Biju v. Raji, Rathnamma & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **WEDNESDAY, THE 16TH DAY OF JULY 2014/25TH ASHADHA, 1936** ## **Crl.MC.No. 2973 of 2012 () ---------------------------** **AGAINST THE ORDER/JUDGMENT IN CMP 2406/2012 of J.M.F.C., KAYAMKULAM.** **PETITIONER/RESPONDENT NO.2:** **--------------------------** **BIJU, SREENILAYAM, PULLIKANAKKUMURI, KRISHNAPURAM VILLAGE, KAYAMKULAM, ALAPUZHA DISTRICT.** **BY ADVS.SRI.K.B.ARUNKUMAR SRI.RANJIT BABU.** **RESPONDENT(S)/PETITIONER, 1ST RESPONDENT AND STATE:** **---------------------------------------------------** **1. RAJI, D/O.RADHAMANIAMMA,, AGED 26 YEARS, PUTHENPURAKKAL VEEDU, PAVUMBA VADAKKU MURI, PAVUMBA VILLAGE, KOLLAM DISTRICT. PIN-690 574.** **2. RATHNAMMA, W/O.KESAVA PILLA, PANAGGATTU THARAYI VEEDU, KAPPIL KIZHAKKUM MURI, KRISHNAPURAM VILLAGEm KAYAMKULAM, ALAPPUZHA DISTRICT PIN.690 533.** **3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,** **HIGH COURT OF KERALA, ERNAKULAM, PIN-682 018.** **R1 BY ADV. SRI.R.SUNIL KUMAR SMT.A.SALINI LAL R3 BY PUBLIC PROSECUTOR SRI.JUSTIN JACOB.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 2973 of 2012 ()** ## **APPENDIX** **PETITIONER(S) EXHIBITS :** **ANNEXURE-1 - THE CERTIFIED COPY OF THE COMPLAINANT NUMBERED AS C.M.P. NO.2406/2012 NOW PENDING ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KAYAMKULAM.** **RESPONDENTS' EXHIBITS : NIL.** **//TRUE COPY//** **P.A TO JUDGE** **amk** **'C.R'** ## **A.HARIPRASAD, J.** **-----------------------------------------------Crl.M.C No.2973 of 2012 -----------------------------------------------Dated this the 16[th] day of July, 2014.** ## **O R D E R** The startling legal question that crops up for determination in this proceedings under Section 482 Cr.P.C is the following : Can a daughter-in-law arraign lover/paramour of her mother-in-law as a co-respondent in an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 ( in short 'the Act') alleging domestic violence on the premise that they are in a 'domestic relationship' ? 2. Relevant facts in brief : Petitioner herein is the second respondent before the trial court. First respondent before the trial court is the second respondent in this petition. The petitioner before the court below is the first respondent in this proceedings. **Crl.M.C No.2973 of 2012 2** 3. For convenience and clarity, the parties are referred to in their respective ranks in the proceedings before the trial court. First respondent's son deceased Radhakrishnan married the petitioner on 16-01-2005. In Annexure 1 petition, the petitioner has levelled lot of allegations about the character and conduct of the first respondent. The petitioner has gone to the extent of alleging that the first respondent is leading an amoral life; indulging in a promiscuous life and engaging in illicit distillation. On account of this infamous life of the first respondent, her husband and the husband of the petitioner had committed suicide. It is the allegation that after appropriating her gold ornaments and cash, the first respondent and her lover, the second respondent, drove the petitioner out of the shared household. With this averments she sought reliefs against both the respondents. 4. Heard the learned counsel for the petitioner and the learned counsel for the second respondent. **Crl.M.C No.2973 of 2012 3** 5. Learned counsel for the second respondent (petitioner herein) submitted that there is no legal basis for impleading him in the proceedings. According to the learned counsel, the petition is not maintainable. Going by the averments in Annexure 1 application, there is no domestic relationship between the petitioner and the second respondent and therefore she cannot allege that the second respondent has committed any act falling within the definition of “domestic violence” in Section 3 of the Act. 6. For appreciating these contentions, it is apposite to consider some definitions in the Act. 'Aggrieved person' is defined in Section 2(a) of the Act. It reads as follows : _means “2(a) “aggrieved person” 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;”_ 7. On a reading of the definition, it can be seen that the **Crl.M.C No.2973 of 2012 4** aggrieved person can only be a female. It is also evident that such a woman must be or has been in a domestic relationship with the respondent. Further, she must make an allegation that she has been subjected to any act of domestic violence, defined in Section 3 of the Act, by the respondent. It is amply clear that the definition of 'aggrieved person' does not restrict itself to a woman in her capacity as wife alone. It is essential that the aggrieved person must be a woman, who is or has been in a domestic relationship with the respondent and who makes a complaint of domestic violence. 8. Now, we shall look into the definition of 'Domestic Relationship' of Section 2(f) of the Act. It reads 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 or by consanguinity, marriage through a relationship in the nature of marriage, adoption or are family members_ **Crl.M.C No.2973 of 2012 5** ## _living together as a joint family;”_ 9. As it is clear from the definition, the 'domestic relationship' means a relationship between two persons related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or as family members living together as a joint family. It is also essential that the two persons must live or at any point of time lived together in a shared household. The term 'shared household' is defined in Section 2 (s) of the Act. It 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. It is therefore clear that in order to have a 'domestic relationship' as defined under the Act, the following essential ingredients must be satisfied : _1. It is a relationship between two_ _persons, who are related :_ - _a) by consanguinity;_ - _b) marriage;_ - _c) through a relationship in the_ **Crl.M.C No.2973 of 2012 6** _nature of marriage;_ _d) adoption or e) family members living together as a joint family._ _2. Such two persons must live or have at any point of time lived together in a shared household._ If these two sets of conditions are satisfied, then it can be stated that the parties are in a domestic relationship. 10. Learned counsel for the second respondent contended that going by the averments in Annexure 1 application, it cannot be stated that the petitioner is having any domestic relationship with the second respondent. In the first paragraph of the application, it is mentioned that the second respondent is the lover of the first respondent. Nowhere in the application, it is mentioned that the second respondent is living with the first respondent in her house, which is the shared household of the petitioner. Petitioner's case is that the first respondent resides in the matrimonial home and therefore she is entitled to get the **Crl.M.C No.2973 of 2012 7** reliefs claimed in the petition against both the respondents. As mentioned earlier, there is no specific averment in the application that the second respondent is residing in the shared household with the first respondent. That is one reason sufficient enough to reject the case of the petitioner. That apart, the expression “through the relationship in the nature of marriage” occurring in Section 2(f) of the Act has no application to the facts of this case, contended the learned counsel for the second respondent. 11. The definition of respondent in Section 2(q) of the Act is also relevant : _“ 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 complaint_ **Crl.M.C No.2973 of 2012 8** _against a relative of the husband or the male partner.”_ 12. Although the definition of 'respondent' in the Act would _ex facie_ show that it can only pertain to an adult male person, who is or has been in a domestic relationship with the aggrieved person, the proviso thereunder would clarify that in the case of an aggrieved wife or a female living in a relationship in the nature of marriage, she could file a complaint against relatives of the husband or male partner as the case may be. As the term relative occurring thereunder has not been defined, certainly it can take in a woman also. 13. Learned counsel for the second respondent contended that the expression “through the relationship in the nature of marriage” occurring in Section 2 (f) of the Act is applicable only when a woman files a complaint against her male partner. In other words, it is contended that the petitioner cannot rope in the second respondent in the proceedings, even if he is living in the **Crl.M.C No.2973 of 2012 9** shared household as lover of the second respondent. The expression “ relationship in the nature of marriage” has been interpreted by the Supreme court in _**Velusamy v. Patchaiammal (2010(4) K.L.T 384 (S.C))**_ . It has been held that the expression “relationship in the nature of marriage” and “live-in relationship” are not synonymous. The Supreme Court observed that the Parliament by the aforesaid Act has drawn a distinction between the relationship of marriage and the relationship in the nature of marriage and has provided that in either case, the person who enters into either relationship is entitled to the benefit of the Act. But it is observed that not all the live-inrelationships will amount to a relationship in the nature of marriage to get the benefit of the Act. Paragraph 33 of the decision is excerpted hereunder : _“33. 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_ **Crl.M.C No.2973 of 2012 10** _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._ _(See 'Common Law Marriage' in Wikipedia on Google)_ _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 stand would not make it a night 'domestic relationship'.”_ **Crl.M.C No.2973 of 2012 11** 14. I also take note of a decision rendered by the Apex court in _**Indra Sarma v. Sarma ( 2013(4) K.L.T 763 (S.C).**_ Categorically it has been held that the live-in-relationship has not been socially accepted in India, unlike in many other countries. What is recognized by the Act is the relationship in the nature of marriage and not a live-in-relationship simplicitor. The dictum further says : _“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 a but a of marriage, 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 S.2(f) of the D.V Act.”_ **Crl.M.C No.2973 of 2012 12** 15. Learned counsel for the petitioner submitted that this Court should take cognizance of the object of the Act. It is intended to root out domestic violence from the household in this country. It is therefore necessary to interpret the term “domestic relationship” in a more pragmatic manner, contended the counsel. I am unable to accept this argument because it is well settled that when the words of a statute are clear, plain or unambiguous, i.e., they are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of the consequences. (See _**Nathi Devi v. Radha Devi Gupta ( A.I.R 2005 S.C 648); State of Jharkand v. Govind Singh (A.I.R 2005 S.C 294).**_ The term “domestic relationship” is succinctly and vividly defined in the statute as described above. In the absence of any obscurity in the definition, this Court cannot stretch or widen the definition of the term “domestic relationship” to include a lover of the respondent, especially when lover of the respondent cannot be **Crl.M.C No.2973 of 2012 13** treated as the relative of the latter. The sum and substance of the above discussion is that a person cannot be arraigned as co-respondent in a proceeding under Section 12 of the Act by a petitioner alleging that he is the lover of a female relative of her husband. In such a situation, it cannot be said that there is a domestic relationship between the petitioner and that person. A woman can file a petition/application under Section 12 of the Act alleging domestic violence against a person, based on the contention that she is in domestic relationship with him, only when she is a partner in the relationship in the nature of marriage. This is clear from the definition of the term 'respondent' in Section 2(q) of the Act. No other woman can lay a claim against a person on the basis that he is living in a relationship in the nature of marriage with some other woman, with whom the petitioner is having a domestic relationship. The petitioner cannot implicate the second respondent in the proceedings before the court below under Section 12 of the Act **Crl.M.C No.2973 of 2012 14** for further reasons as well. The domestic relationship defined in Section 2(f) of the Act must be a relationship between two persons who live or lived at any point of time together in a shared household. There is no averment to that effect in Annexure 1 application. Even if the respondents are in a live-inrelationship as lovers, that is not sufficient to bring them under the definition of 'domestic relationship'. Besides, as stated above, the concept of “relationship in the nature of marriage” occurring in Section 2(f) of the Act can be invoked only by a female partner of the said relationship against the male partner and not by a third party to the said relationship. In the case in our hand, the petitioner is in domestic relationship with her mother-in-law as she is related to her by marriage. But there is no domestic relationship between the petitioner and the lover of her mother-in-law. To crown all these things, the relationship between the respondents cannot be regarded as a relationship in the nature of marriage falling within the sweep of the Act. **Crl.M.C No.2973 of 2012 15** Therefore, I find that the action against the second respondent is misconceived and unsustainable. In the result, the petition is allowed. All proceedings against the second respondent (petitioner in Crl.M.C No.2973/2012) in Annexure 1 application numbered as C.M.P No.2406/2012, now pending before the Judicial First Class Magistrate Court, Kayamkulam is hereby quashed. All pending interlocutory applications will stand dismissed. **A.HARIPRASAD, JUDGE.** amk