Thursday, April 14, 2022

DOMESTIC VIOLENCE IN LIVE IN RELATIONSHIP

 



DOMESTIC VIOLENCE In LIVE IN RELATIONSHIP

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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