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Tardy progressT.K. RAJALAKSHMI
|The Protection of Women from Domestic Violence Act has in its four years faced many challenges in implementation, says a monitoring report.|
FIVE years ago, Parliament enacted a significant piece of legislation relating to women. The Protection of Women from Domestic Violence Act (PWDVA), 2005, designed as a civil law, came into effect a year later, in October 2006. The fundamental feature of the Act was that it empowered magistrates to grant protection orders for female victims of domestic violence. It also provided for monetary relief and shelter to the victims.
The Act came as an addition to the existing provisions in the Indian Penal Code – Section 498 A (physical or mental cruelty to the wife by the husband or relatives, a cognisable and non-bailable offence) and Section 304 B (which was incorporated in the IPC to create a new offence, "dowry death").
For the past three years, the Women's Rights Initiative (WRI) of the Lawyers Collective has been bringing out a report on the progress of the implementation of the Act. The Fourth Monitoring & Evaluation Report on the PWDVA, which was released last December, highlights several challenges in the way of the effective implementation of the Act.
The report says that though the number of cases filed under the Act has increased, certain interpretations of its provisions have often gone against the spirit of the law. In the preface to the report, Indira Jaising, executive director of Lawyers Collective, refers to a 2007 order of the Supreme Court where a statutory guarantee of the right to reside in the shared household was linked to the ownership of the home rather than the fact of residence in the joint household. "The effect of this judgment was to deny to hundreds of women living in joint families the protection of a roof over their heads only for the reason that the parents-in-law owned the home, notwithstanding that it was the actual and the only place of residence of the woman." This, she says, "betrayed a mindset which was fixated on the right to protect property rather than human rights".
Another recent interpretation having an impact on the rights of women in the household pertains to the expression "relationship in the nature of marriage". The PWDVA at present does not extend to women who are in relationships "in the nature of marriage". Also, strains of dissent have appeared regarding alleged misuse of the PWDVA, just as there has been an outcry against the misuse of Section 498A.
The report says that while there has been progress in terms of responsiveness by the enforcers of the Act and the state machinery, sufficient funds are yet to be allocated for its effective implementation. For instance, only half of the 28 States made separate allocations for the implementation of the Act. These are Andhra Pradesh, Assam, Delhi, Haryana, Karnataka, Kerala, Madhya Pradesh, Meghalaya, Orissa, Punjab, Sikkim, Tamil Nadu, Uttarakhand and West Bengal. It is a matter of concern that States such as Bihar, Rajasthan and Uttar Pradesh, with a higher incidence of violence than in other States, have still not committed any resources, says the report.
Protection Officers (P.O.) are the crucial link between victims and the agencies that provide relief to them. From the filling in of Domestic Incident Reports (DIRs) to assisting in the enforcement of court orders, P.Os have various functions. Upon receiving a complaint, the P.O. is required to fill in a DIR and submit the same to the magistrate and forward copies to the police officer in charge of the concerned police station and to Service Providers (S.P.) in the area. The P.O. can either be a non-governmental organisation (NGO) or a government official. Governments can also appoint anyone exclusively as a P.O. holding independent charge.
Tamil Nadu, Delhi, West Bengal and Haryana have independent P.Os, while other States have given additional charge of P.Os to serving officials. A drawback observed by the monitoring report was that the majority of the P.Os appointed in the States were at the district level though the ideal scenario would have been for them to be appointed at the block or taluk level so as to enable easy access to the aggrieved.
Interestingly, States which had a large number of P.Os did not show a corresponding increase in the complaints filed as there was a lack of awareness among women about the existence of these officers.
Under the PWDVA, the DIR containing the formal complaint can be recorded with the P.O., the S.P. or the head of the Medical Facility (M.F.). Madhya Pradesh recorded the highest number (9,654) of complaints under the Act from August 2009 to June 2010 (the period under study for the fourth report), but DIRs were filed only in about half of these. In West Bengal and Manipur, though, the number of DIRs filed corresponded with the number of complaints.
The role of the police, according to the report, still needs to be clear in order to ensure that orders passed are enforced by them. For instance, the report says, the police in Delhi and Maharashtra were found wanting in cases of breach of court orders. In States like Tamil Nadu, Assam, Manipur and Mizoram, the police were more responsive.
In Tamil Nadu, however, the police took action in cases of breach of orders only after being directed by the court. In Mizoram and Manipur, on the other hand, the police swung into action rather immediately, which resulted in the early recovery of the 'stridhan' and the rescuing of children wherever necessary.
The delay by the police often results in the loss of 'stridhan' to the aggrieved. In Delhi and Maharashtra, the police were found to be extremely tardy in taking action.
The report's observations on S.Ps, mandated by the Act to give counselling and pre-litigation support services to victims and follow through until they receive all relevant reliefs, are also not encouraging. Barring notable but limited exceptions like in Kamrup district in Assam where three S.Ps not only provided legal guidance in filing DIRs but assisted the women throughout the legal process, the problem across the country was that S.Ps themselves were unaware of their role under the Act.
The Act provides for medical and shelter services as well. Notified M.Fs are also empowered to register DIRs and forward a copy to the P.O. However, the assessment of four years of the Act shows that M.Fs were not visible in the implementation of the Act. Shortage of medical supplies and women doctors was another reason for victims not seeking recourse to M.Fs. Shelter homes, too, were found in deplorable conditions so much so that the victims refused to go there.
An important assessment of the report is that a high number of complaints did not necessarily refer to the number of women seeking help under the PWDVA. It appeared that the figures related to the number of women accessing existing government schemes for women, including help lines.
The report also says that complaints received by P.Os did not necessarily represent a record of violence. "It seems that the 'complaints' are being registered at the P.O's office when a woman comes in with a report of domestic violence. …There seems to be a lack of understanding on what constitutes a DIR and no uniformity among the States as to what is meant by 'complaints'," the report says.
To that extent, it was found that there was a lack of understanding of the Act by P.Os themselves. The settlement of a large number of cases also indicated that P.Os were into counselling, leading to the underutilisation of S.Ps.
The PWDVA was expected to provide fast relief to victims of domestic violence, but many glitches remain in its fourth year of implementation. For one, the access to the P.O. itself is a Herculean task. The report recommends that a dedicated cadre of P.Os who are sensitive to women's issues be appointed.
In a country where even the educated have a problem understanding the language of law or even accessing the basic minimum under the legal system, to expect the vast majority of women suddenly to make use of the law successfully is at best a pipe dream.
Therefore, it is not surprising that even in a civil law, the police were the first point of contact for more than half of the women surveyed for the report. Even here, the police personnel were found wanting in knowledge about the provisions of the Act. Very few women received professional counselling support. The focus of the police was more on reconciliation and in preventing the cases from reaching the courts. The number of compromises increased in most of the States. The report also contains an interesting section on the analysis of orders of magistrates and Sessions courts.
The report makes several recommendations, including amendments to the Act to prevent delays in providing relief. For instance, in one case the court made a P.O. report mandatory for getting an interim order. This, the monitoring report says, should be done away with as it causes delay.
The magistrate, the report further says, should not refuse an application for the reason that the DIR has not been attached. "Since the PWDVA is a welfare legislation, procedure cannot defeat the substance," the report says.
The report also recognises that the passage of a law does not guarantee its automatic implementation. There is a need, it says, to harmonise other women-related laws with the Act and to enact a law on matrimonial property. The law nevertheless has introduced radical concepts like live-in relationships, right of residence, and so on. But these concepts need to be part of laws regarding marriage and other legislation through appropriate amendments, it says.
DV Act, S.2(q) – Respondent includes Male or Female relative. (DOJ: 17-02-2010) (R.Vivendran and 5 others Vs. Nivashini Mohan alias M.Nivashini) (C.Nagappan and P.R.Shivakumar, JJ)
For FULL Judgment at: http://judis.nic.in/chennai/qrydisp.asp?tfnm=23992
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Coram: The Hon'ble Mr.JUSTICE C.NAGAPPAN and The Hon'ble Mr.JUSTICE P.R.SHIVAKUMAR
Crl.O.P. No. 24598 of 2008 (Reference)
1. R.Nivendran, 2. B.Ranjan, 3. Saroja Ranjan, 4. R.Sowbarnika, 5. A.Saravana Bhavan, 6. Viji @ Vijayakumari Saravana .. Petitioners
Nivashini Mohan @ M.Nivashini .. Respondent
Petition filed under Section 482 Cr.P.C. praying to call for records in C.C.No. 356 of 2008 on the file of the II Judicial Magistrate Court, Chengalpattu and quash the same.
For Petitioners : Mr.Thomas T.Jacob for Ms.P.Lakshmi Devi
For Respondent : Mr.R.Vijaya Raghavan,
Mr.P. Kumaresan, Public Prosecutor
The petitioners have sought for a direction to call for the records in the case in C.C.No.356 of 2008, on the file of Judicial Magistrate Court No.II, Chengalpattu, initiated by the wife of the first petitioner seeking various reliefs under the provisions of the Protection of Women from Domestic Violence Act, 2005. The respondent herein wife filed application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, against the first respondent husband, his parents, his sister and other family members. In the present petition seeking to quash the proceedings, one of the grounds raised is that respondents 3, 4 and 6 in the application under Section 12 of the Act are women and Section 2(q) of the Protection of Women from Domestic Violence Act, would require the respondent to be an adult male person and women could not be added as respondents in the application. When this point was urged, it was found that there was a conflict of views on whether women could be added as respondents in an application under Section 12 of the Act, in the decisions in UMA NARAYANAN V.. PRIYA KRISHNA PRASAD [(2008) 3 MLJ (Crl) 756] and K.KAMALA AND OTHERS V.. M.PARIMALA AND ANOTHER [(2009) 3 MLJ (Crl) 450]. Therefore the matter was directed to be placed before the Honourable Chief Justice for appropriate direction and accordingly this Division Bench heard the matter.
2. We heard the submissions of the learned counsel for the petitioners, the learned counsel for the respondent and also the learned Public Prosecutor of the State.
3. Besides the decisions of this Court expressing divergent views leading to Reference, the decision of a Division Bench of Andhra Pradesh High Court in AFZALUNNISA BEGUM & ETC. V. STATE OF A. P. & ANR. (2009 CRL. L. J. 4191) and the following decisions rendered by learned single Judge of various High Courts on the subject matter were brought to our notice.
"(1) AJAY KANT AND OTHERS VS. SMT.ALKA SHARMA (2008) Cri. L. J. 264) (High Court of Madhya Pradesh)
(2) NAND KISHORE AND ORS. VS. STATE OF RAJASTHAN AND ANR. (MANU/RH/0636/2008) (High Court of Rajasthan)
(3) REMADEVI VS. STATE OF KERALA (I (2009) DMC 297) (High Court of Kerala)
(4) ARCHANA HEMANT NAIK VS. URMILABEN I. NAIK AND ANOTHER (CDJ 2009 BHC 1960) (High Court at Bombay)."
4. The learned counsel for the petitioners contended that 'respondent' defined under Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 will mean only an adult male person and not a woman and the application under Section 12 of the Act seeking for one or more reliefs under the Act is civil in nature and there are only two penal provisions, one under Section 31 of the Act providing penalty for breach of protection order by respondent and other under Section 33 of the Act providing penalty for not discharging duty by Protection Officer and those proceedings can be initiated on complaint and application under Section 12 of the Act is not maintainable as against a woman. His contention is based on the decisions in AJAY KANT'S CASE and UMA NARAYANAN'S CASE (referred to above).
5. The learned counsel for the respondent contended that as per the definition of "respondent" in Section 2(q) of the Protection of Women from Domestic Violence Act, 2005, it would mean any adult male person, but the provisio to the Section would go to show that an aggrieved wife or a female partner may also file a complaint against a relative of the husband or the male partner and the term "relative" would include woman also and no restricted meaning can be given to it.
6. The learned Public Prosecutor submitted that the Statement of Objects and Reasons of the Protection of Women from Domestic Violence Act, 2005, refers to any "relative" of the husband or the male partner and "relative" mentioned in the proviso to Section 2(q) of the Act cannot be only a "male" relative and can also be a "female" relative of the husband or the male partner as the case may be and women can be respondents in the application under Section 12.
7. The relevant part of the Statement of Objects and Reasons of the Act reads thus.
"..... The United Nations Committee 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.
2. The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a women is subjected to cruelty by her husband or his relatives, it is an offence under Section 498-A of the Indian Penal Code. The civil law does not however address this phenomenon in its entirety.
3. It is, therefore, proposed to enact a law keeping in view the rights guaranteed under articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.
4. The Bill, inter alia, seeks to provide for the following:-
(i) It covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. In addition, relationships with family members living together as a joint family are also included. Even those women who are sisters, widows, mothers, single women, or living with the abuser are entitled to legal protection under the proposed legislation. However, whereas the Bill enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female relative of the husband or the male partner to file a complaint against the wife or the female partner." (emphasis supplied).
8. The initiation of proceedings under the Protection of Women from Domestic Violence Act, 2005 is by making an Application under Section 12 of the Act to the Magistrate by an aggrieved person or any other person on his behalf or by the Protection Officer at his instance. "Aggrieved Person" is defined under Section 2(a) of the Act as 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 respondent. "Domestic Relationship" is defined under Section 2(f) of the Act as a relationship between two persons who live or 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. "Domestic Violence" is defined under Section 3 of the Act as any act, omission or commission or conduct of the respondent which would constitute domestic violence and it is an exhaustive definition, which includes, "physical abuse", "sexual abuse", "verbal and emotional abuse" and "economic abuse". The word "respondent" has been defined in Section 2(q) of the Act, which reads as follows.
"Sec. 2(q). "respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:
Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner."
9. The reliefs provided under the Act to the aggrieved person are Protection orders under Section 18 prohibiting acts of domestic violence; Residence orders under Section 19 in relation to a shared household; Monetary reliefs under Section 20 including loss of earnings, medical expenses etc; Custody orders under Section 21 relating to children and Compensation orders under Section 22 for the injuries including mental torture etc. The power to grant interim and ex parte interim orders is provided under Section 23 of the Act.
10. The "respondent" as defined under Section 2(q) of the Act would only mean any adult male person who is, or has been, in "domestic relationship" with the aggrieved person, but the proviso therein is an exception and it provides that an aggrieved wife or female living with him in a relationship in the nature of marriage may also file a complaint against a relative of the husband or the male partner. Though 'respondent' is termed to be any adult male person, the proviso enables an aggrieved wife or female living in a relationship in the nature of a marriage to prefer a complaint against a relative of the husband or the male partner.
11. Proceeding is initiated by the aggrieved person who is in domestic relationship with the respondent by filing an application under Section 12 of the Act seeking for one or more reliefs. The "Domestic Relationship" defined under Section 2(f) of the Act is wide. Aggrieved person being wife or female living in a relationship in the nature of marriage may also file a complaint against a relative of her husband or the male partner. In other words, the relationship of "marriage" or in the "nature of marriage", would enable an aggrieved wife or female to file a complaint against a relative of her husband or the male partner.
12. The next question is as to whether a "relative" referred to in the proviso to Section 2(q) of the Act can only be a 'male' relative. First of all, it has to be noted that the definition of "respondent" uses the word male and the proviso refers to "male" partner. But while referring to a "relative", the word "male" is not used. If it is the intention of the Legislature that "relative" mentioned in the proviso can only be a "male" relative, it would have mentioned so, but it is absent.
13. On the contrary, the intention of the Legislature is reflected in the proviso to sub-section (1) of Section 19 of the Act dealing with "Residence orders". Under Clause (b) of sub-section (1) of Section 19, the Magistrate may pass 'residence orders' directing the respondent to remove himself from the shared household. In the proviso to sub-section (1) of Section 19 of the Act, it is stipulated that no order under Clause (b) shall be passed against any person, who is a woman. This would show that an order under other Clauses of Sub-section (1) can be passed against a woman, who is a relative of the husband or the male partner. If no order at all can be granted under Section 19 of the Act against a woman, the proviso to sub-section (1) of Section 19 would become redundant and that is not the Legislature intended to.
14. It is competent to the Magistrate under Section 19(1)(a) of the Act to restrain the respondent from dispossessing or disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has any legal or equitable interest in it and under Clause (c), to restrain the respondent or any of his relatives from entering any portion of the shared household, in which the aggrieved person resides. If it is construed that proviso to Section 2(q) of the Act would include only the "male" relative, the issuance of "Residence orders" would become redundant, since it would not bind the female relatives of the husband or the male partner, as the case may be, who are residing in the shared household. No such restricted meaning can be given to the word "relative", mentioned in proviso to Section 2(q) of the Act.
15. The Supreme Court in the recent decision in U. SUVETHA VS. STATE BY INSPECTOR OF POLICE AND ANOTHER (2009) 6 Supreme Court Cases 757) has considered the term "Relative" with reference to Section 498-A of Indian Penal Code and has observed that in the absence of any statutory definition, the term "relative" must be assigned a meaning as it is commonly understood and it would include father, mother, son, daughter, brother, sister, nephew or niece, grandson or granddaughter of an individual or the spouse of any person. In this context, it is pertinent to note that while framing charge for the breach of protection order by the respondent, the Magistrate is authorised under Section 31(3) of the Act to frame charge under Section 498-A of Indian Penal Code, if the facts disclose commission of such an offence.
16. As already seen, the Statement of Objects and Reasons of the Act also refers to any 'relative' of the husband or the male partner and the proviso to sub-section (1) of Section 19 of the Act makes it clear that the word mentioned in proviso to Section 2(q), is not restricted to a "male" relative and would include a "female" relative. But, however, whether relief can be granted against the 'female' relative would depend on the facts and circumstances of each case.
17. We are in entire agreement with the view taken by the Division Bench of the Andhra Pradesh High Court and the High Courts of Bombay, Kerala and Rajasthan as well as this Court in the decision in K.KAMALA'S CASE (referred to above). The view taken by Madhya Pradesh High Court in AJAY KANT'S CASE and this Court in UMA NARAYANAN'S CASE (cited supra), are not correct.
18. In the result, we hold that the "respondent" as defined under Section 2(q) of the Act includes a female relative of the husband or the male partner and women could be added as respondents in an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005. The Reference is answered accordingly.
19. The Criminal Original Petition seeking for quashing the proceedings may be listed before the concerned Court for disposal.
Man's assets not to be considered for alimony, rules High CourtStaff Reporter
"Husband not the sole owner of his family's assets"
NEW DELHI: Ruling that the value of the assets of a man cannot be taken into account while calculating the quantum of maintenance for his estranged wife under the Domestic violence Act, the Delhi High Court has fixed the monthly alimony of a woman at half of her husband's salary.
A Metropolitan Magistrate had given the woman, Priyanka Khanna, a monthly alimony of Rs. 15,000 which was 50 per cent of the gross salary of her husband. The woman was given Rs. 10,000 under the head of alimony and Rs. 5,000 for house rent.
She had sought alimony as well as a flat from her husband to live in.
However, the woman was dissatisfied with the MM's order. She moved a court of the Additional Sessions challenging it.
The Additional Sessions Judge after hearing both the parties raised the alimony to Rs.45,000 per month on the basis of monthly income as well as the assets of the husband of the woman.
The husband moved the High Court challenging the Sessions court's order.
Allowing his petition, Justice Dhingra reduced the maintenance amount of the woman from Rs. 45,000 to Rs. 20,000 accepting Rs.41,000 as the monthly gross salary of the husband.
While allowing the petition of the husband, Justice Dhingra observed that it was wrong to calculate the quantum of maintenance on the basis of income as well assets of a man as this logic could also be used while calculating alimony for an estranged woman which would go against her.
He further observed that the husband was not the sole owner of the assets of his family. His parents and brothers also have right in it, he added.
© Copyright 2000 - 2009 The Hindu
Cabinet approves Bill for women's protection at workplaceSpecial Correspondent
|Bill is to be introduced in the coming session of Parliament, beginning next week|
The Bill provides for an effective complaints and redressal mechanism
Complaint Committees are required to complete the enquiry within 90 days
NEW DELHI: The Union Cabinet on Thursday approved the Protection of Women against Sexual Harassment at Workplace Bill, 2010, that ensures a safe environment for women at work place, both in the public and private sectors, in the organised and unorganised sectors.The Bill, to be introduced in Parliament in the coming session beginning next week, will help in achieving gender empowerment and equality. Domestic help have, however, been kept out of the purview of the proposed law that also proposes a fine of Rs. 50,000 if found violating the provisions of the law.
The move will contribute to realisation of their right to gender equality, life and liberty, and equality in working conditions everywhere. The sense of security will improve women's participation in work, resulting in their economic empowerment and inclusive growth.
The Bill proposes a definition of sexual harassment, as laid down by the Supreme Court in Vishaka vs State of Rajasthan (1997). Additionally, it recognises the promise or threat to a woman's employment prospects or creation of hostile work environment as 'sexual harassment' at workplace and seeks to prohibit such acts.
It provides protection not only to women who are employed but also to any woman who enters the workplace as a client, customer, apprentice, daily wageworker, or in ad hoc capacity. Students, research scholars in colleges/universities and patients in hospitals have also been covered.
The Bill provides for an effective complaints and redressal mechanism. Under the proposed Bill, every employer is required to constitute an Internal Complaints Committee.
Since a large number of the establishments (41.2 million out of 41.83 million as per Economic Census, 2005) in the country have less than 10 workers for whom it may not be feasible to set up an Internal Complaints Committee (ICC), it provides for setting up of Local Complaints Committee (LCC) to be constituted by the designated District Officer at the district or sub-district levels, as the need be. This twin mechanism would ensure that women in any workplace, irrespective of its size or nature, have access to a redressal mechanism.
The LCCs will enquire into the complaints of sexual harassment and recommend action to the employer or District Officer.
Since there is a possibility that during the pendency of the enquiry, the woman may be subjected to threat and aggression, she has been given the option to seek interim relief in the form of transfer either of her own or the respondent or seek leave from work.
The Complaint Committees are required to complete the enquiry within 90 days and a period of 60 days has been given to the employer/District Officer for implementation of the recommendations of the Committee. The Bill provides for safeguards in the case of false or malicious complaint of sexual harassment.
However, mere inability to substantiate the complaint or provide adequate proof would not make the complainant liable for punishment.
Implementation of the Bill will be the responsibility of the Central government in case of its own undertakings/establishments and of the State governments in respect of every workplace established, owned, controlled or wholly or substantially financed by it as well as of private sector establishments falling within their territory.
Through this implementation mechanism, every employer has the primary duty to implement the provisions of law within his/her establishment while the State and Central governments have been made responsible for overseeing and ensuring overall implementation of the law.
The governments will also be responsible for maintaining data on the implementation of the law. In this manner, the proposed Bill will create an elaborate system of reporting and checks and balances, which will result in effective implementation of the law.
© Copyright 2000 - 2009 The Hindu
IN THE SUPREME COURT OF INDIA
Bench: Markandey Katju and T.S.Thakur, JJ
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 2028-2029__OF 2010
[Arising out of Special Leave Petition (Crl.) Nos.2273-2274/2010]
D. Velusamy .. Appellant
D. Patchaiammal .. Respondent
Markandey Katju, J.
1. Leave granted.
2. Heard learned counsel for the appellant. None has appeared for the respondent although she has been served notice. We had earlier requested Mr. Jayant Bhushan, learned Senior counsel to assist us as Amicus Curiae in the case, and we record our appreciation of Mr. Bhushan who was of considerable assistance to us.
3. These appeals have been filed against the judgment of the Madras High Court dated 12.10.2009.
4. The appellant herein has alleged that he was married according to the Hindu Customary Rites with one Lakshmi on 25.6.1980. Out of the wedlock with Lakshmi a male child was born, who is now studying in an Engineering college at Ooty. The petitioner is working as a Secondary Teacher in Thevanga Higher Secondary School, Coimbatore.
5. It appears that the respondent-D. Patchaiammal filed a petition under Section 125 Cr.P.C. in the year 2001 before the Family Court at Coimbatore in which she alleged that she was married to the appellant herein on 14.9.1986 and since then the appellant herein and she lived together in her father's house for two or three years. It is alleged in the petition that after two or three years the appellant herein left the house of the respondent's father and started living in his native place, but would visit the respondent occasionally.
6. It is alleged that the appellant herein (respondent in the petition under Section 125 Cr.P.C.) deserted the respondent herein (petitioner in the proceeding under Section 125 Cr.P.C.) two or three years after marrying her in 1986. In her petition under Section 125 Cr.P.C. she alleged that she did not have any kind of livelihood and she is unable to maintain herself whereas the respondent (appellant herein) is a Secondary Grade Teacher drawing a salary of Rs.10000/- per month. Hence it was prayed that the respondent (appellant herein) be directed to pay Rs.500/- per month as maintenance to the petitioner.
7. In both her petition under Section 125 Cr.P.C. as well as in her deposition in the case the respondent has alleged that she was married to the appellant herein on 14.9.1986, and that he left her after two or three years of living together with her in her father's house.
8. Thus it is the own case of the respondent herein that the appellant left her in 1988 or 1989 (i.e. two or three years after the alleged marriage in 1986). Why then was the petition under Section 125 Cr.P.C. filed in the year 2001, i.e. after a delay of about twelve years, shall have to be satisfactorily explained by the respondent. This fact also creates some doubt about the case of the respondent herein.
9. In his counter affidavit filed by the appellant herein before the Family Court, Coimbatore, it was alleged that the respondent (appellant herein) was married to one Lakshmi on 25.6.1980 as per the Hindu Marriage rites and customs and he had a male child, who is studying in C.S.I. Engineering college at Ooty. To prove his marriage with Lakshmi the appellant produced the ration card, voter's identity card of his wife, transfer certificate of his son, discharge certificate of his wife Lakshmi from hospital, photographs of the wedding, etc.
10. The learned Family Court Judge has held by his judgment dated 5.3.2004 that the appellant was married to the respondent and not to Lakshmi. These findings have been upheld by the High Court in the impugned judgment.
11. In our opinion, since Lakshmi was not made a party to the proceedings before the Family Court Judge or before the High Court and no notice was issued to her hence any declaration about her marital status vis-`- vis the appellant is wholly null and void as it will be violative of the rules of natural justice. Without giving a hearing to Lakshmi no such declaration could have validly be given by the Courts below that she had not married the appellant herein since such as a finding would seriously affect her rights.
And if no such declaration could have been given obviously no declaration could validly have been given that the appellant was validly married to the respondent, because if Lakshmi was the wife of the appellant then without divorcing her the appellant could not have validly married the respondent.
12. It may be noted that Section 125 Cr.P.C. provides for giving maintenance to the wife and some other relatives. The word `wife' has been defined in Explanation (b) to Section 125(1) of the Cr.P.C. as follows : "Wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried."
13. In Vimala (K) vs. Veeraswamy (K) [(1991) 2 SCC 375], a three- Judge Bench of this Court held that Section 125 of the Code of 1973 is meant to achieve a social purpose and the object is to prevent vagrancy and destitution. Explaining the meaning of the word `wife' the Court held: "..the object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage. The term `wife' in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term `wife' consistent with the objective. However, under the law a second wife whose marriage is void on account of the survival of the first marriage is not a legally wedded wife, and is, therefore, not entitled to maintenance under this provision."
14. In a subsequent decision of this Court in Savitaben Somabhat Bhatiya vs. State of Gujarat and others, AIR 2005 SC 1809, this Court held that however desirable it may be to take note of the plight of an unfortunate woman, who unwittingly enters into wedlock with a married man, there is no scope to include a woman not lawfully married within the expression of `wife'. The Bench held that this inadequacy in law can be amended only by the Legislature.
15. Since we have held that the Courts below erred in law in holding that Lakshmi was not married to the appellant (since notice was not issued to her and she was not heard), it cannot be said at this stage that the respondent herein is the wife of the appellant. A divorced wife is treated as a wife for the purpose of Section 125 Cr.P.C. but if a person has not even been married obviously that person could not be divorced. Hence the respondent herein cannot claim to be the wife of the appellant herein, unless it is established that the appellant was not married to Lakshmi.
16. However, the question has also be to be examined from the point of view of The Protection of Women from Domestic Violence Act, 2005. Section 2(a) of the Act states :
"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 respondent";
Section 2(f) states :
"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 family"; Section 2(s) states :
"2(s) "shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household."
Section 3(a) states that an act will constitute domestic violence in case it-
"3(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse;" or
17. The expression "economic abuse" has been defined to include : "(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance".
18. An aggrieved person under the Act can approach the Magistrate under Section 12 for the relief mentioned in Section 12(2). Under Section 20(1)(d) the Magistrate can grant maintenance while disposing of the application under Section 12(1).
19. Section 26(1) provides that the relief mentioned in Section 20 may also be sought in any legal proceeding, before a civil court, family court or a criminal court.
20. Having noted the relevant provisions in The Protection of Women from Domestic Violence Act, 2005, we may point out that the expression `domestic relationship' includes not only the relationship of marriage but also a relationship `in the nature of marriage'. The question, therefore, arises as to what is the meaning of the expression `a relationship in the nature of marriage'. Unfortunately this expression has not been defined in the Act. Since there is no direct decision of this Court on the interpretation of this expression we think it necessary to interpret it because a large number of cases will be coming up before the Courts in our country on this point, and hence an authoritative decision is required.
21. In our opinion Parliament by the aforesaid Act has drawn a distinction between the relationship of marriage and a relationship in the nature of marriage, and has provided that in either case the person who enters into either relationship is entitled to the benefit of the Act. 1
22. It seems to us that in the aforesaid Act of 2005 Parliament has taken notice of a new social phenomenon which has emerged in our country known as live-in relationship. This new relationship is still rare in our country, and is sometimes found in big urban cities in India, but it is very common in North America and Europe. It has been commented upon by this Court in S. Khushboo vs. Kanniammal & Anr. (2010) 5 SCC 600 (vide para 31).
23. When a wife is deserted, in most countries the law provides for maintenance to her by her husband, which is called alimony. However, earlier there was no law providing for maintenance to a woman who was having a live-in relationship with a man without being married to him and was then deserted by him.
24. In USA the expression `palimony' was coined which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying him, and is then deserted by him (see `palimony' on Google). The first decision on palimony was the well known decision of the California Superior Court in Marvin vs. Marvin (1976) 18 C3d660. This case related to the famous film actor Lee Marvin, with whom a lady Michelle lived for many years without marrying him, and was then deserted by him and she claimed palimony. Subsequently in many decisions of the Courts in USA, the concept of palimony has been considered and developed. The US Supreme Court has not given any decision on whether there is a legal right to palimony, but there are several decisions of the Courts in various States in USA. These Courts in USA have taken divergent views, some granting palimony, some denying it altogether, and some granting it on certain conditions. Hence in USA the law is still in a state of evolution on the right to palimony.
25. Although there is no statutory basis for grant of palimony in USA, the Courts there which have granted it have granted it on a contractual basis. Some Courts in USA have held that there must be a written or oral agreement between the man and woman that if they separate the man will give palimony to the woman, while other Courts have held that if a man and woman have lived together for a substantially long period without getting married there would be deemed to be an implied or constructive contract that palimony will be given on their separation.
26. In Taylor vs. Fields (1986) 224 Cal. Rpr. 186 the facts were that the plaintiff Taylor had a relationship with a married man Leo. After Leo died Taylor sued his widow alleging breach of an implied agreement to take care of Taylor financially and she claimed maintenance from the estate of Leo. The Court of Appeals in California held that the relationship alleged by Taylor was nothing more than that of a married man and his mistress. It was held that the alleged contract rested on meretricious consideration and hence was invalid and unenforceable. The Court of Appeals relied on the fact that Taylor did not live together with Leo but only occasionally spent weekends with him. There was no sign of a stable and significant cohabitation between the two.
27. However, the New Jersey Supreme Court in Devaney vs. L' Esperance 195 N.J., 247 (2008) held that cohabitation is not necessary to claim palimony, rather "it is the promise to support, expressed or implied, coupled with a marital type relationship, that are indispensable elements to support a valid claim for palimony". A law has now been passed in 2010 by the State legislature of New Jersey that there must be a written agreement between the parties to claim palimony.
28. Thus, there are widely divergent views of the Courts in U.S.A. regarding the right to palimony. Some States like Georgia and Tennessee expressly refuse to recognize palimony agreements. 1
29. Written palimony contracts are rare, but some US Courts have found implied contracts when a woman has given up her career, has managed the household, and assisted a man in his business for a lengthy period of time. Even when there is no explicit written or oral contract some US Courts have held that the action of the parties make it appear that a constructive or implied contract for grant of palimony existed.
30. However, a meretricious contract exclusively for sexual service is held in all US Courts as invalid and unenforceable.
31. In the case before us we are not called upon to decide whether in our country there can be a valid claim for palimony on the basis of a contract, express or implied, written or oral, since no such case was set up by the respondent in her petition under Section 125 Cr.P.C.
32. Some countries in the world recognize common law marriages. A common law marriage, sometimes called de facto marriage, or informal marriage is recognized in some countries as a marriage though no legally recognized marriage ceremony is performed or civil marriage contract is entered into or the marriage registered in a civil registry (see details on Google).
33. 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.
(see `Common Law Marriage' in Wikipedia on Google) In our opinion 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'.
34. In our opinion not all live in relationships will amount to a relationship in the nature of marriag8e 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'
35. No doubt the view we are taking would exclude many women who have had a live in relationship from the benefit of the 2005 Act, but then it is not for this Court to legislate or amend the law. Parliament has used the expression `relationship in the nature of marriage' and not `live in relationship'. The Court in the grab of interpretation cannot change the language of the statute.
36. In feudal society sexual relationship between man and woman outside marriage was totally taboo and regarded with disgust and horror, as depicted in Leo Tolstoy's novel `Anna Karenina', Gustave Flaubert's novel `Madame Bovary' and the novels of the great Bengali writer Sharat Chandra Chattopadhyaya.
37. However, Indian society is changing, and this change has been reflected and recognized by Parliament by enacting The Protection of Women from Domestic Violence Act, 2005.
38. Coming back to the facts of the present case, we are of the opinion that the High Court and the learned Family Court Judge erred in law in holding that the appellant was not married to Lakshmi without even issuing notice to Lakshmi. Hence this finding has to be set aside and the matter remanded to the Family Court which may issue notice to Lakshmi and after hearing her give a fresh finding in accordance with law. The question whether the appellant was married to the respondent or not can, of course, be decided only after the aforesaid finding.
39. There is also no finding in the judgment of the learned Family Court Judge on the question whether the appellant and respondent had lived together for a reasonably long period of time in a relationship which was in the nature of marriage. In our opinion such findings were essential to decide this case. Hence we set aside the impugned judgment of the High Court and Family Court Judge, Coimbatore and remand the matter to the Family Court Judge to decide the matter afresh in accordance with law and in the light of the observations made above. Appeals allowed.
(T. S. THAKUR)
21st OCTOBER, 2010
This Blog Spot is meant for publishing reports about the usage of Domestic Violence Act (The Protection of Women from Domestic Violence Act, 2005) so as to create an awareness to the general public and also to keep it as a ready reckoner by them. So the readers may extend their gratitude towards the Author as we quoted at the bottom of each Post under the title "Courtesy".