Anil @ Anilkumaar v. State of Kerala & Bijimol

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 8TH DAY OF JANUARY 2014/18TH POUSHA, 1935** **Crl.MC.No. 767 of 2013** **-------------------------CRL.A.NO. 339/2011 OF IST ADDL.SESSIONS COURT,KOLLAM DATED 16-11-2012 MC NO. 110/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT III, PUNALUR DATED 28-07-2011** **...** **PETITIONER(S)/ACCUSED:** **------------------------------------------** **ANIL @ ANILKUMAR, S/O.SRI.RAJAN, AGED 42 YEARS, MUKKAMBALAVILA VEEDU, VAZHATHOOR, HOSPITAL JUNCTION, NEYYATTINKARA P.O., THIRUVANANTHAPURAM DIST.** **BY ADVS.SRI.T.RAVIKUMAR SMT.ANJU P.NAIR** **RESPONDENT(S)/RESPONDENTS:** **------------------------------------------------------** **1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. BIJIMOL, D/O.SRI.JOHN, AGED 30 YEARS, CHARUVILAPUTHEN VEEDU, MELILA KIZHAKKU MURI, MELILA VILLAGE, KOTTARAKKARA - 691 508.** **R1 BY PUBLIC PROSECUTOR SRI.DHANESH MATHEW MANJOORAN R2 BY ADV. SRI.ALEXANDER GEORGE** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19/12/2013,THE COURT ON 08/01/2014 PASSED THE FOLLOWING:** **Kss** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - Crl.M.C No. 767 of 2013 - - - - - - - - - - - - - - - - - - - - - - Dated this the 8[th] day of January, 2014. ## **ORDER** Aggrieved by the order dated 28.7.2011 in M.C. No. 110 of 2011 before the Judicial First Class Magistrate-III, Punalur, which was confirmed in Crl.Appeal No. 339 of 2011 by the Additional Sessions Court, Kollam by order dated 16.11.2012, the respondent before the JFCM Court has come up with this petition filed under Section 482 of the Code of Criminal Procedure. 2. The petitioner before the JFCM Court invoked the provisions of the Protection of Woman from Domestic Violence Act claiming maintenance, residence and compensation order. 3. According to the claim put forward by the petitioner in the original proceedings, the respondent married Crl.M.C.767/2013. 2 her at the Sub Registrar's Office in the presence of some relatives and neighbours. Two days they resided with the family of the petitioner and then they took up residence in the house of the respondent. The marriage was preceded by an engagement ceremony at Mar Aprem Parish Hall, Koippuram and it is claimed that at the time of marriage a fridge was given and at the time of engagement a sum of Rs.1,50,000/was given by the petitioner's father. In addition 15 sovereigns of gold were also given. The allegation is that on the fourth day of marriage, the respondent began to ill-treat the petitioner and he had utilized the gold ornaments and money given for discharging his debts. Soon thereafter, he started manhandling the petitioner demanding more dowry. On 6.11.2008, the respondent, his mother and sister, demanding more dowry brutally manhandled the petitioner and she had to return to her house unable to bear the torture any more. The respondent is alleged to have gone over to the house of the Crl.M.C.767/2013. 3 petitioner and demanded that she should return with him and also stated that she should bring more dowry. When she refused to go along with him, she was assaulted. As a result of the mediation, petitioner's parents agreed to give Rs. One Lakh more within one year and also that the couple should take up a rented residence. It was do done. Suffice to say, things did not improve and she was again ill-treated for which she had to undergo treatment in the hospital. Petitioner before the court below contended that the respondent is bound to maintain her and provide her with the necessities of life. On the basis of these allegations, the petition was laid for various reliefs. 4. The petition was resisted by the respondent who denied having any sort of relationship with the victim and it is also contended that there is no marriage between them. He disputed that he had received any amount as dowry or gold ornaments as claimed by the petitioner and he denied that any Crl.M.C.767/2013. 4 engagement much less than any marriage had taken place as alleged. The respondent was an employee of the Government Hospital at Neyyattinkara and he had undergone de-addiction treatment at Vellanadu. He happened to meet one Biju, a distant relative of the petitioner and Biju and his wife Susheela proposed that the respondent should marry the petitioner and he was taken to the petitioner's house. The respondent would say that later on under a fraud played on him, his signature was obtained on a document. It was pointed out that the petitioner had invoked the jurisdiction of the Family Court by filing M.C. 77 of 2009 and O.P. 231 of 2009 for various reliefs and the M.C. was dismissed by the Family Court finding that there is no legal marriage between the petitioner and the respondent. Another O.P. is pending consideration. The order of the Family Court holding that the petitioner is not entitled to maintenance as there was no valid marriage has become final and to get over the said order of Crl.M.C.767/2013. 5 the Family Court, the present proceedings have been initiated. Contending that the petitioner was not entitled to any relief under the Act, he prayed for a dismissal of the petition. 5. The evidence in the case consists of the testimony of P.W.1 and documents marked as Exts. P1 to P6 marked from the side of the petitioner. Ext.D1 was marked from the side of the respondent. No oral evidence was adduced by the respondent. The trial court mainly relying on the decision reported in Velusami v. Patchaiammal (2010(4) K.L.T. 384) came to the conclusion that there was domestic relationship in the nature of marriage and therefore the petitioner was entitled to the reliefs under the Act and the petition was allowed giving the following reliefs : “1) Respondent is restrained from committing any act of domestic violence in the form of physical torture of the petitioner. 2) Respondent is directed to pay Rs.1,500/- per month to the petitioner as maintenance from the date of filing of this petition. Crl.M.C.767/2013. 6 3) Respondent is directed to pay a compensation of Rs.25,000/- to the petitioner for the domestic violence suffered. The maintenance amount is to be paid on or before the 5[th] day of every month and the petitioner is entitled to get 6% interest per annum if any default in payment is made. The amount of compensation is to be paid within three months from today and the respondent is to pay an interest @ 6% per annum if he fails to pay it within time. The SHO, Kunnikode Police Station is directed to ensure the execution of this order. ...” 6. The aggrieved respondent carried the matter in appeal as Crl.Appeal No. 339 of 2011 before the First Additional Sessions Court, Kollam. The said court by a cryptic order dismissed the appeal approving the decision of the trial court based on the decision relied on by the trial court. 7. Learned counsel appearing for the petitioner before this Court contended that the courts below have erred both on facts and in law in granting relief to the petitioner. Crl.M.C.767/2013. 7 According to the petitioner, Ext.P1 agreement on which considerable reliance is placed on is only an agreement to marry and is not a contract of marriage. Learned counsel pointed out that the petitioner has no consistent case regarding the marriage. At one point of time the respondent herein has stated that the marriage had taken place in the Registrar's office, while in another place she would say that the marriage had taken place at her house. It is also pointed out that as on the date of marriage, i.e., 20.10.1997, there was no church known as CSI Town Church, Neyyattinkara. The betrothal ceremony as claimed was not conducted. Learned counsel for the petitioner had pointed out that the Family Court has specifically found that there was no legal marriage and that has become final. Inspite of the fact that there was such a finding, the courts below have gone on to hold that there was a relationship in the nature of marriage so as to invoke the provisions of Protection of Women from Domestic Crl.M.C.767/2013. 8 Violence Act. It is significant to notice, according to the learned counsel for the petitioner before this Court that except for the interested testimony of P.W.1, there is no independent evidence to show that there was either a marriage or living in relationship between the two. Learned counsel went on to point out that the decision relied on by the court below cannot improve the case of the petitioner, since there is nothing to show that they had lived together as husband and wife at any point of time. The allegations before the courts below have been specifically controverted and there was no attempt from the side of the petitioner to adduce independent evidence either regarding the marriage or regarding living together at any point of time at any place. 8. Learned counsel for the petitioner went on to point out that viewed in the light of the decision reported in Indra Sarma v. Sarma (2013(4) K.L.T. 763), the test laid down to ascertain as to whether there is a live-in relationship or Crl.M.C.767/2013. 9 marriage is not satisfied in the case on hand and therefore the finding of the courts below cannot stand. At any rate, according to the learned counsel, there was no proper appreciation of the evidence and the contentions raised by the respondent before the lower appellate court and that the lower appellate court disposed of the appeal by a cryptic order by merely accepting the decision reported in Velusami v. Patchaiammal (2010(4) K.L.T. 384). 9. Learned counsel appearing for the respondent on the other hand contended that the documents produced by the petitioner before the trial court would show that there was an engagement ceremony and there was a proposal for marriage. Even if there was no marriage as such, there is evidence to show that the couple had lived together as husband and wife and there was a live-in relationship as contemplated by Act 43 of 2005. The courts below have rightly relied on the decision reported in Velusami v. Crl.M.C.767/2013. 10 Patchaiammal (2010(4) K.L.T. 384) and the principle laid down by the said decision applies to the facts of the case. Accordingly, it is contended that there is no ground to interfere with the orders of the courts below. 10. It is not disputed before this Court that the Family Court in a proceedings before it for maintenance found that there was no valid legal marriage between the petitioner and the respondent. Even though the petitioner before the trial court would say that she was married to the respondent, except her interested version, there is no evidence at all in that regard. Ext.P1, as rightly pointed out by the learned counsel for the respondent before the trial court, is only an agreement to marry. There is considerable inconsistency regarding the marriage as claimed by the petitioner. As rightly pointed out by the learned counsel for the petitioner before this court, the petitioner before the trial court would say that the marriage was conducted in the Registrar's office, Crl.M.C.767/2013. 11 while in another place, she would say that it was conducted in the Church and in yet another place she would say that it was conducted in her house. There is no consistency in this regard. A reading of her evidence would show that she had never gone to the Registrar's office at all. 11. Whatever that be, there seems to be considerable force in the submission of the learned counsel for the petitioner before this Court that there was want of evidence to show that there was a legal marriage between the two. 12. Coming now to the question regarding the live-in relationship, both the courts below relied on the decision reported in Velusami v. Patchaiammal (2010 (4) K.L.T. 384). However, the Apex Court in a recent decision reported in Indra Sarma v. Sarma (2013(4) K.L.T.763) had occasion to consider the same issue. After referring to the decision reported in Velusami v. Patchaiammal (2010 (4) Crl.M.C.767/2013. 12 K.L.T. 384) , the Apex Court in paragraph 55 laid down some guidelines for deciding under what circumstances a live-in relationship falls within the definition of 'relationship in the nature of marriage'. Paragraph 55 reads as follows: “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 S.2(f) of the D.V. 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 D.V. 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 D.V. Act and, hence, need no further elaboration. (3) Pooling of Resources and Financial Arrangements Crl.M.C.767/2013. 13 Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name 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 Relationships Marriage like 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 Crl.M.C.767/2013. 14 wife is a strong circumstance to hold the relationship is in the nature of marriage. (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.” 13. In the light of the guidelines of the Apex Court in the above decision, merely residing together will not constitute live-in-relationship and such a live-in-relationship will have to satisfy the standards set out by the Apex court in order to fall within the ambit of Act 43 of 2005. 14. As rightly pointed out by the learned counsel for the petitioner, there is no consideration of the merits of the case by the lower appellate court and the lower appellate court has simply mentioned that the issue involved in the proceedings is covered by the decision reported reported in Velusami v. Patchaiammal (2010(4) K.L.T. 384). The lower Crl.M.C.767/2013. 15 appellate court has not bothered to find out whether the allegation regarding the live-in-relationship are true, whether there is evidence to show that the couple had resided together or whether the claim of the petitioner satisfies the requirements of law. 15. As rightly noticed by the learned counsel for the petitioner, the order of the lower appellate court is very cryptic. Moreover, in the light of the decision reported in Indra Sarma v. Sarma (2013(4) K.L.T. 763), the matter requires reconsideration at the hands of the appellate court. In the result, this petition is allowed, the order of the lower appellate court is set aside and the matter is remanded to the lower appellate court for fresh consideration in accordance with law and in the light of what has been stated above. The parties shall appear before the lower appellate court on 5.2.2014. The lower appellate court may make every endeavour to dispose of the case as expeditiously Crl.M.C.767/2013. 16 as possible, at any rate, before the closure of the courts for Summer holidays, 2014. P. BHAVADASAN, JUDGE sb.