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Supreme Court of India
K.S. RADHAKRISHNAN & PINAKI CHANDRA GHOSE, JJ.
Indra Sarma – Appellant
Versus
V.K.V. Sarma – Respondent
Criminal Appeal No. 2009 of 2013 (@ Special Leave Petition (Crl.) No. 4895 of 2012) Decided On : 26-11-2013
2000 (3) SA 936 (CC); 2002 (6) SA 1 (CC); 2003 (2) SA 198 (CC); 316 US 535 (1942); 198 P.2d 17, 20.1 (1948); 388 US 1 (1967); (2013) 2 SCALE 198 - Relied upon
(b) Protection of Women from Domestic Violence Act, 2005 - Section 2(f) - Expression "relationship in the nature of marriage" - Means a relationship having some inherent or essential characteristics of a marriage, though not a marriage legally recognized - Marriage continues notwithstanding differences of opinions, marital unrest etc. - Live-in-relationship unlike legal marriage is purely an arrangement between the parties -In "the nature of marriage" the party asserting the existence of the relationship must positively prove existence of the identifying characteristics of marital relationship. (Paras 35 and 36)
(c) Protection of Women from Domestic Violence Act, 2005 - Sections 2(f) and 2(a) - Act does not recognise relationship of same sex. (Para 38)
(d) Protection of Women from Domestic Violence Act, 2005 - Section 2(f) - Relationship in "the nature of marriage" - Determination of - Guiding factors - Duration of period; Shared household; Pooling of Resources and Financial Arrangements; Domestic Arrangements; Sexual Relationship; Children; Socialization in Public and Intention and conduct of the parties. (Para 55)
101 Wn.2d 299 (1984); 87 Wn.2d 550 (1976); 93 Wash. App. at 917; [2007] 2 AC 432; [2008] HCA 12; (1983) 52 ALR 128; (1994) 2 SZLR 369 (HC); AIR 2006 SC 2522 - Relied upon
(e) Protection of Women from Domestic Violence Act, 2005 - Section 2(f) - Relationship in "the nature of marriage" - Polygamy, bigamy and/or maintaining an adulterous relationship - Cannot be said to be a relationship "in the nature of marriage" - Appellant had live-in relation with appellant knowing him to be married - She is a concubine - Not a relation in the nature of marriage - Not entitled to ant relief under the Act - However long standing relationship as a concubine may need protection. (Paras 56 and 57)
AIR 1927 PC 185; (1978) 3 SCC 527; (2008) 4 SCC 520; AIR 1952 SC 231 - Relied upon
(2010) 10 SCC 469; (2010) 5 SCC 600; (2013) 2 SCC 137 - Referred
Facts of the case:
This case raises the question whether a "live-in relationship" would amount to a "relationship in the nature of marriage" falling within the definition of "domestic relationship" under Section 2(f) of the Protection of Women from Domestic Violence Act, 2005 and the disruption of such a relationship by failure to maintain a women involved in such a relationship amounts to "domestic violence" within the meaning of Section 3 of the DV Act.
Finding of the Court:
Instant live-in relationship is not in the nature of marriage. Any act, omission or commission or conduct of the respondent in connection with that type of relationship, would not amount to "domestic violence" under Section 3 of the DV Act.
Result : Appeal dismissed.
The Supreme Court granted leave and examined whether the live-in relationship qualified as a "relationship in the nature of marriage" under Section 2(f) of the DV Act, making the respondent's non-maintenance "domestic violence" under Section 3, entitling the appellant to reliefs under Section 12. (!) (!) [1000534440011]
Marriage is a basic civil right involving formal agreement, cohabitation as husband and wife, public holding out, consortium omnis vitae (mutual support, fidelity, household maintenance), and legal obligations like inheritance.[1000534440022]
"Relationship in the nature of marriage" requires essential marriage characteristics though not legally recognized; unlike marriage (enduring despite discord), it is a terminable arrangement where the claimant must prove identifying traits.[1000534440034][1000534440035]
The DV Act covers opposite-sex relationships via consanguinity, marriage, relationship in nature of marriage, adoption, or joint family; same-sex excluded as "aggrieved person" is woman.[1000534440036][1000534440037]
Illustrative categories: (a) Unmarried woman-unmarried man qualifies; (b) Unmarried woman knowingly with married man (as here) does not, akin to concubine; (c) married woman-unmarried man differs; (d) unknowing may qualify; (e) same-sex excluded. (!) (!) [1000534440055]
Guiding factors for determination: (1) duration; (2) shared household; (3) pooling resources/financial arrangements; (4) domestic arrangements; (5) sexual relationship for emotional/procreative purposes; (6) children and shared upbringing; (7) public socialization as couple; (8) parties' intention/conduct. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
Applied to facts: Appellant knowingly entered adulterous/bigamous relationship with married respondent (opposed by families); no intention for marriage/children (three abortions); no pooling/joint accounts/properties/public holding out/socialization; mere cohabitation insufficient—appellant concubine/mistress, not wife-equivalent; no domestic violence.[1000534440055][1000534440056][1000534440062]
Appellant's interference alienated respondent from wife/children (intentional tort); protections unavailable to avoid injustice to legal family.[1000534440063][1000534440066]
Live-in relationships (especially concubine-type) need legislative protection for vulnerable women/children, but DV Act's restrictive Section 2(f) excludes; other remedies like constructive trust possible.[1000534440056][1000534440058][1000534440061]
Appeal dismissed; High Court affirmed—no domestic relationship/violence.[1000534440064][1000534440067]
Judgment :-
K.S. Radhakrishnan, J.
Leave granted.
2. Live-in or marriage like relationship is neither a crime nor a sin though socially unacceptable in this country. The decision to marry or not to marry or to have a heterosexual relationship is intensely personal.
3. We are, in this case, concerned with the question whether a “live-in relationship” would amount to a “relationship in the nature of marriage” falling within the definition of “domestic relationship” under Section 2(f) of the Protection of Women from Domestic Violence Act, 2005 (for short “the DV Act”) and the disruption of such a relationship by failure to maintain a women involved in such a relationship amounts to “domestic violence” within the meaning of Section 3 of the DV Act.
FACTS:
4. Appellant and respondent were working together in a private company. The Respondent, who was working as a Personal Officer of the Company, was a married person having two children and the appellant, aged 33 years, was unmarried. Constant contacts between them developed intimacy and in the year 1992, appellant left the job from the above-mentioned Company and started living with the respondent in a shared household. Appellant’s family members, including her father, brother and sister, and also the wife of the respondent, opposed that live-in-relationship. She has also maintained the stand that the respondent, in fact, started a business in her name and that they were earning from that business. After some time, the respondent shifted the business to his residence and continued the business with the help of his son, thereby depriving her right of working and earning. Appellant has also stated that both of them lived together in a shared household and, due to their relationship, appellant became pregnant on three occasions, though all resulted in abortion. Respondent, it was alleged, used to force the appellant to take contraceptive methods to avoid pregnancy. Further, it was also stated that the respondent took a sum of Rs.1,00,000/- from the appellant stating that he would buy a land in her name, but the same was not done. Respondent also took money from the appellant to start a beauty parlour for his wife. Appellant also alleged that, during the year 2006, respondent took a loan of Rs.2,50,000/- from her and had not returned. Further, it was also stated that the respondent, all along, was harassing the appellant by not exposing her as his wife publicly, or permitting to suffix his name after the name of the appellant. Appellant also alleged that the respondent never used to take her anywhere, either to the houses of relatives or friends or functions. Appellant also alleged that the respondent never used to accompany her to the hospital or make joint Bank account, execute documents, etc. Respondent’s family constantly opposed their live-in relationship and ultimately forced him to leave the company of the appellant and it was alleged that he left the company of the appellant without maintaining her.
5. Appellant then preferred Criminal Misc. No. 692 of 2007 under Section 12 of the DV Act before the III Additional Chief Metropolitan Magistrate, Bangalore, seeking the following reliefs:
1) Pass a Protection Order under Section 18 of the DV Act prohibiting the respondent from committing any act of domestic violence against the appellant and her relatives, and further prohibiting the respondent from alienating the assets both moveable and immoveable properties owned by the respondent;
2) Pass a residence order under Section 19 of the DV Act and direct the respondent to provide for an independent residence as being provided by the respondent or in the alternative a joint residence along with the respondent where he is residing presently and for the maintenance of Rs.25,000/- per month regularly as being provided earlier or in the alternative to pay the permanent maintenance charges at the rate of Rs.25,000/- per month for the rest of the life;
3) Pass a monetary order under Section 20 of the
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