It has to be noticed that just recently the Delhi High Court in a case titled Parveen Tandon vs Tanika Tandon in CRL.M.C. 264/2021 & CRL.M.A. 1352/2021 (Stay) and CRL.M.C.420/2021 & CRL.M.As. 2196/2021 & 8859/2021 (Stay) has very rightly upheld the order of an Additional Sessions Judge directing a married man to pay ad-interim maintenance under the Protection of Women from Domestic Violence Act, 2005 to a woman claiming to be his live-in partner. While doing so, it must be noticed that the Single Judge Bench of Justice Subramonium Prasad had observed that the issue as to whether the parties were residing in a shared household and were enjoying a domestic relationship in the nature of marriage could not be decided without leading evidence. It has to be borne in mind that this latest ruling acquires considerable relevance in light of the recent judgments of other High Courts holding that a live-in relationship between a married and unmarried person is not permissible.
To start with, the ball is set rolling in para 1 of this notable judgment authored by Justice Subramonium Prasad of Delhi High Court wherein it is put forth that, “CRL.M.C. 264/2021 is directed against the order dated 14.01.2021, passed by the learned Additional Sessions Judge-03, West, Tis Hazari Courts, Delhi in CA No. 110/2020 and CRL.M.C. 420/2021 is directed against the order dated 14.01.2021, passed by learned Additional Sessions Judge-03, West, Tis Hazari Courts, Delhi in CA No. 171/2020. Both the petitions have been filed under Section 482 Cr.P.C.”
While elaborating on the facts of the case, it is then enunciated in para 2 that, “Facts, in brief, leading to the present petitions are as under:
a) The respondent herein filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the DV Act”) before the Chief Metropolitan Magistrate, Tis Hazari Court, stating inter alia that she was married when she met the petitioner herein in the year 2009. She got married to him in the year 2014 after obtaining a divorce from her husband. It is stated that the applicant/respondent herein has a son namely, Master Jatin, aged 13 years, from her previous marriage. The child is presently studying in Shadley Public School, Delhi. It is stated that the petitioner herein is running a business of motor-parts from his shop. It is also stated that the petitioner herein has other shops which he has given on rent and he earns about Rs.10 lakhs per month from his business. It is stated that the petitioner herein had not disclosed his marital status to the applicant/respondent herein when they both met so as to induce the respondent to marry him. It is further stated that the petitioner herein executed a Marriage Agreement to show his genuineness and responsibility towards the applicant/respondent herein and her child. It is stated that in the agreement it was mentioned that the applicant/respondent herein was married and has a son from her previous marriage. It is stated that later the petitioner herein told the respondent that his wife is on dialyses and would not survive long and therefore he is looking for a life partner and that he is going to marry the applicant/respondent herein. It is stated that the applicant/respondent herein took divorce from her husband and got married to the petitioner herein on 21.11.2014. It is stated that another Agreement-cum-Marriage Deed was entered into between the petitioner herein and the applicant/respondent herein on 22.11.2014. It is stated that the petitioner herein had arranged a rental accommodation and both of them were living as husband and wife. It is further mentioned that the name of the petitioner herein is shown as the father of the child of the applicant/respondent herein in the school records. It is also stated that in the bank accounts of the respondent herein, the petitioner is shown as a nominee. It is stated that differences arose between the parties and the applicant/respondent was subjected to physical and mental abuse by the petitioner herein. It is stated that the applicant/respondent herein filed an FIR against the petitioner herein. The applicant/respondent herein therefore prayed for an order restraining the petitioner herein from evicting the applicant/respondent herein from the rented accommodation. An application for grant of interim maintenance has also been filed by the respondent herein.
b) Summons were issued to the petitioner herein. The learned Metropolitan Magistrate by an order dated 31.07.2020 restrained the petitioner herein from dispossessing the applicant/respondent herein from the property bearing House No.435, Indra Vihar, Mukherjee Nagar, Delhi. An application for the rectification of the said order was filed stating that the address in the order was not correct.
c) The petitioner herein prayed for recall of summons and dismissal of the application filed by the respondent herein contending that the respondent herein is not entitled to any relief under the DV Act because the respondent herein is not an aggrieved person inasmuch as the petitioner and the respondent had never been in a domestic relationship which is the sine qua non for maintaining an application under the DV Act.
d) On 17.08.2020, the learned Metropolitan Magistrate corrected the address and restrained the petitioner herein from dispossessing the respondent herein from property bearing No. B22, First Floor, Hari Nagar, New Delhi 110064. However, the learned Metropolitan Magistrate rejected the plea of the petitioner herein to dismiss the case on the ground of maintainability stating that the question as to whether the respondent herein is an aggrieved person or not and whether she was in a domestic relationship with the petitioner herein or not cannot be decided at the present stage without leading evidence. The learned Metropolitan Magistrate also directed the parties to file their income certificates along with supporting documents as warranted by the judgment of this Court in Kusum Sharma v. Mahinder Kumar Sharma, 2015 SCC OnLine Del 6793.
e) By an order dated 26.10.2020, the learned Metropolitan Magistrate directed the petitioner herein to pay an ad-interim maintenance of Rs.10,000/- per month from 26.10.2020, to the respondent herein towards maintenance of child and also towards the rent/accommodation.
f) The order dated 17.08.2020, dismissing the prayer of the petitioner for recalling his summoning order under the DV Act was challenged by the petitioner herein by filing an appeal being CA No.110/2020 before the Sessions Court. The order dated 26.10.2020, directing the petitioner herein to pay ad-interim maintenance of Rs.10,000/- to the respondent herein, was challenged by the petitioner by filing an appeal being CA No.171/2020 before the Sessions Court.
g) The learned Additional Session Judge, vide order dated 14.01.2020 dismissed CA No.110/2020 and upheld the order dated 17.08.2020 by observing that the issue as to whether the parties were residing in a shared household and were enjoying a domestic relationship in the nature of marriage, could not be decided without leading evidence.
h) By another order of the same date, the learned Additional Session Judge refused to interfere with the order dated 26.10.2020 and dismissed CA No.171/2020 and upheld the order dated 26.10.2020 directing the petitioner herein to pay ad-interim maintenance of Rs.10,000/- per month to the respondent herein for the maintenance of the child and also for the rent/accommodation.
i) CRL.M.C. 264/2021 is directed against the order dated 14.01.2021 in CA No. 110/2020 and CRL.M.C. 420/2021 is directed against the order dated 14.01.2021 in CA No. 171/2020.”
To put things in perspective, the Bench then makes it clear in para 7 that, “The DV 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. The Act enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner. The Act is meant to provide for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by a Magistrate.”
Be it noted, the Bench then observes in para 8 that, “In order to maintain a petitioner under the DV Act the aggrieved person has to show that the aggrieved person and the respondent (man) lived together in a shared household and this could be even from a relationship in the nature of marriage. The material placed on record shows that the petitioner had entered into a marriage agreement in the year 2012 wherein it is stated that both the parties intend to marry each other. The agreement shows that the petitioner undertook to discharge all liabilities/obligations towards the respondent herein and similarly the respondent undertook to discharge all liabilities/obligations towards the petitioner herein. The affidavit has been signed by both the parties. After the respondent herein obtained divorce from her husband, another agreement-cum-marriage deed was entered into between the parties on 22.11.2014, wherein it is stated that the petitioner and the respondent are residing together for the last five years in a live-in relationship and are now getting married to each other according to Hindu rites and ceremonies and the marriage was solemnized in an Arya Samaj Mandir at Delhi. The marriage deed also records that after solemnization of marriage both the parties will reside together as husband and wife and will be faithful towards each other. The marriage deed has been signed by both the parties. There are photographs of the petitioner and the respondent which gives an impression that the parties were living together as husband and wife and have married each other. The school records of the child have been filed wherein the petitioner has been shown as the father of the child. Copies of the bank accounts have been filed wherein the petitioner has been shown as a nominee of the account held by the respondent.”
It is worth noting that the Bench then also makes it a point to mention in para 9 that, “Great emphasis has been placed by the learned counsel for the petitioner on para 31 of the judgment of the Supreme Court in D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469, which reads as under:
“31. 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.
(See “Common Law Marriage” in Wikipedia on Google.) In our opinion a “relationship in the nature of marriage” under the 2005 Act must also fulfil 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”.”
Other relevant paras of the abovementioned judgment read as under:
“32. In our opinion not all live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005. To get such benefit the conditions mentioned by us 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 as a servant it would not, in our opinion, be a relationship in the nature of marriage.
33. No doubt the view we are taking would exclude many women who have had a live-in relationship from the benefit of the 2005 Act, but then it is not for this Court to legislate or amend the law. Parliament has used the expression “relationship in the nature of marriage” and not “live-in relationship”. The Court in the garb of interpretation cannot change the language of the statute.
34. In feudal society sexual relationship between man and woman outside marriage was totally taboo and regarded with disgust and horror, as depicted in Leo Tolstoy’s novel Anna Karenina, Gustave Flaubert’s novel Madame Bovary and the novels of the great Bengali writer Sharat Chandra Chattopadhyaya.
35. However, Indian society is changing, and this change has been reflected and recognised by Parliament by enacting the Protection of Women from Domestic Violence Act, 2005.””
It would also be worthwhile to mention here that the Bench then observes in para 11 that, “The Supreme Court in Lalita Toppo v. State of Jharkhand, (2019) 13 SCC 796, has observed as under:
“3. In fact, under the provisions of the DVC Act, 2005 the victim i.e. estranged wife or live-in partner would be entitled to more relief than what is contemplated under Section 125 of the Code of Criminal Procedure, 1973, namely, to a shared household also.
4. The questions referred to us by the Referral Order were formulated on the basis of the decisions of this Court rendered in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav [Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, (1988) 1 SCC 530 : 1988 SCC (Cri) 182] and Savitaben Somabhai Bhatiya v. State of Gujarat [Savitaben Somabhai Bhatiya v. State of Gujarat, (2005) 3 SCC 636 : 2005 SCC (Cri) 787] which were rendered prior to the coming into force of the DVC Act, 2005. In view of what has been stated hereinbefore, it is, therefore, our considered view that the questions referred would not require any answer. We, therefore, decline to answer the said questions. The appellant is left with the remedy of approaching the appropriate forum under the provisions of the DVC Act, 2005, if so advised. If in the event the appellant moves the appropriate forum under the provisions of the DVC Act, 2005, we would request the said forum to decide the matter as expeditiously as possible.””
As we see, the Bench then observes in para 12 that, “The documents placed before this Court shows that the couple has held themselves out in the society as being akin to spouses which fact is evident from the marriage-cum-agreement deed, affidavits, the school records of the child and the bank statements of the respondent. The parties are majors, they have voluntarily cohabited for a significant period of time. The respondent has already taken divorce from her husband.”
It would be pertinent to mention here that it is then envisaged in para 13 that, “The tests laid down in Indra Sarma (supra) i.e. the duration of the period of the relationship, the question as to whether there was a shared household or not, the pooling of the resources and financial arrangements, the domestic arrangements, the socialisation in public, the intention and the conduct of the parties, are all questions of fact which have to be established by leading evidence. In Indra Sarma (supra), the judgment of the High Court, which denied protection of the DV Act to the lady on the ground that the lady knew that the man, with whom she was living in a relationship, was already married, can be distinguished on facts. In that case the wife of the man/respondent therein had opposed the relationship of the respondent therein and the petitioner therein. The evidence led in that case showed that the family of the lady/petitioner therein including her father, brother and sister had also opposed the live-in relationship. After evidence was led, it was found that the lady/petitioner therein had not given any evidence of mutual support and companionship between the parties. There was no projection of their relationship in the public. It was the specific case of the respondent therein (man) that he never held out to the public that the petitioner therein (lady) was his wife. There was no evidence of pooling of resources or of financial arrangements between the parties. The specific case of the respondent therein (man) was that no joint account was opened and no document was executed in jointly and that the petitioner therein (lady) was never permitted to affix the name/surname of the respondent therein. The conclusions were arrived at after the parties led evidence.”
As it turned out, the Bench then observed in para 14 that, “In the present case, the specific allegation is that the respondent herein was told that the wife of the petitioner is on dialysis and that she would die soon. It is the specific case that for six long years the petitioner and the respondent were living as husband and wife. Materials in the form of photographs and other documents showing that the petitioner and the respondent have married each other have been produced. The school records of the child show that the petitioner herein is shown as the father of the child. The petitioner herein is shown as a nominee in the bank account held by the respondent. All these materials have to be examined. It is the contention of the petitioner that he has not entered into any rental agreement and that the agreements, affidavits and the photographs produced by the respondent herein are not genuine. All these facts can be established only after evidence is led. The question as to whether the respondent herein has been duped by the petitioner or whether she was a party to an adulterous and bigamous relationship or not and whether her conduct would not entitle her for any protection under the DV Act can be determined only after the evidence is led, as was done in the case of Indra Sarma (supra).”
Needless to say, it cannot be glossed over that it is then enunciated in para 15 that, “The learned Metropolitan Magistrate vide order dated 26.10.2020, has directed the petitioner to pay a sum of Rs.10,000/- per month to the respondent herein as an interim arrangement. The memorandum of grounds does not challenge the figure of Rs.10,000/- awarded by the learned Metropolitan Magistrate. The principle challenge is that the order could not be passed since the application under the DV Act was not maintainable as the respondent is not an aggrieved person. Since the case is only at an interim stage this Court is not inclined to interfere with the direction of the courts below awarding interim maintenance to the respondent herein towards maintenance of child and also towards the rent/accommodation.”
To put it shortly, the crux of para 16 is that, “The scope of the revision petition under Sections 397/401 Cr.P.C. read with Section 482 Cr.P.C. is narrow. It cannot be said that the order of the courts below warrants interference of this Court by exercising its revisional jurisdiction.”
Before dismissing the petitions along with all the pending applications as envisaged in para 18, the Bench then holds in para 17 that, “In case the Metropolitan Magistrate, after evidence is led, comes to a conclusion that the respondent herein was not entitled to the protection of the DV Act then adequate safeguards must be made to ensure that the respondent returns the amount received by her as interim maintenance in terms of the order dated 26.10.2020, passed by the learned Metropolitan Magistrate back to the petitioner with interest. The rate of interest is to be fixed by the Metropolitan Magistrate. The learned Trial Court is directed to hear the matter and decide the matter finally within a period of one year.”
In short, this notable Delhi High Court judgment upholds the order of interim maintenance to alleged live-in partner of married man under Domestic Violence Act. As opposed to the rulings by many other High Courts like Allahabad, Rajasthan, Punjab and Bombay which denied relief to a woman who lived in relationship with married man, this noteworthy judgment seeks to make a men liable for paying interim maintenance to alleged live-in partner of married man under Domestic Violence Act.” A men cannot have a cake and eat it too. If a married men seeks to establish live-in relationship with some other women then he is bound to maintain her and this is exactly what the Delhi High Court has sought to do in this leading case! Very rightly so!
