P.K. Mohammed v. K.P. Rekha, K.P. Reena and the State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **TUESDAY, THE 5TH DAY OF AUGUST 2014/14TH SRAVANA, 1936** ## **Crl.MC.No. 1533 of 2013 ()** ## **---------------------------** ## **PETITIONER/RESPONDENT:** **------------------------------------------------** **P.K.MOHAMMED S/O.ATHRUMAN HAJI, PUTHENKUNNAMMAL HOUSE, ELOKKARA ENGAPPUZHA MALORAM, PIN-673586** **BY ADVS.SRI.A.K.MOHAMED ALI SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH SRI.V.S.SHIRAZ BAVA** ## **RESPONDENTS/PETITIONERS:** **--------------------------------------------** ## **1. K.P.REKHA** **W/O.NANU K, KUNNATH HOUSE, ELOKKARA ENGAPPUZHA VILLAGE, 673586** ## **2. K P REENA** **W/O.BABU, KUNNATH HOUSE, ELOKKARA ENGAPPUZHA VILLAGE, PIN-673586** ## **3. STATE OF KERALA** **REP BY PUBLIC PROSECUTOR , HIGH COURT OF KERALA ERNAKULAM** **R1 & R2 BY ADV. SRI.C.A.CHACKO R3 BY MR. JUSTIN JACOB, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **JV** ## **Crl.MC.No. 1533 of 2013 ()** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** |**PETITIONER(S)' EXHIBITS**|**PETITIONER(S)' EXHIBITS**|**PETITIONER(S)' EXHIBITS**| |---|---|---| |**-------------------------------------**||| |**ANNEX.A1**|**:**|**COPY OF THE MEMORANDUM OF MC NO 93/2012**| |**ANNEX.A2**|**:**|**COPY OF THE STATEMENT FILED BY THE PETITIONER**| |**ANNEX.A3**|**:**|**COPY OF THE PETITION NO CMP 5789/2012**| |**ANNEX.A4**|**:**|**COPY OF THE ORDER DTD 13/3/2013 IN CMP 5789/2012 IN MC**| |||**NO 93/2012**| ## **RESPONDENT(S)' EXHIBITS: N I L** **---------------------------------------** **//TRUE COPY//** **P.A. TO JUDGE** **JV** ## **A. HARIPRASAD, J.** ## **-------------------------------** ## **C.R.M.C. No. 1533 of 2013** ## **---------------------------------------------Dated this the 5[th] day of August, 2014** ## **ORDER** Petitioner is the respondent in a proceedings under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short, 'the Act'). The petitioners therein are the respondents in this proceedings. 2. Annexure A1 is the application filed under Section 12 of the Act. Relevant facts, put in nutshell, are as follows: About 2 acres of land and a house thereon situated in Eangappuzha Village belonged to M.P.Shanta, who was the mother of the respondents. Shanta was married to Lakshmanan and in that relationship, the respondents were born. While so, Lakshmanan died. Subsequent to the death of Lakshmanan, the respondents were married away by their mother. The respondents are living in their matrimonial home and the family home alternately. Respondents' mother Shanta also died on 31.08.2012. The petitioner was having a temporary residence in **crmc No.1533 /2013** **2** the house situated in the property and he was helping deceased Shanta in looking after the household affairs. Later, he started interfering with the management of the property and threatening the respondents and their husbands. With these allegations, the petitioner approached the Court below seeking reliefs under Sections 18, 19 and 20 of the Act. 3. The order impugned in this case is one passed by the learned Judicial First Class Magistrate - I, Thamarassery on CMP 5789/2012 in MC 93/2012. 4. Heard the learned counsel for the petitioners and the learned counsel for the respondents. 5. The petitioner raised a preliminary question regarding the maintainability of the application. Learned Magistrate considered the contentions elaborately and held that the petition is maintainable. Feeling aggrieved by that finding, the petitioner has come up in this proceedings under Section 482 Cr.P.C. 6. Learned counsel for the petitioner submitted that going by the allegations in Annexure A1 application, it can be seen that the entire proceedings is mis-conceived and legally not maintainable. The specific averments in Annexure A1 application is that the petitioner was temporarily staying in the **crmc No.1533 /2013** **3** house of the respondents as a helper. Learned counsel for the petitioner contended that unless there is a specific plea in the application regarding a domestic relationship between the applicant and the respondent, no action under the Act can be maintained. 7. Per contra, learned counsel for the respondents contended that alongwith the complaint, they have produced the plaint filed by the petitioner against the respondents before a competent Civil Court claiming partition. That is marked as Exhibit P6 in the impugned order. The petitioner alleged that he married deceased Shanta and he had expended money for constructing house in the property. On those basic allegations, he claimed partition against the respondents in respect of the disputed properties. Learned counsel for the respondents contended that the petitioner, having raised such a contention before a competent Civil Court, now cannot turn round and contended that he never had any domestic relationship with deceased Shanta. 8. For appreciating the rival contentions, following definitions in the Act are relevant. Section 2(a) of the Act defines 'aggrieved person' in the following terms: **crmc No.1533 /2013** **4** “'Aggrieved person' means 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.” Section 2(f) of the Act defines 'domestic relationship' which reads as follows: “'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 by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.” Section 2(q) is the provision which defines the term 'respondent' occurring in the Act. It is as follows: “'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.” 9. On a careful reading of the definition of 'aggrieved person' in Section 2(a) of the Act, it can be seen that an **crmc No.1533 /2013** **5** aggrieved person can only be a female. It is also required 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 as defined under Section 3 of the Act by the respondent. 10. The 'domestic relationship' in Section 2(f) of the Act clearly 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 which is defined in Section 2(s) of the Act. Going by the averments in the application, the petitioner and the respondents are not related by consanguinity or marriage. Respondents have no case that there was any jural relationship set in on account of any adoption. The observation by the Court below that petitioner and the respondents were living as members of a joint family is legally totally misconceived and unsustainable. It is rudimentary that a joint family cannot be created by act of parties. It is created by operation of law. Admittedly, deceased Shanta was a Hindu and the petitioner is a Muslim. So long as **crmc No.1533 /2013** **6** they remain two different religions, their marriage cannot be said to be a valid one, according to the personal law of both the parties. Therefore, there is no question of treating them as members of a joint family arises. The reasoning of the Court below in this regard is perverse. Therefore, the only aspect remaining is whether deceased Shanta and the petitioner lived a relationship in the nature of marriage. 11. The Apex Court in **Velusamy v. Patchaiammal [2010** **(4) K.L.T. 384 (SC)]** held that the expressions “relationship in the nature of marriage” and “live-in relationship” are not synonymous. It has been held that the Parliament by the aforesaid Act has drawn a distinction between the relationship of marriage and the relationship in the nature of marriage. It has provided that in either case, the person who enters into either relationship is entitled to the benefit of the Act. But it was observed that all the live-in relationships will not amount to a relationship in the nature of marriage to get a benefit under the Act. 12. The Supreme Court in **Indra Sarma v. Sarma [2013 (4) K.L.T. 763 (SC)]** considered various questions in relation to the phrase “living in the nature of marriage”. It has been held **crmc No.1533 /2013** **7** that live-in relationship as such is a relationship which has not been socially accepted in India. What is recognized by the Act is the relationship in the nature of marriage and not a live-in relationship simplicitor. In paragraph 55 of the judgment guidelines are mentioned indicating under what circumstances a live-in relationship will fall within the expression “relationship in the nature of marriage”. It has been mentioned clearly that the illustrations are not exhaustive. The related portions reads as follows: “55. We may, on the basis of above discussion cull out some guidelines for testing under what circumstances, a live-in relationship will fall within the expression “relationship in the nature of marriage” under S.2(f) of the D.V. Act. The guidelines, of course, are not exhaustive, but will definitely give some insight to such relationships. 1) Duration of period of relationship - Section 2(f) of the D.V. Act has used the expression “at any point of time”, which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation. (2) **crmc No.1533 /2013** **8** Shared household - The expression has been defined under Section 2(s) of the D.V. Act and, hence, need no further elaboration. (3) Pooling of Resources and Financial Arrangements - Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long term investments in business, shares in separate and joint names, so as to have a long standing relationship, may be a guiding factor. (4) Domestic Arrangements - Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or upkeeping the house, etc. is an indication of a relationship in the nature of marriage. (5) Sexual Relationship - Marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring etc. (6) Children - Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long **crmc No.1533 /2013** **9** standing relationship. Sharing the responsibility for bringing up and supporting them is also a strong indication. (7) Socialization in Public - Holding out to the public and socializing with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage. (8) Intention and conduct of the parties - Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship.” 13. Having understood the law as above, we shall try to apply the same to the facts available here. As pointed out by the learned counsel for the petitioner, there is absolutely no averments in the complaint to show that deceased Shanta and the petitioner were having a domestic relationship at any point of time. Therefore, the respondents cannot said to be aggrieved persons in the context of the Act. So much so, the petitioner cannot be made a respondent in the proceedings under the Act with the allegations made in the complaint. Merely for the **crmc No.1533 /2013** **10** reason that the petitioner raised a claim for partition in respect of the property and house thereon, it cannot be taken as a basis for maintaining a criminal action under the Act. The fundamental mistake committed by the learned Magistrate is that solely relying on Ext.P6 plaint, he decided that the application under Section 12 of the Act is maintainable. He did not consider the averments in the complaint, which are crucial for determination of maintainability of the case. In other words, the entire contentions in the application were discounted by the Court below to find whether the complaint is maintainable in law or not. Therefore I find that impugned order is legally unsustainable. In the result, the petition is allowed. Annexure A4 order passed by the Court below is set aside. This Crl.M.C. is disposed of accordingly. sd/- **A. HARIPRASAD, JUDGE** JV