Sau. Anita Ambadas @ Ambu Shivarkar vs Ambadas @ Ambu Mallu Shivarkar And Others

G. A. Sanap, J

In this revision application, challenge is to the judgment and order dated 17.08.2018 passed by learned Sessions Judge, Buldhana whereby learned Sessions Judge dismissed the appeal filed by the applicant against the judgment and order dated 13.01.2015, passed by learned Judicial Magistrate, First Class, 2nd Court, Buldhana. Learned Judicial Magistrate, First Class, by order dated 13.01.2015 had dismissed the application filed by the applicant under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the D.V.Act” for short)

Background facts :

The applicant and the non-applicants belong to Vaidu community. Non-applicant nos.1 and 5 are the brothers. Deceased mother of the applicant was the sister of non-applicant nos.1 and 5. Non-applicant no.2 is the wife of non-applicant no.1. Non-applicant nos.3 and 4 are the children of non-applicant nos.1 and 2. Non-applicant no.6 is the son of non-applicant no.5. Non-applicant no.1 is the maternal uncle of the applicant.

According to the applicant, in Vaidu community, there is a custom of ‘sate-lote’ (giving of daughter in marriage in families of two relatives). Marriage of the applicant was solemnized with non-applicant no.1 as per the custom of sate-lote in 1998. It is stated that marriage of the sister of non-applicant no.1 was solemnized with the father of the applicant. As per the custom of sate-lote, marriage of cousin of the applicant by name Gangabai was solemnized with non-applicant no.1. At that time, Gangabai was minor. She was not sent to the house of non-applicant no.1 for cohabitation. She resided with her parents. Non-applicant no.1, taking advantage of this situation, without knowledge of the applicant’s family, performed second marriage with non-applicant no.2 in 1983. Non-applicant no.2 begotten two children namely, non-applicant nos.3 and 4. The family of the applicant did not like this and therefore, divorce took place between Gangabai and non-applicant no.1. It is the case of the applicant that non-applicant no.1 was deeply hurt by this divorce. He, therefore, insisted that daughter from the applicant’s father’s family be given in marriage to him. After knowing reluctance of the family of the applicant, non-applicant no.1 insisted that the applicant’s father should give divorce to her mother. The mother of the applicant declined this suggestion of non-applicant no.1. It is stated that, therefore, the members of their Caste Panchayat came together and pressurized the parents of the applicant to perform her marriage with non-applicant no.1. When they refused to do so, non-applicants and their Caste Panchayat ostracized the family of her parents from the caste and community. An attempt was made to kill them. It is stated that by applying such pressure, the parents of the applicant were forced to perform her marriage with non-applicant no.1.

After marriage, the applicant went to the house of non-applicant no.1. Non-applicant no.1 is doing business of cutlery (sale of needle, threads and beads). Non-applicant no.1 made the applicant to sell cutlery articles in the adjoining villages. Unfortunately, the applicant, two years before filing of the application, suffered brain hemorrhage. Non-applicant no.1 and his family members realized that she was not of any use and was a liability and therefore, non-applicant nos.1 and 2 driven her out of their house. The applicant, thereafter took shelter at her parents house. She was in need of money to spend for her surgery. Non-applicant no.1 did not make any provision for the same. She, therefore, lodged report with the police. Police registered a case for the offence under Section 498-A of the Indian Penal Code against the non-applicants. It is the case of the applicant that she has no source of income. She is entitled to get maintenance for herself. She was tortured and ill-treated. Non-applicant no.1, according to the applicant, owns sufficient land. He has house property. He has sufficient means to pay maintenance to the applicant. She, therefore, prayed for grant of maintenance and other consequential reliefs, as provided under the D.V. Act.

Non-applicant no.1 filed written statement and opposed the application. Non-applicant nos.5 and 6 adopted the reply filed by non-applicant no.1. Non-applicant nos.2 to 4 did not appear and therefore, the matter was proceeded ex-parte against them. Non-applicant no.1, in sum and substance, has denied material facts pleaded by the applicant. According to him, the case of marriage of the applicant with him, as sought to be put forth, is not correct. The applicant is his niece. Father of non-applicant no.1 is the maternal grandfather of the applicant. The applicant used to reside with her maternal grandfather during her childhood. It is stated that two years prior to filing of the application by the applicant, the mother of the applicant and sister of non-applicant no.1, died. Father of the applicant demanded share in the property of the father of non-applicant no.1. Father of non-applicant no.1 refused to give share in the property and therefore, to pressurize the family of non-applicant no.1, this false story was cooked up. It is further contended that in the year 1998, the applicant was hardly 12-13 years old. Marriage of non-applicant no.1 with non-applicant no.2 was solemnized in 1983. Non-applicant no.2 begotten two children. Marriage of non-applicant no.1 with non-applicant no.2 has been in subsistence. It was contended that therefore, the case of the applicant that she was the wife of non-applicant no.1, cannot be sustained in the eye of law. It is further contended that so called marriage was not legal and valid, inasmuch as they were in the prohibited degree of relationship. It is denied that there was any custom or usage of sate-lote, as alleged.

Learned Magistrate, on consideration of the evidence adduced by the parties, found that there was no substance in the application and therefore, dismissed the said application. The appeal filed against the order of learned Magistrate was dismissed by learned Sessions Judge. The applicant is, therefore, before this Court in revision.

7.. I have heard Mr. Akshay Pandya, learned advocate for the applicant and Mr. Pushkar Deshpande, learned advocate for the non-applicants. Perused the record and proceedings.

Learned advocate Mr. Akshay Pandya for the applicant submitted that on the basis of evidence of the applicant and other witnesses, the custom of sate-lote has been established. Learned advocate submitted that in view of this custom of sate-lote, marriage of the applicant with non-applicant no.1 could not be said to be void. Learned advocate submitted that there is ample oral and documentary evidence of marriage of the applicant with non-applicant no.1. Learned advocate submitted that the Courts below have rejected the evidence in the form of photographs on wrong premise. Learned advocate submitted that the photographs were taken by brother of the applicant, who has been examined as AW-2. Learned advocate submitted that oral evidence of AW2 – Suresh Raje has been fully supported by the photograph. Learned advocate submitted that evidence of AW4 – Tatya Hatkar, who is an independent witness, has corroborated the case of the applicant on the point of custom and usage of sate-lote marriage, as stated by her. Learned advocate submitted that there is ample evidence on record to prove that the applicant resided with non-applicant no.1 as his wife and therefore, the said relationship was in the nature of marriage. Learned advocate submitted that in this case, evidence on record is sufficient to prove the ‘domestic relationship’ as understood by Section 2(f) of the D.V. Act. Learned advocate submitted that when the applicant was fit and fine, non-applicant no.1 used her for earning money by doing business of sell of cutlery articles. Learned advocate submitted that when the applicant became handicapped due to brain hemorrhage, she was thrown out of the house. Learned advocate submitted that therefore, the provisions of the D.V. Act has to be liberally interpreted and on doing so the relief as prayed for be granted in favour of the applicant. Learned advocate submitted that there is ample evidence on record to prove that on the date of marriage of the applicant with non-applicant no.1, she was not minor. Learned advocate submitted that the Courts below have not properly appreciated the evidence of her brother (AW2). The Courts below have considered the solitary admission given by AW5 Gangabai, which is totally out of context.

Learned advocate Mr. Pushkar Deshpande for non-applicants submitted that as per the provisions of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act of 1955” for short) and particularly, Section 4, the Act has an overriding effect over the ‘custom’ or ‘usage’. It is submitted that the custom with regard to the marriage cannot be pleaded because there is express provision stipulating Conditions for a Hindu Marriage, under Section 5 of the Act of 1955. It is further submitted that even the custom has not been properly pleaded and proved. Learned advocate further submitted that non-applicant no.1 is the maternal uncle of the applicant. Learned advocate, therefore, submitted that the applicant and non-applicant no.1 are within the degree of prohibited relationship. Learned advocate submitted that in order to come out of this defence of degree of prohibited relationship, the applicant was required to prove the custom or usage of such sate-lote marriage and that too the marriage of niece with maternal uncle. Learned advocate, therefore, submitted that the marriage in this case, as sought to be contended by the applicant, was void ab-initio. Learned advocate further submitted that at the time of alleged marriage, the marriage of non-applicant no.1 with non-applicant no.2 was subsisting. It is submitted that therefore, the so called marriage or relationship in the nature of marriage, was void ab-initio. Learned advocate submitted that AW5 Gangabai has categorically admitted that at the time of marriage, the applicant was 12-13 years old. Learned advocate submitted that the Courts below have properly appreciated the evidence and has rightly rejected the claim of the applicant.

In order to appreciate the rival submissions, I have gone through the record and proceedings. The applicant has pleaded the custom and usage of sate-lote marriage. In this case, non-applicant no.1 has denied his marriage with the applicant, as contended by the applicant. The second stand of the applicant is that there was domestic relationship between her and non-applicant no.1 because she lived with non-applicant no.1 and said relationship was in the nature of marriage. As far as age of the applicant in the year 1998 is concerned, in my view, the evidence on record is sufficient to accept her contention that at the relevant time she was not minor. It is seen that the Courts below have given undue importance to the solitary admission given by AW5 Gangabai. In her cross-examination, she has stated that at the time of alleged marriage of the applicant with non-applicant no.1, the applicant was 12-13 years old. The question is whether the solitary admission is sufficient to discard the other evidence. AW2 is the elder brother of the applicant. The applicant has two sisters and one brother. In order to substantiate the contention with regard to the minority of the applicant, an attempt was made in the cross-examination of all witnesses. Cross-examination of AW2 would be relevant. In his cross-examination, he has stated that on the date of his evidence, the applicant was 33 years old. He has stated that he does not know her birth date. However, he has stated that the applicant is younger to him by two years. He was asked about his birth date. He has stated that his birth date is 05.08.1978. He has stated that he does know the age of the applicant on the date of her marriage with non-applicant no.1. These two admissions given by AW2, in my view, are very vital. He has given his birth date. He has stated that the applicant is his younger sister. She is younger to him by two years. If this admission is taken into consideration, then it would show that the applicant was born somewhere in 1980-81. The alleged marriage of the applicant with non-applicant no.1 took place in 1998. It, therefore, goes without saying that on the date of the alleged marriage, the applicant was more than 18 years old. I do not see any reason to discard and disbelieve this evidence. It is further pertinent to note that AW5 Gangabai is the cousin sister of the applicant. She is the same Gangabai, whose marriage was initially performed with non-applicant no.1.

On appreciation of the evidence of AW2, brother of the applicant and AW5 Gangabai together, it would show that the evidence of AW2 carries weight. The solitary admission, given without any other foundational support, cannot be made the basis to accept the contention of non- applicant no.1 on this point.

The next important question is whether marriage of the applicant with non-applicant no.1 was solemnized as alleged. In my view, even if it is accepted for the sake of argument that marriage was solemnized as alleged, it would be a void marriage. The marriage would not have legal sanctity under the law. In this context, it would be necessary to consider whether the relationship of such kind could be covered by the definition of “domestic relationship”, contained in Section 2(f) of the D.V. Act. It is extracted below :

“2. Definitions -

(a) to (e) ……...

(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 family”.

The Hon’ble Supreme Court has interpreted this definition and particularly the words “relationship in the nature of marriage” in the case of D. Velusamy .vs. D. Patchaiammal, reported at (2010) 10 SCC

In this case, the Hon’ble Supreme Court has held that a ‘relationship in the nature of marriage’ is akin to a common law marriage. Common law marriages require 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. A ‘relationship in the nature of marriage’ under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a ‘shared household’ as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’.

In the subsequent decision of the Hon’ble Supreme Court in Indra Sarma .vs. V.K.V. Sarma, reported at (2013) 15 SCC 755, the question of interpretation of relationships, which are in the nature of marriage and live-in relationship, fell for consideration. The Hon’ble Supreme Court has laid down the guidelines and distinction between two concepts. As per the law laid in Indra Sarma’s case (supra), all live-in relationships are not covered by the definition under Section 2(f) of the D.V. Act. The Hon’ble Apex Court has held that the relationships, which qualify to be of the nature of marriage, are the only relationships governed by the definition. As per clause (c) of the decision in the case of D. Velusamy (supra), the parties must be otherwise qualified to enter into a legal marriage, including being unmarried. The marriage, therefore, must be possible under the law. If the marriage is not possible under the law or if it is prohibited by law or if it is void under the law, then the same could not be said to be a marriage permissible under law. At this stage, one more dimension that is required to be considered in the light of the law laid down above, is the interpretation required to be put to words ‘relationship in the nature of marriage’, provided under Section 2(f) of the D.V. Act. The fundamental rule of interpretation is that while interpreting the Statute, plain and simple language must be first understood. The interpretation, which is in direct conflict with law, which has tendency to promote illegality, has to be avoided. In my view, if the words ‘relationship in the nature of marriage’ is interpreted in the manner sought to be contended by the applicant, it would be directly offending the provisions of the other laws. In the facts and circumstances, this aspect needs to be kept in mind.

In this case, the first and foremost, the applicant was required to plead and prove the custom of sate-lote marriage, as alleged. Besides the custom of sate-lote, the applicant was required to prove that there was a custom of giving niece in marriage to the maternal uncle because apparently, maternal uncle and niece fall within the prohibited degree of relationship as per the provisions of the Act of 1955. I have perused the evidence of the applicant and evidence of other witnesses. There is hardly any evidence to prove the custom of sate-lote. The very fact of giving the applicant in marriage to non-applicant no.1 is ex-facie unbelievable. It is the case of the applicant that AW5 Gangabai was given in marriage, in view of this custom of sate-lote, to non-applicant no.1. Gangabai is admittedly the cousin sister of the applicant. It is stated that Gangabai was not sent for cohabitation with non-applicant no.1 because she was minor and therefore, behind the back of their family, non-applicant no.1 performed second marriage with non- applicant no.2 in the year 1983. It is their case that her uncle and her father forced non-applicant no.1 to give divorce to Gangabai. The parties are closely related. After this incident, the parents of the applicant would not have performed marriage of the applicant with non-applicant no.1. It is the case of the applicant that her mother had refused to give divorce to her father when non-applicant no.1 insisted her to do so. It is their case that the Caste Panchayat people and the non-applicants ostracized them from caste and community. They were pressurized. An attempt was made to kill them. In my view, this statement cannot be believed. If they were pressurized and any attempt was made to kill them, they would have reported the matter to police. It has come on record that the parents of the applicant in 1998 knew that non-applicant no.1 had married with non-applicant no.2 and non-applicant no.2 had begotten children. In my view, therefore, the case of the applicant appears unbelievable. This is one aspect which makes me to agree with the Courts below.

15.According to the applicant, when she became ill, two years prior to filing of the application, she was driven out of the house. It is to be noted that even if we go by the statement of the non-applicant no.1, prior to 2010, she had attained majority. If there was a marriage as contended, then non-applicant no.1 would have established physical relationship with the applicant. The applicant has admitted in her cross-examination that she and non-applicant no.1 had no physical relations. In my view, this is the vital and most important aspect against the applicant.

The next important aspect is that in the year 1998, marriage of non-applicant no.1 with non-applicant no.2 was subsisting. It is not the case of the applicant that in their community, there is a custom of second marriage. Even as per Section 5, sub-clause (i) of the Act of 1955, the alleged marriage of the applicant with non-applicant no.1 during subsistence of his marriage with non-applicant no.2, was void ab-initio. In my view, this is the crux of this matter. The contention of the applicant, therefore, cannot be accepted keeping in mind the law laid down in the case of D. Velusamy (supra).

The another important aspect that makes the alleged marriage void ab initio, is that the applicant and non-applicant no.1 falls within the degree of prohibited relationship. Even if the custom of sate-lote is accepted, the marriage of niece and maternal uncle in this manner, unless sanctioned by custom, would be void ab-initio. In this case, the applicant and the other witnesses have not uttered a word about prevalence of such custom. Even if it is assumed that marriage of Gangabai was solemnized with non-applicant no.1, it would not be a ground to accept the contention of the applicant. There is no evidence to prove that there is a custom in Vaidu community that niece is given in marriage to maternal uncle. In my view, on this ground also, the alleged marriage or relationship could not be said to be legal.

The Courts below have properly considered the legal issues involved in the matter. Therefore, I do not see any reason to interfere with the findings of fact recorded by the Courts below. As such, there is no substance in the application. The revision application, therefore, stands dismissed.