stated that it is only upon a declaration of nullity or annulment of the marriage between the parties by a competent court that any consideration of the question whether the parties had lived in a "relationship in the nature of marriage" would be justified. In the absence of any valid decree of nullity or the necessary declaration, the Court will have to proceed on the footing that the relationship between the parties is one of marriage and not in the nature of marriage.

11. The above concept has again been fortified by the Hon'ble Apex Court of-late in the case of 'Badshah v. Urmila Badshah Godse and another' (2014) 1 SCC 188 : [2013 ALL SCR 3713], wherein it was held that even for the purpose of Section 125 Cr.P.C., which is absolutely restricted to a legally wedded wife, by way of applying purposive interpretation of this social justice litigation, the maintenance can be granted to a wife who accepted the wedding with a man without having known the already living spouse of that man.

12. In the case of Badshah Gode, [2013 ALL SCR 3713] (Supra) also, the husband had duped the second wife by not revealing to her the fact of his first marriage, then it was held that the husband cannot deny the maintenance to her (second wife) in such a case, because he cannot be permitted to take advantage of his own wrong by raising the said contention.

13. The Court is mindful of the fact that in order to grant relief to a woman, the Act does not require the status of a legally wedded wife. It is sufficient if she was living in domestic relationship in a shared household, when they are related by consanguinity, marriage or through a relationship in the nature of marriage. If such relationship exists, then the woman acquires the status of 'aggrieved person' as envisaged u/s 2(a) of the Act.

14. It was argued on behalf of the husband-private respondent that the parties had not cohabitated together for a significant period. This contention is unacceptable to this Court for the reason that admittedly, the marriage was solemnized between the parties on 20.01.2008 and even if it is taken into consideration that the husband was sent to jail on 16.02.2008 for certain other reasons, then also, he remained in the company of the petitioner under the same roof for not less than 26 days. This cannot be said to be insignificant period because it was not a period of a day or two.

15. Furthermore, on 3.11.2008, the husband-private respondent moved an application to the Regional Transport Officer, Dehradun, wherein he has accepted the petitioner as his wife in so many words. That apart, in the application moved by him on 23.11.2008 addressed to the Sub Divisional Magistrate, Narendra Nagar, Tehri Garhwal, he has accepted that in January, 2008, he married with the petitioner-Smt. Pushpalata Sharma, aged about 42 years, a widow with one daughter, who is 17 years old. It was also stated by him that he knew this lady for about 4 years at that time.

16. In the above scenario, the Court feels that the husband-private respondent now cannot retract from his own admissions, which were made by him not at one place, but at several places and on various dates, besides, the photographs of exchange of garlands in presence of the priest and associates.

17. In the helm of above affairs, I find that the learned Judge, while sitting in Appeal, has not paid his meticulous attention towards the above facts and evidence, as also the law available on the subject.

18. Thus, for the reasons, as aforestated, the petition moved by Smt. Pushpa Vishawanthan is hereby allowed. Impugned judgment and order dated 24.02.2012 passed by the Additional Sessions Judge, Tehri Garhwal in Criminal Appeal No.52 of 2011, titled as 'Shankar Vishwanathan v. Smt. Pushpa Vishwanathan', is hereby set aside and at the same time, the judgment and order dated 18.10.2011 rendered by learned Judicial Magistrate, Tehri Garhwal in Misc. Criminal Case No.5 of 2010, thereby granting maintenance to the petitioner-wife @Rs.5,000/- per month, is hereby revived. It is further directed that the house, in question, where the petitioner is living at present, the respondent-husband will not alienate the same in any manner whatsoever nor would he cause any damage to the said property.

Petition allowed.