Mat.Appeal No.949/2018 & Crl.R.P No.547/2020

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS MONDAY, THE 8[TH] DAY OF AUGUST 2022 / 17TH SRAVANA, 1944 MAT.APPEAL NO. 949 OF 2018 AGAINST THE ORDER/JUDGMENT IN OP 482/2015 OF FAMILY COURT,** ## **PALA** ## **APPELLANT:** JESSY SAM, AGED 40 YEARS, W/O GEORGE KAPPADAKKUNNEL HOUSE PATTITHANAM P.O, PATTITHANAM KARA, KANAKKARI VILLAGE, MEENACHIL TALUK, PIN-686 631 BY ADVS. TOM JOSE (PADINJAREKARA) SHIBU JOSEPH SUNIL N.SHENOI SHEBIN K.CYRIAC ## **RESPONDENT:** SAM GEORGE, AGED 46 YEARS, S/O GEORGE, KAPPADAKKUNNEL HOUSE, AREEKKARA KARA ,VELIYANOOR VILLAGE, MEENACHIL TALUK. NOW RESIDING AT KAPPADAKKUNNEL HOUSE, PATTITHANAM P.O ,PATTITHANAM KARA , KANAKKARI VILLAGE, PIN-686 631. BY ADV JOSEPH T.JOHN THIS MAT. APPEAL HAVING BEEN FINALLY HEARD ON 08.08.2022, ALONG WITH Crl.Rev.Pet.547/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **Mat.Appeal No.949/2018 & Crl.R.P No.547/2020** **..2..** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS MONDAY, THE 8[TH] DAY OF AUGUST 2022 / 17TH SRAVANA, 1944 CRL.REV.PET NO. 547 OF 2020** ## **AGAINST THE ORDER/JUDGMENT IN CRL.A 163/2018 OF DISTRICT COURT** ## **& SESSIONS COURT,KOTTAYAM** ## **MC 23/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,PALA REVISION PETITIONER:** SAM GEORGE, AGED 47 YEARS, S/O. K. MANI GEORGE, KAPPADAKKUNNEL HOUSE, AREEKARA, VELIYANNOOR P.O, PALA, KOTTAYAM. BY ADVS. SAM GEORGE (PARTY) JOSEPH T.JOHN ## **RESPONDENTS:** - 1 STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA , AT ERNAKULAM-31. 2 JESSY SAM, W/O. SAM GEORGE, AGED 40 YEARS, KAPPADAKKUNNEL HOUSE, PATTITHANAM P.O, KANAKKARY, KOTTYAM-686 632 BY ADV SRI.TOM JOSE (PADINJAREKARA) THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08.08.2022, ALONG WITH Mat.Appeal.949/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **Mat.Appeal No.949/2018 & Crl.R.P No.547/2020** **..3..** ## **J U D G M E N T** **[Mat.Appeal No.949/2018 & Crl.R.P No.547/2020]** ## **A. Muhamed Mustaque, J** The parties are same in these matters. We shall mention the names of the parties in this judgment for easy reference and convenience. Sam George approached the Family Court, Pala in O.P No.482 of 2015 for a declaration that he is the absolute owner of the petition schedule property and also for consequential injunction. He sought a relief against Jessy Sam. According to him, there was no legal marriage between them. But they were living as husband and wife ever since 1997. 2. Jessy Sam entered appearance and filed a counter claim contending that the purchase was done utilising her properties. She also raised a counter claim that she is the legally wedded wife. The Family Court, Pala, allowed the original petition filed by Sam George and dismissed the counter claim holding that there was no valid proof of legal marriage. Jessy Sam in Mat. Appeal No.949 of 2018 challenges the decree granted in favour of Sam George and also challenges the dismissal of the counter claim. ## **Mat.Appeal No.949/2018 & Crl.R.P No.547/2020** **==> picture [34 x 9] intentionally omitted <==** 3. Jessy Sam approached the Judicial First Class Magistrate Court, Pala for a protection order under the Protection of Women from Domestic Violence Act, 2005. That was allowed, granting her a protection order and also maintenance. Sam George challenged the above order before the Sessions Court, Kottayam in Crl. Appeal No.163 of 2018. That has been dismissed. Challenging the same, Sam George approached this Court in Crl.R.P No.547 of 2020. 4. Both matters are taken up together, in view of the fact that the parties are same in both cases. 5. Firstly, we shall advert to the appeal filed by Jessy Sam. At the outset, we must say, going by the averments in the petition filed by Sam George, the Family Court could not have entertained this petition. His specific case was that there was no legal marriage. If that be so, there cannot be any dispute arising out of the circumstances of the marriage. The Family Court has been conferred with the jurisdiction to adjudicate certain enumerated disputes referred to in Section 7 of Chapter III of the Family Court Act. Section 7(1)(a) of the Family Court Act enumerates the classes of suits of proceedings ## **Mat.Appeal No.949/2018 & Crl.R.P No.547/2020** **==> picture [34 x 9] intentionally omitted <==** that can be entertained by a Family Court. It is specifically stated in Section 7(1)(a)(c) of the Family Court Act that the Family Court has jurisdiction to entertain a suit between parties in a marriage in respect of the property of the parties or either of them. In view of the clear assertion by Sam George in his pleadings that there was no legal marriage, the Family Court has no jurisdiction to entertain any such claim for declaration of title to a property. In such circumstances, we are of the view that the decree granted by the Family Court was without any jurisdiction. We set aside the above decree. 6. However, in regard to the counterclaim, for all practical purposes, it has to be treated as separate proceedings between parties though it may arise out of the same proceedings. One of the reliefs sought for in the counter claim is in regard to the status of the marriage. Other reliefs sought for are relating to the right over the property. In regard to the status of the parties to the marriage, the Family Court has jurisdiction to entertain such suit or proceedings. Specifically, the Family Court under Section 7(1)(b) of the Family Court Act ## **Mat.Appeal No.949/2018 & Crl.R.P No.547/2020** ## **..6..** has jurisdiction to decide the validity of the marriage or the marital status of any person. Absolutely, there was no evidence adduced by Jessy Sam in regard to proof of legal marriage between Sam George and Jessy Sam. It appears that they were living together for a long period and in the wedlock, two children were born. It is to be noted that both parties are christians and they have no case that marriage has been solemnised in accordance with the christian rites and ceremonies. So also, they have no case that the marriage has taken place in accordance with the Special Marriage Act. In the absence of evidence to prove the solemnisation of marriage in accordance with the law applicable, the claim for the marital status that she is the wife of Sam George, has to fail. We find no reason to interfere with the finding rendered by the Family Court in regard to the marital status. In view of the fact that if there is no legal marriage, no question would arise in regard to the right or interest of the parties in respect of the petition schedule property. We leave open the claim raised by Jessy Sam in relation to the petition schedule property. Accordingly, we set aside the impugned ## **Mat.Appeal No.949/2018 & Crl.R.P No.547/2020** **==> picture [34 x 9] intentionally omitted <==** decree and judgment to the extent granting relief to Sam George and declining relief to Jessy Sam in respect of the property. Both parties are free to work out their remedies in respect of the property in accordance with the law before the appropriate Civil Court. In regard to the marital status, we affirm the finding that there was no legal marriage between Sam George and Jessy Sam. 7. In regard to the orders passed under the Protection of Women from Domestic Violence Act, 2005, there is no requirement under law to have pre-existing marriage between parties to obtain relief under the above enactment. The Section 2(a) of the Protection of Women from Domestic Violence Act which defines “aggrieved person” is as follows: _**“Aggrieved person” means any woman who is, or has been, in domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;**_ 8. The Section 2(f) of the Protection of Women from Domestic Violence Act which defines “domestic relationship” is as follows: _**“domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared**_ **Mat.Appeal No.949/2018 & Crl.R.P No.547/2020** **..8..** _**household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;**_ 9. The Apex Court in _**D.Velusamy v. D.Patchaiammal**_ _**[AIR 2011 SC 479]**_ laid down the requirement of a 'relationship in the nature of marriage' and when an aggrieved person can benefit from the 2005 Act. Paragraph 33 to 35 of the said judgment reads thus: _**“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 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 fulfil the above requirements, and in addition the parties must have lived together in a “shared household” as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a “domestic relationship”.**_ _**34. In our opinion not all live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005.**_ **Mat.Appeal No.949/2018 & Crl.R.P No.547/2020** **==> picture [34 x 9] intentionally omitted <==** _**To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence. If a man has a “keep” whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage.**_ _**35. No doubt the view we are taking would exclude many women who have had a live-in relationship from the benefit of the 2005 Act, but then it is not for this Court to legislate or amend the law. Parliament has used the expression “relationship in the nature of marriage” and not “live-in relationship”. The Court in the garb of interpretation cannot change the language of the statute.”**_ 10. There is no dispute to the fact that two children were born and the parties were cohabiting for a long period. In that scenario, the maintenance awarded cannot be set aside without any justification. As already noted, there is a threat to the occupation, possession and enjoyment of the shared household. Both parties approached the Family Court seeking reliefs in respect of the property. In that scenario, there exists a threat and the Magistrate Court is justified in granting a protection order in favour of Jessy Sam. We are called upon to decide the validity of this order invoking revisional jurisdiction. We find that there is no impropriety or any jurisdictional error committed by both Courts on facts and **Mat.Appeal No.949/2018 & Crl.R.P No.547/2020** **..10..** circumstances of the case. However, Sam George is given liberty to invoke the provisions of the Protection of Women from Domestic Violence Act, 2005, to modify or vary the order in accordance with law. Crl.R.P No.547 of 2020 is thus dismissed. Mat. Appeal No.949 of 2018 is allowed in part. No order as to costs. **Sd/A.MUHAMED MUSTAQUE, JUDGE** **Sd/SOPHY THOMAS, JUDGE** PR