Statement of Jurisdiction
This Special Leave Petition is filed under Article 136 of the Indian Constitution before the Supreme Court of India by Reshma, against Anubhav challenging the order of the Hon'ble High Court of Harithasthan and the view taken by the Supreme Court regarding Live-in-relationships in the judgment of D. Velusamy V. D. Patchaiammal.
The Hon'ble Supreme Court may accept and adjudge the petition.
Synopsis of Facts
? Reshma aged about 30 years and Anubhav aged about 42 years are two IT Professionals working in a metro city Jhanpur, The capital of the State Harithastan in Indian Union.
? Both the parties executed an agreement on 14-10-2003 according to which the parties are unregistered domestic partners who desire to live together in an unregistered relationship where in
 First party Financially supports Second Party
 Second Party renders Service as companion, house keeper, Home maker and cook.
 They desire to combine their efforts and earnings and share equally the property accumulated through their individual or combined efforts
 They also mentioned about conditions for termination of agreement and permanent separation in the agreement.
Both the parties signed the agreement before two witnesses.
? They both started a consultancy service on 01-01-2004 in their office cum Residence flat in the small town of Dhanpur.
? They both lived together till 1st week of March 2010.
? Anubhav sold Reshma?s gold ornaments worth Rs.22 lakhs without her consent to start joint business with another lady Madhurima and he left the flat in the 1st week of March 2010.
? Reshma filed a complaint before protection officer and again before First Class Judicial Magistrate under Sec.12 of DVA, 2005.
? Magistrate after examining ten witnesses including protection officer awarded Rs.23 lakhs as compensation while dismissing the contentions of Anubhav which are based upon the recent Supreme Court Judgment in D. Velusamy V. D. Patchaiammal.
? The aggrieved Respondent filed writ in the High Court under Art.226 challenging the order of the first class Magistrate on the ground that its failure to consider judgment in D. Velusamy V. D. Patchaiammal would amount to error apparent on the face of record.
? Hon'ble High Court set aside the findings of the Magistrate and remanded the case back to Magistrate with a direction to decide the case based on the views expressed by Supreme Court in D. Velusamy V. D. Patchaiammal judgment.
? Now Reshma is filing this S.L.P under Art.136 before Supreme Court challenging the order of the High Court and Paras 33 & 34 of D. Velusamy V. D. Patchaiammal Judgment.
Chronology of Events
14-10-2003 Reshma and Anubhav executed agreement
01-01-2004 They both started Consultancy Services in Dhanapur
March 2010 Anubhav sold Reshma?s gold Ornaments worth of Rs.22 lakhs and left the flat in the 1st week of March.
07-04-2010 Reshma filed a Complaint before Protection Officer.
03-06-2010 She also filed an application before First Class Magistrate, Dhanpur.
09-11-2010 Magistrate after examining all the witnesses gave the judgment favoring Petitioner, rejecting Anubhav?s contention to consider Veluswamy judgment.
16-11-2010 Anubhav filed a writ before High Court of Harithasthan under Art.226.
02-12-2010 Hon'ble High Court gave the judgment wherein the Judgment of Magistrate was set aside.
16-12-2010 Reshma filed a Special Leave Petition before Supreme Court under Art.136 challenging the order of High Court and leave to appeal was granted.
Legal Issues Raised
1. Whether the action of the High Court of Harithasthan is against the well settled principles of law relating to writ jurisdiction or not?
2. Whether the judgment in D. Veluswamy V. D. Patchaiammal case be considered as Ratio Decidendi or not?
3. Whether the relation between the petitioner and respondent is in the nature of marriage or not?
4. Whether the provisions of the Protection of Women from Domestic violence Act, 2005 are applicable in the present case?
Summary of Pleadings
1. The Action of the High Court is against the well settled principles of Writ Jurisdiction under Article 226
a) Locus standi of Petitioner under Article 136.
b) It is not maintainable because there is no any error in the judgment of Magistrate.
2. The paragraphs 33 and 34 of the judgment by the Supreme Court in D. Velusamy V. D. Patchaiammal should not be considered as Ratio Decidendi
a) Paragraphs 33 and 34 of the judgment should be over-ruled and it does not amount to ratio decidendi.
b) Paragraphs 33 and 34 of the judgment are violating the object of The Protection of Women from Domestic Violence Act, 2005
3. The relation between the petitioner and respondent is in the nature of marriage.
a) It is relationship in the nature of marriage.
b) Respondent has no right upon petitioner?s property.
4. The provision of the Prevention of violence against Domestic violence Act, 2005 are applicable in the present case
a. Petitioner is the ?Person aggrieved? defined under Domestic violenceAct-2005.
b. Petitioner is subjected to ?Economic abuse? defined under Domestic violenceAct-2005.
c. Thus Petitioner is entitled to the remedies available under Domestic violenceAct-2005.
Body of Pleadings
1. Whether the action of the high court is against the well settled principles of law relating to writ jurisdiction or not?
a. Locus Standi of the petitioner under Article 136
Petitioner is filing the special leave petition before the Hon'ble Supreme Court under article 136 of the Indian constitution wherein the petitioner is challenging:
? The order of the high court dated 2-12-2010
? Paragraphs 33 and 34 of the Judgment given in D. Velusamy V. D. Patchaiammal
Indian constitution is the supreme law of the land which deals with the jurisdiction of the Supreme Court. Under article 136, Supreme Court is authorized to grant in its discretion special leave to appeal from ?136. (1) ??.any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. (2) nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.?
From this discussion it is clear that ?under article 136 Supreme Court has wide power to interfere and correct the judgment and order passed by any court or tribunal in the country1.?
Supreme Court has elaborately discussed about exercising the discretionary power under Article 136 in a Land Mark Judgment Pritam Singh V State2 where in it was established that Article 136 can be used in exceptional circumstances where there is a serious miscarriage of justice.
In the light of the above submissions, petitioner herein is filing this SLP challenging the action of the High Court in granting the order dated 2-12-2010 which are against the well settled principles of Writ Jurisdiction. Thus, the impugned order of the High Court is violating the well settled principles of writ jurisdiction. The impugned order is not only violating principles of writ jurisdiction but it may also
1. Delhi Judicial Service Assn. V State of Gujarat, (1991)4 SCC 406
2. AIR 1950 SC 169
cause serious miscarriage of justice in the process of its implementation, wherein, according to the direction given by the High Court, the lower court is compelled to decide the case based upon the views expressed by the Supreme Court in Velusamy Judgment. But, the judgment itself is bad in law in limited paragraphs of the judgments which are violating the object of ?The Protection of Women from Domestic Violence Act, 2005? which is ?An act to provide for more effective protection of the rights of women guaranteed under the constitution who are victims of violence of any kind occurring within the family and for matters connected herewith or incidental thereto.? Thus petitioner herein is challenging the paragraphs 33 and 34 of the judgment by the Supreme Court in D. Velusamy V. D. Pathchaiammal.
The Supreme Court in the case Arunachalam V P.S.R.Seetharathnam3 rightly discussed about its jurisdiction under article 136 that ?it is not circumscribed by any limitation as to who may invoke this discretionary jurisdiction in case of serious miscarriage of justice?. Supreme Court also discussed about the grounds, upon which the petitioner may approach the Supreme Court under the scope of Article 136, in the case Balai Chandra V Shewdhari Jadav4 ?more often grounds set out in Special Leave Applications are overlapping and often repeated and occasionally vague and therefore as far as possible, the grounds should not be very strictly construed or should not be construed in a manner as such as to make the Special Leave guaranteed under article 136 self defeating. Attempts of the court must be, to find out the grievance or contention and the discretion should not be exercised to refuse the leave on the ground that the grounds cannot be ascertained?.
In the light of the above submissions, the petitioner is having locus standi to approach this Apex Court under Article 136 of the Indian Constitution.
3. AIR 1979 SC 1284
4. AIR 1978 SC 1062
b. Action of the High Court is against the well settled principles of Writ Jurisdiction.
I. Locus Standi of Respondent/Petitioner under Article 226.
Article 226 empowers the High Court to issue writs, directions or orders in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-Warranto and Certiorari:
a. for the enforcement of any of the rights conferred by Part- III of the Constitution
b. or for any other purpose.
?Under the first part, a writ may be issued under the article, only after a decision that the aggrieved party has a fundamental right and that it has been infringed. Similarly, under the second part it may be issued only after a finding that the aggrieved party has a legal right which entitles him to any of the aforesaid writs and such right has been infringed.?5
In the present case the respondent/petitioner approached the Hon'ble High Court, of Harithasthan under Article 226 with a misconception that failure by the lower court to consider the decision in Velusamy case would be treated as an error of law apparent on the face of record. Thus the petitioner?s ground to approach High Court under Article 226 is ?error apparent on the face of record? which is attracted under the writ of certiorari provided under the constitution.
Generally the error apparent on the face of record will be issued where there is a patent error of law manifest on the record which goes to the root of the matter. ?In majority of cases, an error could not be said to be apparent on the face of record where it was not self evident on the face of law and required evidence6 or a long drawn process of reasoning7 or argument8 to establish it?.
It has to be decided based on the facts of each case9. Thus, in the present case, there is no such error apparent in the face of record because the lower court?s failure to
5. AIR 1952 SC 12 ; AIR 1962 SC 1044; (1999) 4 SCC 450
6. AIR 1961 SC 970 ; AIR 1964 SC 1372
7. AIR 1960 SC 137
8. AIR 1977 SC 388
9. AIR 1963 SC 1581; AIR 1955 SC 223; AIR 1963 SC 1626; AIR 1965 SC 11
a mere obiter dicta given by the Supreme Court in one of the cases would not create such patent error on the face of the record.
The Supreme Court also stated in another case10 that unless there was grave miscarriage of justice or flagrant violation of law calling for intervention it was not for the High Court under Article 226 to interfere. The power should not be ordinarily exercised if some alternative remedy is available. It was also said that, ?Article 226 is not intended as an alternative remedy for relief which may be obtained by suit? according to the case laws like Thanksingh V. Commisioner of Taxes11 it is also submitted that ?the application of article 226 may be refused by the court upon a consideration of certain circumstances as disentitling the applicant to relief when the alternative remedy is available? according to the cases K. Rashid & Sons V. I.T.I Commission12.
Thus according to the above submissions, there is no error apparent on the face of record in the judgment of the Magistrate and petitioner has no locus standi to approach the High Court as the alternative remedy is available to him. Thus in fact the petitioner without having locus standi misused the supervisory power of the High Court under Article 226. But, the Hon'ble High Court without considering all these submissions dealt with the petition filed by the petitioner and passed the impugned order which is against the well settled principles of writ jurisdiction.
II. The order of High Court
As already discussed, ?the fact that the aggrieved party has other adequate remedy may be taken into consideration by the superior court in arriving at the conclusions as to whether it should, in the exercise of its discretion issue a writ of certiorari to quash the decisions of sub-ordinate courts or tribunals and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his statutory remedies available, if any.13?
It is also submitted that the High Court should not interfere with a finding within the jurisdiction of the inferior court except where the finding is perverse in law in the sense that no reasonable person properly instructed in law could have come to such
10 - AIR 1953 SC 58
11 - AIR 1964 SC 1419; AIR 1952 SC 192; AIR 1964 SC 1006
12 - AIR 1954 SC 207; AIR 1959 SC 422; AIR 1980 SC 112; (1996) 3 SCC 300; (1996) 3 SCC 11
13 - AIR 1961 SC 609; AIR 1954 SC 207; AIR 1952 SC 192; AIR 1956 SC 463
finding or there is a misdirection in law or view of fact has been taken in the teeth preponderance of evidence or the finding is not based on any material evidence or it resulted in manifest injustice thus for example in a case law14 where both the trial court and the appellate court after discussing the evidence, concluded that the appellant was a licensee in possession of a premises, it was held that the High Court?s interference to appraise evidence was not justified.
The Supreme Court in other judgment15 discussed about the scope of High Courts to interfere with the order of the lower courts under Article 226 and also laid down some guidelines with regards to the interference.
?The court under article 226 cannot sit as a court of appeal and substitute its own decision and the court confines itself to the question of legality and is concerned only with:
a. Whether the decision making authority exceeded its powers
b. Committed an error of law
c. Committed a breach of the rules of natural justice
d. Reached an unreasonable decision
e. Abused its power?
?The powers of High Court under article 226 are subject to certain self imposed limitations16? it was also said that ?in the exercise of this discretionary jurisdiction the high court should not act as the courts of appeal or revision to correct mere errors of law or of fact because this jurisdiction is merely supervisory17.?
The lower court in the present case rightly decided the case where in the Magistrate awarded Rs. 23 Lakhs as compensation rejecting the contention on behalf of Anubhav that the petition may be dismissed on the basis of interpretation given by Supreme Court in Velusamy Judgment.
Thus, it is humbly submitted on behalf of the petitioner herein before the Hon'ble Supreme Court that the High Court without considering all the above submissions acted as an appellate jurisdiction rather than the supervisory jurisdiction in passing the
14 - (1986) 4 SCC 447
15 - (1997) 7 SCC 622
16 - AIR 1953 SC 425
17 - AIR 1964 SC 1419; AIR 1997 SC 1908; AIR 1952 SC 192; AIR 1997 SC 896; AIR 1975 SC 2151; (1998) 9 SCC 220
impugned order dated 2/12/2010. In light of the observations made in the case18 court will not by certiorari interfere, by mere formal or technical errors even though of law.
Thus, it is submitted that mere action of the lower court in not considering the obiter dicta observations laid down in Velusamy?s case will not amount to the error apparent on the face of record as wrongly applied by the respondent/petitioner before High Court. Further the Hon'ble High Court passed the orders as though it was the appellate court dictating the lower court to consider the Velusamy?s judgment while deciding the case. Thus the action of the Hon'ble High Court of Harithasthan is against the well established principles of writ jurisdiction.
18 - AIR 1957 SC 804
2. Whether Velusamy case should be considered as a Ratio Decidendi?
A. It is not a Ratio.
The judgment is a recent one by the Supreme Court where in the Hon'ble Court allowed the appeal of the petitioner D. Velusamy and remanded the matter back to the family court.
The respondent claimed maintenance from the appellant under Section 125 of Cr.P.C. The appellant however asserted that the respondent was not his legally wedded wife because he was already married to a woman named Lakshmi. This was not examined by either of the courts. The family court and the High Court accepted the respondent?s claim treating the respondent to be the appellant?s legally wedded wife. The Supreme Court in this case said that, ?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 fresh findings in accordance with the law. The question whether the appellant was married to the respondent or not can, of course, be decided only after the aforesaid finding.
Further it is also submitted that while giving the above judgment the Supreme Court also examined the scope of the Protection of Women from Domestic Violence Act, 2005 with respect to Live In Relationships, but as mentioned in Paragraph 29 of the said judgment, the petitioner had asked for relief under Section 125 of the Code of Criminal Procedure with a contention that she is the legally wedded wife of Velusamy. But, she did not claim any maintenance (otherwise palimony) for live in relationship or relationship in nature of marriage.
In the present case, the respondent is asking the Hon'ble Court to consider the views expressed by the Supreme Court in the said judgment regarding Live in relationship considering the fact it is the law declared by the Supreme Court. According to article 141 of the Constitution of India, it is true that the law declared by the Supreme Court is binding on all courts. Judicial precedents are one of the main sources of Indian Law.
However, there are also circumstances which destroy or weaken the binding force of a precedent those are exceptions to the rule of the binding force of precedent. Some of them are
1. Ignorance of Statute
2. Inconsistency with earlier decisions
3. Precedents sub silentio
4. Erroneous decisions
5. Foreign judgment and
6. Orbiters as observations of the Apex Court, Etc.
Further it is also submitted that the Supreme Court is having supervisory jurisdiction to overrule its own decision, however, having considered the extent to which the courts are bound by previous decisions, we must now examine what constitutes the decision in a case and what it is that is actually binding on later courts. Thus, it is necessary here to distinguish between Ratio Decidendi and Obiter Dicta. According to Rupert Cross, ?Ratio Decidendi is a rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion.?
It is also submitted that in the course of his judgment, however, a judge may let fall various observations not precisely relevant to the issue before him. He may for instance illustrate his general reasoning by reference to hypothetical situations and the law which he considers to apply to them. Here of course, since the issue is not one that arises between the parties, full argument by counsel will be lacking, so that it would be unwise to accord the observations by the way, Obiter Dicta, are without binding authority, but are nonetheless important.
The view of Good Hart which is the correct test for ascertaining the Ratio Decidendi is that ?the Ratio Decidendi is nothing more than the decision based on material facts of the case. If the judgment does not distinguish between the material and immaterial facts, all facts mentioned in it must be considered to be material except facts regarding time, place, etc.? It was also proved in an English case, Bann V Hamilton, in which a passenger in a car sued the driver for damages suffered in an accident caused by the drivers intoxication.
19 - (1939) 1 K.B. 509
The defendant?s plea of Volunti Non Fit Injuria was rejected. It was later suggested that the defendant could have succeeded on contributory negligence, but the judge in the case pointed out in the note cited that this defence was never pleaded and could not therefore arise. Similarly, in the present case, the respondent in the Velusamy?s case has sought remedy of maintenance under Section 125 of the Code of Criminal Procedure under the status of a legally wedded wife of Velusamy. But, the Supreme Court while dealing with the matter expressed its views regarding Live-in-relations which are mere obiter dicta.
The Supreme Court in the case of Bengal immunity and Co V State of Bihar22, held that there is nothing in the Indian Constitution which prevents the Supreme Court departing from its previous decision if it is convinced of this error and its beneficial effect on the general interest of Public. The court said ?The Supreme Court should not lightly dissent from its previous decisions. This power of review must be exercised with due care and caution and only for advancing the public well being in the light of surrounding circumstances of each case brought to its notice but it is not right to confine its power within rigidly fixed limits.?
Thus, it is submitted before this Hon'ble Court that according to all the above submissions, it is clear that the judicial precedents should be considered in the limited extent while deciding the case and the obiter dicta are not important and not binding in nature. Thus the obiter dicta laid down in Velusamy?s case for the Live-in-Relationship are not binding in nature while deciding the present case. Thus the lower court dismissed the contention of the respondent/petitioner considering the Velusamy?s Judgment.
22 - AIR 1955 SC 661
B. The said Judgment violates the object of domestic violence act
Domestic Violence Act is the First law ever made in India for the protection of all the women from the domestic violence. The preamble of this act states that, ?An act to provide for more effective protection of the rights of women guaranteed under the constitution who are victims of violence of any kind occurring within the family and for matters connected herewith or incidental thereto.?
The United Nations committee on convention on elimination of all forms of discrimination against women (CEDAW) in its general recommendation has recommended that state parties should act to protect women against violence of any kind, especially that occurring within the family and domestic violence as such is undoubtedly a human rights issue. Thus, Indian legislature in view of the United Nations? recommendation enacted this law within the purview of Articles 14, 15 and 21 of the Constitution of India. Basically, the DVA covers all 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, a relation in nature of marriage or adoption. In addition, relationships with family members living together as joint family are also included. Even those women who are sisters, widows, mothers, single women, or living with abuse are entitled to legal protection under the proposed legislation.
Thus the basic object of this enactment is to protect all kinds of women from domestic violence. It is a great step taken by the United Nations to protect the rights of women, which are being violated because of domestic violence. India as such is a male dominated society and has been so historically. This consequently has transformed the dominance to abuse; not only of wives but to all women living together in a shared household may include the second wife, keep, servants used primarily for sexual purposes or any other women who live with the abuser in relation as such. Of course there may be various conditions because of which those women are living with the abuse in such relations because of the discrimination, gender inequalities, or because of their weakness or because of domination by men. Thus, the United Nations and the Indian Legislature keeping the rights of such women in their sight coined the Protection of Women from Domestic Violence Act of 2005 to bridge the gap between the weaker women and the dominant men resulting in equality between them.
Thus, the judgment of the Hon'ble Supreme Court in D. Velusamy V. D. Patchaiammal violates the object of the act by laying down guidelines restricting the applicability of DVA to all kinds of women. Paragraphs 33 and 34 of the said judgment specifically excludes many women from the applicability of DVA thus discriminating between women, thus violating fundamental rights guaranteed to every woman under the Constitution of India.
?If a measure tends to perpetuate inequality and makes the goal of equality a mirage, such a measure should not receive the approval of Court. The concept of equality is a binding thread which runs through the entire constitutional text.a? [Page 1392]
?There should be no discrimination between One person and another if as regards the subject matter of the legislation and their position is the same or substantially similar. The guarantee, thus, seeks to ?prevent any person? or class of persons from being singled out as a special subject for discriminating and hostile legislationb.?[Page 1393]
The above point was iterated by the Supreme Court in E.V. Chinniah V. State of Andhra Pradesh in the year 2004 where the Hon'ble court held that further classification of a class so deprived is a gross violation of the notion of equality which the Constitution of India so cherishes.
?A party cannot claim that since something wrong has been done in one case, a direction should be issued on the same lines perpetuating another wrong. In such cases, there is no question of discrimination. The concept of equal treatment pre-supposes its extreme of similar legal foothold and it does not countenance repetition of its wrong action to bring wrong at parc.?[Page 1391]
Hence, it is humbly submitted before this Hon'ble Court that the Paragraphs 33 and 34 of the said judgment may be overruled to protect the object of domestic violence act.
a,b,c - Shorter Constitution of India, 13th Edition, Durga Das Basu
3. Whether the relation between petitioner and respondent is in the nature of marriage?
i. It is a relationship in the nature of marriage.
Marriage in the Indian Society is a sacramental relationship with which a man and a woman enter into a new bond of wedlock and start their domestic relationship together as partners. These kinds of marriages are socially and legally recognized. The society now is changing and there are new trends of such relationships that are evolving. These relationships are often referred to as live-in-relationships and legally are recognized as ?Common-law marriages?. These marriages are also called as ?sui juris? marriages, informal marriages or marriages by habit or repute. It is a form of interpersonal status which are legally recognized in some jurisdictions as a marriage even though there is no legally recognized marriage ceremony is performed or civil marriage contract is entered into or the marriage registered in a civil registry. A common-law marriage is legally binding in some common law jurisdictions but has no legal consequence in others. In some jurisdictions without true common-law marriages, for example, Hungary, the term "common-law marriage" is used as a synonym for non-marital relationships such as domestic partnership or reciprocal beneficiaries? relationship. A Sui Juris Marriage might only apply in the United States in this form. As can be seen, the society now considers this phenomenon as an acceptable one which in the earlier decades was looked down upon and the time before was a taboo.
Globalization has brought across different changes in the Indian society. The point of view of the society from personal is now shifting to general. This has also resulting in adoption of relations such as live-in-relationships to the extent that they are now more common than ever. The concept of a sacramental marriage itself is changing and people have started stepping into relationships as such. These relationships have been recognized by the Indian Legislature in The Protection of Women from Domestic Violence Act of 2005 in section 2 (f), where a domestic relation has been defined to include ?relationship in the nature of marriage? among others. The Supreme Court has also recognized these relationships in the famous S. Khushboo V. Kanniammal23 in the year 2009. The Supreme Court in this case
23 - (2010) 5 SCC 600
commented that 'a New Social phenomenon has emerged in our country known as live-in-relationships. These new relationships are still rare in our country and are sometimes found in big urban cities of India, but, are quite common in countries of North America and Europe.' As the Hon'ble court rightly recognized, these relationships are now extremely rare and as mentioned have been recognized by the legislature in DVA. In the present case, the petitioner and the respondent have lived together for a period of about Six years, which is from 14/10/2003 till the first week of March, 2010.
The court in Miller V. Miller case granted an award of 5 million to a woman who was in a relationship with the man for a period less than three years. The House of Lords upheld the decision of the court while concurring with John Eekelar who suggested 'parties who share their lives together earn a share in one another's assets relative to the length of time they have shared their lives".'
The Bar Council of England has now suggested that a period of three years be made as a reasonable period to claim common-law marriage for the applicability of usual marriage laws to both the parties. This period is also held to be a requirement to file for tax as a partner of Common-law Marriage in the State of Texas in the United States of America. The law recommends a non marital agreement to protect the interests of both the parties. The Internal Revenue Service of the United States on a couple considered married as
You are considered married for the whole year if on the last day of your tax year you and your spouse meet any one of the following tests.
? You are married and living together as husband and wife.
? You are living together in a common law marriage that is recognized in the state where you now live or in the state where the common law marriage began.?
One of the Court in the United States also granted alimony or in these cases referred to as ?Palimony? to a woman who had given up her career, managed the household and assisted a man in his business for a lengthy period of time even when there was no explicit written or oral contract.
24 - (2006) 2 AC 618
25 - (2001) 117 LQR 552 at 556
As apparent, the court without a ceremony of marriage, which is a usual requisite for awards as such, or without any supporting contract or agreement, considered their relation as that of the one in natureof marriage placing importance to the facts. In other words, the conduct of the parties during such relationships goes to a great extent to help determine the nature of their relationships and in turn to judge whether a relationship is in the nature of marriage or not.
In the present case, it is not disputed whether both the parties have lived together or not. The dispute is with the status of the female partner in the relationship. ?If a man as well as a lady are living under the same roof and living together for quite a few years, there will be a presumption under Section 114 of the Indian Evidence Act, 1872 that they live as husband and wife??26?
The courts have consistently held that, ?the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a number of years? in Mohabbat Ali Khan V. Mohd. Ibrahim Khan27.
The above submissions make abundantly clear that when two people have lived together for a long period of time, where the period as defined by various jurisdictions to be of three years, the courts have held that the domestic partners were married. In a few cases, the children being born out of such a relationship were treated to be legitimate and were given their share in their father's property.
In the present case, the parties stayed together in the same household for a prolonged period till the respondent took the petitioners? gold ornaments and left the household in the first week of March, 2010.
26 - Madan Mohan Singh & Ors. vs Rajni Kant & Anr., August, 2010
27 - AIR 1929 PC 135; Gokalchand Vs.. Parvin Kumar, AIR 1952 SC 231; S.P.S. Balasubramanyam Vs. Suruttayan, (1994) 1 SCC 460; Ranganath Parmeshwar Panditrao Mali Vs. Eknath Gajanan Kulkarni, (1996) 7 SCC 681; and Sobha Hymavathi Devi Vs. Setti Gangadhara Swamy & Ors., (2005) 2 SCC 244
ii. The respondent does not have any right upon the gold ornaments
As per the facts of the case, the respondent had taken and sold Gold ornaments of the petitioner worth Rs. 22 Lakhs (Rupees Twenty Two Lakhs Only) without her consent. The amount received was used to start a joint business with a woman named Madhurima.
But, as per Section 14 of The Hindu Succession Act,
?14. Property of a female Hindu to be her absolute property.
(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
(2) Nothing contained in sub- section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.?
In other words, every woman is the absolute owner of her property and this property is also referred to as Stridhan. The source from which the property is acquired is important in the determination of Stridhan along with her status at the time when the property was acquired. Property acquired by a woman by mechanical arts or by her won exertions during maidenhood, during the subsistence of her marriage and during widowhood is also Stridhan. The property also obtained by compromise or by family arrangement where there is no presumption of her taking only a life interest also is her Stridhan. Any property that is purchased with her Stridhan is also Stridhan. Also, any property obtained by a woman by adverse possession during maidenhood, subsistence of marriage and during widowhood is also Stridhan.
Only the woman to whom the property belongs has absolute rights over such property and no one else. Only she has the right to alienate or give away such property as she pleases during and after her lifetime and thereafter. Even her husband or his members of the family have no right over that property which is her Stridhan. ?The stridhan property of a married woman cannot acquire the character of a joint property of both the spouses as soon as she enters her matrimonial home so as to eliminate the application of section 406 IPC. The position of stridhan of a Hindu married womans property during covertures is absolutely clear and unambiguous, she is the absolute owner of such property and can deal with it in any manner she likes-She may spend the whole of it or give it away at her own pleasure by gift or will without any reference to her husband28. ? In the same case, it was also held that even if the Stridhan is entrusted to the husband, he cannot use it according to his whims and wishes. Only during grave distress or famine or any instance as such, can the husband use the Stridhan. Again, the Stridhan used should be restored to the same value as soon as possible. .
In the present case, the ornaments taken by the respondent constitute to the petitioners Stridhan and cannot be construed as the joint property of both the parties. As submitted above, any property that is Stridhan cannot be alienated or transferred by any other person than its owner. Section 3 (d) (iv) (b) of DVA defines Economic Abuse as: ?disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person.? In other words, the act of the respondent of selling off the gold ornaments which are the petitioners Stridhan constitutes to economic abuse on part of the respondent. The Hon'ble Judicial Magistrate of the First Class considered the arguments submitted to award relief to the petitioner.
28 - Pratibha Rani vs Suraj Kumar & Anr; AIR 1985 SC 628
4. Whether the provisions of the Protection of Women from Domestic violence Act, 2005 are applicable in the present case?
The ancient writer, Manu who is considered to be an authority on the evolution of the Hindu Family Law, observed that, ?The home where there is respect for women is like the abode of gods, but where that is not so, all the other forms of worship are fruitless.? Despite of such categorical assertion by an authority as such, the women continue to be a deprived class. The male domination is such that many times, any kind of harassment of women goes unnoticed and even when there is some notification, the domination either coerces the women to suffer in silence or face the wrath of the society. Fingers are not pointed towards the men, but, it is always assumed that the women are the guilty parties. She is only treated as a member of the society if she chooses to suffer in silence. The woman, especially a married woman or a woman who has whole heartedly assumed that she is married to the man or a woman who has contributed to the conjugal society of the man without marriage have many roles to play. She is worried about her future, the name of her family and also the future of her immediate family, if any. These may or may not include her children.
The United Nations? intention for recognition of this form of gross violation of the rights of the women was to empower them, motivate them to come forward and also ensure that they are treated fairly, which historically has not been the case. The intention of the Indian legislature in enacting this act was to include any women who are in a domestic relationship with the alleged abuser. The legislature while drafting this enactment included the women who were related to the alleged abuse by 'a relation in nature of marriage'. The legislature has tried to empower women who are being harassed, being abused and who are being subjected to this for a prolonged period of time irrespective of their economic, educational, social or religious backgrounds.
i. Petitioner is the person aggrieved under the DVA
DVA is the first enactment by the Indian legislature to protect the women from domestic violence. Protection is not limited to physical, emotional but also economic. The legislature has also sought to protect the modern woman who is educated and aware of her rights. It has been observed by the legislature that there are woman who are living with their partners without a ceremonial declaration but continue to support their partners akin to spouses.
Section 3 of the enactment includes any act, omission or commission or conduct on part of any member in a domestic relationship with the person aggrieved which may include causing any injury or hurt, physical including sexual, emotional including verbal and economic abuse.
Section 2 (a) of the enactment defines the ?person aggrieved? 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.?
Section 2 (f) defines ?domestic relationship? as ?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) defines ?shared household? as ?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?
Having noted the relevant provisions of DVA, the expression domestic relationship does not only include a relationship of marriage, but also includes a relationship in nature of marriage. According to the submissions made in Issue # 2, it is clear that ?living together as domestic partners in a shared household for a reasonably long time will constitute a valid relationship.? This relationship can be termed as a relationship in nature of marriage as accepted by the changing society. The Hon'ble Court has held 'If a man as well as a lady is living under the same roof and living together for quite a few years, there will be a presumption under Section 114 of the Evidence Act that they live as husband and wife'?? in Madan Mohan Singh & Ors. vs Rajni Kant & Anr., August, 2010. The court in that case has tried to confer legitimacy to the children born out of such relationships.
In light of the arguments submitted above, the Court should extend the same to the women in such relationships also. That is all relationships that satisfy the above criteria should be termed as relationships in nature of marriage. In the light of the above arguments submitted before the court, the interpretation given by the court in D. Velusamy V. D. Patchaiammal does not extend the same cover to all the relationships which have subsisted genuinely. The Judicial Magistrate of the First Class may have deemed the relationship between the parties as that of a valid domestic relationship. This court may consider the petitioner to be an aggrieved person within the definition of the term under section 2 (a) of the act.
ii. Petitioner has been subjected to economic abuse
DVA covers various kinds of abuses which the women are subjected to in their lives as submitted above. Apart from including physical, emotional and mental abuses, it also includes those in the form of economic abuse also. In the present case, according to the facts already mentioned, the respondent has sold gold ornaments of the petitioner which are worth Rs. 22 Lakhs (Rupees Twenty two lakhs only) which is the stridhan of the petitioner. It is also submitted that the amount or the money so received from the sale has been used to start a business jointly with another women, Madhurima, without the consent of the petitioner. The act of the respondent of selling the Stridhan of the petitioner amounts to Economic Abuse as defined in Section 3 (d) (iv) (b) of DVA ?disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person.? Further it is also submitted that an aggrieved person under the act can approach the Magistrate under Section 12 of the act which has been done in the present case by the petitioner when she approached the Judicial Magistrate of First Class immediately after she was subjected to abuse in form of Economic Abuse.
The Judicial Magistrate of First Class rightly judged the case after examining the relevant witnesses, including the protection officer. The Hon'ble Court awarded Rs. 23 Lakhs (Rupees Twenty Three Lakhs only) as compensation. Thus the Hon'ble Supreme Court keeping in view all the submissions made on behalf of the petitioner may consider her as the person who has lived with the respondent for a long period of time and she is the person aggrieved within the definitions of DVA as she has been subjected to violence in the form of her economic abuse and she is entitled to remedies assured under the DVA.
In light of the arguments advanced and the authorities cited the counsel for the petitioner humbly prays before this Hon'ble Supreme Court that it may be pleased to adjudge and accept the Special Leave Petition filed by the petitioner
? To quash or set aside the order of the High Court of Harithasthan,
? To uphold the decision of the lower court.
? To overrule the paragraphs 33 and 34 of the judgment given in D. Velusamy V. D. Patchaiammal and
? To pass any other order the Hon'ble Court may deem fit and proper in the interest of equity and good conscience.
Respectfully submitted on behalf of the Petitioner
Counsel for the Petitioner