A domestic violence complaint can be upheld despite claims of no valid marriage if factual disputes exist regarding marital status, necessitating trial.

ORDER

Heard Mr.J.Nandagopal, learned counsel for the petitioner and Mr.

Venkatesan, learned counsel for the respondent.

2.The petitioner is the husband who is facing proceedings in DVC.No.38/2023 before the VIII Metropolitan Magistrate, Chennai. The present revision has been filed seeking to strike off the said domestic violence complaint.

3.Mr.J.Nandagopal, learned counsel for the petitioner submits that there is no subsisting legally valid marriage between the parties, in view of the fact that the respondent even in her complaint to the Domestic Protection Officer has admitted to the fact that the respondent was earlier married to one Shaik Khader Masthan and that there is no valid dissolution of the said marriage.

4. In view of the said admission made by the respondent, Mr.J.Nandagopal, learned counsel for the petitioner states that there is a bar under Section 2 56 of the Principles of Mohomedan Law which prohibits a Muslim woman from being married to more than one man at the same time. So therefore it is stated that the definition of “domestic relationship” under (f) of the Protection of Women from Domestic Violence Act, 2005 would not apply to the facts of the present case and therefore the complaint itself is not maintainable in the eye of the law.

5. He would also point out the stand taken by the respondent, which is highlighted by the documents filed in support of the typed set of papers, where the wife executed a “Kula Nama” alleging that the dissolution of marriage is sanctioned by the Kagi and the marriage between the former husband of the respondent and the respondent has been legalised.

6. In this connection learned counsel, Mr.J.Nandagopal has stated that the Kagi has no powers to accept the Kula Nama and dissolve the marriage. In this connection, he relies on the Kazis Act, 1880 , more specifically Section 4 , and the decision of the Hon'ble Supreme Court inD.Velusamy Vs. D.Patchaiammal and Vishwa Lochan Madan Vs. Union of India and others reported in(2014)

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7. In Vishwa Lochan Madan case (cited supra), the Hon'ble Supreme Court had held that the power to adjudicate must flow from a valid law and a person deriving benefit from the adjudication must have the right to enforce it, and the person required to make provision in terms of adjudication, has to comply.

8.The learned counsel, therefore, placing reliance on the said decision contends that the Kagi is not competent to accept the Kula Nama and dissolve the marriage in terms of Section 4 of the Kazis Act, 1880 ; The contention of the respondent is that the marriage with earlier husband has been wrongfully dissolved and that it cannot be sustained in the light of the decision in D.Velusamy Vs. D.Patchaiammal , where the Hon'ble Supreme Court has held that mere live in relationship will not entitle to a woman to the benefits of the Act and the complainant has to show that though there was no marriage, but the relationship was in the nature of marriage. Explaining the “close relationship in the nature of marriage”, the Hon'ble Supreme Court held that the following ingredients have to be fulfilled, namely;

(a) The couple must hold themselves out of 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.

(e) The parties must have lived together in a 'shared household' as defined in Sections 2 (s) of the Act- Merely spending weekends together or a one night stand would not make it a 'domestic relationship'.

(f)