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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2009 OF 2013

(@ SPECIAL LEAVE PETITION (CRL.) NO.4895 OF 2012)

Indra Sarma … Appellant

Versus

V.K.V. Sarma … Respondent

J U D G M E N T

K.S. Radhakrishnan, J.

Leave granted.

2.Live-in or marriage like relationship is neither a

crime nor a sin though socially unacceptable in this

country. The decision to marry or not to marry or to

have a heterosexual relationship is intensely personal.

3.We are, in this case, concerned with the question

whether a “live-in relationship” would amount to a

“relationship in the nature of marriage” falling within the

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definition of “domestic relationship” under Section 2(f)

of the Protection of Women from Domestic Violence Act,

2005 (for short “the DV Act”) and the disruption of such

a relationship by failure to maintain a women involved in

such a relationship amounts to “domestic violence”

within the meaning of Section 3 of the DV Act.

FACTS:

4.Appellant and respondent were working together in

a private company. The Respondent, who was working

as a Personal Officer of the Company, was a married

person having two children and the appellant, aged 33

years, was unmarried. Constant contacts between

them developed intimacy and in the year 1992,

appellant left the job from the above-mentioned

Company and started living with the respondent in a

shared household. Appellant’s family members,

including her father, brother and sister, and also the wife

of the respondent, opposed that live-in-relationship. She

has also maintained the stand that the respondent, in

fact, started a business in her name and that they were

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earning from that business. After some time, the

respondent shifted the business to his residence and

continued the business with the help of his son, thereby

depriving her right of working and earning. Appellant

has also stated that both of them lived together in a

shared household and, due to their relationship,

appellant became pregnant on three occasions, though

all resulted in abortion. Respondent, it was alleged,

used to force the appellant to take contraceptive

methods to avoid pregnancy. Further, it was also stated

that the respondent took a sum of Rs.1,00,000/- from

the appellant stating that he would buy a land in her

name, but the same was not done. Respondent also

took money from the appellant to start a beauty parlour

for his wife. Appellant also alleged that, during the year

2006, respondent took a loan of Rs.2,50,000/- from her

and had not returned. Further, it was also stated that

the respondent, all along, was harassing the appellant

by not exposing her as his wife publicly, or permitting to

suffix his name after the name of the appellant.

Appellant also alleged that the respondent never used to

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take her anywhere, either to the houses of relatives or

friends or functions. Appellant also alleged that the

respondent never used to accompany her to the hospital

or make joint Bank account, execute documents, etc.

Respondent’s family constantly opposed their live-in

relationship and ultimately forced him to leave the

company of the appellant and it was alleged that he left

the company of the appellant without maintaining her.

5.Appellant then preferred Criminal Misc. No. 692 of

2007 under Section 12 of the DV Act before the III

Additional Chief Metropolitan Magistrate, Bangalore,

seeking the following reliefs:

1)Pass a Protection Order under Section 18 of the DV

Act prohibiting the respondent from committing

any act of domestic violence against the appellant

and her relatives, and further prohibiting the

respondent from alienating the assets both

moveable and immoveable properties owned by

the respondent;

2)Pass a residence order under Section 19 of the DV

Act and direct the respondent to provide for an

independent residence as being provided by the

respondent or in the alternative a joint residence

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along with the respondent where he is residing

presently and for the maintenance of Rs.25,000/-

per month regularly as being provided earlier or in

the alternative to pay the permanent maintenance

charges at the rate of Rs.25,000/- per month for

the rest of the life;

3)Pass a monetary order under Section 20 of the DV

Act directing the respondent to pay a sum of

Rs.75,000/- towards the operation, pre and post

operative medication, tests etc and follow up

treatments;

4)Pass a compensation order under Section 22 of the

DV Act to a sum of Rs.3,50,000/- towards damages

for misusing the funds of the sister of the appellant,

mental torture and emotional feelings; and

5)Pass an ex-parte interim order under Section 23 of

the DV Act directing the respondent to pay

Rs.75,000/- towards the medical expenses and pay

the maintenance charges @ Rs.25,000/- per month

as being paid by the respondent earlier.

6.Respondent filed detailed objections to the

application stating that it was on sympathetical grounds

that he gave shelter to her in a separate house after

noticing the fact that she was abandoned by her parents

and relatives, especially after the demise of her father.

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She had also few litigations against her sister for her

father’s property and she had approached the

respondent for moral as well as monetary support since

they were working together in a Company. The

respondent has admitted that he had cohabited with the

appellant since 1993. The fact that he was married and

had two children was known to the appellant.

Pregnancy of the appellant was terminated with her as

well as her brother’s consent since she was not

maintaining good health. The respondent had also

spent large amounts for her medical treatment and the

allegation that he had taken money from the appellant

was denied. During the month of April, 2007, the

respondent had sent a cheque for Rs.2,50,000/- towards

her medical expenses, drawn in the name of her sister

which was encashed. Further, it was stated, it was for

getting further amounts and to tarnish the image of the

respondent, the application was preferred under the DV

Act. Before the learned Magistrate, appellant examined

herself as P.W.1 and gave evidence according to the

averments made in the petition. Respondent examined

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himself as R.W.1. Child Development Project Officer was

examined as R.W.2. The learned Magistrate found proof

that the parties had lived together for a considerable

period of time, for about 18 years, and then the

respondent left the company of the appellant without

maintaining her. Learned Magistrate took the view that

the plea of “domestic violence” had been established,

due to the non-maintenance of the appellant and passed

the order dated 21.7.2009 directing the respondent to

pay an amount of Rs.18,000/- per month towards

maintenance from the date of the petition.

7.Respondent, aggrieved by the said order of the

learned Magistrate, filed an appeal before the Sessions

Court under Section 29 of the DV Act. The Appellate

Court, after having noticed that the respondent had

admitted the relationship with appellant for over a

period of 14 years, took the view that, due to their live-

in relationship for a considerable long period, non-

maintenance of the appellant would amount to domestic

violence within the meaning of Section 3 of the DV Act.

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The appellate Court also concluded that the appellant

has no source of income and that the respondent is

legally obliged to maintain her and confirmed the order

passed by the learned Magistrate.

8.The respondent took up the matter in appeal

before the High Court. It was contended before the High

Court that the appellant was aware of the fact that the

respondent was a married person having two children,

yet she developed a relationship, in spite of the

opposition raised by the wife of the respondent and also

by the appellant’s parents. Reliance was also placed on

the judgment of this Court in D. Velusamy v. D.

Patchaiammal (2010) 10 SCC 469 and submitted that

the tests laid down in Velusamy case (supra) had not

been satisfied. The High Court held that the

relationship between the parties would not fall within the

ambit of “relationship in the nature of marriage” and the

tests laid down in Velusamy case (supra) have not been

satisfied. Consequently, the High Court allowed the

appeal and set aside the order passed by the Courts

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below. Aggrieved by the same, this appeal has been

preferred.

9.Shri Anish Kumar Gupta, learned counsel appearing

for the appellant, submitted that the relationship

between the parties continued from 1992 to 2006 and

since then, the respondent started avoiding the

appellant without maintaining her. Learned counsel

submitted that the relationship between them

constituted a “relationship in the nature of marriage”

within the meaning of Section 2(f) of the DV Act, which

takes in every relationship by a man with a woman,

sharing household, irrespective of the fact whether the

respondent is a married person or not. Learned counsel

also submitted that the tests laid down in Velusamy

case (supra) have also been satisfied.

10.Ms. Jyotika Kalra, learned amicus curiae, took us

elaborately through the provisions of the DV Act as well

as the objects and reasons for enacting such a

legislation. Learned amicus curiae submitted that the

Act is intended to provide for protection of rights of

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women who are victims of violence of any type occurring

in the family. Learned amicus curiae also submitted

that the various provisions of the DV Act are intended to

achieve the constitutional principles laid down in Article

15(3), reinforced vide Article 39 of the Constitution of

India. Learned amicus curiae also made reference to the

Malimath Committee report and submitted that a man

who marries a second wife, during the subsistence of the

first wife, should not escape his liability to maintain his

second wife, even under Section 125 CrPC. Learned

amicus curiae also referred to a recent judgment of this

Court in Deoki Panjhiyara v. Shashi Bhushan

Narayan Azad and Another (2013) 2 SCC 137 in

support of her contention.

11.Mr. Nikhil Majithia, learned counsel appearing for

the respondent, made extensive research on the subject

and made available valuable materials. Learned counsel

referred to several judgments of the Constitutional

Courts of South Africa, Australia, New Zealand, Canada,

etc. and also referred to parallel legislations on the

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subject in other countries. Learned counsel submitted

that the principle laid down in Velusamy case (supra)

has been correctly applied by the High Court and, on

facts, appellant could not establish that their

relationship is a “relationship in the nature of marriage”

so as to fall within Section 2(f) of the DV Act. Learned

counsel also submitted that the parties were not

qualified to enter into a legal marriage and the appellant

knew that the respondent was a married person.

Further, the appellant was not a victim of any fraudulent

or bigamous marriage and it was a live-in relationship

for mutual benefits, consequently, the High Court was

right in holding that there has not been any domestic

violence, within the scope of Section 3 of the DV Act

entitling the appellant to claim maintenance.

12.We have to examine whether the non maintenance

of the appellant in a broken live-in-relationship, which is

stated to be a relationship not in the nature of a

marriage, will amount to “domestic violence” within the

definition of Section 3 of the DV Act, enabling the

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appellant to seek one or more reliefs provided under

Section 12 of the DV Act.

13.Before examining the various issues raised in this

appeal, which have far reaching consequences with

regard to the rights and liabilities of parties indulging in

live-in relationship, let us examine the relevant

provisions of the DV Act and the impact of those

provisions on such relationships.

D.V. ACT

14.The D.V. 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.

15.“Domestic Violence” is undoubtedly a human rights

issue, which was not properly taken care of in this

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country even though the Vienna Accord 1994 and the

Beijing Declaration and Platform for Action (1995) had

acknowledged that domestic violence was undoubtedly

a human rights issue. UN Committee on Convention on

Elimination of All Forms of Discrimination Against

Women in its general recommendations had also

exhorted the member countries to take steps to protect

women against violence of any kind, especially that

occurring within the family, a phenomenon widely

prevalent in India. Presently, when a woman is

subjected to cruelty by husband or his relatives, it is an

offence punishable under Section 498A IPC. The Civil

Law, it was noticed, did not address this phenomenon in

its entirety. Consequently, the Parliament, to provide

more effective protection of rights of women guaranteed

under the Constitution under Articles 14, 15 and 21, who

are victims of violence of any kind occurring in the

family, enacted the DV Act.

16.Chapter IV is the heart and soul of the DV Act,

which provides various reliefs to a woman who has or

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has been in domestic relationship with any adult male

person and seeks one or more reliefs provided under the

Act. The Magistrate, while entertaining an application

from an aggrieved person under Section 12 of the DV

Act, can grant the following reliefs:

(1)Payment of compensation or damages without

prejudice to the right of such person to institute a suit

for compensation or damages for injuries caused by

the acts of domestic violence committed by the adult

male member, with a prayer for set off against the

amount payable under a decree obtained in Court;

(2)The Magistrate, under Section 18 of the DV Act,

can pass a “protection order” in favour of the

aggrieved person and prohibit the respondent from:

(a)committing any act of domestic violence;

(b)aiding or abetting in the commission of acts of

domestic violence;

(c)entering the place of employment of the

aggrieved person or, if the person aggrieved is a

child, its school or any other place frequented by

the aggrieved person;

(d)attempting to communicate in any form,

whatsoever, with the aggrieved person, including

personal, oral or written or electronic or

telephonic contact;

(e)alienating any assets, operating bank lockers or

bank accounts used or held or enjoyed by both

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the parties, jointly by the aggrieved person and

the respondent or singly by the respondent,

including her stridhan or any other property held

either jointly by the parties or separately by them

without the leave of the Magistrate;

(f)causing violence to the dependants, other

relatives or any person who give the aggrieved

person assistance from domestic violence;

(g)committing any other act as specified in the

protection order.

(3)The Magistrate, while disposing of an application

under Section 12(1) of the DV Act, can pass a

“residence order” under Section 19 of the DV Act, in

the following manner:

“19. Residence orders.- (1) While disposing

of an application under sub-section (1) of

section 12, the Magistrate may, on being

satisfied that domestic violence has taken

place, pass a residence order-

(a) restraining the respondent from

dispossessing or in any other manner

disturbing the possession of the

aggrieved person from the shared

household, whether or not the

respondent has a legal or equitable

interest in the shared household;

(b) directing the respondent to remove

himself from the shared household;

(c) restraining the respondent or any of his

relatives from entering any portion of

the shared household in which the

aggrieved person resides;

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(d) restraining the respondent from

alienating or disposing off the shared

household or encumbering the same;

(e) restraining the respondent from

renouncing his rights in the shared

household except with the leave of the

Magistrate; or

(f) directing the respondent to secure same

level of alternate accommodation for the

aggrieved person as enjoyed by her in

the shared household or to pay rent for

the same, if the circumstances so

require:

Provided that no order under clause (b)

shall be passed against any person who is a

woman.

xxx xxx xxx

xxx xxx xxx”

(4)An aggrieved person, while filing an application

under Section 12(1) of the DV Act, is also entitled,

under Section 20 of the DV Act, to get “monetary

reliefs” to meet the expenses incurred and losses

suffered by the aggrieved person and any child of

the aggrieved person as a result of the domestic

violence and such relief may include, but is not

limited to,-

“20. Monetary reliefs.- (1) While disposing

of an application under sub- section (1) of

section 12, the Magistrate may direct the

respondent to pay monetary relief to meet the

expenses incurred and losses suffered by the

aggrieved person and any child of the

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aggrieved person as a result of the domestic

violence and such relief may include, but not

limited to,-

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction,

damage or removal of any property from the

control of the aggrieved person; and

(d) the maintenance for the aggrieved person

as well as her children, if any, including an

order under or in addition to an order of

maintenance under section 125 of the Code of

Criminal Procedure, 1973 (2 of 1974 ) or any

other law for the time being in force.

xxx xxx xxx

xxx xxx xxx”

The monetary reliefs granted under the above

mentioned section shall be adequate, fair,

reasonable and consistent with the standard of

living to which an aggrieved person is accustomed

and the Magistrate has the power to order an

appropriate lump sum payment or monthly

payments of maintenance.

(5)The Magistrate, under Section 21 of the DV Act, has

the power to grant temporary custody of any child or

children to the aggrieved person or the person

making an application on her behalf and specify, if

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necessary, the arrangements for visit of such child

or children by the respondent.

(6)The Magistrate, in addition to other reliefs, under

Section 22 of the DV Act, can pass an order directing

the respondent to pay compensation and damages

for the injuries, including mental torture and

emotional distress, caused by the acts of domestic

violence committed by the respondent.

17.Section 26 of the DV Act provides that any relief

available under Sections 18, 19, 20, 21 and 22 may also

be sought in any legal proceeding, before a Civil Court,

family court or a criminal court, affecting the aggrieved

person and the respondent whether such proceeding

was initiated before or after the commencement of this

Act. Further, any relief referred to above may be sought

for in addition to and along with any other reliefs that

the aggrieved person may seek in such suit or legal

proceeding before a civil or criminal court. Further, if

any relief has been obtained by the aggrieved person in

any proceedings other than a proceeding under this Act,

she shall be bound to inform the Magistrate of the grant

of such relief.

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18.Section 3 of the DV Act deals with “domestic

violence” and reads as under:

“3. Definition of domestic violence.- For

the purposes of this Act, any act, omission or

commission or conduct of the respondent shall

constitute domestic violence in case it-

(a) harms or injures or endangers the health,

safety, life, limb or well-being, whether

mental or physical, of the aggrieved person

or tends to do so and includes causing

physical abuse, sexual abuse, verbal and

emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the

aggrieved person with a view to coerce her

or any other person related to her to meet

any unlawful demand for any dowry or

other property or valuable security; or

(c) has the effect of threatening the aggrieved

person or any person related to her by any

conduct mentioned in clause (a) or clause

(b); or

(d) otherwise injures or causes harm, whether

physical or mental, to the aggrieved person.

Explanation I.- For the purposes of this section,-

(i) "physical abuse" means any act or conduct

which is of such a nature as to cause

bodily pain, harm, or danger to life, limb,

or health or impair the health or

development of the aggrieved person and

includes assault, criminal intimidation and

criminal force;

(ii) "sexual abuse" includes any conduct of a

sexual nature that abuses, humiliates,

degrades or otherwise violates the dignity

of woman;

(iii) "verbal and emotional abuse" includes-

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(a) insults, ridicule, humiliation, name

calling and insults or ridicule specially

with regard to not having a child or a

male child; and

(b) repeated threats to cause physical

pain to any person in whom the

aggrieved person is interested.

(iv) "economic abuse" includes-

(a) deprivation of all or any economic or

financial resources to which the

aggrieved person is entitled under any

law or custom whether payable under

an order of a court or otherwise or

which the aggrieved person requires

out of necessity including, but not

limited to, household necessities for the

aggrieved person and her children, if

any, stridhan, property, jointly or

separately owned by the aggrieved

person, payment of rental related to

the shared household and

maintenance;

(b) disposal of household effects, any

alienation of assets whether movable

or immovable, valuables, shares,

securities, bonds and the like or other

property in which the aggrieved person

has an interest or is entitled to use by

virtue of the domestic relationship or

which may be reasonably required by

the aggrieved person or her children or

her stridhan or any other property

jointly or separately held by the

aggrieved person; and

(c) prohibition or restriction to continued

access to resources or facilities which

the aggrieved person is entitled to use

or enjoy by virtue of the domestic

relationship including access to the

shared household.

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Explanation II.- For the purpose of determining

whether any act, omission, commission or

conduct of the respondent constitutes"

domestic violence" under this section, the

overall facts and circumstances of the case

shall be taken into consideration.”

19.In order to examine as to whether there has been

any act, omission, or commission or conduct so as to

constitute domestic violence, it is necessary to examine

some of the definition clauses under Section 2 of the DV

Act. Section 2(a) of the DV Act defines the expression

“aggrieved person” as follows:

“2(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.”

Section 2(f) defines the expression “domestic

relationship” as follows:

“2(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.”

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Section 2(q) defines the expression “respondent” as

follows:

“2(q). “Respondent” means any adult male

person who is, or has been, in a domestic

relationship with the aggrieved person and

against whom the aggrieved person has sought

any relief under this Act:

Provided that an aggrieved wife or female

living in a relationship in the nature of a

marriage may also file a complaint against a

relative of the husband or the male partner.”

Section 2(s) defines the expression “shared household”

and reads as follows:

“2(s). “shared household” means a

household where the person aggrieved lives or

at any stage has lived in a domestic

relationship either singly or along with the

respondent and includes such a household

whether owned or tenanted either jointly by the

aggrieved person and the respondent, or

owned or tenanted by either of them in respect

of which either the aggrieved person or the

respondent or both jointly or singly have any

right, title, interest or equity and includes such

a household which may belong to the joint

family of which the respondent is a member,

irrespective of whether the respondent or the

aggrieved person has any right, title or interest

in the shared household.”

20.We are, in this case, concerned with a “live-in

relationship” which, according to the aggrieved person,

is a “relationship in the nature of marriage” and it is that

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relationship which has been disrupted in the sense that

the respondent failed to maintain the aggrieved person,

which, according to the appellant, amounts to “domestic

violence”. The respondent maintained the stand that

the relationship between the appellant and the

respondent was not a relationship in the nature of

marriage but a live-in-relationship simplicitor and the

alleged act, omission, commission or conduct of the

respondent would not constitute “domestic violence” so

as to claim any protection orders under Section 18, 19 or

20 of the DV Act.

21. We have to first examine whether the appellant

was involved in a domestic relationship with the

respondent. Section 2(f) refers to five categories of

relationship, such as, related by consanguinity,

marriage, relationship in the nature of marriage,

adoption, family members living together as a joint

family, of which we are, in this case, concerned with an

alleged relationship in the nature of marriage.

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22.Before we examine whether the respondent has

committed any act of domestic violence, we have to first

examine whether the relationship between them was a

“relationship in the nature of marriage” within the

definition of Section 3 read with Section 2(f) of the DV

Act. Before examining the term “relationship in the

nature of marriage”, we have to first examine what is

“marriage”, as understood in law.

MARRIAGE AND MARITAL RELATIONSHIP:

23.Marriage is often described as one of the basic civil

rights of man/woman, which is voluntarily undertaken by

the parties in public in a formal way, and once

concluded, recognizes the parties as husband and wife.

Three elements of common law marriage are (1)

agreement to be married (2) living together as husband

and wife, (3) holding out to the public that they are

married. Sharing a common household and duty to live

together form part of the ‘Consortium Omnis Vitae”

which obliges spouses to live together, afford each other

reasonable marital privileges and rights and be honest

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and faithful to each other. One of the most important

invariable consequences of marriage is the reciprocal

support and the responsibility of maintenance of the

common household, jointly and severally. Marriage as

an institution has great legal significance and various

obligations and duties flow out of marital relationship, as

per law, in the matter of inheritance of property,

successionship, etc. Marriage, therefore, involves legal

requirements of formality, publicity, exclusivity and all

the legal consequences flow out of that relationship.

24.Marriages in India take place either following the

personal Law of the Religion to which a party is belonged

or following the provisions of the Special Marriage Act.

Marriage, as per the Common Law, constitutes a

contract between a man and a woman, in which the

parties undertake to live together and support each

other. Marriage, as a concept, is also nationally and

internationally recognized. O’Regan, J., in Dawood

and Another v. Minister of Home Affairs and

Others 2000 (3) SA 936 (CC) noted as follows:

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“Marriage and the family are social

institutions of vital importance. Entering into

and sustaining a marriage is a matter of intense

private significance to the parties to that

marriage for they make a promise to one

another to establish and maintain an intimate

relationship for the rest of their lives which they

acknowledge obliges them to support one

another, to live together and to be faithful to

one another.

Such relationships are of

profound significance to the individuals

concerned. But such relationships have more

than personal significance at least in part

because human beings are social beings whose

humanity is expressed through their

relationships with others.

Entering into

marriage therefore is to enter into a

relationship that has public significance as well.

The institutions of marriage and the family

are important social institutions that provide for

the security, support and companionship of

members of our society and bear an important

role in the rearing of children. The celebration

of a marriage gives rise to moral and legal

obligations, particularly the reciprocal duty of

support placed upon spouses and their joint

responsibility for supporting and raising

children born of the marriage. These legal

obligations perform an important social

function. This importance is symbolically

acknowledged in part by the fact that marriage

is celebrated generally in a public ceremony,

often before family and close friends....”

25.South African Constitutional Court in various

judgments recognized the above mentioned principle. In

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Satchwell v. President of the Republic of South

Africa and Another 2002 (6) SA 1 (CC), Du Toit and

Another v. Minister of Welfare and Population

Development and Others (Lesbian and Gay

Equality Project as Amicus Curiae) 2003 (2) SA 198

(CC), the Constitutional Court of South Africa recognized

the right “free to marry and to raise family”. Section

15(3)(a)(i) of the Constitution of South Africa, in

substance makes provision for the recognition of

“marriages concluded under the tradition, or a system of

religious, personal or family law.” Section 9(3) of the

Constitution of South Africa reads as follows:

“The State may not unfairly discriminate

directly or indirectly against anyone on one or

more grounds, including race, gender, sex,

pregnancy, marital status, ethnic or social

origin, colour, sexual orientation, age, disability,

religion, conscience, belief, culture, language

and birth.”

26.Article 23 of the International Covenant on Civil and

Political Rights, 1966 (ICCPR) provides that:

“1.The family is the natural and fundamental group

unit of society and is entitled to protection by

society and the State.

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2.The right of men and women of marriageable

age to marry and to found a family shall be

recognized.

3.No marriage shall be entered into without the

free and full consent of the intending spouses.

4. States Parties to the present Covenant shall take

appropriate steps to ensure equality of rights

and responsibilities of spouses as to marriage,

during marriage and at its dissolution. In the

case of dissolution, provision shall be made for

the necessary protection of any children.”

27.Article 16 of the Universal Declaration of Human

Rights, 1948 provides that:

“1.Men and women of full age, without any

limitation due to race, nationality or religion,

have the right to marry and to found a family.

They are entitled to equal rights as to marriage,

during marriage and at it dissolution.

2.Marriage shall be entered into only with the free

and full consent of the intending spouses.

3.The family is the natural and fundamental group

unit of society and is entitled to protection by

society and the State.”

28.Parties in the present case are Hindus by religion

and are governed by the Hindu Marriage Act, 1955.

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The expression “marriage”, as stated, is not defined

under the Hindu Marriage Act, but the “conditions for a

Hindu marriage” are dealt with in Section 5 of the Hindu

Marriage Act and which reads as under:

“5. Conditions for a Hindu marriage - A

marriage may be solemnized between any two

hindus, if the following conditions are fulfilled,

namely:-

(i) neither party has a spouse living at the

time of the marriage

(ii) at the time of the marriage, neither

party-

(a) is incapable of giving a valid

consent to it in consequence of

unsoundness of mind; or

(b) though capable of giving a valid

consent, has been suffering from

mental disorder of such a kind or to

such an extent as to be unfit for

marriage and the procreation of

children; or

(c) has been subject to recurrent

attacks of insanity;

(iii) the bridegroom has completed the age of

twenty- one years and the bride the age of

eighteen years at the time of the marriage;

(iv) the parties are not within the degrees of

prohibited relationship unless the custom or

usage governing each of them permits of a

marriage between the two;

(v) the parties are not sapindas of each other,

unless the custom or usage governing each

Page 30 30

of them permits of a marriage between the

two.”

29.Section 7 of the Hindu Marriage Act deals with the

“Ceremonies for a Hindu marriage” and reads as follows:

“7. Ceremonies for a Hindu marriage. -

(1) A Hindu marriage may be solemnized in

accordance with the customary rites and

ceremonies of either party thereto.

(2) Where such rites and ceremonies

include the saptapadi (that is, the taking

of seven steps by the bridegroom and

the bride jointly before the sacred fire),

the marriage becomes complete and

binding when the seventh step is taken.”

30.Entering into a marriage, therefore, either through

the Hindu Marriage Act or the Special Marriage Act or

any other Personal Law, applicable to the parties, is

entering into a relationship of “public significance”, since

marriage being a social institution, many rights and

liabilities flow out of that legal relationship. The concept

of marriage as a “civil right” has been recognised by

various courts all over the world, for example, Skinner

v. Oklahoma 316 US 535 (1942), Perez v. Lippold

198 P.2d 17, 20.1 (1948), Loving v. Virginia 388 US 1

(1967).

Page 31 31

31.We have referred to, in extenso, about the concept

of “marriage and marital relationship” to indicate that

the law has distinguished between married and

unmarried people, which cannot be said to be unfair

when we look at the rights and obligations which flow

out of the legally wedded marriage. A married couple

has to discharge legally various rights and obligations,

unlike the case of persons having live-in relationship or,

marriage-like relationship or defacto relationship.

32.Married couples who choose to marry are fully

cognizant of the legal obligation which arises by the

operation of law on solemnization of the marriage and

the rights and duties they owe to their children and the

family as a whole, unlike the case of persons entering

into live-in relationship. T his Court in Pinakin

Mahipatray Rawal v. State of Gujarat (2013) 2

SCALE 198 held that marital relationship means the

legally protected marital interest of one spouse to

another which include marital obligation to another like

companionship, living under the same roof, sexual

Page 32 32

relation and the exclusive enjoyment of them, to have

children, their up-bringing, services in the home,

support, affection, love, liking and so on.

RELATIONSHIP IN THE NATURE OF MARRIAGE :

33.Modern Indian society through the DV Act

recognizes in reality, various other forms of familial

relations, shedding the idea that such relationship can

only be through some acceptable modes hitherto

understood. Section 2(f), as already indicated, deals with

a relationship between two persons (of the opposite sex)

who live or have lived together in a shared household

when they are related by:

(a) Consanguinity

(b) Marriage

(c) Through a relationship in the nature of

marriage

(d) Adoption

(e) Family members living together as joint

family.

34.The definition clause mentions only five categories

of relationships which exhausts itself since the

Page 33 33

expression “means”, has been used. When a definition

clause is defined to “mean” such and such, the

definition is prima facie restrictive and exhaustive.

Section 2(f) has not used the expression “include” so as

to make the definition exhaustive. It is in that context

we have to examine the meaning of the expression

“relationship in the nature of marriage”.

35.We have already dealt with what is “marriage”,

“marital relationship” and “marital obligations”. Let us

now examine the meaning and scope of the expression

“relationship in the nature of marriage” which falls

within the definition of Section 2(f) of the DV Act. Our

concern in this case is of the third enumerated category

that is “relationship in the nature of marriage” which

means a relationship which has some inherent or

essential characteristics of a marriage though not a

marriage legally recognized, and, hence, a comparison

of both will have to be resorted, to determine whether

the relationship in a given case constitutes the

characteristics of a regular marriage.

Page 34 34

36.Distinction between the relationship in the nature

of marriage and marital relationship has to be noted

first. Relationship of marriage continues,

notwithstanding the fact that there are differences of

opinions, marital unrest etc., even if they are not sharing

a shared household, being based on law. But live-in-

relationship is purely an arrangement between the

parties unlike, a legal marriage. Once a party to a live-

in-relationship determines that he/she does not wish to

live in such a relationship, that relationship comes to an

end. Further, in a relationship in the nature of marriage,

the party asserting the existence of the relationship, at

any stage or at any point of time, must positively prove

the existence of the identifying characteristics of that

relationship, since the legislature has used the

expression “in the nature of”.

37.Reference to certain situations, in which the

relationship between an aggrieved person referred to in

Section 2(a) and the respondent referred to in Section

2(q) of the DV Act, would or would not amount to a

Page 35 35

relationship in the nature of marriage, would be

apposite. Following are some of the categories of cases

which are only illustrative:

(a) Domestic relationship between an unmarried

adult woman and an unmarried adult male:

Relationship between an unmarried adult woman

and an unmarried adult male who lived or, at any

point of time lived together in a shared household,

will fall under the definition of Section 2(f) of the

DV Act and in case, there is any domestic violence,

the same will fall under Section 3 of the DV Act and

the aggrieved person can always seek reliefs

provided under Chapter IV of the DV Act.

(b) Domestic relationship between an unmarried

woman and a married adult male : Situations may

arise when an unmarried adult women knowingly

enters into a relationship with a married adult

male. The question is whether such a relationship

is a relationship “in the nature of marriage” so as

to fall within the definition of Section 2(f) of the DV

Act.

(c) Domestic relationship between a married

adult woman and an unmarried adult male :

Situations may also arise where an adult married

woman, knowingly enters into a relationship with

an unmarried adult male, the question is whether

Page 36 36

such a relationship would fall within the expression

relationship “in the nature of marriage”.

(d) Domestic relationship between an unmarried

woman unknowingly enters into a relationship with

a married adult male: An unmarried woman

unknowingly enters into a relationship with a

married adult male, may, in a given situation, fall

within the definition of Section 2(f) of the DV Act

and such a relationship may be a relationship in the

“nature of marriage”, so far as the aggrieved

person is concerned.

(e) Domestic relationship between same sex

partners (Gay and Lesbians): DV Act does not

recognize such a relationship and that relationship

cannot be termed as a relationship in the nature of

marriage under the Act. Legislatures in some

countries, like the Interpretation Act, 1984

(Western Australia), the Interpretation Act, 1999

(New Zealand), the Domestic Violence Act, 1998

(South Africa), the Domestic Violence, Crime and

Victims Act, 2004 (U.K.), have recognized the

relationship between the same sex couples and

have brought these relationships into the definition

of Domestic relationship.

38.Section 2(f) of the DV Act though uses the

expression “two persons”, the expression “aggrieved

Page 37 37

person” under Section 2(a) takes in only “woman”,

hence, the Act does not recognize the relationship of

same sex (gay or lesbian) and, hence, any act, omission,

commission or conduct of any of the parties, would not

lead to domestic violence, entitling any relief under the

DV Act.

39.We should, therefore, while determining whether

any act, omission, commission or conduct of the

respondent constitutes “domestic violence”, have a

common sense/balanced approach, after weighing up

the various factors which exist in a particular

relationship and then reach a conclusion as to whether a

particular relationship is a relationship in the “nature of

marriage”. Many a times, it is the common intention of

the parties to that relationship as to what their

relationship is to be, and to involve and as to their

respective roles and responsibilities, that primarily

governs that relationship. Intention may be expressed

or implied and what is relevant is their intention as to

matters that are characteristic of a marriage. The

Page 38 38

expression “relationship in the nature of marriage”, of

course, cannot be construed in the abstract, we must

take it in the context in which it appears and apply the

same bearing in mind the purpose and object of the Act

as well as the meaning of the expression “in the nature

of marriage”. Plight of a vulnerable section of women in

that relationship needs attention. Many a times, the

women are taken advantage of and essential

contribution of women in a joint household through

labour and emotional support have been lost sight of

especially by the women who fall in the categories

mentioned in (a) and (d) supra. Women, who fall under

categories (b) and (c), stand on a different footing,

which we will deal with later. In the present case, the

appellant falls under category (b), referred to in

paragraph 37(b) of the Judgment.

40.We have, therefore, come across various

permutations and combinations, in such relationships,

and to test whether a particular relationship would fall

within the expression “relationship in the nature of

Page 39 39

marriage”, certain guiding principles have to be evolved

since the expression has not been defined in the Act.

41.Section 2(f) of the DV Act defines “domestic

relationship” to mean, inter alia, a relationship between

two persons who live or have lived together at such

point of time in a shared household, through a

relationship in the nature of marriage. The expression

“relationship in the nature of marriage” is also described

as defacto relationship, marriage – like relationship,

cohabitation, couple relationship, meretricious

relationship (now known as committed intimate

relationship) etc.

42.Courts and legislatures of various countries now

began to think that denying certain benefits to a certain

class of persons on the basis of their marital status is

unjust where the need of those benefits is felt by both

unmarried and married cohabitants. Courts in various

countries have extended certain benefits to

heterosexual unmarried cohabitants. Legislatures too,

Page 40 40

of late, through legislations started giving benefits to

heterosexual cohabitants.

43.In U.K. through the Civil Partnership Act, 2004, the

rights of even the same-sex couple have been

recognized. Family Law Act, 1996, through the Chapter

IV, titled ‘Family Homes and Domestic Violence’,

cohabitants can seek reliefs if there is domestic violence.

Canada has also enacted the Domestic Violence

Intervention Act, 2001. In USA, the violence against

woman is a crime with far-reaching consequences under

the Violence Against Women Act, 1994 (now Violence

Against Women Reauthorization Act, 2013).

44.The Interpretation Act, 1984 (Australia) has laid

down certain indicators to determine the meaning of “de

facto relationship”, which are as follows:

“13A . De facto relationship and de

facto partner, references to

(1) A reference in a written law to a de

facto relationship shall be construed as a

reference to a relationship (other than a

legal marriage) between 2 persons who

live together in a marriage-like

relationship.

Page 41 41

(2) The following factors are indicators of

whether or not a de facto relationship

exists between 2 persons, but are not

essential —

(a) the length of the relationship

between them;

(b) whether the 2 persons have

resided together;

(c) the nature and extent of common

residence;

(d) whether there is, or has been, a

sexual relationship between them;

(e) the degree of financial dependence

or interdependence, and any

arrangements for financial support,

between them;

(f) the ownership, use and acquisition

of their property (including property

they own individually);

(g) the degree of mutual commitment

by them to a shared life;

(h) whether they care for and support

children;

(i) the reputation, and public aspects,

of the relationship between them.

xxx xxx xxx

xxx xxx xxx”

45.The Domestic and Family Violence Protection Act,

2012 (Queensland) has defined the expression “couple

relationship” to mean as follows”:

“18. Meaning of couple relationship

(1) xxx xxx xxx

(2)In deciding whether a couple

relationship exists, a court may have

regard to the following –

Page 42 42

(a)the circumstances of the

relationship between the

persons, including, for example–

(i)the degree of trust between

the persons; and

(ii) the level of each person’s

dependence on, and

commitment to, the other

person;

(b)the length of time for which

the relationship has existed or

did exist;

(c)the frequency of contact

between the persons;

(d)the degree of intimacy

between the persons.

(3) Without limiting sub-section (2),

the court may consider the following

factors in deciding whether a couple

relationship exists-

(a)Whether the trust,

dependence or commitment is

or was of the same level;

(b)Whether one of the persons is

or was financially dependent on

the other;

(c)Whether the persons jointly

own or owned any property;

(d)Whether the persons have or

had joint bank accounts;

(e)Whether the relationship

involves or involved a

relationship of a sexual nature;

(f)Whether the relationship is or

was exclusive.

Page 43 43

(4)A couple relationship may exist

even if the court makes a negative

finding in relation to any or all of the

factors mentioned in subsection (3).

(5)A couple relationship may exist

between two persons whether the

persons are of the same or a different

gender.

(6)A couple relationship does not exist

merely because two persons date or

dated each other on a number of

occasions.”

46.The Property (Relationships) Act, 1984 of North

South Wales, Australia also provides for some guidelines

with regard to the meaning and content of the

expression “de facto relationship”, which reads as

follows:

“4 De facto relationships

(1) For the purposes of this Act, a de facto

relationship is a relationship between two

adult persons:

(a) who live together as a couple, and

(b) who are not married to one another

or related by family.

(2) In determining whether two persons are in

a de facto relationship, all the circumstances

of the relationship are to be taken into

account, including such of the following

Page 44 44

matters as may be relevant in a particular

case:

(a) the duration of the relationship,

(b) the nature and extent of common

residence,

(c) whether or not a sexual relationship

exists,

(d) the degree of financial dependence

or interdependence, and any

arrangements for financial support,

between the parties,

(e) the ownership, use and acquisition of

property,

(f) the degree of mutual commitment to

a shared life,

(g) the care and support of children,

(h) the performance of household

duties,

(i) the reputation and public aspects of

the relationship.

(3) No finding in respect of any of the matters

mentioned in subsection (2) (a)-(i), or in

respect of any combination of them, is to be

regarded as necessary for the existence of a

de facto relationship, and a court determining

whether such a relationship exists is entitled

to have regard to such matters, and to attach

such weight to any matter, as may seem

appropriate to the court in the circumstances

of the case.

(4) Except as provided by section 6, a

reference in this Act to a party to a de facto

relationship includes a reference to a person

who, whether before or after the

Page 45 45

commencement of this subsection, was a

party to such a relationship.”

47.“In Re Marriage of Lindsay, 101 Wn.2d 299

(1984), Litham v. Hennessey 87 Wn.2d 550 (1976),

Pennington 93 Wash.App. at 917, the Courts in United

States took the view that the relevant factors

establishing a meretricious relationship include

continuous cohabitation, duration of the relationship,

purpose of the relationship, and the pooling of resources

and services for joint projects. The Courts also ruled

that a relationship need not be “long term” to be

characterized as meretricious relationship. While a

long term relationship is not a threshold requirement,

duration is a significant factor. Further, the Court also

noticed that a short term relationship may be

characterized as a meretricious, but a number of other

important factors must be present.

48.In Stack v. Dowden [2007] 2 AC 432, Baroness

Hale of Richmond said:

“Cohabitation comes in many different

shapes and sizes. People embarking on their

Page 46 46

first serious relationship more commonly

cohabit than marry. Many of these

relationships may be quite short-lived and

childless. But most people these days

cohabit before marriage….. So many

couples are cohabiting with a view to

marriage at some later date – as long ago as

1998 the British Household Panel Survey

found that 75% of current cohabitants

expected to marry, although only a third had

firm plans: John Ermisch, Personal

Relationships and Marriage Expectations

(2000) Working Papers of the Institute of

Social and Economic Research: Paper 2000-

27. Cohabitation is much more likely to end

in separation than is marriage, and

cohabitations which end in separation tend to

last for a shorter time than marriages which

end in divorce. But increasing numbers of

couples cohabit for long periods without

marrying and their reasons for doing so vary

from conscious rejection of marriage as a

legal institution to regarding themselves ‘as

good as married’ anyway: Law Commission,

Consultation Paper No 179, Part 2, para

2.45.”

49.In MW v. The Department of Community

Services [2008] HCA 12, Gleeson, CJ, made the

following observations:

“Finn J was correct to stress the difference

between living together and living together

‘as a couple in a relationship in the nature of

marriage or civil union’. The relationship

between two people who live together, even

though it is a sexual relationship, may, or

may not, be a relationship in the nature of

Page 47 47

marriage or civil union. One consequence of

relationships of the former kind becoming

commonplace is that it may now be more

difficult, rather than easier, to infer that they

have the nature of marriage or civil union, at

least where the care and upbringing of

children are not involved.”

50.In Lynam v. The Director-General of Social

Security (1983) 52 ALR 128, the Court considered

whether a man and a woman living together ‘as husband

and wife on a bona fide domestic basis’ and Fitzgerald, J.

said:

“Each element of a relationship draws its

colour and its significance from the other

elements, some of which may point in one

direction and some in the other. What must

be looked at is the composite picture. Any

attempt to isolate individual factors and to

attribute to them relative degrees of

materiality or importance involves a denial of

common experience and will almost

inevitably be productive of error. The

endless scope for differences in human

attitudes and activities means that there will

be an almost infinite variety of combinations

of circumstances which may fall for

consideration. In any particular case, it will

be a question of fact and degree, a jury

question, whether a relationship between two

unrelated persons of the opposite sex meets

the statutory test.”

Page 48 48

51.Tipping, J. in Thompson v. Department of Social

Welfare (1994) 2 SZLR 369 (HC), listed few

characteristics which are relevant to determine

relationship in the nature of marriage as follows:

“(1)Whether and how frequently the parties

live in the same house.

(2)Whether the parties have a sexual

relationship.

(3)Whether the parties give each other

emotional support and companionship.

(4)Whether the parties socialize together

or attend activities together as a couple.

(5)Whether and to what extent the parties

share the responsibility for bringing up

and supporting any relevant children.

(6) Whether the parties share household

and other domestic tasks.

(7)Whether the parties share costs and

other financial responsibilities by the

pooling of resources or otherwise.

(8)Whether the parties run a common

household, even if one or other partner

is absent for periods of time.

(9)Whether the parties go on holiday

together.

(10)Whether the parties conduct themselves

towards, and are treated by friends,

relations and others as if they were a

married couple.”

52.Live-in relationship, as such, as already indicated, is

a relationship which has not been socially accepted in

India, unlike many other countries. In Lata Singh v.

Page 49 49

State of U.P. [AIR 2006 SC 2522] it was observed that

a live-in relationship between two consenting adults of

heterosexual sex does not amount to any offence even

though it may be perceived as immoral. However, in

order to provide a remedy in Civil Law for protection of

women, from being victims of such relationship, and to

prevent the occurrence of domestic violence in the

society, first time in India, the DV Act has been enacted

to cover the couple having relationship in the nature of

marriage, persons related by consanguinity, marriages

etc. We have few other legislations also where reliefs

have been provided to woman placed in certain

vulnerable situations.

53.Section 125 Cr.P.C., of course, provides for

maintenance of a destitute wife and Section 498A IPC is

related to mental cruelty inflicted on women by her

husband and in-laws. Section 304-B IPC deals with the

cases relating to dowry death. The Dowry Prohibition

Act, 1961 was enacted to deal with the cases of dowry

demands by the husband and family members. The

Page 50 50

Hindu Adoptions and Maintenance Act, 1956 provides for

grant of maintenance to a legally wedded Hindu wife,

and also deals with rules for adoption. The Hindu

Marriage Act, 1955 refers to the provisions dealing with

solemnization of marriage also deals with the provisions

for divorce. For the first time, through, the DV Act, the

Parliament has recognized a “relationship in the nature

of marriage” and not a live-in relationship simplicitor.

54.We have already stated, when we examine whether

a relationship will fall within the expression “relationship

in the nature of marriage” within the meaning of Section

2(f) of the DV Act, we should have a close analysis of the

entire relationship, in other words, all facets of the

interpersonal relationship need to be taken into account.

We cannot isolate individual factors, because there may

be endless scope for differences in human attitudes and

activities and a variety of combinations of circumstances

which may fall for consideration. Invariably, it may be a

question of fact and degree, whether a relationship

Page 51 51

between two unrelated persons of the opposite sex

meets the tests judicially evolved.

55.We may, on the basis of above discussion cull out

some guidelines for testing under what circumstances, a

live-in relationship will fall within the expression

“relationship in the nature of marriage” under Section

2(f) of the DV Act. The guidelines, of course, are not

exhaustive, but will definitely give some insight to such

relationships.

(1)Duration of period of relationship

Section 2(f) of the DV Act has used the expression

“at any point of time”, which means a reasonable

period of time to maintain and continue a

relationship which may vary from case to case,

depending upon the fact situation.

(2)Shared household

The expression has been defined under Section 2(s)

of the DV Act and, hence, need no further

elaboration.

(3)Pooling of Resources and Financial Arrangements

Supporting each other, or any one of them,

financially, sharing bank accounts, acquiring

immovable properties in joint names or in the name

Page 52 52

of the woman, long term investments in business,

shares in separate and joint names, so as to have a

long standing relationship, may be a guiding factor.

(4)Domestic Arrangements

Entrusting the responsibility, especially on the

woman to run the home, do the household activities

like cleaning, cooking, maintaining or upkeeping the

house, etc. is an indication of a relationship in the

nature of marriage.

(5)Sexual Relationship

Marriage like relationship refers to sexual

relationship, not just for pleasure, but for emotional

and intimate relationship, for procreation of

children, so as to give emotional support,

companionship and also material affection, caring

etc.

(6)Children

Having children is a strong indication of a

relationship in the nature of marriage. Parties,

therefore, intend to have a long standing

relationship. Sharing the responsibility for bringing

up and supporting them is also a strong indication.

(7)Socialization in Public

Holding out to the public and socializing with

friends, relations and others, as if they are husband

and wife is a strong circumstance to hold the

relationship is in the nature of marriage.

Page 53 53

(8)Intention and conduct of the parties

Common intention of parties as to what their

relationship is to be and to involve, and as to their

respective roles and responsibilities, primarily

determines the nature of that relationship.

STATUS OF THE APPELLANT

56.Appellant, admittedly, entered into a live-in-

relationship with the respondent knowing that he was

married person, with wife and two children, hence, the

generic proposition laid down by the Privy Council in

Andrahennedige Dinohamy v. Wiketunge

Liyanapatabendage Balshamy , AIR 1927 PC 185,

that where a man and a woman are proved to have lived

together as husband and wife, the law presumes that

they are living together in consequence of a valid

marriage will not apply and, hence, the relationship

between the appellant and the respondent was not a

relationship in the nature of a marriage, and the status

of the appellant was that of a concubine. A concubine

cannot maintain a relationship in the nature of marriage

because such a relationship will not have exclusivity and

Page 54 54

will not be monogamous in character. Reference may

also be made to the judgments of this Court in Badri

Prasad v. Director of Consolidation 1978 (3) SCC

527 and Tulsa v. Durghatiya 2008 (4) SCC 520. In

Gokal Chand v. Parvin Kumari AIR 1952 SC 231 this

Court held that the continuous cohabitation of man and

woman as husband and wife may raise the presumption

of marriage, but the presumption which may be drawn

from long cohabition is a rebuttable one and if there are

circumstances which weaken and destroy that

presumption, the Court cannot ignore them. Polygamy,

that is a relationship or practice of having more than one

wife or husband at the same time, or a relationship by

way of a bigamous marriage that is marrying someone

while already married to another and/or maintaining an

adulterous relationship that is having voluntary sexual

intercourse between a married person who is not one’s

husband or wife, cannot be said to be a relationship in

the nature of marriage.

Page 55 55

57.We may note, in the instant case, there is no

necessity to rebut the presumption, since the appellant

was aware that the respondent was a married person

even before the commencement of their relationship,

hence the status of the appellant is that of a concubine

or a mistress, who cannot enter into relationship in the

nature of a marriage. Long standing relationship as a

concubine, though not a relationship in the nature of a

marriage, of course, may at times, deserves protection

because that woman might not be financially

independent, but we are afraid that DV Act does not take

care of such relationships which may perhaps call for an

amendment of the definition of Section 2(f) of the DV

Act, which is restrictive and exhaustive.

58.Velusamy case (supra) stated that instances are

many where married person maintain and support such

types of women, either for sexual pleasure or sometimes

for emotional support. Woman, a party to that

relationship does suffer social disadvantages and

prejudices, and historically, such a person has been

Page 56 56

regarded as less worthy than the married woman.

Concubine suffers social ostracism through the denial of

status and benefits, who cannot, of course, enter into a

relationship in the nature of marriage.

59.We cannot, however, lose sight of the fact that

inequities do exist in such relationships and on breaking

down such relationship, the woman invariably is the

sufferer. Law of Constructive Trust developed as a

means of recognizing the contributions, both pecuniary

and non-pecuniary, perhaps comes to their aid in such

situations, which may remain as a recourse for such a

woman who find herself unfairly disadvantaged.

Unfortunately, there is no express statutory provision to

regulate such types of live-in relationships upon

termination or disruption since those relationships are

not in the nature of marriage. We can also come across

situations where the parties entering into live-in-

relationship and due to their joint efforts or otherwise

acquiring properties, rearing children, etc. and disputes

may also arise when one of the parties dies intestate.

Page 57 57

60.American Jurisprudence, Second Edition, Vol. 24

(2008) speaks of Rights and Remedies of property

accumulated by man and woman living together in illicit

relations or under void marriage, which reads as under:

“Although the courts have recognized the

property rights of persons cohabiting without

benefit of marriage, these rights are not

based on the equitable distribution provisions

of the marriage and divorce laws because the

judicial recognition of mutual property rights

between unmarried cohabitants would violate

the policy of the state to strengthen and

preserve the integrity of marriage, as

demonstrated by its abolition of common-law

marriage.”

61.Such relationship, it may be noted, may endure for

a long time and can result pattern of dependency and

vulnerability, and increasing number of such

relationships, calls for adequate and effective protection,

especially to the woman and children born out of that

live-in-relationship. Legislature, of course, cannot

promote pre-marital sex, though, at times, such

relationships are intensively personal and people may

express their opinion, for and against. See S.

Page 58 58

Khushboo v. Kanniammal and another (2010) 5 SCC

600.

62.Parliament has to ponder over these issues, bring in

proper legislation or make a proper amendment of the

Act, so that women and the children, born out of such

kinds of relationships be protected, though those types

of relationship might not be a relationship in the nature

of a marriage.

63.We may now consider whether the tests, we have

laid down, have been satisfied in the instant case. We

have found that the appellant was not ignorant of the

fact that the respondent was a married person with wife

and two children, hence, was party to an adulterous and

bigamous relationship. Admittedly, the relationship

between the appellant and respondent was opposed by

the wife of the respondent, so also by the parents of the

appellant and her brother and sister and they knew that

they could not have entered into a legal marriage or

maintained a relationship in the nature of marriage.

Parties never entertained any intention to rear children

Page 59 59

and on three occasions the pregnancy was terminated.

Having children is a strong circumstance to indicate a

relationship in the nature of marriage. No evidence has

been adduced to show that the parties gave each other

mutual support and companionship. No material has

been produced to show that the parties have ever

projected or conducted themselves as husband and wife

and treated by friends, relatives and others, as if they

are a married couple. On the other hand, it is the

specific case of the appellant that the respondent had

never held out to the public that she was his wife. No

evidence of socialization in public has been produced.

There is nothing to show that there was pooling of

resources or financial arrangements between them. On

the other hand, it is the specific case of the appellant

that the respondent had never opened any joint account

or executed any document in the joint name. Further, it

was also submitted that the respondent never permitted

to suffix his name after the name of the appellant. No

evidence is forthcoming, in this case, to show that the

respondent had caused any harm or injuries or

Page 60 60

endangered the health, safely, life, limb or well-being, or

caused any physical or sexual abuse on the appellant,

except that he did not maintain her or continued with the

relationship.

ALIENATION OF AFFECTION

64.Appellant had entered into this relationship knowing

well that the respondent was a married person and

encouraged bigamous relationship. By entering into such

a relationship, the appellant has committed an

intentional tort, i.e. interference in the marital

relationship with intentionally alienating respondent from

his family, i.e. his wife and children. If the case set up by

the appellant is accepted, we have to conclude that

there has been an attempt on the part of the appellant

to alienate respondent from his family, resulting in loss

of marital relationship, companionship, assistance, loss

of consortium etc., so far as the legally wedded wife and

children of the respondent are concerned, who resisted

the relationship from the very inception. Marriage and

family are social institutions of vital importance.

Page 61 61

Alienation of affection, in that context, is an intentional

tort, as held by this Court in Pinakin Mahipatray

Rawal case (supra), which gives a cause of action to the

wife and children of the respondent to sue the appellant

for alienating the husband/father from the company of

his wife/children, knowing fully well they are legally

wedded wife/children of the respondent..

65.We are, therefore, of the view that the appellant,

having been fully aware of the fact that the respondent

was a married person, could not have entered into a live-

in relationship in the nature of marriage. All live-in-

relationships are not relationships in the nature of

marriage. Appellant’s and the respondent’s relationship

is, therefore, not a “relationship in the nature of

marriage” because it has no inherent or essential

characteristic of a marriage, but a relationship other

than “in the nature of marriage” and the appellant’s

status is lower than the status of a wife and that

relationship would not fall within the definition of

“domestic relationship” under Section 2(f) of the DV Act.

Page 62 62

If we hold that the relationship between the appellant

and the respondent is a relationship in the nature of a

marriage, we will be doing an injustice to the legally

wedded wife and children who opposed that relationship.

Consequently, any act, omission or commission or

conduct of the respondent in connection with that type

of relationship, would not amount to “domestic violence”

under Section 3 of the DV Act.

66.We have, on facts, found that the appellant’s status

was that of a mistress, who is in distress, a survivor of a

live-in relationship which is of serious concern, especially

when such persons are poor and illiterate, in the event of

which vulnerability is more pronounced, which is a

societal reality. Children born out of such relationship

also suffer most which calls for bringing in remedial

measures by the Parliament, through proper legislation.

67.We are conscious of the fact that if any direction is

given to the respondent to pay maintenance or

monetary consideration to the appellant, that would be

at the cost of the legally wedded wife and children of the

Page 63 63

respondent, especially when they had opposed that

relationship and have a cause of action against the

appellant for alienating the companionship and affection

of the husband/parent which is an intentional tort.

68.We, therefore, find no reason to interfere with the

judgment of the High Court and the appeal is accordingly

dismissed.

………………………… .……J.

(K.S. Radhakrishnan)

……………………………… J.

(Pinaki Chandra Ghose)

New Delhi

November 26, 2013