Rajiv S/O Premsagar Kaushal And 2 Others vs Sunita Rajiv Kaushal And Another

3] Anupama Shivam Bhat, Aged about 46 years, Occupation Nil, R/o (Janipur) 128/1, Shaco Vihar, Lower Roop Nagar, Jammu. ....... PETITIONERS

...V E R S U S...

1] Sunita Rajiv Kaushal, Aged about 35 years, Occupation Service, C/o Annaji Tukaram Tahkre, R/o State Bank Colony, Bachalor Road, Wardha, Tahsil & District Wardha.

2] The State of Maharashtra Through Govt. Pleader. ....... RESPONDENTS ------------------------------------------------------------------------------------------- Shri A.A. Dhawas, Advocate for Petitioners. Shri Mahesh Rai, Advocate for Respondent No.1. Shri N.R. Patil, APP for Respondent No.2-State. -------------------------------------------------------------------------------------------

::: Uploaded on - 05/05/2018 ::: Downloaded on - 06/05/2018 01:42:22 ::: cwp589.13.J.odt 2

CORAM: ROHIT B. DEO, J. DATE: 5 th MAY, 2018.

ORAL JUDGMENT

1] The petitioners are assailing the judgment and order

dated 03.10.2012 rendered by the Judicial Magistrate First Class,

Wardha in Criminal Miscellaneous Application 581/2011 and the

common judgment and order rendered by the Sessions Judge,

Wardha in Criminal Appeal 124/2012 and Criminal Appeal

125/2012.

2] Respondent 1 instituted proceedings under Section 12

read with Sections 18, 19, 20, 21 and 22 of the Protection of

Women from Domestic Violence Act, 2005 ('D.V. Act' for short)

against the petitioners inter alia alleging that she was subjected to

domestic violence and seeking protection order under Section 18,

direction to petitioner 1 herein to provide separate residence to

the respondent 1, maintenance under Section 20, return of the

stree dhan and gifts received in marriage and compensation of

Rs.9,00,000/- under Section 22 of the D.V. Act.

::: Uploaded on - 05/05/2018 ::: Downloaded on - 06/05/2018 01:42:22 ::: cwp589.13.J.odt 3

3] The said petition under Section 12 of the D.V. Act was

resisted by the present petitioner inter alia denying having

subjected the petitioner to domestic violence.

4] The learned Magistrate, by judgment and order dated

03.10.2012 was pleased to allow the application under Section 12

of the D.V. Act partly. The applicant-respondent 1 was granted

monthly maintenance of Rs.2000/- from the date of the

application, monthly rent of Rs.1000/- and compensation of

Rs.5000/-. This order was challenged by both, the petitioners

herein in Criminal Appeal 124/2012 and the respondent herein in

Criminal Appeal 124/2012. By the common judgment and order

dated 31.07.2013 the learned Sessions Judge was pleased to

dismiss Criminal Appeal 124/2012 and to partly allow Criminal

Appeal 125/2012. The learned Sessions Judge enhanced the

monthly maintenance to Rs.5000/- and the compensation to

Rs.20,000/- while maintaining the order of payment of monthly

rent of Rs.1000/-.

5] Shri A.A. Dhawas, the learned counsel for the

::: Uploaded on - 05/05/2018 ::: Downloaded on - 06/05/2018 01:42:22 ::: cwp589.13.J.odt 4

petitioners has not addressed any submission on the concurrent

finding recorded by the courts below that it is proved that

respondent 1 is subjected to domestic violence. The thrust of the

submissions is that the earlier marriage of petitioner 1 was not

legally dissolved and the test enunciated by the Hon'ble Apex

Court in D. Velusamy v. D. Patchaiammal reported in AIR 2011 SC

479 to bring the relationship within the sweep of the D.V. Act, is

not satisfied.

6] In D. Velusamy v. D. Patchaiammal the Hon'ble Apex

Court has articulated the law thus:

33. 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.

::: Uploaded on - 05/05/2018 ::: Downloaded on - 06/05/2018 01:42:22 ::: cwp589.13.J.odt 5 (see 'Common Law Marriage' in Wikipedia on Google)

In our opinion a 'relationship in the nature of marriage' under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a 'shared household' as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a 'domestic relationship'.

7] Both the learned courts below have considered the

submission in the light of the law laid down in D. Velusamy v. D.

Patchaiammal and have rejected the same. The concurrent findings

recorded by the courts below are unexceptionable and I do not see

any reason to differ.

8] In response to the application under Section 12 of the

D.V. Act the present petitioners averred that the earlier marriage of

petitioner 1 was mutually dissolved and that he "tied the nuptial

knot" with respondent 1. It is further averred that the marriage

performed with respondent 1 is not valid and legal and that the

relationship between the two was a live-in-relationship.

9] Petitioner 1-Rajiv Kaushal, in his deposition, stated

::: Uploaded on - 05/05/2018 ::: Downloaded on - 06/05/2018 01:42:22 ::: cwp589.13.J.odt 6

that he suffered injuries in an accident and was contemplating

engaging a nurse. Petitioner 1 further deposed that the respondent

1 met his mother and claimed that she was in distress and an

orphan. Petitioner 1 further stated in the deposition that in view of

the economic condition of respondent 1, his mother obliged

respondent 1 with residential space. In the cross-examination,

petitioner 1 admitted that the averment in the reply to the

application under Section 12 of the D.V. Act to the effect that the

earlier marriage of petitioner 1 is mutually dissolved, is factually

correct. Petitioner 1 was confronted with certain photographs in

order to bring on record that petitioner 1 and respondent 1

entered into matrimonial alliance. The petitioner admitted the

authenticity of the photographs.

10] The smart cards Exh.35 and Exh.41 would suggest

that the petitioner 1 represented to his employer Ordnance Factory

that the respondent 1 is his wife.

11] In the light of the pleadings and the evidence on

record the concurrent finding recorded by the courts below that

::: Uploaded on - 05/05/2018 ::: Downloaded on - 06/05/2018 01:42:22 ::: cwp589.13.J.odt 7

petitioner 1 and respondent 1 posed themselves as husband and

wife, is unexceptionable. The contention of petitioner 1, that since

his earlier marriage was not dissolved deserves to be noted only

for rejection. It is irrefutable that petitioner 1 and respondent 1

cohabitated with each other from 25.04.2008 to 06.10.2011. It is

not the case of the petitioner 1, that there was any other legal

impediment in he marrying respondent 1. The learned Sessions

Judge rightly held that even if it is assumed arguendo that the

marriage between petitioner 1 and respondent 1 is not strictly

legal, the live-in-relationship will attract the provisions of the D.V.

Act. The reliance placed by the learned counsel of the petitioners

on the judgment of the Apex Court in D. Velusamy v. D.

Patchaiammal is clearly misplaced.

12] No other submission was canvassed.

13] The petition is sans merit and is rejected.

JUDGE

NSN

::: Uploaded on - 05/05/2018 ::: Downloaded on - 06/05/2018 01:42:22 :::