JAMEELA and FATHIMATHUL FIDHA v NASAR, SOOPI HAJI, AYISHA, STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 11TH DAY OF DECEMBER 2013/20TH AGRAHAYANA, 1935** **Crl.Rev.Pet.No. 2161 of 2013 () --------------------------------** **AGAINST THE JUDGMENT IN CRL.A.180/2011 of SESIONS COURT, KALPETTA DATED 16-03-2013** **AGAINST THE ORDER IN MC 24/2011 of J.M.F.C., SULTHANBATHERY DATED 27-07-2011** **REVISION PETITIONER(S)/APPELLANTS:** **----------------------------------** ## **1. JAMEELA,** **W/O. NASAR, AGED 20 YEARS, T.P. KUNNU, BEENACHI P.O., SULTHAN BATHERY, WAYANAD DISTRICT- 673 592.** **2. FATHIMATHUL FIDHA, AGED 3 YEARS, D/O. NASAR, T.P. KUNNU, BEENACHI P.O., SULTHAN BATHERY, WAYANAD DISTRICT- 673 592. MINOR REPRESENTED BY MOTHER IST REVISION PETITIONER JAMEELA.** **BY ADVS.SMT.S.NAZEERA SRI.K.K.BALAKRISHNAN (KODIYURA)** ## **RESPONDENTS/RESPONDENTS/RESPONDENTS:** **------------------------------------** ## **1. NASAR,** **S/O. SOOPI HAJI, KOLATHANKANDY HOUSE, CHERUPARAMBU, JATHIKULAM, PANOOR, THALASSERY KANNUR DISTRICT - 670 692.** **2. SOOPI HAJI, KOLATHANKANDY HOUSE, CHERUPARAMBU, JATHIKULAM, PANOOR, THALASSERY, KANNUR DISTRICT - 670 692.** **.....2** **-2-** ## **3. AYISHA,W/O. SOOPI HAJI,** **KOLATHANKANDY HOUSE, CHERUPARAMBU, JATHIKULAM, PANOOR, THALASSERY, KANNUR DISTRICT - 670 692.** **4. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, ERNAKULAM.** **R2,R3 BY ADV. SRI.ESM.KABEER R4 BY PUBLIC PROSECUTOR SRI. ROY THOMAS** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11-12-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J.** **-----------------------------------------------------Crl.R.P. No. 2161 of 2013 -----------------------------------------------------Dated this the 11[th] day of December, 2013 ORDER** The revision petitioners are the petitioners in M.C.No. 24/11 on the files of the Judicial First Class Magistrate's Court-I, Sulthan Bathery, as well as the appellants in Crl. Appeal No.180/11 on the files of the Sessions Court, Kalpetta. The above M.C. was filed under Sec.12 of the Protection of Women from Domestic Violence Act, 2005 (for short 'the D.V. Act') seeking reliefs under Secs.18, 19 and 20 of the D.V. Act. After trial, the learned Magistrate granted the following reliefs: “In the result, 1. Petition is allowed in part. 2. Respondent No.1 is restrained from committing any sort of physical violence Crl.R.P.No.2161 of 2013 2 against petitioners. Respondent No.1 is also restrained from keeping in touch with petitioners in any mode and also from making annoyance to them. 3. Respondent No.1 is directed to pay an amount of `2,500/- and `1,250/respectively towards monthly maintenance to petitioner and her minor child. This amount can be claimed by the petitioner from the date of petition onwards. Hereafter, this amount shall be paid by respondent No.1 on or before 5[th] day of every month. 4. Respondent No.1 is directed to pay to an amount of `1,000/- per month to petitioner towards house rent. 5. Respondent No.1 is directed to pay to 1[st] petitioner an amount of `1,00,000/towards compensation. 6. All other reliefs claimed in the petition are disallowed. Crl.R.P.No.2161 of 2013 3 7. Office of this court is directed to give copies of this order to the parties of this petition free of cost. 8. A copy of this order shall be sent to SHO, Panoor Police Station.” 2. Feeling aggrieved by the said order, both the revision petitioner and the respondents had preferred the Crl. Appeal Nos.195/2011 and 180/2011 respectively. In the Appeals, after re-appreciating the entire evidence on records and also considering the rival contentions raised in the Appeal, the learned Sessions Judge allowed both Appeals in part and modified the reliefs as follows: “In the result, 1. Both the Criminal Appeals are allowed in part. 2. The order which is under challenge in these appeals is modified. The first petitioner in the MC, who is the appellant in Crl.A.180/11 is found not entitled for any of the reliefs covered by the operative portion of the order under challenge. 3. The second petitioner in the MC is Crl.R.P.No.2161 of 2013 4 found entitled to obtain an amount of `2,500/- per month from respondent No.1 from the date of MC, until further orders. On changed circumstances the first petitioner is at liberty to get the order of maintenance in respect of the second petitioner enhanced, as and when the child grows.” The legality, propriety and correctness of the said common judgment is under challenge in this revision petition. 3. The case of the revision petitioners, in brief, is as follows: The 1[st] revision petitioner is the legally wedded wife of the 1[st] respondent and the 2[nd] revision petitioner is the child born in that wed-lock. The 1[st] revision petitioner belongs to Kudagu in the State of Karnataka. Her father deserted her mother in her early childhood and thereafter she came to Kerala and was living as a housemaid in the house of one Abdulla Haji at Thalassery. At that time, she was aged only 15 years. At that time, her sister was also employed in a similar situation, hardly 1 Km. away from the Crl.R.P.No.2161 of 2013 5 house where she was working. The 1[st] respondent used to meet her during her journey to meet her sister and he fell in love with her. He expressed his desire to get married. He used to propose a warning with her that he would spoil her life if she had not consented for the marriage. The 1st respondent was the son of a very affluent person. So she kept calm. While so, another proposal for her marriage came to her. The owner of the house in which she stayed gave 15 sovereigns of gold ornaments and `50,000/- for her marriage. Eventually, in order to escape from threatening and on believing the assurance of the 1[st] respondent, she agreed to marry him. The 1[st] respondent insisted that the marriage must be solemnized at Mananthavady as his parents were not interested in that marriage. The 1[st] respondent represented that the house to which she was brought was owned by him. Her relatives were brought to the house at Mananthavady. There, the marriage was solemnized under the auspicious of a Musliar. By causing her to believe that she is the legally wedded wife of the 1[st] respondent, they engaged in sexual intercourse. The 1[st] Crl.R.P.No.2161 of 2013 6 respondent resided with her in that house at Mananthavady for some days. The 1[st] respondent used to come there and resided occasionally. While so, his parents were reached there and expelled her from the house after abusing her with filthy language. Then, only from them, she came to know that the 1[st] respondent has another wife and two children. Then the 1[st] respondent took her back to the house at Mananthavady and pleaded for pardon for not disclosing that he was a married man; but he agreed that he would look after her by giving the status as that of his first wife. At that time, she came to know that the house at Mananthavady is not a house owned by the 1[st] respondent. While living there, she was compelled to terminate her pregnancy. The 1[st] respondent wanted her gold ornaments and `50,000/- for buying a house and the same was given to him. Six months after the stay at Mananthavady, they shifted to a house at Kolagappara and that was also a rented house. The 1[st] respondent used to visit her and lived along with her. He used to take her with him while he was on tour. While on tour, the 1[st] respondent compelled her to share bed Crl.R.P.No.2161 of 2013 7 with his friends. Feeling aggrieved, she made an attempt to commit suicide. Once he tried to sell her to an Arab person. Subsequently, the 1[st] respondent took a house at Beenachi and shifted her to there. When she had become pregnant again, he again terminated the pregnancy. When the illtreatment on the 1[st] revision petitioner was came to knowledge of the house owner, he forcibly evicted them. Then, he took a room in a building at Dottappankulam and shifted there. He promised her that he would take her to Gulf, if she had allowed to terminate the pregnancy. He obtained the signatures of the 1[st] revision petitioner on stamp papers and thereafter deserted her and has not provided any money or maintenance allowance thereafter; but the 1[st] respondent met her delivery expenses and she delivered the 2[nd] respondent on 9/5/2008. Thereafter, the 1[st] respondent has been neglecting to maintain her. 4. Hence she prayed for reliefs under Secs.18, 19 and 20 of the D.V. Act. 5. The 1[st] respondent entered appearance and filed a counter statement; but he was set ex parte. In the counter Crl.R.P.No.2161 of 2013 8 statement, he denied the domestic relationship as well as domestic violence alleged against the 1[st] revision petitioner. According to him, she is not an 'aggrieved person' coming under the purview of Sec.2(a) of the D.V. Act. He denied the paternity of the 2[nd] respondent. Thereupon, the 1[st] respondent challenged the 1[st] revision petitioner for DNA test to prove the paternity of the 2[nd] respondent. Subsequently, the 1[st] respondent filed an application to permit them to go to a DNA test. Thereupon, the sequence of events and the attitude which had been taken by the 1[st] respondent are well narrated by the trial court as follows: “It is pertinent to state here that along with the main petition, petitioner had filed two CMPs bearing Nos.942/11 and 946/11 for interim maintenance and for admitting petitioners in the house of respondent. But the above petitions were kept aside as the case of respondents was total denial including the domestic relationship. In applications and counters, both sides challenged the other side for DNA test. Subsequently, petitioner filed application to permit them to go for DNA test. It was Crl.R.P.No.2161 of 2013 9 allowed and parties were directed to be present in court and petitioner was also directed to produce treasury receipt for `20,000/- as informed by the Forensic Science Laboratory, Trivandrum. She produced treasury receipt for `20,000/- on 8.6.2011. On 8.6.2011 counsel for respondents submitted that he wanted to get two weeks time for intimating the respondents. Such prayer was allowed and the case posted to 20.6.2011 with a direction to bring respondent No.1 for taking blood sample. On 20.6.2011 petitioner and her child were present. On that day the counsel for respondent No.1 represented that as respondent No.1 was in Gulf, he was expected to be present only on 7.7.2011. So the case was adjourned to 8.7.2011 with a direction to respondent No.1 to be present on that day. On 8.7.2011 again petitioners were present and the counsel for respondent No.1 submitted that respondent No.1 reached Bangalore Airport only at 4.30 a.m. on that day. So he requested further time. Then the matter was adjourned to 12.7.2011. On Crl.R.P.No.2161 of 2013 10 12.7.2011 both parties were absent and the case was adjourned to 14.7.2011. On 14.7.2011 the petitioners were present and the counsel for respondents reported that he has no instruction from parties. Their names were called and as they were absent, they were set ex-parte. Petitioner was directed to take back the treasury receipt for claiming the money on it and the case was adjourned for petitioners evidence.” 6. On the side of the petitioners, the 1[st] revision petitioner was examined as P.W.1. She filed an affidavit in lieu of examination in chief. She averred in the affidavit as stated in her petition. Though in the counter statement the 1[st] respondent has taken all possible and probable contentions in addition to denial of relationship with the 1[st] revision petitioner, the marriage and paternity and the domestic violence. He has not appeared before the court to substantiate his contentions. Thus, the allegation against the 1[st] respondent raised in the affidavit stands unchallenged. It has come out in evidence of the 1[st] Crl.R.P.No.2161 of 2013 11 revision petitioner that they were living together in several places after the marriage as husband and wife. It is the specific case of the 1[st] revision petitioner that the marriage was solemnized in the presence of a Moulavi. In this context, the definition of “domestic relationship” assumes much significance. Going by the definition, it could be seen that a conclusive proof evidencing a legal marriage is not necessary to claim reliefs under the D.V. Act. If there is evidence to show that they lived together in a shared house room through a relationship in the nature of marriage, the same is sufficient to claim domestic relationship and the Supreme Court has considered the scope and extent of domestic relationship in **Velusami v. Patchaiammal** [2010 (4) KLT 384]. In that decision, the Supreme Court has considered the scope of relationship in the nature of marriage and laid down certain criteria and circumstances to determine the relationship in the nature of marriage as follows: “In our opinion a ‘relationship in the nature of marriage’ is akin to a common law marriage. Crl.R.P.No.2161 of 2013 12 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’. Keeping in mind the circumstances described by the Supreme Court to determine the relationship in the nature of marriage provided under Sec. 2(f) of the D.V.Act, let us examine the relationship claimed by the 1[st] revision petitioner herein. In the above decision, the Supreme Court held that the spouses must be of legal age to marry her and they must be otherwise qualified to enter into a legal marriage, including the unmarried. As far as the 1[st] Crl.R.P.No.2161 of 2013 **==> picture [13 x 9] intentionally omitted <==** revision petitioner is concerned, at the time of marriage, she was unmarried, though the 1[st] respondent was a married man. This aspect was also considered by the Supreme Court in the latest decision laid down in **Indra Sarma v. Sarma** [2013(4) KLT 763 (SC)]. In that decision, the Apex Court held that if the husband enters into a second marriage with an unmarried woman, after suppressing that he is a married man, the wife can claim the status of a wife in the nature of marriage defined under 2(f) of the D.V.Act. Here, the specific case of the 1[st] revision petitioner is that, from the very beginning, the 1[st] respondent wilfully suppressed his first marriage and pretended that he was an unmarried man and he induced her to marry him as first marriage. She came to know the fact that he is a married man with two children when the parents of the 1[st] respondent came to the house of the spouses at Mananthavady and expelled her from the house only. The most important factor which shows the nature of marriage is the birth of 2[nd] revision petitioner as child born in the wedlock between the 1[st] revision petitioner and 1[st] Crl.R.P.No.2161 of 2013 14 respondent. When she challenged the 1[st] respondent for proving his innocence by subjecting to DNA test, though he accepted at first, thereafter, he willfully stayed away from DNA test and the sequences of events are well narrated in the appellate court judgment by the learned Sessions Judge also. Though she paid 20,000/- as cost for DNA test, after₹ several adjournments, she was constrained to withdraw the said amount with the consent of the court. The counsel appearing for the respondent at the trial court had availed of more than five adjournments for the same. But, going by the evidence, it could be seen that when he strongly opposed the claim of the 1[st] revision petitioner, he was conveniently and comfortably working abroad and earning money. Thus, the attitude of the respondent itself shows that, the same is sufficient to draw the presumption under Sec.114(g) of the Indian Evidence Act. The evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. Therefore, in view of 114(g) of the Indian Evidence Act also, it can be safely concluded that the 1[st] respondent is Crl.R.P.No.2161 of 2013 15 the biological father of the second respondent. The birth of 2[nd] revision petitioner as the child of the revision petitioner is also a best evidence to show that they were living through a relationship in the nature of marriage as stated in **Velusami’s** case. On an appreciation of evidence, let in by the 1[st] revision petitioner, it could be seen that they have voluntarily cohabited and held themselves out to the world as being acting to spouses for a significant period of time. Therefore, I have no hesitation to conclude that the finding of the learned Trial Court Judge is correct and the learned Sessions Judge, without appreciating the evidence available on record in its correct perspective, erroneously held that, there is no domestic relationship. On a total appreciation of evidence, I find that the trial court appreciating the evidence in its correct perspective. But, the learned Sessions Judge failed to appreciate the evidence, in view of the aim and object of the domestic violence Act and also failed to know the nature of marriage considered by the Apex Court in the above decision. Consequently, I set aside the impugned judgment Crl.R.P.No.2161 of 2013 16 under challenge except the enhancement of the quantum of maintenance to the 2[nd] respondent and I am inclined to restore the trial court judgment as such and I do so. This revision petition is allowed accordingly. **K.HARILAL, JUDGE.** Nan/stu //True copy// P.A to Judge