Antony v. Santha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **MONDAY, THE 26TH DAY OF AUGUST 2013/4TH BHADRA, 1935** **Crl.Rev.Pet.No. 513 of 2013** **-------------------------------** **CRL.A 373/2010 of ADDITIONAL DIST. & SESSIONS COURT,MOOVATTUPUZHA DATED 04-01-2012** **CMP 2596/2009 of JUDICIAL FIRST CLASS MAGISTRATE COURT, MUVATUPUZHA DATED 10-05-2010** **REVISION PETITIONER(S)/APPELLANT/RESPONDENT:-: ----------------------------------------------** **ANTONY, AGED 63 YEARS SON OF JOSEPH, KURISUMOOTTIL HOUSE, KALIYAR VANNAPURAM, THODUPUZHA, IDUKKI DISTRICT.** **BY ADV. SRI.N.ANILKUMAR** ## **RESPONDENTS/PETITIONER AND STATE:-:** **-------------------------------------** **1. SANTHA,, AGED 45 YEARS DAUGHTER OF KUNJUMMAN, KOITHANATHU VEEDU, PERAMANGALAM ENANALLOOR VILLAGE, MOOVATTUPUZHA, MARKET P.O. ERNAKULAM DISTRICT - 686 673.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.** **R1 BY ADV. SRI.JESWIN P.VARGHESE R2 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **stu** ## **K.HARILAL, J.** = = = = = = = = = = = **Crl.R.P.No.513 of 2013** = = = = = = = = = = = = = = = Dated this the 26[th] day of August, 2013 ## **O R D E R** The revision petitioner is the respondent in C.M.P.No.2596 of 2009 on the files of the Judicial First Class Magistrate's Court, Muvattupuzha. The above petition was filed by the respondent herein under Sec.12 of the Protection of Women from Domestic Violence Act (for short 'the Act'), claiming that she is the wife of the revision petitioner and they lived together through a relationship in the nature of marriage as provided under Sec.2(f) of the Act. According to the respondent, she is unable to maintain herself as she has no job or income; whereas the revision petitioner has sufficient means to pay maintenance allowance to the respondent. She claimed 1,500/- per₹ month as maintenance allowance and 20,000/- expended₹ for her surgery, from the revision petitioner. Besides, she claimed a sum of 10,000/- as compensation for torture and₹ Crl.R.P.No.513 of 2013 2 cruelty, which she had suffered from the revision petitioner. But, the trial court directed the revision petitioner to pay ₹ 1,000/- per month as maintenance allowance and 10,000/-₹ as compensation to the respondent towards her mental torture and agony suffered by her. Though, aggrieved by the order passed by the trial court, the revision petitioner had preferred Crl.A.No.373/2010 before Additional District and Sessions Judge, Muvattupuzha, the District and Sessions Judge also confirmed the verdict of liability and confirmed the order passed by the trial court as such without any interference. This revision petition is filed by concurrent findings directing the revision petitioner to pay maintenance allowance and compensation as stated above. 2. It is the case of the respondent that the revision petitioner is her husband and they lived together for a considerable period through a relationship in the nature of marriage. After the marriage, the respondent and the revision petitioner lived together as husband and wife at the Crl.R.P.No.513 of 2013 3 house of the respondent at Peramangalam. The revision petitioner had contracted the marriage with the respondent representing that the 1[st] wife of the revision petitioner died due to cancer two years back. After two months of the marriage, a person claiming to be the son of the revision petitioner came to the house of the respondent and the revision petitioner left the house of the respondent along with the said person and thereafter he failed to return to her house. The revision petitioner has been neglecting her and thereafter he has not paid any amount towards maintenance. But, he is getting 8,000/- as monthly₹ pension. Recently, the respondent had spent 20,000/- for₹ the surgery which she had undergone. Thus, she claimed the above said amounts as maintenance allowance and compensation. 3. Per contra, the learned counsel for the revision petitioner contends that the respondent is not the wife of the revision petitioner. There was no matrimonial Crl.R.P.No.513 of 2013 4 relationship between the revision petitioner and the respondent. The respondent is suffering from some mental illness and the agreement dated 07/06/2008 was executed by practising fraud upon the revision petitioner. He denied the allegation that he had misappropriated gold and cash from the respondent. The revision petitioner is having a wife and grown up children. He never resided along with the respondent as husband and wife through a relationship in the nature of marriage as provided under Sec.2(f) of the Act. 4. I have given my anxious consideration to the rival arguments advanced by the learned counsel for the revision petitioner and the respondent at the Bar. In view of the rival contentions, the question to be considered is whether there is any illegality or impropriety in the impugned judgment finding the revision petitioner liable to pay maintenance allowance and compensation as decided by the courts below concurrently. Admittedly, there is no legal Crl.R.P.No.513 of 2013 5 marriage evidenced by documents, between the revision petitioner and the respondent. But, the claim of the respondent is that they lived together as husband and wife through a relationship in the nature of marriage as provided under Sec.2(f) of the Act. 5. To prove the above contention, the respondent herself was examined as PW1 and two witnesses were examined as PWs.2 and 3. The respondent testified that they were living together through a relationship in the nature of marriage and it is supported by Ext.P1 agreement, though the agreement is not valid according to the Hindu Marriage Act. PWs.2 and 3 also deposed in conformity with the evidence of PW1. After analysing the evidence of PWs.1 to 3, the trial court found that though there is no legal marriage between the respondent and revision petitioner, the evidence of PWs.1 to 3 proves that they were lived together as husband and wife through a relationship in the nature of marriage for a period of two months. Relying Crl.R.P.No.513 of 2013 6 on the evidence of PWs.1 to 3, the trial court passed the impugned order under challenge. After re-appreciating the evidence, the appellate court also confirmed the order of trial court as such without any interference. According to the respondent, she had not married earlier. But, according to the revision petitioner, he had married earlier and that marriage was a legally valid marriage. The learned counsel for the respondent contends that even if the revision petitioner had married earlier legally the former wife was no more at the time of living along with the respondent. Therefore, there was no valid marriage at the time when both were living together. The learned counsel for the revision petitioner drew my attention to the decision in **Velusamy v. Patchaiammal** [2010(4) KLT 384 (SC)] and points out that in the absence of the criteria for fixing the expression 'living together through a relationship in the nature of marriage', the Supreme Court laid down certain conditions for arriving at a finding that the spouses were Crl.R.P.No.513 of 2013 7 lived together through a relationship in the nature of marriage. 6. Going by the above decision, it could be seen that in the absence of effective legislation, the Supreme Court has declared certain conditions precedent for arriving at a finding that spouses were lived together through a relationship in the nature of marriage. Para 33 of the said decision reads as follows: “In our opinion a 'relationship in the nature of marriage' is akin to a common law marriage. Common law marriages require that although not being formally married:- a. The couple must hold themselves out to society as being akin to spouses. b. They must be of legal age to marry. c. They must be otherwise qualified to enter into a legal marriage, including being unmarried. d. They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. In our opinion a 'relationship in the nature of marriage' under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a 'shared household' as defined in S.2(s) of the Act. Merely spending weekends together or a one night stand would not make it a 'domestic relationship'.” 7. Further, the learned counsel drew my attention to the third condition (c) that the spouses must be otherwise Crl.R.P.No.513 of 2013 8 qualified to enter into legal marriage, including being unmarried. On the basis of said condition, the learned counsel argues that the revision petitioner will not come under the said condition as he had married earlier legally. 8. Per contra, the learned counsel for the respondent submits that absolutely there is no evidence to show that the revision petitioner had married earlier legally and even if he had legally married earlier, the former wife was no more at the time when he contracted marriage with the respondent. Therefore, I am of the opinion that the matter in issue revolves around the question whether there was any earlier legal marriage in the case of both parties. 9. Going by the judgment under challenge, it could be seen that no evidence has been adduced by the revision petitioner to substantiate the above point. He did not care to mount the box so as to adduce at least oral evidence to prove the said fact. In the absence of evidence, there cannot be a valid finding on that issue. I am of the opinion Crl.R.P.No.513 of 2013 9 that if there is any earlier marriages, the parties could have adduced valid evidence to prove the same. The learned counsel for the revision petitioner prayed for further opportunity to adduce evidence on above point. There is no proper adjudication based on merits, in the absence of evidence. 10. Having regard to the facts and circumstances of the case, I am inclined to grant a further opportunity to adduce evidence on this point on conditions. The impugned judgment under challenge will stand set aside and the matter is remitted back to the trial court for fresh consideration on the following conditions: i. The revision petitioner shall deposit entire amount due to the respondent within a period of two months from the date of receipt of a copy of this order. ii. The revision petitioner shall continue to pay maintenance allowance as ordered by the court below till the disposal of the case. Crl.R.P.No.513 of 2013 10 If the revision petitioner complies the said conditions, the trial court shall restore the complaint on the files and proceed in accordance with law. In case of failure to comply the directions, the trial court will be at liberty to enforce the impugned judgment under challenge as if no interference had been made by this Court except confirming the judgment under challenge. This revision petition is disposed of accordingly. **K.HARILAL, JUDGE.** Stu //True copy// P.A to Judge.