Category Archives: “Domestic violence in live- in relationship”

“Domestic violence in live- in relationship”

 

 

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NO. 2009 OF 2013
              (@ SPECIAL LEAVE PETITION (CRL.) NO.4895 OF 2012)

Indra Sarma                                     ... Appellant
        Versus
V.K.V. Sarma                                    ... Respondent

                               J U D G M E N T

K.S. Radhakrishnan, J.

        Leave granted.

2.      Live-in or marriage like relationship is neither a crime nor  a  sin
though socially unacceptable in this country.   The  decision  to  marry  or
not to marry or to have a heterosexual relationship is  intensely  personal.


3.      We are, in this case, concerned with the question whether  a  "live-
in relationship" would amount to a "relationship in the nature of  marriage"
falling within the definition of "domestic relationship" under Section  2(f)
of the Protection of Women from Domestic Violence Act, 2005 (for short  "the
DV Act") and the disruption of such a relationship by failure to maintain  a
women involved in such a relationship amounts to "domestic violence"  within
the meaning of Section 3 of the DV Act.

FACTS:

4.       Appellant  and  respondent  were  working  together  in  a  private
company.    The Respondent, who was working as a  Personal  Officer  of  the
Company, was a married person having two children and  the  appellant,  aged
33  years,  was  unmarried.    Constant  contacts  between  them   developed
intimacy and in the year 1992,  appellant  left  the  job  from  the  above-
mentioned Company and  started  living  with  the  respondent  in  a  shared
household.  Appellant's family members, including her  father,  brother  and
sister,  and  also  the  wife  of  the  respondent,  opposed  that  live-in-
relationship.  She has also maintained the stand  that  the  respondent,  in
fact, started a business in her name and that they were  earning  from  that
business.  After some time, the  respondent  shifted  the  business  to  his
residence and continued the business with  the  help  of  his  son,  thereby
depriving her right of working and earning.  Appellant has also stated  that
both of them lived  together  in  a  shared  household  and,  due  to  their
relationship, appellant became  pregnant  on  three  occasions,  though  all
resulted in abortion.   Respondent,  it  was  alleged,  used  to  force  the
appellant to take contraceptive methods to  avoid  pregnancy.   Further,  it
was also stated that the respondent took a sum  of  Rs.1,00,000/-  from  the
appellant stating that he would buy a land in her name,  but  the  same  was
not done.  Respondent also took money from the appellant to start  a  beauty
parlour for his wife.  Appellant also alleged that, during  the  year  2006,
respondent took a loan of Rs.2,50,000/-  from  her  and  had  not  returned.
Further, it was also stated that the respondent, all  along,  was  harassing
the appellant by not exposing her as his wife  publicly,  or  permitting  to
suffix his name after the name of the appellant.    Appellant  also  alleged
that the respondent never used to take her anywhere, either  to  the  houses
of relatives or friends or functions.    Appellant  also  alleged  that  the
respondent never used to accompany her to the hospital or  make  joint  Bank
account, execute documents, etc.   Respondent's  family  constantly  opposed
their live-in relationship and ultimately forced him to  leave  the  company
of the appellant and it  was  alleged  that  he  left  the  company  of  the
appellant without maintaining her.

5.      Appellant then preferred  Criminal  Misc.  No.  692  of  2007  under
Section 12 of the DV  Act  before  the  III  Additional  Chief  Metropolitan
Magistrate, Bangalore, seeking the following reliefs:
   1) Pass a Protection Order under Section 18 of the DV Act prohibiting the
      respondent from committing any act of domestic  violence  against  the
      appellant and her relatives, and further  prohibiting  the  respondent
      from alienating the assets both  moveable  and  immoveable  properties
      owned by the respondent;
   2) Pass a residence order under Section 19 of the DV Act and  direct  the
      respondent to provide for an independent residence as  being  provided
      by the respondent or in the alternative a joint residence  along  with
      the respondent where he is residing presently and for the  maintenance
      of Rs.25,000/- per month regularly as being provided earlier or in the
      alternative to pay the permanent maintenance charges at  the  rate  of
      Rs.25,000/- per month for the rest of the life;
   3) Pass a monetary order under Section 20 of the  DV  Act  directing  the
      respondent to pay a sum of Rs.75,000/- towards the operation, pre  and
      post operative medication, tests etc and follow up treatments;
   4) Pass a compensation order under Section 22 of the DV Act to a  sum  of
      Rs.3,50,000/- towards damages for misusing the funds of the sister  of
      the appellant, mental torture and emotional feelings; and
   5) Pass an ex-parte  interim  order  under  Section  23  of  the  DV  Act
      directing the  respondent  to  pay  Rs.75,000/-  towards  the  medical
      expenses and pay the maintenance charges @ Rs.25,000/-  per  month  as
      being paid by the respondent earlier.

6.      Respondent filed detailed  objections  to  the  application  stating
that it was on sympathetical grounds that  he  gave  shelter  to  her  in  a
separate house after noticing  the  fact  that  she  was  abandoned  by  her
parents and relatives, especially after the demise of her father.   She  had
also few litigations against her sister for her father's  property  and  she
had approached the respondent for moral as well as  monetary  support  since
they were working together in a Company.  The respondent has  admitted  that
he had cohabited with the appellant  since  1993.   The  fact  that  he  was
married and had two children was known to the appellant.  Pregnancy  of  the
appellant was terminated with her as well as  her  brother's  consent  since
she was not maintaining good health.  The respondent had  also  spent  large
amounts for her medical treatment and  the  allegation  that  he  had  taken
money from the appellant was denied.  During the month of April,  2007,  the
respondent  had  sent  a  cheque  for  Rs.2,50,000/-  towards  her   medical
expenses, drawn in the name of her sister which was encashed.   Further,  it
was stated, it was for getting further amounts and to tarnish the  image  of
the respondent, the application was preferred under the DV Act.  Before  the
learned Magistrate, appellant examined herself as P.W.1  and  gave  evidence
according to the  averments  made  in  the  petition.   Respondent  examined
himself as R.W.1.  Child Development Project Officer was examined as  R.W.2.
 The learned Magistrate found proof that the parties had lived together  for
a considerable period of time, for about 18 years, and then  the  respondent
left  the  company  of  the  appellant  without  maintaining  her.   Learned
Magistrate took the view that the  plea  of  "domestic  violence"  had  been
established, due to the non-maintenance of  the  appellant  and  passed  the
order  dated  21.7.2009  directing  the  respondent  to  pay  an  amount  of
Rs.18,000/- per month towards maintenance from the date of the petition.

7.      Respondent, aggrieved by the said order of the  learned  Magistrate,
filed an appeal before the Sessions Court under Section 29 of  the  DV  Act.
The Appellate Court, after having noticed that the respondent  had  admitted
the relationship with appellant for over a period  of  14  years,  took  the
view that, due  to  their  live-in  relationship  for  a  considerable  long
period, non-maintenance of the appellant would amount to  domestic  violence
within the meaning of Section 3 of the DV  Act.  The  appellate  Court  also
concluded  that  the  appellant  has  no  source  of  income  and  that  the
respondent is legally obliged  to  maintain  her  and  confirmed  the  order
passed by the learned Magistrate.

8.      The respondent took up the matter in appeal before the  High  Court.
It was contended before the High Court that the appellant was aware  of  the
fact that the respondent was a married person having two children,  yet  she
developed a relationship, in spite of the opposition raised by the  wife  of
the respondent and also  by  the  appellant's  parents.  Reliance  was  also
placed on the judgment of this Court  in  D.  Velusamy  v.  D.  Patchaiammal
(2010) 10 SCC 469 and submitted that the tests laid down  in  Velusamy  case
(supra) had not been satisfied.   The High Court held that the  relationship
between the parties would not fall within the ambit of "relationship in  the
nature of marriage" and the tests laid down in Velusamy  case  (supra)  have
not been satisfied.   Consequently, the High Court allowed  the  appeal  and
set aside the order passed by the Courts  below.   Aggrieved  by  the  same,
this appeal has been preferred.


9.       Shri  Anish  Kumar  Gupta,  learned  counsel  appearing   for   the
appellant, submitted that the relationship  between  the  parties  continued
from 1992 to 2006 and  since  then,  the  respondent  started  avoiding  the
appellant without maintaining her.    Learned  counsel  submitted  that  the
relationship between them constituted  a  "relationship  in  the  nature  of
marriage" within the meaning of Section 2(f) of the DV Act, which  takes  in
every relationship by a man with a woman,  sharing  household,  irrespective
of the fact whether the respondent is a  married  person  or  not.   Learned
counsel also submitted that the tests laid down  in  Velusamy  case  (supra)
have also been satisfied.


10.     Ms. Jyotika  Kalra,  learned  amicus  curiae,  took  us  elaborately
through the provisions of the DV Act as well as the objects and reasons  for
enacting such a legislation.  Learned amicus curiae submitted that  the  Act
is intended to provide for protection of rights of women who are victims  of
violence of any type occurring in the family.  Learned  amicus  curiae  also
submitted that the various provisions of the DV Act are intended to  achieve
the constitutional principles laid down in Article  15(3),  reinforced  vide
Article 39  of the Constitution of India. Learned amicus  curiae  also  made
reference to the Malimath Committee report and  submitted  that  a  man  who
marries a second wife, during the subsistence of the first wife, should  not
escape his liability to maintain his second wife,  even  under  Section  125
CrPC.   Learned amicus curiae also referred to a  recent  judgment  of  this
Court in Deoki Panjhiyara v. Shashi Bhushan Narayan Azad and Another  (2013)
2 SCC 137 in support of her contention.


11.     Mr. Nikhil Majithia, learned counsel appearing for  the  respondent,
made  extensive  research  on  the  subject  and  made  available   valuable
materials.   Learned  counsel  referred  to   several   judgments   of   the
Constitutional Courts of South Africa, Australia, New Zealand, Canada,  etc.
and  also  referred  to  parallel  legislations  on  the  subject  in  other
countries. Learned  counsel  submitted  that  the  principle  laid  down  in
Velusamy case (supra) has been correctly applied by the High Court  and,  on
facts,  appellant  could  not  establish  that  their  relationship   is   a
"relationship in the nature of marriage" so as to fall within  Section  2(f)
of the DV Act.  Learned counsel also submitted that  the  parties  were  not
qualified to enter into a legal marriage and the  appellant  knew  that  the
respondent was a married person.  Further, the appellant was  not  a  victim
of any fraudulent or bigamous marriage and it  was  a  live-in  relationship
for mutual benefits, consequently, the High Court was right in holding  that
there has not been any domestic violence, within the scope of Section  3  of
the DV Act entitling the appellant to claim maintenance.


12.     We have to examine whether the non maintenance of the  appellant  in
a broken live-in-relationship, which is stated to be a  relationship not  in
the nature of a marriage, will amount  to  "domestic  violence"  within  the
definition of Section 3 of the DV Act, enabling the appellant  to  seek  one
or more reliefs provided under Section 12 of the DV Act.


13.     Before examining the various issues raised  in  this  appeal,  which
have far reaching consequences with regard to the rights and liabilities  of
parties indulging in live-in  relationship,  let  us  examine  the  relevant
provisions of the DV  Act  and  the  impact  of  those  provisions  on  such
relationships.

D.V. ACT

14.     The D.V.  Act has been enacted to provide a remedy in Civil Law  for
protection of women from being victims of domestic violence and  to  prevent
occurrence of domestic violence in  the  society.    The  DV  Act  has  been
enacted also to provide an effective  protection  of  the  rights  of  women
guaranteed under the Constitution, who are victims of violence of  any  kind
occurring within the family.


15.     "Domestic Violence" is undoubtedly a human rights issue,  which  was
not properly taken care of in this country even  though  the  Vienna  Accord
1994 and  the  Beijing  Declaration  and  Platform  for  Action  (1995)  had
acknowledged that domestic violence was undoubtedly a  human  rights  issue.
UN Committee on Convention on Elimination of  All  Forms  of  Discrimination
Against Women in its general recommendations had also  exhorted  the  member
countries to take steps to protect  women  against  violence  of  any  kind,
especially that occurring within the family, a phenomenon  widely  prevalent
in India.  Presently, when a woman is subjected to  cruelty  by  husband  or
his relatives, it is an offence punishable  under  Section  498A  IPC.   The
Civil Law, it was noticed, did not address this phenomenon in its  entirety.
 Consequently, the Parliament,  to  provide  more  effective  protection  of
rights of women guaranteed under the Constitution under Articles 14, 15  and
21, who are victims of  violence  of  any  kind  occurring  in  the  family,
enacted the DV Act.


16.     Chapter IV is the heart and soul  of  the  DV  Act,  which  provides
various reliefs to a woman who has or  has  been  in  domestic  relationship
with any adult male person and seeks one or more reliefs provided under  the
Act.   The Magistrate, while entertaining an application from  an  aggrieved
person under Section 12 of the DV Act, can grant the following reliefs:
1) Payment of compensation or damages without  prejudice  to  the  right  of
   such person to institute a suit for compensation or damages for  injuries
   caused by the acts of domestic  violence  committed  by  the  adult  male
   member, with a prayer for set off against  the  amount  payable  under  a
   decree obtained in Court;
2) The Magistrate, under Section 18 of the DV Act, can  pass  a  "protection
   order" in favour of the aggrieved  person  and  prohibit  the  respondent
   from:
     a) committing any act of domestic violence;


     b) aiding or abetting in the commission of acts of domestic violence;


     c) entering the place of employment of the aggrieved person or, if  the
        person  aggrieved  is  a  child,  its  school  or  any  other  place
        frequented by the aggrieved person;


     d)  attempting  to  communicate  in  any  form,  whatsoever,  with  the
        aggrieved person, including personal, oral or written or  electronic
        or telephonic contact;


     e) alienating any assets, operating bank lockers or bank accounts  used
        or held or enjoyed by both the parties,  jointly  by  the  aggrieved
        person and the respondent or singly by the respondent, including her
        stridhan or any other property held either jointly by the parties or
        separately by them without the leave of the Magistrate;


     f) causing violence to the dependants, other relatives  or  any  person
        who give the aggrieved person assistance from domestic violence;


     g) committing any other act as specified in the protection order.


3) The Magistrate, while disposing of an application under Section 12(1)  of
   the DV Act, can pass a "residence order" under Section 19 of the DV  Act,
   in the following manner:
    "19. Residence orders.- (1) While disposing of an application under sub-
    section (1) of section 12, the Magistrate may, on being satisfied  that
    domestic violence has taken place, pass a residence order-


         a) restraining the respondent from dispossessing or  in  any  other
            manner disturbing the possession of the  aggrieved  person  from
            the shared household, whether or not the respondent has a  legal
            or equitable interest in the shared household;


         b) directing the respondent  to  remove  himself  from  the  shared
            household;


         (c) restraining the  respondent  or  any  of  his  relatives  from
            entering any portion of  the  shared  household  in  which  the
            aggrieved person resides;


         (d) restraining the respondent from alienating or disposing off the
            shared household or encumbering the same;


         (e) restraining the respondent from renouncing his rights  in  the
            shared household except with the leave of the Magistrate; or


         (f) directing the respondent to secure  same  level  of  alternate
            accommodation for the aggrieved person as enjoyed by her in the
            shared  household  or  to  pay  rent  for  the  same,  if   the
            circumstances so require:


         Provided that no order under clause (b) shall be passed against any
    person who is a woman.


         xxx            xxx             xxx
         xxx            xxx             xxx"

(4)     An aggrieved person,  while  filing  an  application  under  Section
    12(1) of the DV Act, is also entitled, under Section 20 of the DV  Act,
    to get "monetary reliefs" to meet  the  expenses  incurred  and  losses
    suffered by the aggrieved person and any child of the aggrieved  person
    as a result of the domestic violence and such relief may  include,  but
    is not limited to,-
    "20. Monetary reliefs.-  (1) While disposing of an  application  under
    sub-  section  (1)  of  section  12,  the  Magistrate  may  direct  the
    respondent to pay monetary relief to meet  the  expenses  incurred  and
    losses suffered by the aggrieved person and any child of the  aggrieved
    person as a result  of  the  domestic  violence  and  such  relief  may
    include, but not limited to,-


    (a) the loss of earnings;


    (b) the medical expenses;


    (c) the loss caused due to the destruction, damage or  removal  of  any
    property from the control of the aggrieved person; and


    (d) the maintenance for the aggrieved person as well as her  children,
    if any, including an  order  under  or  in  addition  to  an  order  of
    maintenance under section 125 of the Code of Criminal  Procedure,  1973
    (2 of 1974 ) or any other law for the time being in force.


                xxx             xxx            xxx
                xxx             xxx            xxx"

    The monetary reliefs granted under the above mentioned section shall be
    adequate, fair, reasonable and consistent with the standard  of  living
    to which an aggrieved person is accustomed and the Magistrate  has  the
    power to order an appropriate lump sum payment or monthly  payments  of
    maintenance.
(5)     The Magistrate, under Section 21 of the DV Act,  has  the  power  to
    grant temporary custody of any  child  or  children  to  the  aggrieved
    person or the person making an application on her behalf  and  specify,
    if necessary, the arrangements for visit of such child or  children  by
    the respondent.
(6)     The Magistrate, in addition to other reliefs, under  Section  22  of
    the DV  Act,  can  pass  an  order  directing  the  respondent  to  pay
    compensation and damages for the injuries, including mental torture and
    emotional distress, caused by the acts of domestic  violence  committed
    by the respondent.


17.     Section 26 of the DV Act provides that any  relief  available  under
Sections 18, 19, 20, 21 and 22 may also be sought in any  legal  proceeding,
before a Civil Court, family  court  or  a  criminal  court,  affecting  the
aggrieved person and the respondent whether such  proceeding  was  initiated
before or after the commencement of this Act.  Further, any relief  referred
to above may be sought for in addition to and along with any  other  reliefs
that the aggrieved person may seek in such suit or legal  proceeding  before
a civil or criminal court.  Further, if any relief has been obtained by  the
aggrieved person in any proceedings other than a proceeding under this  Act,
she shall be bound to inform the Magistrate of the grant of such relief.

18.     Section 3 of the DV Act deals with "domestic violence" and reads  as
under:
         "3. Definition of domestic violence.- For the purposes of this Act,
    any act, omission or commission or  conduct  of  the  respondent  shall
    constitute domestic violence in case it-
         (a) harms or injures or endangers the health, safety, life, limb or
            well-being, whether mental or physical, of the aggrieved person
            or tends to do so and includes causing physical  abuse,  sexual
            abuse, verbal and emotional abuse and economic abuse; or
         (b) harasses, harms, injures or endangers the aggrieved person with
            a view to coerce her or any other person related to her to meet
            any unlawful demand for any dowry or other property or valuable
            security; or
         (c) has the effect of  threatening  the  aggrieved  person  or  any
            person related to her by any conduct mentioned in clause (a) or
            clause (b); or
         (d) otherwise injures or causes harm, whether physical or  mental,
            to the aggrieved person.


    Explanation I.- For the purposes of this section,-


         (i)  "physical abuse" means any act or conduct which is of  such  a
             nature as to cause bodily pain, harm, or danger to life, limb,
             or health or impair the health or development of the aggrieved
             person  and  includes  assault,  criminal   intimidation   and
             criminal force;
         (ii) "sexual abuse" includes any conduct of a  sexual  nature  that
             abuses, humiliates, degrades or otherwise violates the dignity
             of woman;
         (iii) "verbal and emotional abuse" includes-
             (a) insults, ridicule, humiliation, name calling and  insults
                 or ridicule specially with regard to not having a child  or
                 a male child; and


             (b) repeated threats to cause physical pain to any person  in
                 whom the aggrieved person is interested.


         (iv) "economic abuse" includes-


             (a) deprivation of all or any economic or financial resources
                 to which the aggrieved person is entitled under any law  or
                 custom whether  payable  under  an  order  of  a  court  or
                 otherwise or which the aggrieved  person  requires  out  of
                 necessity  including,  but  not   limited   to,   household
                 necessities for the aggrieved person and her  children,  if
                 any, stridhan, property, jointly or separately owned by the
                 aggrieved person, payment of rental related to  the  shared
                 household and maintenance;
             (b) disposal of household effects, any alienation  of  assets
                 whether   movable   or   immovable,   valuables,    shares,
                 securities, bonds and the like or other property  in  which
                 the aggrieved person has an interest or is entitled to  use
                 by virtue of the domestic  relationship  or  which  may  be
                 reasonably required by the aggrieved person or her children
                 or her stridhan or any other property jointly or separately
                 held by the aggrieved person; and
             (c) prohibition  or  restriction  to  continued  access   to
                 resources or  facilities  which  the  aggrieved  person  is
                 entitled  to  use  or  enjoy  by  virtue  of  the  domestic
                 relationship including access to the shared household.


         Explanation II.- For the purpose of determining  whether  any  act,
         omission, commission or  conduct  of  the  respondent  constitutes"
         domestic violence"  under  this  section,  the  overall  facts  and
         circumstances of the case shall be taken into consideration."

19.     In order to examine as to whether there has been any act, omission,
or commission or conduct so as  to  constitute  domestic  violence,  it  is
necessary to examine some of the definition clauses under Section 2 of  the
DV Act.  Section 2(a) of the  DV  Act  defines  the  expression  "aggrieved
person" as follows:
         "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."

Section 2(f) defines the expression "domestic relationship" as follows:
         "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."

Section 2(q) defines the expression "respondent" as follows:
         "2(q). "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:
         Provided that an aggrieved wife or female living in a  relationship
    in the nature of a  marriage  may  also  file  a  complaint  against  a
    relative of the husband or the male partner."

Section 2(s)  defines  the  expression  "shared  household"  and  reads  as
follows:
         "2(s). "shared  household"  means  a  household  where  the  person
    aggrieved lives or at any stage has lived in  a  domestic  relationship
    either singly  or  along  with  the  respondent  and  includes  such  a
    household whether owned or tenanted either  jointly  by  the  aggrieved
    person and the respondent, or owned or tenanted by either  of  them  in
    respect of which either the aggrieved person or the respondent or  both
    jointly or singly  have  any  right,  title,  interest  or  equity  and
    includes such a household which may belong to the joint family of which
    the respondent is a member, irrespective of whether the  respondent  or
    the aggrieved person has any right, title or  interest  in  the  shared
    household."

20.     We are, in this  case,  concerned  with  a  "live-in  relationship"
which, according to the aggrieved person, is a "relationship in the  nature
of marriage" and it is that relationship which has been  disrupted  in  the
sense that the respondent failed to maintain the aggrieved  person,  which,
according  to  the  appellant,  amounts  to  "domestic   violence".     The
respondent  maintained  the  stand  that  the   relationship  between   the
appellant and the respondent was  not  a  relationship  in  the  nature  of
marriage but  a  live-in-relationship  simplicitor  and  the  alleged  act,
omission, commission or conduct of  the  respondent  would  not  constitute
"domestic violence" so as to claim any protection orders under Section  18,
19 or 20 of the DV Act.


21.      We have to first examine whether the appellant was involved  in  a
domestic relationship with the respondent.  Section  2(f)  refers  to  five
categories of relationship, such as, related  by  consanguinity,  marriage,
relationship in the nature of marriage,  adoption,  family  members  living
together as a joint family, of which we are, in this case,  concerned  with
an alleged relationship in the nature of marriage.


22.     Before we examine whether the respondent has committed any  act  of
domestic violence, we  have  to  first  examine  whether  the  relationship
between them was a "relationship in the  nature  of  marriage"  within  the
definition of Section 3 read with Section  2(f)  of  the  DV  Act.   Before
examining the term "relationship in the nature of  marriage",  we  have  to
first examine what is "marriage", as understood in law.

MARRIAGE AND MARITAL RELATIONSHIP:

23.     Marriage is often described as one of the  basic  civil  rights  of
man/woman, which is voluntarily undertaken by the parties in  public  in  a
formal way, and once concluded, recognizes the parties as husband and wife.
Three elements of common law marriage are (1) agreement to be  married  (2)
living together as husband and wife, (3) holding out  to  the  public  that
they are married.   Sharing a common household and duty  to  live  together
form part of the 'Consortium Omnis Vitae" which  obliges  spouses  to  live
together, afford each other reasonable marital privileges and rights and be
honest and faithful to each other.  One of the  most  important  invariable
consequences of marriage is the reciprocal support and  the  responsibility
of maintenance of the common household, jointly and severally.  Marriage as
an institution has great legal significance  and  various  obligations  and
duties flow out of marital relationship, as  per  law,  in  the  matter  of
inheritance of property, successionship, etc. Marriage, therefore, involves
legal requirements of formality, publicity, exclusivity and all  the  legal
consequences flow out of that relationship.

24.     Marriages in India take place either following the personal Law  of
the Religion to which a party is belonged or following  the  provisions  of
the Special Marriage Act.   Marriage, as per the Common Law, constitutes  a
contract between a man and a woman, in which the parties undertake to  live
together and  support  each  other.    Marriage,  as  a  concept,  is  also
nationally and internationally recognized.   O'Regan,  J.,  in  Dawood  and
Another v. Minister of Home Affairs and Others 2000 (3) SA 936  (CC)  noted
as follows:

         "Marriage  and  the  family  are  social  institutions   of   vital
    importance. Entering into and sustaining a  marriage  is  a  matter  of
    intense private significance to the parties to that marriage  for  they
    make a promise to one another to establish  and  maintain  an  intimate
    relationship for the rest of their lives which they acknowledge obliges
    them to support one another, to live together and to be faithful to one
    another.   Such relationships  are  of  profound  significance  to  the
    individuals concerned. But such relationships have more  than  personal
    significance at least in part because human beings  are  social  beings
    whose humanity is expressed through their  relationships  with  others.
    Entering into marriage therefore is to enter into a  relationship  that
    has public significance as well.


         The institutions of marriage and the family  are  important  social
    institutions that provide for the security, support  and  companionship
    of members of our society and bear an important role in the rearing  of
    children. The celebration of a marriage gives rise to moral  and  legal
    obligations, particularly the reciprocal duty of  support  placed  upon
    spouses and their  joint  responsibility  for  supporting  and  raising
    children born of the  marriage.  These  legal  obligations  perform  an
    important social function. This importance is symbolically acknowledged
    in part by the fact that marriage is celebrated generally in  a  public
    ceremony, often before family and close friends...."


25.     South African Constitutional Court in various judgments  recognized
the above mentioned principle.  In Satchwell v. President of  the  Republic
of South Africa and Another 2002 (6) SA 1 (CC),  Du  Toit  and  Another  v.
Minister of Welfare and Population Development and Others (Lesbian and  Gay
Equality Project as Amicus Curiae) 2003 (2) SA 198 (CC), the Constitutional
Court of South Africa recognized the right "free  to  marry  and  to  raise
family".   Section 15(3)(a)(i) of the  Constitution  of  South  Africa,  in
substance makes provision for the recognition of "marriages concluded under
the tradition, or a system of religious, personal or family law."   Section
9(3) of the Constitution of South Africa reads as follows:
         "The State may not unfairly  discriminate  directly  or  indirectly
    against anyone on one or more grounds,  including  race,  gender,  sex,
    pregnancy, marital status, ethnic  or  social  origin,  colour,  sexual
    orientation, age, disability, religion,  conscience,  belief,  culture,
    language and birth."

26.     Article 23 of the International Covenant  on  Civil  and  Political
Rights, 1966 (ICCPR) provides that:
    "1. The family is the natural and fundamental group unit of society and
         is entitled to protection by society and the State.
    2.  The right of men and women of marriageable  age  to  marry  and  to
         found a family shall be recognized.
    3.  No marriage shall be entered into without the free and full consent
         of the intending spouses.
    4.  States Parties to the present Covenant shall take appropriate steps
         to ensure equality of rights and responsibilities of spouses as to
         marriage, during marriage and at its dissolution.  In the case  of
         dissolution, provision shall be made for the necessary  protection
         of any children."


27.     Article 16 of the  Universal  Declaration  of  Human  Rights,  1948
provides that:
    "1. Men and women of full age, without  any  limitation  due  to  race,
         nationality or religion, have the right to marry and  to  found  a
         family.  They are entitled to equal rights as to marriage,  during
         marriage and at it dissolution.
    2.  Marriage shall be entered into only with the free and full  consent
         of the intending spouses.
    3.  The family is the natural and fundamental group unit of society and
         is entitled to protection by society and the State."

28.     Parties in the present case are Hindus by religion and are governed
by the Hindu Marriage Act,   1955.  The expression "marriage",  as  stated,
is not defined under the Hindu Marriage Act,  but  the  "conditions  for  a
Hindu marriage" are dealt with in Section 5 of the Hindu Marriage  Act  and
which reads as under:
         "5. Conditions for a Hindu marriage - A marriage may be  solemnized
    between any two hindus, if  the  following  conditions  are  fulfilled,
    namely:-
    (i)    neither party has a spouse living at the time of the marriage
         (ii) at the time of the marriage, neither party-
             (a) is  incapable  of  giving  a  valid  consent  to  it  in
                 consequence of unsoundness of mind; or
             (b) though capable  of  giving  a  valid  consent,  has  been
                 suffering from mental disorder of such a kind or to such an
                 extent as to be unfit for marriage and the  procreation  of
                 children; or
             (c) has been subject to recurrent attacks of insanity;
    (iii) the bridegroom has completed the age of  twenty- one  years  and
         the bride the age of  eighteen years at the time of the marriage;
    (iv) the parties are not within the degrees of prohibited  relationship
         unless the custom or usage governing each  of  them  permits  of  a
         marriage between the two;
    (v)   the parties are not sapindas of each other, unless the custom  or
         usage governing each of them permits  of  a  marriage  between  the
         two."


29.     Section 7 of the Hindu Marriage Act deals with the "Ceremonies  for
a Hindu marriage" and reads as follows:
         "7. Ceremonies for a Hindu marriage. -


         (1) A Hindu marriage may be  solemnized  in  accordance  with  the
            customary rites and ceremonies of either party thereto.


         (2) Where such rites and ceremonies include the saptapadi (that is,
            the taking of seven steps  by  the  bridegroom  and  the  bride
            jointly before the sacred fire), the marriage becomes  complete
            and binding when the seventh step is taken."


30.     Entering into a  marriage,  therefore,  either  through  the  Hindu
Marriage Act or the  Special  Marriage  Act  or  any  other  Personal  Law,
applicable to the parties, is  entering  into  a  relationship  of  "public
significance", since marriage being a social institution, many  rights  and
liabilities flow out of that legal relationship.  The concept  of  marriage
as a "civil right" has been recognised  by  various  courts  all  over  the
world, for example, Skinner v. Oklahoma 316 US 535 (1942), Perez v. Lippold
198 P.2d 17, 20.1 (1948), Loving v. Virginia 388 US 1 (1967).

31.     We have referred to, in extenso, about the concept of "marriage and
marital relationship"  to indicate that the law has  distinguished  between
married and unmarried people, which cannot be said to  be  unfair  when  we
look at the rights and obligations which flow out  of  the  legally  wedded
marriage.  A married couple has to discharge  legally  various  rights  and
obligations, unlike the case of persons  having  live-in  relationship  or,
marriage-like relationship or defacto relationship.

32.     Married couples who choose to  marry  are  fully  cognizant  of  the
legal obligation which arises by the operation of law  on  solemnization  of
the marriage and the rights and duties they owe to their  children  and  the
family as a  whole,  unlike  the  case  of  persons  entering  into  live-in
relationship.   This Court in Pinakin Mahipatray Rawal v. State  of  Gujarat
(2013) 2  SCALE  198  held  that  marital  relationship  means  the  legally
protected marital interest of one spouse to another  which  include  marital
obligation to another  like  companionship,  living  under  the  same  roof,
sexual relation and the exclusive  enjoyment  of  them,  to  have  children,
their up-bringing, services in the home, support,  affection,  love,  liking
and so on.

RELATIONSHIP IN THE NATURE OF MARRIAGE:

33.     Modern Indian society through the  DV  Act  recognizes  in  reality,
various other forms of familial  relations,  shedding  the  idea  that  such
relationship can only be through some acceptable modes hitherto  understood.
Section 2(f), as already indicated, deals with a  relationship  between  two
persons (of the opposite sex) who live or have lived together  in  a  shared
household when they are related by:
   a)  Consanguinity
   b) Marriage
   c) Through a relationship in the nature of marriage
   d) Adoption
   e) Family members living together as joint family.


34.      The  definition   clause   mentions   only   five   categories   of
relationships which exhausts itself since the expression "means",  has  been
used.  When a definition clause is defined to  "mean"  such  and  such,  the
definition is prima facie restrictive and exhaustive.  Section 2(f) has  not
used the expression "include" so as to make the definition  exhaustive.   It
is in that context  we  have  to  examine  the  meaning  of  the  expression
"relationship in the nature of marriage".


35.      We  have  already  dealt  with   what   is   "marriage",   "marital
relationship" and "marital obligations".   Let us now  examine  the  meaning
and scope of the expression "relationship in the nature of  marriage"  which
falls within the definition of Section 2(f) of the DV Act.  Our  concern  in
this case is of the third enumerated category that is "relationship  in  the
nature of marriage" which means a relationship which has  some  inherent  or
essential characteristics of  a  marriage  though  not  a  marriage  legally
recognized, and, hence, a comparison of both will have to  be  resorted,  to
determine  whether  the  relationship  in  a  given  case  constitutes   the
characteristics of a regular marriage.

36.     Distinction between the relationship in the nature of  marriage  and
marital relationship has to be  noted  first.     Relationship  of  marriage
continues, notwithstanding the fact that there are differences of  opinions,
marital unrest etc., even if they are not sharing a shared household,  being
based on law.   But live-in-relationship is purely  an  arrangement  between
the  parties  unlike,  a  legal  marriage.   Once  a  party  to  a  live-in-
relationship determines that  he/she  does  not  wish  to  live  in  such  a
relationship,  that  relationship  comes  to  an   end.    Further,   in   a
relationship in the nature of marriage, the party  asserting  the  existence
of the relationship, at any stage or at any point of time,  must  positively
prove  the  existence   of   the   identifying   characteristics   of   that
relationship, since the legislature has used the expression "in  the  nature
of".


37.     Reference to certain situations, in which the  relationship  between
an aggrieved person referred to in Section 2(a) and the respondent  referred
to in Section  2(q)  of  the  DV  Act,  would  or  would  not  amount  to  a
relationship in the nature of marriage, would be  apposite.   Following  are
some of the categories of cases which are only illustrative:
   a)  Domestic  relationship  between  an  unmarried  adult  woman  and  an
      unmarried adult male:    Relationship between an unmarried adult woman
      and an unmarried adult male who lived or, at any point of  time  lived
      together in a shared household, will  fall  under  the  definition  of
      Section 2(f) of the  DV  Act  and  in  case,  there  is  any  domestic
      violence, the same will fall under Section 3 of the  DV  Act  and  the
      aggrieved person can always seek reliefs provided under Chapter IV  of
      the DV Act.
   b) Domestic relationship between an unmarried woman and a  married  adult
      male:  Situations may arise when an unmarried  adult  women  knowingly
      enters into a relationship with a married adult male.  The question is
      whether such a relationship  is  a  relationship  "in  the  nature  of
      marriage" so as to fall within the definition of Section 2(f)  of  the
      DV Act.
   c) Domestic relationship between a married adult woman and  an  unmarried
      adult male:   Situations may also arise where an adult married  woman,
      knowingly enters into a relationship with an unmarried adult male, the
      question  is  whether  such  a  relationship  would  fall  within  the
      expression relationship "in the nature of marriage".
   d) Domestic relationship between an unmarried  woman  unknowingly  enters
      into a relationship with a married adult male:    An  unmarried  woman
      unknowingly enters into a relationship with a married adult male, may,
      in a given situation, fall within the definition of  Section  2(f)  of
      the DV Act and such a  relationship  may  be  a  relationship  in  the
      "nature of marriage", so far as the aggrieved person is concerned.
   e) Domestic relationship between same sex partners  (Gay  and  Lesbians):
       DV Act does not recognize such a relationship and  that  relationship
      cannot be termed as a relationship in the nature of marriage under the
      Act.  Legislatures in some countries,  like  the  Interpretation  Act,
      1984 (Western Australia), the Interpretation Act, 1999 (New  Zealand),
      the Domestic Violence Act, 1998 (South Africa), the Domestic Violence,
      Crime and Victims Act, 2004 (U.K.), have recognized  the  relationship
      between the same sex couples and have brought these relationships into
      the definition of Domestic relationship.




38.     Section  2(f)  of  the  DV  Act  though  uses  the  expression  "two
persons", the expression "aggrieved person"  under  Section  2(a)  takes  in
only "woman", hence, the Act does not recognize  the  relationship  of  same
sex (gay or lesbian) and, hence, any act, omission,  commission  or  conduct
of any of the parties, would not lead to domestic  violence,  entitling  any
relief under the DV Act.


39.     We should, therefore, while determining whether any  act,  omission,
commission or conduct of the  respondent  constitutes  "domestic  violence",
have a  common  sense/balanced  approach,  after  weighing  up  the  various
factors  which  exist  in  a  particular  relationship  and  then  reach   a
conclusion as to whether a particular relationship is a relationship in  the
"nature of marriage".  Many a times, it  is  the  common  intention  of  the
parties to that relationship as to what their relationship is to be, and  to
involve  and  as  to  their  respective  roles  and  responsibilities,  that
primarily governs that relationship.  Intention may be expressed or  implied
and  what  is  relevant  is  their  intention  as  to   matters   that   are
characteristic of a marriage.   The expression "relationship in  the  nature
of marriage", of course, cannot be construed in the abstract, we  must  take
it in the context in which it appears and apply the  same  bearing  in  mind
the purpose and object of the Act as well as the meaning of  the  expression
"in the nature of marriage".  Plight of a vulnerable  section  of  women  in
that relationship needs  attention.  Many  a  times,  the  women  are  taken
advantage of and essential  contribution  of  women  in  a  joint  household
through labour and emotional support have been lost sight of  especially  by
the women who fall in  the  categories  mentioned  in  (a)  and  (d)  supra.
Women, who fall under categories (b) and (c), stand on a different  footing,
which we will deal with later.  In the present  case,  the  appellant  falls
under category (b), referred to in paragraph 37(b) of the Judgment.


40.      We  have,  therefore,  come  across   various   permutations   and
combinations, in such relationships,  and  to  test  whether  a  particular
relationship would fall within the expression "relationship in  the  nature
of marriage", certain guiding principles  have  to  be  evolved  since  the
expression has not been defined in the Act.


41.     Section 2(f) of the DV Act defines "domestic relationship" to mean,
inter alia, a relationship between two  persons  who  live  or  have  lived
together  at  such  point  of  time  in  a  shared  household,  through   a
relationship in the nature of marriage. The expression "relationship in the
nature of marriage" is also described as defacto relationship,  marriage  -
like  relationship,   cohabitation,   couple   relationship,   meretricious
relationship (now known as committed intimate relationship) etc.


42.     Courts and legislatures of various countries  now  began  to  think
that denying certain benefits to a certain class of persons on the basis of
their marital status is unjust where the need of those benefits is felt  by
both unmarried and married cohabitants.  Courts in various  countries  have
extended  certain   benefits   to   heterosexual   unmarried   cohabitants.
Legislatures too, of late, through legislations started giving benefits  to
heterosexual cohabitants.

43.     In U.K. through the Civil Partnership Act, 2004, the rights of even
the same-sex couple have been recognized.   Family Law Act,  1996,  through
the Chapter IV, titled 'Family Homes and  Domestic  Violence',  cohabitants
can seek reliefs if there is domestic violence.  Canada  has  also  enacted
the Domestic Violence Intervention Act, 2001.  In USA, the violence against
woman is a crime with far-reaching consequences under the Violence  Against
Women Act, 1994 (now Violence Against Women Reauthorization Act, 2013).

44.     The Interpretation Act, 1984  (Australia)  has  laid  down  certain
indicators to determine the meaning of "de facto relationship",  which  are
as follows:
           "13A . De facto relationship and de facto partner, references to


           (1) A reference in a written law  to  a  de  facto  relationship
           shall be construed as a reference to a relationship (other  than
           a legal marriage) between 2  persons  who  live  together  in  a
           marriage-like relationship.
           (2) The following factors are indicators of whether or not a  de
           facto  relationship  exists  between  2  persons,  but  are  not
           essential -
              (a) the length of the relationship between them;
              (b)    whether the 2 persons have resided together;
              (c)   the nature and extent of common residence;
              (d)   whether there is, or has  been,  a  sexual relationship
              between them;
              (e) the degree of financial  dependence  or  interdependence,
              and any arrangements for financial support, between them;
              (f)  the ownership, use and  acquisition  of  their  property
              (including property they own individually);
              (g)  the degree of mutual commitment  by  them  to  a  shared
              life;
              (h)  whether they care for and support children;
              (i)  the reputation, and public aspects, of the  relationship
              between them.
              xxx               xxx             xxx
              xxx               xxx             xxx"


45.     The Domestic and Family Violence Protection Act,  2012  (Queensland)
has defined the expression "couple relationship" to mean as follows":
      "18. Meaning of couple relationship


           1)     xxx      xxx  xxx


           2) In deciding whether a couple relationship exists, a court may
              have regard to the following -


                 a)  the  circumstances  of  the  relationship  between  the
                    persons, including, for example-


                     (i)        the degree of trust  between  the  persons;
                         and


                     (ii) the level of each  person's  dependence  on,  and
                         commitment to, the other person;
                 b) the length  of  time  for  which  the  relationship  has
                    existed or did exist;
                 c) the frequency of contact between the persons;
                 d) the degree of intimacy between the persons.

           3)  Without limiting sub-section (2), the court may consider the
              following factors in deciding whether a  couple  relationship
              exists-


                 a) Whether the trust, dependence or commitment is  or  was
                    of the same level;
                 b) Whether one  of  the  persons  is  or  was  financially
                    dependent on the other;
                 c) Whether the persons jointly own or owned any property;
                 d) Whether the persons have or had joint bank accounts;
                 e)  Whether  the  relationship  involves  or  involved   a
                    relationship of a sexual nature;
                 f) Whether the relationship is or was exclusive.


           4) A couple relationship may exist even if  the  court  makes  a
              negative finding in relation to any or  all  of  the  factors
              mentioned in subsection (3).


           5) A couple relationship may exist between two  persons  whether
              the persons are of the same or a different gender.


           6) A couple relationship  does  not  exist  merely  because  two
              persons date or dated each other on a number of occasions."




46.     The Property  (Relationships)  Act,  1984  of  North  South  Wales,
Australia also provides for some guidelines with regard to the meaning  and
content of the expression "de facto relationship", which reads as follows:

1 "4 De facto relationships

      (1) For the purposes of  this  Act,  a  de  facto  relationship  is  a
      relationship between two adult persons:
           (a)  who live together as a couple, and
           (b) who are not married to one another or related by family.
      (2) In determining whether two persons are in a de facto relationship,
      all the circumstances  of  the  relationship  are  to  be  taken  into
      account, including such of the following matters as may be relevant in
      a particular case:
           (a)  the duration of the relationship,
           (b) the nature and extent of common residence,
           (c)  whether or not a sexual relationship exists,
           (d) the degree of financial dependence or  interdependence,  and
               any arrangements for financial support, between the parties,


           (e)  the ownership, use and acquisition of property,
           (f)   the degree of mutual commitment to a shared life,
           (g)  the care and support of children,
           (h)  the performance of household duties,
           (i) the reputation and public aspects of the relationship.
      (3) No  finding  in  respect  of  any  of  the  matters  mentioned  in
      subsection (2) (a)-(i), or in respect of any combination of  them,  is
      to  be  regarded  as  necessary  for  the  existence  of  a  de  facto
      relationship, and a court  determining  whether  such  a  relationship
      exists is entitled to have regard to such matters, and to attach  such
      weight to any matter, as may seem appropriate  to  the  court  in  the
      circumstances of the case.
      (4) Except as provided by section 6, a reference  in  this  Act  to  a
      party to a de facto relationship includes a reference to a person who,
      whether before or after the commencement of  this  subsection,  was  a
      party to such a relationship."

47.     "In Re  Marriage  of  Lindsay,  101  Wn.2d  299  (1984),  Litham  v.
Hennessey 87 Wn.2d 550 (1976), Pennington 93 Wash.App. at  917,  the  Courts
in United States took the view that  the  relevant  factors  establishing  a
meretricious relationship include continuous cohabitation, duration  of  the
relationship, purpose of the relationship, and the pooling of resources  and
services for joint projects.  The Courts  also  ruled  that  a  relationship
need not be "long term" to be characterized  as  meretricious  relationship.
 While a long term relationship is not a threshold requirement, duration  is
a significant factor.  Further, the Court also noticed  that  a  short  term
relationship may be characterized as a meretricious, but a number  of  other
important factors must be present.

48.     In Stack v. Dowden [2007] 2 AC 432, Baroness Hale of Richmond said:
      "Cohabitation comes  in  many  different  shapes  and  sizes.   People
      embarking on their first serious relationship  more  commonly  cohabit
      than marry.  Many of these relationships may be quite short-lived  and
      childless.  But most people these days  cohabit  before  marriage.....
      So many couples are cohabiting with a view to marriage at  some  later
      date - as long ago as 1998 the British Household  Panel  Survey  found
      that 75% of current cohabitants expected to  marry,  although  only  a
      third had  firm  plans:   John  Ermisch,  Personal  Relationships  and
      Marriage Expectations (2000) Working Papers of the Institute of Social
      and Economic Research:  Paper 2000-27.    Cohabitation  is  much  more
      likely to end in separation than is marriage, and cohabitations  which
      end in separation tend to last for a shorter time than marriages which
      end in divorce.   But increasing numbers of couples cohabit  for  long
      periods without marrying and their reasons  for  doing  so  vary  from
      conscious rejection of marriage as a legal  institution  to  regarding
      themselves 'as good as married' anyway:  Law Commission,  Consultation
      Paper No 179, Part 2, para 2.45."


49.     In MW v. The  Department  of  Community  Services  [2008]  HCA  12,
Gleeson, CJ, made the following observations:
      "Finn J was correct to stress the difference between  living  together
      and living together 'as a couple in a relationship in  the  nature  of
      marriage or civil union'.    The relationship between two  people  who
      live together, even though it is a sexual relationship,  may,  or  may
      not, be a relationship in the nature of marriage or civil union.   One
      consequence of relationships of the former kind  becoming  commonplace
      is that it may now be more difficult, rather  than  easier,  to  infer
      that they have the nature of marriage or civil union, at  least  where
      the care and upbringing of children are not involved."



50.     In Lynam v. The Director-General of Social Security (1983)  52  ALR
128, the Court considered whether a man and a  woman  living  together  'as
husband and wife on a bona fide domestic basis' and Fitzgerald, J. said:
      "Each element of a relationship draws its colour and its  significance
      from the other elements, some of which may point in one direction  and
      some in the other.   What must be looked at is the composite  picture.
       Any attempt to isolate individual factors and to  attribute  to  them
      relative degrees of materiality or importance  involves  a  denial  of
      common experience and will almost inevitably be productive  of  error.
      The endless scope for differences in human  attitudes  and  activities
      means that there will be an almost infinite variety of combinations of
      circumstances which may fall for  consideration.   In  any  particular
      case, it will be a question of  fact  and  degree,  a  jury  question,
      whether a relationship between two unrelated persons of  the  opposite
      sex meets the statutory test."




51.     Tipping, J. in Thompson v. Department of  Social  Welfare  (1994)  2
SZLR 369 (HC), listed few characteristics which are  relevant  to  determine
relationship in the nature of marriage as follows:
      "(1)       Whether and how frequently the parties  live  in  the  same
           house.
      (2)        Whether the parties have a sexual relationship.
      (3)        Whether the parties give each other emotional  support  and
           companionship.
      (4)        Whether the parties socialize together or attend activities
           together as a couple.
      (5)         Whether  and  to  what  extent  the  parties   share   the
           responsibility for  bringing  up  and  supporting  any  relevant
           children.
      (6)        Whether the parties  share  household  and  other  domestic
           tasks.
      (7)         Whether  the  parties  share  costs  and  other  financial
           responsibilities by the pooling of resources or otherwise.
      (8)        Whether the parties run a common household, even if one  or
           other partner is absent for periods of time.
      (9)        Whether the parties go on holiday together.
      (10)       Whether the parties conduct  themselves  towards,  and  are
           treated by friends, relations and  others  as  if  they  were  a
           married couple."



52.      Live-in  relationship,  as  such,  as  already  indicated,  is   a
relationship which has not been socially accepted  in  India,  unlike  many
other countries.  In Lata Singh v. State of U.P.  [AIR 2006 SC 2522] it was
observed that a live-in  relationship  between  two  consenting  adults  of
heterosexual sex does not amount to any  offence  even  though  it  may  be
perceived as immoral. However, in order to provide a remedy  in  Civil  Law
for protection of women, from being victims of such  relationship,  and  to
prevent the occurrence of domestic violence in the society, first  time  in
India, the DV Act has been enacted to cover the couple having  relationship
in the nature of marriage, persons related by consanguinity, marriages etc.
 We have few other legislations also where reliefs have  been  provided  to
woman placed in certain vulnerable situations.


53.     Section 125 Cr.P.C., of  course,  provides  for  maintenance  of  a
destitute wife and Section 498A IPC is related to mental cruelty  inflicted
on women by her husband and in-laws.  Section  304-B  IPC  deals  with  the
cases relating to dowry death.  The Dowry Prohibition Act, 1961 was enacted
to deal with the cases of dowry demands by the husband and family  members.
 The Hindu Adoptions and  Maintenance  Act,  1956  provides  for  grant  of
maintenance to a legally wedded Hindu wife, and also deals with  rules  for
adoption.  The Hindu Marriage Act, 1955 refers to  the  provisions  dealing
with solemnization of marriage also deals with the provisions for  divorce.
  For the first time, through, the DV Act, the Parliament has recognized  a
"relationship in the nature of marriage" and  not  a  live-in  relationship
simplicitor.

54.     We have already stated, when we examine whether a relationship will
fall within the expression "relationship in the nature of marriage"  within
the meaning of Section 2(f) of the DV Act, we should have a close  analysis
of the entire relationship, in other words, all facets of the interpersonal
relationship need to be taken into account.  We cannot  isolate  individual
factors, because there may  be  endless  scope  for  differences  in  human
attitudes and activities and a variety  of  combinations  of  circumstances
which may fall for consideration. Invariably, it may be a question of  fact
and degree, whether a relationship between two  unrelated  persons  of  the
opposite sex meets the tests judicially evolved.

55.     We may, on the basis of above discussion cull out  some  guidelines
for testing under what  circumstances, a  live-in  relationship  will  fall
within the expression  "relationship  in  the  nature  of  marriage"  under
Section 2(f) of the DV Act.  The guidelines, of course, are not exhaustive,
but will definitely give some insight to such relationships.
1) Duration of period of relationship
      Section 2(f) of the DV Act has used the expression "at any  point  of
      time", which means a  reasonable  period  of  time  to  maintain  and
      continue a relationship which may vary from case to  case,  depending
      upon the fact situation.
(2)     Shared household
      The expression has been defined under Section 2(s) of the DV Act and,
      hence, need no further elaboration.
(3)     Pooling of Resources and Financial Arrangements
      Supporting each other, or any one of them, financially, sharing  bank
      accounts, acquiring immovable properties in joint  names  or  in  the
      name of the woman, long  term  investments  in  business,  shares  in
      separate and joint names, so as to have a long standing relationship,
      may be a guiding factor.
(4)     Domestic Arrangements
      Entrusting the responsibility, especially on the  woman  to  run  the
      home, do the household activities like cleaning, cooking, maintaining
      or upkeeping the house, etc. is an indication of  a  relationship  in
      the nature of marriage.
(5)     Sexual Relationship
      Marriage like relationship refers to sexual  relationship,  not  just
      for pleasure,  but  for  emotional  and  intimate  relationship,  for
      procreation  of  children,  so  as   to   give   emotional   support,
      companionship and also material affection, caring etc.
(6)     Children
      Having children is a strong  indication  of  a  relationship  in  the
      nature of marriage.   Parties,  therefore,  intend  to  have  a  long
      standing relationship.  Sharing the responsibility  for  bringing  up
      and supporting them is also a strong indication.
(7)     Socialization in Public
      Holding out to the public and socializing with friends, relations and
      others, as if they are husband and wife is a strong  circumstance  to
      hold the relationship is in the nature of marriage.
(8)     Intention and conduct of the parties
      Common intention of parties as to what their relationship  is  to  be
      and  to   involve,   and   as   to   their   respective   roles   and
      responsibilities,   primarily   determines   the   nature   of   that
      relationship.

STATUS OF THE APPELLANT

56.     Appellant, admittedly, entered into a live-in-relationship with the
respondent knowing that he was married person, with wife and two  children,
hence,  the  generic  proposition  laid  down  by  the  Privy  Council   in
Andrahennedige Dinohamy v. Wiketunge Liyanapatabendage Balshamy,  AIR  1927
PC 185,   that where a man and a woman are proved to have lived together as
husband and wife, the  law  presumes  that  they  are  living  together  in
consequence of a valid marriage will not apply and, hence, the relationship
between the appellant and the respondent was  not  a  relationship  in  the
nature of a marriage, and the  status  of  the  appellant  was  that  of  a
concubine. A concubine cannot maintain a  relationship  in  the  nature  of
marriage because such a relationship will not have exclusivity and will not
be monogamous in character.  Reference may also be made to the judgments of
this Court in Badri Prasad v. Director of Consolidation 1978  (3)  SCC  527
and Tulsa v. Durghatiya 2008 (4) SCC 520.  In Gokal Chand v. Parvin  Kumari
AIR 1952 SC 231 this Court held that the continuous cohabitation of man and
woman as husband and wife may raise the presumption of  marriage,  but  the
presumption which may be drawn from long cohabition is a rebuttable one and
if there are circumstances which weaken and destroy that  presumption,  the
Court cannot ignore them.  Polygamy, that is a relationship or practice  of
having more than one wife or husband at the same time, or a relationship by
way of a bigamous marriage that is marrying someone while  already  married
to another and/or maintaining an adulterous  relationship  that  is  having
voluntary sexual intercourse between a married  person  who  is  not  one's
husband or wife, cannot be said to be  a  relationship  in  the  nature  of
marriage.

57.     We may note, in the instant case, there is no  necessity  to  rebut
the presumption, since the appellant was aware that the  respondent  was  a
married person even before the commencement of  their  relationship,  hence
the status of the appellant is that of  a  concubine  or  a  mistress,  who
cannot enter into relationship in the nature of a marriage.  Long  standing
relationship as a concubine, though not a relationship in the nature  of  a
marriage, of course, may at times, deserves protection because  that  woman
might not be financially independent, but we are afraid that  DV  Act  does
not take care of such relationships which may perhaps call for an amendment
of the definition of Section 2(f) of the DV Act, which is  restrictive  and
exhaustive.


58.     Velusamy case (supra) stated that instances are many where  married
person maintain and support such types of women, either for sexual pleasure
or sometimes for emotional support.  Woman, a party  to  that  relationship
does suffer social disadvantages and prejudices, and historically,  such  a
person has been regarded as less worthy than the married woman.   Concubine
suffers social ostracism through the denial of  status  and  benefits,  who
cannot, of course, enter into a relationship in the nature of marriage.


59.     We cannot, however, lose sight of the fact that inequities do exist
in such relationships and on breaking down  such  relationship,  the  woman
invariably is the sufferer.  Law of Constructive Trust developed as a means
of recognizing the contributions, both pecuniary and non-pecuniary, perhaps
comes to their aid in such situations, which may remain as a  recourse  for
such a woman who find herself unfairly disadvantaged.  Unfortunately, there
is no express  statutory  provision  to  regulate  such  types  of  live-in
relationships upon termination or disruption since those relationships  are
not in the nature of marriage.  We can also come  across  situations  where
the parties entering into  live-in-relationship  and  due  to  their  joint
efforts or otherwise acquiring  properties,  rearing  children,  etc.   and
disputes may also arise when one of the parties dies intestate.


60.     American Jurisprudence, Second Edition, Vol. 24  (2008)  speaks  of
Rights and Remedies  of  property  accumulated  by  man  and  woman  living
together in illicit relations or under void marriage, which reads as under:
      "Although the courts have recognized the property  rights  of  persons
      cohabiting without benefit of marriage, these rights are not based  on
      the equitable distribution provisions of the marriage and divorce laws
      because the judicial recognition of  mutual  property  rights  between
      unmarried cohabitants  would  violate  the  policy  of  the  state  to
      strengthen and preserve the integrity of marriage, as demonstrated  by
      its abolition of common-law marriage."




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  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

64.     Appellant had entered into this relationship knowing well that  the
respondent was a married person and encouraged  bigamous  relationship.  By
entering  into  such  a  relationship,  the  appellant  has  committed   an
intentional tort,  i.e.  interference  in  the  marital  relationship  with
intentionally alienating respondent from his  family,  i.e.  his  wife  and
children.  If the case set up by the appellant  is  accepted,  we  have  to
conclude that there has been an attempt on the part  of  the  appellant  to
alienate  respondent  from  his  family,  resulting  in  loss  of   marital
relationship, companionship, assistance, loss of consortium etc., so far as
the legally wedded wife and children of the respondent are  concerned,  who
resisted the relationship from the very inception.  Marriage and family are
social institutions of vital importance.   Alienation of affection, in that
context, is  an  intentional  tort,  as  held  by  this  Court  in  Pinakin
Mahipatray Rawal case (supra), which gives a cause of action  to  the  wife
and children of the respondent to sue  the  appellant  for  alienating  the
husband/father from the company of his wife/children,  knowing  fully  well
they are legally wedded wife/children of the respondent..


65.     We are, therefore, of the view  that  the  appellant,  having  been
fully aware of the fact that the respondent was a married person, could not
have entered into a live-in relationship in the nature  of  marriage.   All
live-in-relationships are not relationships  in  the  nature  of  marriage.
Appellant's  and  the  respondent's  relationship  is,  therefore,  not   a
"relationship in the nature of marriage" because  it  has  no  inherent  or
essential characteristic of a marriage, but a relationship other  than  "in
the nature of marriage" and the appellant's status is lower than the status
of a wife and that relationship would not fall  within  the  definition  of
"domestic relationship" under Section 2(f) of the DV Act.   If we hold that
the relationship between the appellant and the respondent is a relationship
in the nature of a marriage, we will be doing an injustice to  the  legally
wedded wife and children who opposed that relationship.  Consequently,  any
act, omission or commission or conduct of the respondent in connection with
that type of relationship, would not amount to  "domestic  violence"  under
Section 3 of the DV Act.


66.     We have, on facts, found that the appellant's status was that of  a
mistress, who is in distress, a survivor of a live-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.

67.     We are conscious of the fact that if any direction is given to  the
respondent to pay maintenance or monetary consideration to  the  appellant,
that would be at the cost of the legally wedded wife and  children  of  the
respondent, especially when they had opposed that relationship and  have  a
cause of action against the appellant for alienating the companionship  and
affection of the husband/parent which is an intentional tort.


68.     We, therefore, find no reason to interfere with the judgment of the
High Court and the appeal is accordingly dismissed.




                                                    ......................J.
                              (K.S. Radhakrishnan)






                                                    ......................J.
                              (Pinaki Chandra Ghose)
New Delhi
November 26, 2013
                                                                   CORRECTED
ITEM NO.1A (For Judgment)   COURT NO.8    SECTION IIB

            S U P R E M E   C O U R T   O F   I N D I A
                         RECORD OF PROCEEDINGS

Crl. A. No..........................@
Petition(s) for Special Leave to Appeal (Crl) No(s).4895/2012

(From the judgement and order  dated 12/08/2011 in CRLR No.856/2010 of The
HIGH COURT OF KARNATAKA AT BANGALORE)


INDRA SARMA                               Petitioner(s)

                 VERSUS

V.K.V.SARMA                               Respondent(s)


Date: 26/11/2013        This appeal was called on for
pronouncement of judgment.

Amicus Curiae           Ms. Jyotika Kalra,Adv.

For Petitioner(s)       Mr. Anish Kumar Gupta,Adv. (SCLSC)

For Respondent(s)       Mr. Nikhil Majithia,Adv.
                        Mr. Rameshwar Prasad Goyal,Adv.


                Hon'ble  Mr.  Justice  K.S.  Radhakrishnan  pronounced  the
           judgment of the Bench comprising His Lordship  and  Hon'ble  Mr.
           Justice Pinaki Chandra Ghose.
                Leave granted.
                The appeal is dismissed in terms of the signed judgment.




           |(NARENDRA PRASAD)                      | |(RENUKA SADANA)                       |
|COURT MASTER                           | |COURT MASTER                          |


              (Signed "Reportable" judgment is placed on the file)