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

1] Rajiv s/o Premsagar Kaushal, Aged about 42 years, Occupation Service.

2] Smt. Asha Premsagar Kaushal, Aged about 70 years, Occupation Nil, Both Qtr. No.79-D, Type 3, Sector 3, Defence Vasahat, O.F. Chanda, Tahsil Bhadrawati, District Chandrapur.

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.

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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.

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(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 :::