1 100.11 Cri.Revn. Appln. IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO. 100 OF 2011 Harshal S/o Mahadeo Kakade Age 34 years, Occu. Service, R/o Shahunagar, Near Athre Row housing society, Muley Colony, Kedgaon, Ahmednagar, District Ahmednagr PETITIONER VERSUS Neelam W/o Harshal Kakde, Age 31 years, Occu. Service, R/o C/o Sitaram Shripatrao Nighut, Vidya Colony, Kalyan Road, Ahmednagar, District Ahmednagar RESPONDENT ..... Shri A.S. Zarekar, Advocate for petitioner Shri K. Tandale, Advocate for respondent ..... CORAM : U.D. SALVI, J. DATED : 9 th December, 2011. PER COURT : 1. Heard. Perused Criminal Revision Application along with its annexures. 2. The petitioner is questioning the legality of the order dated 10-08-2010 passed by the learned Judicial Magistrate, First Class (Court No. 6) Ahmednagar in Criminal Misc. Application No. 2 100.11 Cri.Revn. Appln. 105/2009 and the order dated 31-03-2011 passed by the learned Additional Sessions Judge, Ahmednagar in Criminal Appeal No. 147/2010 confirming the said order of learned Judicial Magistrate, First Class (Court No. 6) Ahmednagar. 3. The respondent has ‘aggrieved woman’ moved an application for the reliefs under Sections 12, 17, 18, 19, 20 and 22 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘ the said Act, 2005’) before the learned Judicial Magistrate, First Class (Court No. 6) Ahmednagar and the said application was numbered as Criminal Misc. Application 105/2009. Learned Judicial Magistrate, First Class (Court No. 6) Ahmednagar partly allowed the application as follows :- 1] Issued directions prohibiting the petitioner from entering the place of employment and residence of respondent and also prohibiting him causing violence to the respondent or her relatives. 2] Granted monthly maintenance of Rs. 2,000/- (Rs. Two thousand) to daughter Shradha from the date of filing application i.e. 09-02-2009. 3] Directed payment of Rs. 10,000/- (Rs. Ten thousand only) to the respondent herein towards compensation. 3 100.11 Cri.Revn. Appln. 4] Directed payment of cost of Rs. 500/- (Rs. Five hundred) to the respondent herein of this application. The learned Additional Sessions Judge, Ahmednagar dismissed the Criminal No. 147/2010 preferred by the petitioner herein against the said order dated 10-08-2010 in Cri. Misc. Appln. No. 105/2009. 4. Learned Advocate Shri A.S. Zarekar for the petitioner, submitted that both the Courts below misconstrued the relationship between the parties, as ‘domestic relationship’ within the meaning of Section 2(f) of the said Act, 2005, and wrongly awarded relief to the respondents under the said Act, 2005. He submitted that the respondent prior to any relationship with the petitioner was married with one Dr. Rajkumar Erande and marital relationship between the respondent and Dr. Erande subsisted till the making of the application under the said Act, 2005, and as such there could not have been “domestic relationship”, between the parties within the meaning of the said Act, and therefore, the respondent never attained the status of ‘aggrieved person’ within the meaning of Section 2(a) of the said Act, 2005 and could not have lawfully moved an application for the reliefs under the said Act, 2005, as per Section 12. To substantiate his submissions he 4 100.11 Cri.Revn. Appln. invited the attention of this Court to D. Velusamy’s Judgment (D. Velusamy V. D. Patchaiammal; 2010 AIR SCW 673) 5. Learned Advocate Shri A.S. Zarekar for the petitioner, for substantiating his submissions pointed out that the petitioner did contend before the trial Court that the respondent had suppressed the fact of her first marriage from the petitioner and had illegally entered into wedlock with him on 01-09-1998 vide written statement (Exh. 10) in Criminal Misc. Application No. 105/2009. He further pointed out from his evidence that the respondent was married to one Dr. Rajkumar Erande, Tq. Parner, Dist. Ahmednagar and an application made for dissolution of the said marriage was rejected- vide certified copy of the Judgment and Order dated 02-05-1998 passed by the learned 4th Joint Civil Judge Senior Division, Ahmednagar in H.M.P. No. 299/1997. As regards this factual content there is no valid rebuttal in evidence of respondent. A fact therefore, clearly emerges that at the material time the respondent continued to be a married woman whose marriage with other person was subsisting. 6. On this back ground, if one tries to understand the relationship between the parties, particularly in light of the Judgment of the Hon’ble Apex Court in D. Velusamy’s case., the 5 100.11 Cri.Revn. Appln. relationship between the parties looks like a live in relationship which is not in ‘nature of marriage’. This can be seen from observations made by the Hon’ble Apex Court in D. Velusamy’s Judgment. The Hon’ble Apex Court observed as follows : “ A relationship in nature of marriage” is akin to a common law marriage. Common law marriage requires 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. 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 S. 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’. Not all live-in-relationship will amount to a relationship in the nature of marriage to get the benefit of the Act, 2005. To get such benefit the conditions mentioned as above must be satisfied, and this has to be proved by evidence. If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or 6 100.11 Cri.Revn. Appln. as a servant it would not be a ‘relationship’ in the nature of marriage’ and not ’live-in-relationship’. The Court in the grab of interpretation cannot change the language of the statute” 7. The learned Advocate Shri Tandale for respondent, submitted that the issue of live in relationship has been resolved by the Hon’ble Apex Court while delivering Judgment in Chanmuniya’s case (Chanmuniya V. Virendra Kumar Singh Kushwaha & another; arising out of SLP(Civil) No. 15071 of 2009, delivered on 7-10-2010). Learned Advocate for the respondent, submitted that the said Act gives very wide interpretation to term ‘domestic relationship’ as to take it outside the confines of a marital relationship, and therefore, the Courts below had rightly entertained the application of the respondent under the said Act, 2005. 8. A look at Chanmuniya’s case (Supra) reveals that at para Nos. 26, 41, 42 & 43 of the said Judgment the Hon’ble Apex Court while dealing with the issue of applicability of Section 125 of Criminal Procedure Code, 1973 to women in live in relationships with the respondent in the applications under Section 125 of the Code made reference to the provisions of the said Act, 2005 and made observations in the nature of obiter Dicta, and further raised 7 100.11 Cri.Revn. Appln. material questions for making reference to a larger bench as under : “1. Whether the living together of a man and woman as husband and wife for a considerable period of time would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under Section 125 of Cr.P.C.? 2. Whether Strict proof of marriage is essential for a claim of maintenance under Section 125 of Cr.P.C. Having regard to the provisions of Domestic Violence Act, 2005?” 9. The Judgment of the Hon’ble Apex Court in D. Velusamy’s case. However, answers the issue directly with reference to the phrase “ relationship in nature of marriage” found in Section 2(f) of the said Act, 2005. 10. In the instant case, as observed here-in-before, marriage of the respondent with Dr. Erande-a third party was subsisting at the time she had move an application under Section 12 of the said Act, 2005. This fact was clearly overlooked by the Courts below. If the standards as laid down in D. Velusamy’s Judgment are applied it is not difficult to find that the parties hereto had not lived together in shared household through a relationship in nature of marriage as at the material time the respondent was not 8 100.11 Cri.Revn. Appln. eligible or otherwise qualified to enter into a legal marriage – condition / requirement essential for establishing relationship in nature of marriage. If one reads Section 12(f) of the said Act, 2005 one can easily see that the following persons only can present an application before the Magistrate for the reliefs under the said Act, 2005 : 1] Aggrieved person. 2] A protection officer. 3] Another person on behalf of aggrieved person. Admittedly this application has been moved by the respondent as an aggrieved person. Section 2(a) defines as ‘aggrieved person’ as under :- “ “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;” 11. For a person to be an aggrieved person under the said Act, 2005, such person should be a woman in a domestic relationship with the respondent who has been subjected to any act of domestic violence by the respondent. As discussed here-in- above, the respondent has failed to show that she is in ‘domestic 9 100.11 Cri.Revn. Appln. relationship’ within the meaning of the said Act, 2005 with the petitioner. In the ultimate analysis, therefore, the application can be seen to have been moved not by an aggrieved person within the meaning of Section 2(a) of the said Act, 2005 and as such it ought to have failed. 12. Criminal Revision Application / petition No. 100/2011 is, therefore, allowed and impugned judgment and orders are quashed and set aside. However, it needs to be observed that there is enough material to reveal that Shradha was a daughter begotten of the live in relationship between the respondent and petitioner, and as such the remedies available to her under any other provisions of law for maintenance remain open. ( U.D. SALVI, J. ) SDM* December-11