## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS**
**THURSDAY, THE 16TH DAY OF MARCH 2017/25TH PHALGUNA, 1938**
**Crl.Rev.Pet.No. 789 of 2016 () -------------------------------**
**(AGAINST THE ORDER/JUDGMENT IN CRA 241/2014 of ADDL.D.C. & MACT, NORTH PARAVUR)**
**REVISION PETITIONER(S)/APPELLANT/1ST RESPONDENT:-:**
**-------------------------------------------------**
**ANTONY HOLDEN D SILVA, AGED 50 YEARS, S/O.JUSTIN D'SILVA, VALIYAKATTAKKAL HOUSE, PONNARIMANGALAM, MULAVUKADU, ERNAKULAM DISTRICT.**
**BY ADVS.SMT.ANNIE GEORGE SRI.GEORGE V.MARKOSE**
**RESPONDENT(S)/RESPONDENTS/PETITIONER AND RESPONDENTS 2 & 3:-:**
**-------------------------------------------------------------**
**1. SHAHABAN,**
- **HOUSE NO.VII/550 OF ANGAMALY MUNICIPALITY, SNDP KAVALA, RDO OFFICE, THAZHA, MULLASSERY ROAD, USHA MARIYA, T.B.JUNCTION, ANGAMALY - 683 572.**
**2. ANEE, W/O.JOSE, CHAKKATTIL, HOUSE NO.VII/550 OF ANGAMALY MUNICIPALITY, SNDP KAVALA, RDO OFFICE, THAZHA, MULLASSERY ROAD, USHA MARIYA, T.B.JUNCTION, ANGAMALY - 683 572.**
**3. SUB INSPECTOR OF POLICE, ANGAMALY - 683 572.**
**4. STATE OF KERALA, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA - 682 031.**
**R1 BY ADV. SMT.MEREENA JOSEPH R2 BY ADV. SRI.WILSON URMESE R BY PUBLIC PROSECUTOR E.C.BINEESH**
**THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 8-11-2016, THE COURT ON 16/3/2017 PASSED THE FOLLOWING:**
## **SUNIL THOMAS, J.**
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## **Crl.R.P.No.789 of 2016**
- - - - - - - - - - - - - - - - - - Dated this the 16[th] day of March, 2017
## **O R D E R**
This Crl.Revision arises from the order of the Judicial First Class Magistrate Court, Aluva in CMP No.3172/2013 in MC No.66/2013.
2. The first respondent herein filed MC No.66/2013. She claimed that she was earlier married and two children were born in the matrimonial relationship. Later, the husband pronounced talak. In 2010, the revision petitioner got acquainted to her and misusing that relationship, he committed rape of her. He promised to marry her, representing that his matrimonial relationship with his wife was on the verge of divorce and immediately after obtaining divorce, he would marry her. Later, the revision petitioner took a building on rent and started residing with the first respondent herein as husband and wife. A child was born in that relationship on 9/5/2011. Later in 2013, the revision petitioner left the company of the first respondent and re-joined the company of his estranged wife. Hence, the revision was filed invoking the provisions under the Domestic Violence Act seeking various reliefs, inter alia, an order of residence to permit her to reside in the house No.7/550 taken on rent by the revision petitioner and the revision petitioner to be directed to pay the rent.
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3. Pending the proceedings, the landlady filed CMP No.3172/2013 in MC No.66/2013 contending that the building was taken on rent by the revision petitioner representing that the first respondent was his legally wedded wife. Later he committed default. Hence, she sought for a direction to the revision petitioner to pay arrears of rent and electricity arrears. This was allowed by the trial court directing the revision petitioner to pay the entire arrears and he was directed to pay monthly rent of that rented building or to provide an alternate accommodation.
4. The above order of the learned Magistrate was carried in Crl.Appeal No.241/2014. The trial court after a detailed discussion of the facts and law, dismissed the criminal appeal which is under challenge in this revision.
5. The main contention of the revision petitioner is that, he is not the husband of the first respondent and that both were already married. It was stated that, the house, on which the first respondent had claimed right, was not a shared household. It was stated that there was no liability to pay the rent and the right of the strangers cannot be adjudicated in a proceeding under the Domestic Violence Act. It was further contended that the landlady was not an aggrieved person as defined under the Domestic Violence Act and, hence, she was not entitled for any relief.
6. The crucial question that arises for consideration is whether such a relief can be granted to a third party in a
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proceeding under the Domestic Violence Act. This also essentially depends on the question whether the proceedings initiated by the first respondent herein is legally sustainable. Definitely, larger questions that arise in relation to the jural relationship between the revision petitioner and the first respondent ,whether the house was a shared household and whether any relation in the nature of marriage existed between the revision petitioner and the first respondent are matters to be decided after recording the evidence. Definitely, a dispute raised by the landlady as against the tenant who got embroiled in a proceeding under the Domestic Violence Act cannot be the direct subject matter of the Domestic Violence Act.
7. However, there are certain other factors to be considered. Admittedly, the revision petitioner had entered into an rent agreement for the year 2011. It was extended twice. The first respondent is residing in that building pursuant to the agreement executed by the revision petitioner, which admittedly is the subject matter of the rent deed. Learned counsel for the revision petitioner vehemently contended that, to sustain the case under the Domestic Violence Act, there must be a domestic relationship between the parties or a relationship in the nature of marriage. Essentially this is a question of fact. The appellate court dealt with this question from a legal angle. The revision petitioner, relying on the decision reported in **Indra Sarma v. V.K.V.Sarma**
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**[2013(4) KHC 759]** contended that, the status of a married lady having a live-in relationship, even if it is long standing, with a man, knowing that he is married with wife and children,is that of a concubine and that the Domestic Violence Act do not recognise such relationships. It was a case wherein the women knew that the man was already married and consequently the court held that the women could not have entered into a matrimonial relationship with him. Hence, the relationship that they maintained, even if it was long standing, could not be treated as one in the nature of marriage and hence not amendable to the proceedings under the DV Act. It is not relationship in the nature of marriage. Hence, no relief under the DV Act could be extended., it was held.
8.Learned counsel further relied on a decision, in which same legal proposition was advanced. In **Narayan Jangluji Thool and Others v. Mala Chandran Wani [2015 KHC 1602]** , it was held that a married woman in relationship with married man, outside the marriage cannot be termed as domestic relationship, under section 2 (f) of the Act 2005. Hence, it was held that the case of the respondent was completely out of the purview of the said Act and he is not entitled for any relief.
9. Learned counsel, relying on both the decisions contended that, the spouses were living together when the matrimonial relationship was subsisting and hence, there could not have been any relationship in the nature of marriage. However, it is the case
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of the first respondent that her husband had pronounced talak. There was no allegation from the side of the revision petitioner that her matrimonial relationship was subsisting. On the other hand, though she had admitted that the revision petitioner was married to a woman, according to her, he had represented that the marriage was on the verge of collapse. He had assured to marry her after divorce was obtained. It was only later that they started residing together. In the sequence of events, as claimed by the revision petitioner, the question whether she knew that the matrimonial relationship of the revision petitioner with his wife was subsisting is essentially a question of fact yet to be established in evidence.
10. It is also pertinent to note that, to establish that the revision petitioner and the first respondent were maintaining some close relationship, the first respondent had relied on certain documents which included the birth certificate of the child. Yet another document was LIC nomination wherein the revision petitioner was shown as the husband of the first respondent. Hence, there are some materials to show that both were living together or that the revision petitioner had projected himself to be one having a close relationship with her.
11. It is pertinent to note that the record show that in CMP No.2996/2013 an ex parte order dated 9.12.2013 was passed by the court below restraining the revision petitioner from committing
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the acts of domestic violence. In MP No.3107(A) of 2013 another order dated 20/12/2013 was passed. The revision petitioner was directed to maintain the first respondent and to provide her accommodation to the first respondent. These orders were not challenged at the instance of the revision petitioner. The second respondent is a beneficiary of that order. Her only prayer was to give effect to the orders of the court below. Hence, she was not claiming any independent right nor did not call upon the court to adjudicate her rights or to grant any specific relief to her under the Act. Since the order directing the maintenance was enforceable, the landlady who was entitled to get benefit of the rent had only claimed that. It cannot be held that, in matrimonial proceedings, the court below is incompetent to consider ancillary and incidental questions arising in the course of consideration of the main issue. Since already an order of maintenance is in force, which is binding on the revision petitioner, it has to be given effect.
12. Having considered the above, I find no reason to interfere with the findings of the court below at this juncture. Hence, the revision is only to be dismissed.
Accordingly, revision fails and is dismissed.
Sd/-
## **SUNIL THOMAS Judge**
dpk
/true copy/ PS to Judge **.**
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## **SUNIL THOMAS, J.**
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**Crl.M.A.No. 5076 of 2016 in Crl.R.P.No.789 of 2016**
- - - - - - - - - - - - - - - - - - Dated this the 22[nd] day of August, 2016
## **O R D E R**
The petitioner herein was directed to deposit a sum of
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Rs.50,000/-. The petitioner now contends that he has, with great difficulty, raised a sum of Rs.25,000/- and he sought permission that the interim order to deposit the amount may be reduced to Rs.25,000/- .He has expressed his willingness to deposit the above amount.
2. I am not inclined to reduce the quantum of amount to be deposited. However, the deposit of Rs.25,000/- is permitted as part payment of the amount ordered to be deposited. It is stated that the DV proceedings is posted tomorrow (23/8/2016). The petitioner shall deposit the amount of Rs.25,000/- tomorrow in the court below.
3. The first respondent submits that the amounts can be withdrawn by the second respondent and the first respondent will not raise any claim on it later.
In the light of the above, the amount can be withdrawn by the second respondent on consent of the first respondent towards the discharge of the liability imposed by the court below.
This deposit will be subject to the ultimate result of the Cr.RP. The petitioner herein shall deposit the remaining amount within one month thereafter.
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**SUNIL THOMAS Judge**
dpk
