Oral Judgment:
1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.
2. Heard Shri Ghuge, learned counsel for the petitioners and Shri Kalwaghe, learned counsel for the respondent.
3. By the present petition, the petitioners are challenging the judgment and order passed by the learned J.M.F.C., Court No.3, Buldana, dated 14.10.2013 in Misc. Cri. Case No. 14 of 2012, together with the judgment and order dated 27.2.2014 passed by Sessions Judge, Buldana, in Criminal Appeal No. 72/13, confirming the verdict given by the learned Magistrate.
4. The respondent herein is the original applicant and she filed proceedings under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (for short, â?D.V. Actâ?) against the petitioners herein before the learned Magistrate which were registered as Misc. Crim. Case No. 14 of 2012.
5. For the purpose of convenience, parties in the present petition will referred to by their original position. The applicant claims that she is an aggrieved person and sought various reliefs provided under the D.V. Act. It is the contention of the applicant that firstly she was married with one Ananta Ingle. The said marriage came to an end by virtue of divorce in the year 2008. It is also her contention that non--applicant no. 1 suppressed the fact about his marriage with non-applicant no. 2 and on 22.12.2010 agreed to perform marriage with her. Non-applicants 3 and 4 are the uncle and aunt of non-applicant no. 1 whereas non-applicants 5 and 6 are his parents. It is also contended that the non-applicant no. 1 concealed his date of birth and pretended to be younger by ten years. The marriage between the applicant and non-applicant no. 1 took place on 01.01.2011 at Mahadeo Temple, Rajur, Tq. Motala, Distt. Buldana. Various articles of gold and silver were offered by the parents of the applicant.
6. After the marriage, applicant resumed cohabitation with non-applicant no. 1 and his family at Tulsi Nagar, Sagwan Area, Buldana. Non-applicant no. 1 introduced his first wife- non-applicant no. 2, as his maternal sister. On the first night of the marriage, non-applicant no. 1 avoided to have sexual relations with the applicant and disclosed that he is impotent. It is the further allegation in the application that the applicant was ill-treated by the non-applicants. The same was tolerated by her with a hope that one day the situation will change. However, in the month of September 2011, the applicant was again assaulted at the instance of non-applicants 3 and 4 and the golden and silver ornaments given to the applicant in the marriage were removed from her person and she was driven out from her house.
7. The applicant realised that she is fooled and her life is spoiled by the non-applicants. Therefore, on 12.10.2011 she approached Police Station Buldana (city) and lodged a report. The report was referred to the Women Cell of the police station. The counsellor tried to settle the matter. That time, non-applicant no.1 agreed to pay compensation to the tune of Rs. Ten lac. However, the non-applicant no. 1 turned around of the said promise.
8. According to the applicant, non-applicant no. 1 is serving as a teacher and drawing salary of Rs.33,918/-. Besides, he owns house property as well as agricultural property which were duly mentioned in the schedule of the application. It was the case of the applicant that she was living in domestic relationship with the non-applicants in a shared household and she was subjected to domestic violence as envisaged under D.V. Act.
9. The claim of the applicant was resisted by non-applicant no. 1 by filing his reply. All other non-applicants have adopted the written statement of non-applicant no. 1.
10. Non-applicant no. 1 has denied the very factum of marriage between him and the applicant. Besides, all other allegations were also denied.
11. The parties entered into the witness-box to substantiate and prove their pleadings. After the evaluation of oral as well as the documentary evidence, the learned Magistrate recorded a finding that there was a domestic relationship between the parties within the meaning of Section 2 (f) of D.V. Act. It was also found by the learned Magistrate that the applicant has proved domestic violence to her. Therefore, the learned Magistrate directed the non-applicant no. 1 to pay monthly maintenance of Rs.5000/- and Rs.2,000/- per month towards house rent allowance and also directed the non-applicants to pay jointly and severally Rs. One lac as a compensation to the applicant. Besides, the non-applicants were prohibited from alienating the immovable property reflected in Schedule A of the application. The said judgment of learned Magistrate was passed on 14.10.2013.
12. The aforesaid judgment led to filing of two different appeals. Criminal Appeal No. 72/13 was filed by the non-applicants challenging the grant of maintenance, house rent allowance and the compensation; whereas Criminal Appeal No. 73/13 was filed by the applicant expressing her dissatisfaction to the quantum of grant of maintenance, compensation and refusal of returning âStreedhan articlesâ?. Since both the appeals were arising out of the same judgment, they were decided by the learned Sessions Judge by the common judgment dated 27.2.2014. By the said judgment, the learned Judge of the appellate Court partly allowed the appeal filed by the non-applicants.
The operative part in that behalf reads as under:
â(1) Criminal Appeal No. 72/2013 stands partly allowed only to the extent of modification in prohibitory order of alienation.
(A) The impugned order dated 14.10.2013 passed in Misc. Criminal Case No. 14/2012 by the learned Judicial Magistrate First Class, 3rd Court, Buldana, is set aside to the extent of alienation of immovable property and modified in the nature that the respondents are restrained from alienating or creating encumberance over the house property described in item No.(i) and agricultural land described in item No.(v) of Schedule-A to the petition.
(B) Rest of the entire impugned order is maintained as it stands.â?
The learned lower appellate Court dismissed the appeal filed on behalf of the applicant.
13. Before this Court, the original non-applicants are assailing the correctness of the orders passed by the courts below. Learned counsel for the petitioners/non-applicants would submit that both the Courts below have erred in granting relief to the respondent/original applicant since admittedly during the subsistence of marriage of petitioner no.1/non-applicant no.1 the marriage between petitioner no. 1 and respondent took place. He further submits that there was no domestic relations between the parties and, therefore, prayed for dismissal of the original application filed by the respondent.
14. Since the question of domestic relationship goes to the root of the matter, it would be useful to refer to Section 2(f) of D.V. Act, which reads as under:
â2. (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.â?
15. The Protection of Women from Domestic Violence Act 2005 provides more effective protection of the rights of women guarantee under the Constitution who are victims of violence of any kind occurring within the meaning of family and for matters connected therewith or incidental thereto. Clause (a) of Section 2 defines aggrieved person as under:
â2(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;â? Reading of above definition would make it clear that the Legislature has avoided to use the word âwifeâ?, instead the phraseology âwomanâ? is used. Therefore, aggrieved person necessarily may not be the wife. The deciding factor will be the domestic relationship.
16. In this behalf, learned counsel for the petitioners submitted that in view of the decision of the Apex Court in Indra Sarma v. V.K.V. Sarma reported in (2013) 15 SCC 755 live-in relationship is not a relationship in the nature of a marriage and it is not in domestic relationship as envisaged under Section 2(f) of D.V. Act. He, therefore, submitted that the case of the petitioners is squarely governed by the said pronouncement of the Apex Court.
17. There cannot be any straight-jacket formula while deciding the case. The principle of law has to be applied in the given set of facts. In Indra Sarma case, supra, facts are altogether different. The appellant and respondent therein were working together in a private company and the respondent, who was a Personnel Officer was a married person having two children whereas the appellant therein was 33 years of age and was unmarried. Constant contacts between them developed intimacy and in the year 1992 the appellant therein left the job and started residing with the respondent. Thus, in Indra Sarma's case, the relations between the parties were live-in relationship, which does not have concern with the marital ties.
18. In the present case, it is the case of the applicant that previous marital status of husband Subhash was suppressed. Wife was kept in dark about his previous marriage by the husband and induced the wife enter into matrimonial ties. Undoubtedly, since the marriage between the applicant and non-applicant no. 1 was during the subsistence of marriage of non-applicant no. 1, it was a void marriage. However, the non-applicant no. 1 has entered into the relationship in the nature of marriage with the applicant. The said aspect is duly proved by the applicant by adducing the necessary evidence before the learned Magistrate and which is also accepted by the learned appellate Court, being the last Court insofar as recording finding of fact is concerned. Therefore, in writ jurisdiction, this Court will not disturb such finding of fact, especially when nothing is brought to the notice of this Court that such findings of fact are perverse or were impermissible on the available set of evidence. In that behalf the observations of the Hon'ble Apex Court in a reported case in D.Velusamy v. D. Patchaiammal â“ (2010) 10 SCC 469 would be a guiding factor for deciding the present case. Paragraph 20 of the said judgment reads as under:
âIn our opinion, Parliament by the aforesaid Act has drawn a distinction between the relationship of marriage and a relationship in the nature of marriage, and has provided that in either case the person who enters into either relationship is entitled to the benefit of the Act.â?
19. In view of the above and especially when it is amply proved by the applicant that the relationship between the applicant and non-applicant no. 1 was in the nature of marriage, I see no reason to disturb the findings recorded by both the Courts below resulting into dismissal of the writ petition, however without imposing any cost.
Criminal Writ Petition stands dismissed. Rule discharged.