The wheel of time has run a full circle. Close on
the heels of fast paced life the bye product of it is attitudinal change and
extent of care towards their respective spouse. The matrimonial relationship thus
have undergone such attitudinal changes across the gender leading to a
relationship on a short fuse. The one such relationship though not per se a
matrimonial relationship, but have the trap of it is a Live In Relationship.
There may be various exponents of live in relationship and also those who detest
it. The fait accompli, though,
remains that there are scores of people who are in live in relationship and
therefore, no one can be oblivious to the nuances of it. In this backdrop,
though, sexual relationship beyond the ties of marriage may not be widely
accepted even today, but its existence across societies is not in dispute.
Several times it posed situations leading to conflict between law and morality.
It is often seen that a female partner is at the receiving end in the live in
relationship as well and available legal remedies for such female partner are
limited and that renders a female prone to exploitation. Though, sometime, even
converse are true, but that is relatively rare.
OBJECT OF DV ACT 2005
The objects and reasons of the Domestic Violence
Act (In short “DV Act”) have its genesis from the basic tenets of human rights.
The Vienna Accord of 1994 and the Beijing Declaration and the Platform for
Action (1995) have acknowledged this. The gender issue is an offshoot of human
rights. The United Nations Committee on Convention on Elimination of All Forms
of Discrimination Against Women on Convention
on Elimination of All Forms of Discrimination Against Women (CEDAW) in its
General Recommendation No.XII (1989), has recommended that State parties should
act to protect women against violence of any kind, especially that occurring
within the family.
In the above backdrop, the Protection of Women
from Domestic Violence Act ( In short “DV Act”) was enacted in the year 2005
with a view to alleviate the difficulties of women. The D.V. Act recognizes
certain rights of a woman who is in live in relationship, if domestic violence
is committed on her by her male partner and his family members during such
relationship. Since the DV law, as enacted is still in the transition stage,
and as elucidated above, hence, it poses certain novel situations leading to intrigue
and thus craves for adequate and effective remedy. For instance, in a situation,
where, a woman during existence or subsistence of her previous marriage entered
into relationship with unmarried man, lived with him and gave birth to a child,
that situation needs analysis. Since, that is a new dimension even in live in relationship.
The question, often hinges, nevertheless as to– (a)
Whether the live-in relationship could be construed as a relationship in
the nature of marriage? (b) Whether, the
provisions of D.V. Act can be invoked only by aggrieved person and that too if
there is an act of domestic violence, committed during domestic relationship
i.e. the parties must be related by - i. consanguinity, or ii. marriage, or
iii. through a relationship in the nature of marriage, or iv. adoption, or v.
any family members living together as a joint family.
THE
CASE LAWS
The case law depicted herein shall throw light on
the domestic violence law in general, with particular emphasis on live in
relationship. It is apt to find out the guidelines laid down by courts, based
on the experience over the years. The Supreme Court in the case of Krishna
Bhattacharjee Vs. Sarathi Choudhury, (2016) 2 SCC 705, has observed as
under:
“Regard being had
to the nature of the legislation, a more sensitive approach is expected from
the courts where under the 2005 Act no relief can be granted, it should never
be conceived of but, before throwing a petition at the threshold on the ground
of maintainability, there has to be an apposite discussion and thorough
deliberation on the issues raised. It should be borne in mind that helpless and
hapless aggrieved person under the 2005 Act approaches the court under the
compelling circumstances. It is the duty of the court to scrutinise the facts
from all angles whether a plea advanced by the respondent to nullify the
grievance of the aggrieved person is really legally sound and correct. The
principle justice to the cause is equivalent to the salt of ocean should be
kept in mind. The court of law is bound to uphold the truth which sparkles when
justice is done. Before throwing a petition at the threshold, it is obligatory
to see that the person aggrieved under such a legislation is not faced with a
situation of non-adjudication, for the 2005 Act as we have stated is a
beneficial as well as assertively affirmative enactment for the realisation of
the constitutional rights of women and to ensure that they do not become
victims of any kind of domestic violence”.
In Lata Singh Vs. State of U.P. & Anr., AIR
2006 SC 2522, the hon’ble Supreme Court has observed that a live-in
relationship between two consenting adults of heterogenic sex does not amount
to any offence (with the obvious exception of `adultery'), even though it may be
perceived as immoral. A major girl is free to marry anyone she likes or
"live with anyone she likes". In that case, the petitioner was a
woman who had married a man belonging to another caste and had begun
cohabitation with him. The petitioner's brother had filed a criminal complaint
accusing her husband of offences under Sections 366 and 368 IPC, thereby
leading to the commencement of trial proceedings. The Supreme Court had
entertained a writ petition and granted relief by quashing the criminal trial.
Furthermore, the Court had noted that `no offence was committed by any of the
accused and the whole criminal case in question is an abuse of the process of
the Court.’’
In case of D. Velusamy (Supra) Supreme Court,
in Para No.33 observed, as follows –
“In
our opinion 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”.
This follows therefore that a
‘relationship in the nature of marriage’ under the 2005 Act must 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’.
It is generally observed that a male
partner in live in relationship often disputes the tenability of the
application u/s 12 of DV Act and claims that their relationship in the nature
of marriage as defined in Section 2(f) of D.V. Act did not exist. Such a plea
gets further attention, if the earlier marriage of female partner is not
terminated. The plea also comes that deceitfully, the female partner did not
disclose about earlier divorce and/or the fact that they were divorced. It is
also pleaded that the female wanted to have a child but did not want any
commitment to a relationship. The child is born out of said relationship and since
the birth of daughter the relationship between both the partners are irretrievably
broken down and there was no emotional or physical or otherwise any relationship.
It is also often a broad contour of pleading that the female partner had a wayward
life on her own terms and conditions, totally unconcerned about the male
partner. The allegation also revolves around that no domestic chores and
household was maintained by the female partner. These are generic allegations
often finds mention in the plea against the domestic violence.
Taking note of situation and
plausible pleas of parties, the legislature in its wisdom have enumerated circumstances,
in relation to domestic violence and empowered the Court to pass just and
proper orders, to redress the grievance of the aggrieved person. The bare
reading of DV Act 2005, makes it abundantly clear that the Domestic Violence
Act, is independent of other laws. It is a complete code in itself, dealing
with the entire gamut of family relationship between Husband, Wife and Children
and the remedies available to an aggrieved person, on account of domestic
violence. The D.V. Act is a beneficial legislation, its provisions needs to be
interpreted liberally in larger interest to benefit the women in distress to
address the issue of domestic violence. It is not a penal statute which can be
interpreted strictly. What is of significance in the context is that social
morality, deploring adultery shall be in conflict with the constitutional
morality, recognizing it to certain extent as relationship in the nature of
marriage, are in conflict with each other. In such a situation when
constitutional morality conflicts with social morality, the constitutional
morality always prevails. In the case of Indra Sarma Vs. V.K.V.Sarma (2013) (15) SCC 755
the Supreme Court, while recognizing constitutional morality above it, put the
factor of adultery on lighter note, it is observed that:
“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.’’
Similarly, in
the case of S. Khushboo Vs. Kanniammal &
ors (2010) (5) SCC 600, it is held in
para no. 21:
“21.
While it is true that the mainstream view in our society is that sexual contact
should take place only between marital partners, there is no statutory offence
that takes place when adults willingly engage in sexual relations outside the
marital setting, with the exception of `adultery' as defined under Section 497
IPC”.
In Navtej Singh Johar & Ors. Vs. Union of
India (2018(10) SCC1), the
Supreme Court, came across the issue of human rights of transgenders and
constitutional validity of Section 377 of Indian Penal Code. In somewhat different
aspect of sexual orientation of human beings, the following observations made
in para no. 9: –
“9.…...
When we talk about identity from the constitutional spectrum, it cannot be
pigeon-holed singularly to one‘s orientation that may be associated with
his/her birth and the feelings he/she develops when he/she grows up. Such a
narrow perception may initially sound to subserve the purpose of justice but on
a studied scrutiny, it is soon realized that the limited recognition keeps the
individual choice at bay. The question that is required to be posed here is
whether sexual orientation alone is to be protected or both orientation and
choice are to be accepted as long as the exercise of these rights by an
individual do not affect another‘s choice or, to put it succinctly, has the
consent of the other where dignity of both is maintained and privacy, as a
seminal facet of Article 21, is not dented. At the core of the concept of
identity lies self-determination, realization of one‘s own abilities
visualizing the opportunities and rejection of external views with a clear
conscience that is in accord with constitutional norms and values or principles
that are, to put in a capsule, ―constitutionally permissible . As long ‖ as it is
lawful, one is entitled to determine and follow his/her pattern of life. And
that is where the distinction between constitutional morality and social
morality or ethicality assumes a distinguished podium, a different objective”.
THE
DIVORCE IN EARLIER MARRIAGE AND DOMESTIC VIOLENCE IN LIVE IN RELATIONSHIP
The another issue which causes consternation is tenability
of the DV petition on the ground of nature of relationship, the ground of
validity of divorce without waiver waiting period. Whether such a plea can be
raised in a DV Petition? The fact remains that decree of divorce, if not
challenged or set aside shall remain in existence and shall have a binding
effect on all parties concerned and therefore, marriage shall be treated as not
subsisting if there is divorce even by waiver of statutory period. The Supreme Court in the case of Amardeep
Singh Vs. Harveen Kaur (2017(8)SCC746 has held as under:
“The question
which arises for consideration in this appeal is whether the minimum period of
six months stipulated under Section 13B(2) of the Hindu Marriage Act, 1955 (the
Act) for a motion for passing decree of divorce on the basis of mutual consent
is mandatory or can be relaxed in any exceptional situations.. Since we are of
the view that the period mentioned in Section 13B(2) is not mandatory but
directory, it will be open to the Court to exercise its discretion in the facts
and circumstances of each case where there is no possibility of parties
resuming cohabitation and there are chances of alternative rehabilitation.’’
What is of pertinence is that if it is alleged that
no divorce was granted to a female from the earlier marriage on the date of
initiation of live in relationship , the same should be clearly borne out of
record , including the element of concealment, else, it may be construed that the
male partner had acquiesced to that and accepted the other partner with this
legal defect and the plea to the contrary, shall be of no aid to the one who
raises such allegation without corresponding material to that effect. Even if
it is assumed that the pre-divorce relationship was not a relationship in the
nature of marriage as contemplated under provisions of D.V. Act, the
post-divorce relationship and co-habitation of both the parties with each other
and their family members under same roof shall in any case constitute a
domestic relationship.
The guidelines issued by Supreme Court, in the
case of Indra Sarma(Supra) , particularly, about domestic relationship
between a married adult woman and an unmarried adult male knowingly entered
into relationship is of immense significance. Moreover, guidelines contained in
D.
Velusamy (Supra) , relates to parties entering into such relationship
must be otherwise qualified to enter into a legal marriage is also of some
substance.
REMARK
The age old conflict of law and social change is
pervasive. Either law is supposed to change the society i.e. norms of behavior
of society or the law should be changed as per norms of changing social
scenario. The conflict is ongoing, since time immemorial, however, in modern
context as narrated above, constitutional morality shall have precedence to social
morality and the Domestic Violence Act 2005 and judicial precedents as
enumerated above are a reflection of that.
-------
Anil k Khaware
Founder & Senior
Associate
Societylawandjustice.com
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