Satyendra Kumar Sharma @APPELLANT@Hash Smt Uma Sharma

The short and crucial question on which result of these two criminal revision petitions depends is whether Smt.Uma Sharma is covered within the

definition of “aggrieved person†given under Sec.2(a) of the Protection of Women from the Domestic Violence Act, 2005 (for short as

'D.V.Act').

Facts in brief

The factual matrix which transpires from the perusal of the record and from the arguments advanced by both sides, is that the marriage between

Smt.Uma Sharma and Sh.Satyendra Kumar Sharma took place on 15.10.2004. Out of this wedlock, a son named Akshay Sharma was born on

11.10.2008. It has been alleged that Smt.Uma was thrown out of the matrimonial home in the year 2010. She filed a complaint bearing No.30/2010

under Section 12 of the D.V.Act which came to be decided against her vide judgment dated 7.5.2012. She preferred an appeal which came to be

decided on 2.2.2013 by learned Addl. Sessions Judge No.15, Jaipur Metropolitan, Jaipur while quashing and setting aside the order dated 7.5.2012,

learned Appellate Court remanded the matter back to the trial court with the direction to decide the matter afresh. The matter was again heard and

decided vide judgment dated 18.4.2015 by the learned trial court. This time all the five issues were decided in favour of wife Smt.Uma and the

application filed by her under Sec.12 of the D.V.Act was allowed and respondents including the husband Satyendra Kumar were directed not to

commit domestic violence towards the wife Smt.Uma. At the same time, under the provision of Sec.19 of the D.V.Act, the respondents were directed

to pay a sum of Rs.3,000/per month for alternate accommodation/rental and Rs.5,000/- per month for monetary relief/maintenance in favour of wife

Smt.Uma and her son. Simultaneously, compensation in the tune of Rs.30,000/- was also awarded in favour of wife Smt.Uma. Aggrieved by this

order, husband Satyendra Kumar and wife Smt.Uma both preferred appeals which came to be decided vide judgment dated 30.1.2016. By this

judgment appeals preferred by both of them were rejected and the judgment passed by learned trial court on 18.4.2015 was upheld. Against this

judgment dated 30.1.2016, husband and wife both have preferred SBCr.Revision Pet. Nos.312/2016 and 265/2018 before this court which are being

decided by this order. Husband Satyendra Kumar has approached this court with a prayer to set aside the judgment dated 30.1.2016, whereas wife

Smt.Uma has prayed that maintenance allowance may be increased to Rs.10,000/- per month and Rs.5,000/- per month be provided for suitable

accommodation to her and her son.

Submissions

During the course of arguments, learned counsel appearing for husband Satyendra Kumar contends that the marriage which allegedly took place on

15.10.2004 between Satyendra Kumar and Smt.Uma was not a valid marriage as the previous husband of Smt.Uma namely Sh.K.M.(Krishna

Murari)Trivedi was alive and no divorce had taken place between them on or before 15.10.2004. It has also been stated that first marriage of

Smt.Uma took place with one Rakesh Patel in the year 1996. She again married in the year 2002 with Sh.K.M.Trivedi. Suppressing the fact of her

marriage with K.M.Trivedi and pretending to be a divorcee, Smt.Uma got an advertisement published for her marriage on 12.9.2004. Learned counsel

has further stated that on the petition filed under Sec.11 of the Hindu Marriage Act, the marriage of Smt.Uma with husband Satyendra Kumar has

been declared to be null and void from the very inception vide judgment dated 22.8.2016 passed by learned Family Judge No.2, Jaipur. The counsel

contends that in view of above, Smt.Uma cannot be treated in the category of “aggrieved personâ€​ as defined under Sec.2(a) of the D.V.Act.

In support of his submissions, learned counsel has placed reliance on the judgment reported in 2010(7) Supreme 321- D.Velusamy Vs.

D.Patchaiammal; and (2011) 1 SCC 141Chanmuniya Vs. Virendra Kumar Singh Kushwaha and anr. He has also submitted the written arguments.

Per contra, learned counsel appearing on behalf of wife Smt.Uma contends that both the courts below, after appreciating the evidence, have come to

the concurrent finding that the marriage has taken place between husband Satyendra Kumar and Smt.Uma on 15.10.2004; they have been living

together as husband and wife. The child named Akshay Kumar was also born out of this wedlock. His birth certificate Ex.P-1 contains the name of

Satyendra Kumar as his father. Their matrimonial relationship continued from 2004 to 2010. In view of Sec.2(a) and 2(f) of the

D.V.Act, Uma comes within the category of “aggrieved personâ€. Counsel therefore contends that the revision petition preferred by the husband

Satyendra Kumar deserves to be dismissed and the revision petition preferred by wife Uma for enhancement of monetary relief deserves to be

allowed. In support of his submissions, learned counsel has placed reliance on the judgment reported in 2015(12) Scale 521-Krishna Bhatacharjee Vs.

Sarathi Choudhary and anr. He has also placed reliance on the judgment reported in 2016(4) RCR (Civil) 240- Mohd. Rafique Vs. State of Rajasthan

and ors. (SBCr.Rev. Pet. No.636/15 decided on 23.4.16) by the coordinate bench of this court.

Conclusion:

To appreciate the arguments advanced by both the sides, it will be appropriate to refer to the definition of “aggrieved person†and the

“domestic relationshipâ€​ as mentioned in Sec.2(a) and 2(f) of the D.V.Act, which are reproduced as under:

 2(a):- “ 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 respondentâ€; 2(f):- “ 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 familyâ€​;

On perusal of the above definitions, it is clear that if any woman who is or has been in domestic relationship with the respondent at any point of time,

and have lived together in shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, if

such woman is subjected to domestic violence, she can be treated to be an 'aggrieved person'.

After analyzing the legal provisions contained in the D.V.Act, the Hon'ble Supreme Court in D.Velusamy Vs. D.Patchaiammal reported in 2010(7)

Supreme 321, at para nos.33 and 34, has laid down as under:

In our opinion, a 'relationship in the nature of marriage' is akin to a common law marriage. Common law marriages requires 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.

In out opinion, not all live in relationship will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005. 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.'

As per condition (c) mentioned in para 33 above, the parties must otherwise be qualified to enter into a legal marriage, including being unmarried. But

on perusal of the judgment dated 18.4.2015 passed by the trial court, it appears that the plea raised on behalf of the husband Satyendra Kumar that at

the time of his marriage with Smt.Uma, her previous husband Sh.K.M.Trivedi was alive, has not been taken into consideration. The findings arrived at

by the trial court is limited only to the extent with regard to the marriage which has taken place between Satyendra Kumar and Smt.Uma. It appears

that trial court was pre-dominently influenced by the fact that the marriage of Satyendra Kumar took place with Uma Sharma and this subsisted for a

pretty long time. The birth certificate of Akshay Sharma, who was born out of this wedlock , has also been taken into consideration by the trial court.

The learned trial court has not given thoughful consideration to the plea raised by Satyendra Kumar that wife Uma Sharma got married after deceiving

him and while suppressing the fact of her previously subsisting marriage with K.M.Trivedi. The learned trial court has come to the conclusion that on

the anvil of admission made by Satyendra Kumar about getting married with Smt.Uma, their relationship as husband and wife are established and the

conditions imposed/referred by Hon'ble Supreme court are fulfilled. Hence, it appears that the condition (c) “parties must be otherwise qualified to

enter into a legal marriage, including being unmarriedâ€​ has been completely ignored by the trial court while drawing its conclusion.

On perusal of the judgment dated 30.1.2016 passed by the learned lower Appellate Court, it appears that it has also acted upon the lines as adopted by

trial court while deciding issue no.1. In para no.28 of the judgment, learned Appellate Court has observed that the marriage which took place between

Smt.Uma and her previous husband Sh.K.M.Trivedi was dissolved by way of a compromise which they got attested before the Notary Public.

Dissolution of marriage in this manner is not legally acceptable. It appears that the learned Appellate Court was more focussed on issue of legality of

marriage of Smt.Uma with her previous husband K.M.Trivedi, and held that her marriage with K.M.Trivedi was not legally valid. It has also been

observed by it that after dissolution of marriage by way of compromise, Sh.K.M.Trivedi never continued to maintain relationship with Smt.Uma. In my

considered opinion, this aspect was not at all relevant for deciding the issue as to whether the marriage of Smt.Uma with Satyendra Kumar was valid

or not and therefore whether she can fall in the category of 'aggrieved person' or not. It appears that both the courts below have not given due

consideration to the deciding factor as to whether marriage of Smt.Uma with Satyendra Kumar can be termed as relationship in the nature of

marriage as laid down by Hon'ble Apex Court in D.Velusamy's case (supra).

It has been brought to the notice of the court by the learned counsel appearing for Satyendra Kumar that vide judgment dated 22.8.2016, learned

Family Judge No.2, Jaipur has declared the marriage of Satyendra Kumar with Smt.Uma as null and void from its very inception i.e. from 15.10.2004.

Copy of the judgment dated 22.8.2016 has been placed on record. This judgment makes the factual aspect all the more clear. The marriage, if at all,

has taken place between Satyendra Kumar and Uma Sharma on 15.10.2004, it has been declared null and void vide judgment dated 22.8.2016. In

view of the above, the judgment relied upon by learned counsel appearing on behalf of Uma Sharma in the case of Mohd. Rafique’s case (supra),

does not come to her rescue. In the case under reference, husband served upon the wife a divorce notice without paying her mehar amount, so the

divorce was not treated to be legal and it was concluded that the matrimonial relationship was not severed. But the factual situation in the case in hand

is clearly different. Here the marriage has been declared null and void from its very inception. Even in the case of divorce where the status of

husband and wife is severed, the wife may be treated in the category of “aggrieved person†as having lived in domestic relationship with

husband at one point of time. But declaring the marriage null and void from its very inception, is all together a different situation, wherein the marriage

cannot be treated to have come into existence at all.

Similarly, the judgment in the case of Krishna Bhatacharjee (supra) relied upon by learned counsel appearing on behalf of Smt.Uma is also of no

assistance to her. In that case, it was held that wife does not seem to be an ‘aggrieved person’ after the decree of separation. The factual

aspect in the case in hand is in sharp contrast with the case of Krishna Bharacharjee (supra). Here the marriage has been held to be null and void

from the very beginning and was thus non-est.

Learned counsel appearing on behalf of wife Smt.Uma has attempted to negate the effect of judgment dated 22.8.2016 by mentioning that the appeal

has been preferred by Smt.Uma against the said judgment. In my considered view, simply filing the appeal cannot help the wife unless the effect of

judgment dated 22.8.2016 is stayed by the competent authority/court.

In view of discussion made above, wife Smt.Uma Sharma is not covered within the definition of “aggrieved person†as given under Sec.2(a) of

D.V.Act and thus, the revision petition preferred by husband Satyendra Kumar deserves to be and is accordingly allowed. The judgment dated

30.1.2016 passed by learned lower Appellate Court upholding the judgment dated 18.4.2015 is quashed and set aside. In view of above, revision

petition preferred by wife Smt.Uma with prayer for enhancement of monetary relief awarded in her favour deserves to be and is accordingly rejected.