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High Court of Kerala
K. HARILAL, J.
Joby
Versus
Elsy & Another
Crl.Rev.Pet.No. 1129 of 2013
Decided On : 12-06-2013
Protection of Women from Domestic Violence Act, 2005 - Section 12 - Benefits Claim - A marriage which is valid in the eye of law is not required to claim the benefits under the said Act - The legislative intent of the said Act itself is that to give protection to the women who are living with the husband in the nature of a marriage but without a legal marriage - Held, They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
Key Points: - The Act allows protection for women living with a husband in the nature of a marriage without a legal marriage; such relationships can qualify under Sec. 2(a) and 2(f) for protection orders. (!) - The court held that a relationship in the nature of marriage can be established even if the marriage is not legally valid, provided there is voluntary cohabitation and holding out as spouses for a significant period. (!) - The preliminary question considered whether the averments disclose a domestic relationship under Sec. 2(f); the court found the averments sufficient to prima facie disclose such a relationship based on ongoing cohabitation and intimacy. (!) - The decision references Velusamy v. Patchaiammal for the interpretation that Sec. 2(a) requires a relationship in the nature of marriage, not a legally valid marriage. (!) - The petition involved seeking protection order, maintenance, and compensation under the DV Act, with the trial and sessions courts upholding that there was a domestic relationship. (!) - The revision petition was dismissed, upholding the lower courts’ finding of a domestic relationship between the parties, thereby maintaining the petition’s maintainability under the DV Act. (!) (!) - The respondent’s claim that the first petitioner is not a wife under Sec. 2(f) was rejected based on the factual allegations of cohabitation and pregnancy. (!) - The judgment clarifies that a valid marriage under law is not required to claim benefits under the DV Act; the focus is on the nature of the relationship and cohabitation akin to spouses. (!) - The case involved allegations of violence, pregnancy, and attempts to terminate pregnancy, forming the factual basis for domestic violence protection relief sought. (!) (!)
1. The revision petitioner is the respondent in M.C.No.78/2009 of the Judicial First Class Magistrate Court, Cherthala. The said case was filed under Section 12 of the Protection of Women from Domestic Violence Act by the respondents 1 and 2 against the petitioner herein seeking a protection order from domestic violence, compensation of Rs.4 lakhs and maintenance. The preliminary objection raised by the revision petitioner is that the 1st respondent is not a wife coming under Section 2(f) of the Protection of Women from Domestic Violence Act. Put it differently, objection is that there is no domestic relationship between the revision petitioner and the 1st respondent. After considering the objection, the trial court found that the averments in the petition disclose the domestic relationship between the revision petitioner and the 1st respondent and thereby the 1st respondent is a wife coming under Section 12 of the Family Court Act. Aggrieved by the dismissal of the preliminary objection the revision petitioner had preferred an appeal before the Sessions Court. After re-appreciating the evidence, the Sessions Court also confirmed the findings of the trial court. This Revision Petition is filed challenging the concurrent findings of the courts below.
2. It is a case of the 1st respondent that she is an unmarried woman residing along with her mother. The petitioner used to visit the residence of the 1st respondent frequently and used to reside together at times. On 29.4.2009 the revision petitioner came to the residence of the 1st respondent and had sexual intercourse with her. This was repeated on various subsequent occasions and as a result of which the 1st respondent became pregnant and gave birth to 2nd respondent and the revision petitioner and 1st respondent resided together on various occasions. While the 1st respondent was pregnant the revision petitioner gave certain medicines so as to terminate her pregnancy and further threatened the 1st respondent causing fear of death. In connection with the said incident Pattanakad police registered Crime No.36/2009 against the revision petitioner. In the above context, the respondents filed the above case, seeking a protection order from domestic violence, compensation of Rs.4 lakhs and maintenance.
3. The counsel for the revision petitioner contends that the courts below concurrently failed to consider the question whether there is any allegation of domestic relationship in view of Sec.2(f) of the Protection of Women from Domestic Violence Act. The courts below have not considered the definition in its correct perspective and thereby the impugned order arises from misconception of law and procedural irregularity. The counsel further submits that in view of the conjoint reading of Sections 2(a), 2(f) and 2(s) of the Protection of Women from Domestic Violence Act, 2005, the complaint itself is not maintainable and the averments do not disclose the ingredients of the said sections. The counsel further pointed out that there is no averment indicating that they had a relationship in the nature of marriage.
4. Therefore, being a preliminary issue challenging the maintainability of the petition, the short question that arises for consideration is whether the averments in the petition disclose the domestic relationship defined under Sec.2(f) of the Protection of Women from Domestic Violence Act. As a preliminary issue, this question does not warrant a meticulous scrutiny of the entire pleadings. What is required is whether the allegations prima facie disclose a domestic relationship as defined in the said Act. Going by para 2 of the petition, it is specifically stated that the revision petitioner and 1st respondent are neighbours and the 1st respondent is an unmarried woman. It is alleged that the revision petitioner used to come to her house and they developed an intimacy which culminated in pregnancy and she gave birth to the 2nd respondent. It is specifically alleged that on
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