DEOKI PANJHIYARA versus SHASHI BHUSHAN NARAYAN AZAD & ANR.

[2012] 11 S.C.R. 825

DEOKI PANJHIYARA

v. SHASHI BHUSHAN NARAYAN AZAD & ANR. (Criminal Appeal Nos. 2032-2033 of 2012) DECEMBER 12, 2012

[P. SATHASIVAM AND RANJAN GOGOi, JJ.]

Protection of Women from Domestic Violence Act, 2005: -s. 12 Proceedings before trial court -Interim maintenance -granted by trial court Set aside by High Court on production of marriage certificate showing the first marriage of appellant -with another man Held: If according to respondent, the marriage between him and the appellant was void on acpount of the previous marriage of the appellant, he ought to have obtained the necessary declaration from competent court in view of the highly contentious questions raised by appellant -on the said score In the absence of any valid decree of nullity or the necessary declaration, court will have to proceed on the footing that the relationship between the parties is one of marriage and not in the nature of marriage, and appellant would be entitled to claim maintenance and other benefits -under the D. V. Act, 2005 Mere production of marriage certificate issued u/s 13 of the Special Marriage Act in support of the claimed first marriage of the appellant was not sufficient for High Court, to render complete and effective decision with regard to the marital status of the parties and that too in collateral proceeding for maintenance - Impugned order of High Court set aside.

The respondent-husband filed writ petition before

the High Court challenging the order dated 13.2.2008 of the trial court granting interim maintenance to the appellant-wife in her petition u/s 12 of the Protection of Women from Domestic Violence Act, 2005(DV Act, 2005). Meanwhile, the respondent filed an application before the

[2012] 11 S.C.R.

trial court for recall of the order dated 13.2.2008 on the ground that subsequently he came to know that the appellant was already married to one 'RKM', and placed before trail court the first marriage certificate dated 18.4.2003. The trial court rejected the said application. The respondent filed revision petition before the High Court, which allowed both the writ petition and revision of the respondent-husband holding that the marriage certificate dated 18.4.2003 issued u/s 13 of the Special Marriage Act, 1954, was conclusive proof of the first marriage of the appellant and, as such, she was not entitled to maintenance.

Allowing the appeals, the Court

HELD: 1.1 Admittedly, both the appellant and the respondent are governed by the provisions of the Hindu Marriage Act, 1955, s. 11 whereof makes it clear that marriage solemnised after the commencement of the Act "shall be null and void and may, on petition presented by either party thereto against the other party, be so declared by decree of nullity if it contravenes any one of the conditions so specified in clauses (i}, (iv) and (v) of s.5." [para 14] [835-E-F]

1.2 In the instant case, the appellant in her pleadings

had clearly, categorically and consistently denied that she was married to any person known as 'RKM'. The legitimacy, authenticity and genuineness of the marriage certificate dated 18.4.2003 has also been questioned by the appellant. Though s.11 of the 1955 Act gives an option to either of the parties to void marriage to seek declaration of invalidity/nullity of such marriage, the exercise of such option cannot be understood to be in all situations voluntarily. Situations may arise when recourse to court for declaration regarding the nullity of marriage claimed by one of the spouses to be void

DEOKI PANJHIYARA v. SHASHI BHUSHAN NARAYAN 827 AZAD & ANR.

marriage, will have to be insisted upon in departure to the

normal rule. [para 18] [836-G; 837-A-B]

A. Subash Babu v. Babu v. v. State of Andhra Pradesh Andhra Pradesh Pradesh & Anr. 2011

A. Subash Babu v. Babu v. v. State of Andhra Pradesh Andhra Pradesh Pradesh (9) SCR 453 = 2011 (7) SCC 616 - relied on

Yamunabai v. Anantrao AIR 1988 SC 645; and M.M.

v. Malhotra v. Union of India 2005 (3) Suppl. SCR 1026 = 2005

(8) sec 351 - referred to.

1.3 If according to the respondent, the marriage

between him and the appellant was void on account of the previous marriage between the appellant and 'RKM', he ought to have obtained the necessary declaration from the competent court in view of the highly contentious questions raised by the appellant on the said score. It is only upon declaration of nullity or annulment 0 of the marriage between the parties by competent court that any consideration of the question whether the parties had lived in "relationship in the nature of marriage" would be justified. In the absence of any valid decree of nullity or the necessary declaration, the court will have to proceed on the footing that the relationship between the parties is one of marriage and not in the nature of marriage. It may also be emphasised that any determination of the validity of the marriage between the parties could have been made only by competent court in an appropriate proceeding by and between the parties and in compliance with all other requirements of law. Mere production of marriage certificate issued uls 13 of the Special Marriage Act, 1954 in support of the claimed first marriage of the appellant was not sufficient for any of the courts, including the High Court, to render complete and effective decision with regard to the marital status of the parties and that too in collateral proceeding for maintenance. [para 19] [837-G-H; 838-A-E]

1.4 Consequently, this Court holds that until the invalidation of the marriage between the appellant and the respondent is made by competent court it would only be corre-ct to proceed on the basis that the appellant continues to be the wife of the respondent so as to entitle her to claim all benefits and protection available under the DV Act, 2005. Accordingly, the interference made by the High Court with the grant of maintenance in favour of the appellant was not at all justified. The order dated 09.04.2010 passed by the High Court is set aside. [para 19 and 21] [838-E-F-G-H]

D. Velusamy vs. D.Patchaimmal 2010 (13) SCR 706 =

(2010) 10 SCC 469; and S.P. Changa/varaya Naidu vs. Jagannath and others 1993 (3) Suppl. SCR 422 =AIR 1994 SC 853 - cited.

No. 2032-2033 of 2012.

From the Judgment & Order dated 09.04.2010 of the High

Court of Jharkhand at Ranchi in W.P. (Crl.) No. 205 of 2008 and Cr. Rev. No. 819 of 2009.

Gaurav Agrawal, Shankar Narayanan for the Appellant.

Mahesh Tiwari, Bishnu Tiwari, Dr. Kailash Chand, Ratan Kumar Chaudhuri for the Respondents.

The Judgment of the Court was delivered by

DEOKI PANJHIYARA v. SHASHI BHUSHAN NARAYAN 829 AZAD & ANR.

RANJAN GOGOi, J. 1. Leave granted.

2. The appellant, who was married to the respondent in the

year 2006, had filed petition under Section 12 of the Protection of Women from. Domestic Violence Act, 2005 (hereinafter referred to as 'the DV Act') seeking certain reliefs including damages and maintenance. During the pendency of the aforesaid application the appellant filed an application for interim maintenance which was granted by the learned trial court on 13.02.2008 at the rate of Rs.2000/- per month. The order of the learned trial court was affirmed by the learned Sessions Judge on 09.07.2008. As against the aforesaid order, the respondent (husband) filed Writ Petition before the High Court of Jharkhand.

3. While the Writ Petition was pending, the respondent

sought recall of the order dated 13.02.2008 on the ground that he could subsequently come to know that his marriage with the appellant was void on the ground that at the time of the said marriage the appellant was already married to one Rohit Kumar Mishra. In support, the respondent - husband had placed before the learned trial court the certificate of marriage dated 18.04.2003 between the appellant and the said Rohit Kumar Mishra issued by the competent authority under Section 13 of the Special Marriage Act, 1954 (hereinafter referred to as 'the Act of 1954').

4. The learned trial court by order dated 7.8.2009 rejected

the aforesaid application on the ground that notwithstanding the certificate issued under Section 13 of the Act of 1954, proof of existence of the conditions enumerated in Section 15 of the Act would still required to be adduced and only thereafter the certificate issued under Section 13 of the Act can be held to be valid.

5. The aforesaid order dated 07.08.2009 was challenged

by the respondent-husband in revision application before the High Court which was heard alongwith the writ petition filed

[2012] 11 S.C.R.

earlier. Both the cases were disposed of by the impugned common order dated 09.04.2010 holding that the marriage certificate dated 18.04.2003 issued under Section 13 of the Act of 1954 was conclusive proof of the first marriage of the appellant with one Rohit Kumar Mishra which had the effect of rendering the marriage between the appellant and the respondent null and void. Accordingly, it was held that as the appellant was not the legally wedded wife of the respondent she was not entitled to maintenance granted by the learnea courts below. It is against the aforesaid order of the High Court that

-c the present appeals have been filed by the appellant wife.

6. We have heard Shri Gaurav Agarwal, learned counsel

for the appellant and Shri Mahesh Tiwari, learned counsel for the respondent.

7. Learned counsel for the appellant has strenuously urged

that the allegation of the earlier marriage between the appellant and Rohit Kumar Mishra had been denied by the appellant at all stages and the said fact is not substantiated only by the Marriage Certificate dated 18.04.2003. Even assuming the marriage between the appellant and the respondent to be void, the parties having lived together, relationship in the nature of marriage had existed which will entitle the appellant to claim and receive maintenance under the DV Act, 2005. Placing the legislative history leading to the aforesaid enactment, it is urged that in the Bill placed before the Parliament i.e. Protection from Domestic Violence Bill, 2002 an "aggrieved person" and "relative" was, initially, defined in the following terms :

"Section 2 ........ . (a) "aggrieved person• means any woman who is or has been relative of the respondent and who alleges to have been subjected to act of domestic violence by the respondent;

(b) ...

DEOKI PANJHIYARA v. SHASHI BHUSHAN NARAYAN 831

AZ.AD & ANR. [RANJAN GOGOi, J.]

(d) ....

(e) ....

(f) ...

(g) ...

(h) ....

(i)"relative" includ.,es any person related by blood,

maniage or adoption and living with the respondent."

Thereafter, the different clauses of the Bill were considered by Parliamentary Standing Committee and recommendations were made that having regard to the object sought to be achieved by the proposed legislation, namely, to protect women from domestic violence and exploitation, clause (2)(i) defining "relative" may be suitably amended to include women who have been living in relationship akin to marriages as well as in marriages considered invalid by law. Pursuant to the aforesaid recommendation made by the Standing Committee, in place of the expression "relative" appearing in clause 2(i) of the Bill, the expression "domestic relationship" came be included in clause (f) of Section 2 of the Act. Learned counsel by referring to the definition of "aggrieved person" and "domestic relationship" as appearing in the DV Act, 2005 has urged that the legislative intent to include women, living in marriages subsequently found to be illegal or even in relationships resembling marriage, within the protective umbrella of the DV Act is absolutely clear and the same must be given its full effect. It is submitted that having regard to the above even if the marriage of the appellant and the respondent was void on account of the previous marriage of the appellant, the said fact, by itself, will not disentitle the appellant to seek maintenance and other reliefs under the DV Act, 2005.

8. Before proceeding further it will be appropriate to notice, at this stage, the definition of the expressions "aggrieved person" and "domestic relaJionship" appearing in Section 2(a) and (f) of the DV Act, 2005.

"Section 2 .....

(a) "aggrieved person" means any women who is, or has been, in domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;

(b) ......

(c) ......

(d) ......

(e) ......

(f) "domestic relationship" means relationship between two persons who live or have, at any point of time, lived together in shared household, when they are related by consanguinity, marriage, or through relationship in the nature of marriage, adoption or are family members living together as joint family."

9. Learned counsel, in all fairness, has also drawn the

attention. of the court to decision rendered by coordinate Bench in D. Velusamy vs. D.Patchaimma/1 wherein this court had occasion to consider the provisions of Section 2(f) of the DV Act to come to the conclusion that "relationship in the nature of marriage" is akin to common law marriage which requires, in addition to proof of the fact that parties had lived together in shared household as defined in Section 2(s) of the DV Act, the following conditions to be satisfied:

(a) The couple must hold themselves out to society as

c2010) 10 sec 469.

OEOKI PANJHIYARA v. SHASHI BHUSHAN NARAYAN 833 AZAD & ANR. [RANJAN GOGOi, J.)

being akin to spouses.

(b) They must be of legal age to marry.

(c) They must be otherwise qualified to enter into legal marriage, including being unmarried.

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for significant period of time ....... "

[Para 33)

10. Learned counsel has, however, pointed out that in

Velusamy (supra) the issue was with regard to the meaning of expression "wife" as appearing in Section 125 Cr.P.C. and therefore reference to the provisions of Section 2(f) of the DV Act, 2005 and the· conclusions recorded were not required for decision of the issues arising in the case. Additionally, it has bean pointed out that while rendering its opinion in the aforesaid case this Court had no occasion to take into account the deliberaiions of the Parliamentary Standing Committee on the different clauses of Protection of Women from Domestic Violence Bill, 2002. It is also urged that the equation of the expression "relationship in the nature of marriage" with common law marriage and the stipulation of the four requirements noticed above is not based on any known or acceptable authority or source of law. Accordingly, it is submitted that the scope and expanse of the expression "relationship in the nature of marriage• is open for consideration by us and, at any rate, reference of the said question to larger bench would be justified.

11. Opposing the contentions advanced on behalf of the

appellant learned counsel for the respondent - husband has submitted that the object behind insertion of the expression "relationship in the nature of marriage• in Section 2(f) of the DV Act is to protect women who have been misled into marriages

[2012] 11 S.C.R.

by the male spouse by concealment of the factum of the earlier marriage of the husband. The Act is beneficial piece of legislation which confers protection of different kinds to women who have been exploited or misled into marriage. Learned counsel has pointed out that in the present case the situation is, however, otherwise. From the marriage certificate dated 18.04.2003 it is clear that the appellant was already married to one Rohit Kumar Mishra which fact was known to her but not to the respondent. The second marriage which is void and also gives rise to bigamous relationship was voluntarily entered into by the appellant without the knowledge of the husband. Therefore, the appellant is not entitled to any of the benefits under the DV Act. In fact, grant of maintenance in the present case would amount to conferment of benefit and protection to the wrong doer which would go against the avowed object of 0 [the ][Act. ][Learned ][counsel ][has ][also ][submitted ][that ][the ][conduct ]of the appellant makes it clear that she had approached the court by suppressing material facts and with unclean hands which disentitles her to any relief either in law or in equity. In this regard the decision of this court in S.P. Changalvaraya Naidu vs. Jagannath and others2 has been placed before us.12. Having considered the submissions advanced by the learned counsels for the contesting parties, we are of the view that the questions raised, namely, whether the appellant and the respondent have/had lived together in shared household after their marriage on 4.12.2006; if the parties have/had lived together whether the same gives rise to relationship in the nature of marriage within the meaning of Section 2(f) of the DV Act, 2005; whether the decision of this Court in Velusamy (supra) is an authoritative pronouncement on the expression "relationship in the nature of marriage" and if so whether the same would require reference to larger Bench, may all be premature and the same need not be answered for the present. Instead, in the first instance, the matter Jllay be viewed from the perspective indicated below.

2. AIR 1994 SC 853.

13. The Respondent before us had claimed (before the trial

court as well as the High Court) that the marriage between him and the appellant solemnised on 4.12.2006, by performance of rituals in accordance with Hindu Law, was void on account of the previous marriage between the appellant with one Rohit Kumar Mishra. In support thereof, the respondent relied on marriage certificate dated 18.4.2003 issued under Section 13 of the Special Marriage Act, 1954. Acting solely on the basis of the aforesaid marriage certificate the learned trial court as well as the High Court had proceeded to determine the validity of the marriage between the parties though both the courts were exercising jurisdiction in proceeding for maintenance. However, till date, the marriage between the parties is yet to be annulled by competent court. What would be the effect of the above has to be determined first inasmuch as if, under the law, the marriage between the parties still subsists the appellant 0 would continue to be the legally married wife of the respondent so as to be entitled to claim maintenance and other benefits under the DV Act, 2005. Intact, in such situation there will be no occasion for the Court to consider whether the relationship between the r-Jarties is in the nature of marriage.

14. Admittedly, both the appellant and the respondent are

governed by the provisions of the Hindu Marriage Act, 1955. Section 11 of the Hindu Marriage Act makes it clear that marriage solemnised after the commencement of the Act "shall be null and void and may, on petition presented by either party thereto against the other party, be so declared by decree of nullity if it contravenes any one of the conditions so specified in clauses (i), (iv) and (v) of Section 5."

15. While considering the provisions of Section 11 of the

Hindu Marriage Act, 1955 this Court in Yamunabai v. Anantrao[3 ]has taken the view that marriage covered by Section 11 is void-ipso-jure, that is, void from the very inception. Such marriage has to be ignored as not existing in law at all. It was further held by this Court that formal declaration of the 3. AIR 1988 SC 645.

nullity of such marriage is not mandatory requirement though such an option is available to either of the parties to marriage.

It must, however, be noticed that in Yamunabai (supra)

there was no dispute between the parties either as regards the existence or the validity of the first marriage on the basis of which the second marriage was held to be ipso jure void.

16. similar view has been expressed by this Court in

later decision in M.M. Malhotra v. Union of lndia4 wherein the view expressed in Yamunabai (supra) was also noticed and reiterated.

17. However, the facts in which the decision in M.M.

Malhotra (supra) was rendered would require to be noticed in some detail:

The appellant M.M. Malhotra was, inter alia, charged in

departmental proceeding for contracting plural marriage. In reply to the charge sheet issued it was pointed out that the allegation of plural marriage was not at all tenable inasmuch as in suit filed by the appellant (M.M. Malhotra) for declaration that the respondent (wife) was not his wife on account of her previous marriage to one D.J. Basu the said fact i.e. previous marriage was admitted by the wife leading to declaration of the invalidity of the marriage between the parties. The opinion of this court in M.M. Malhotra (supra) was, therefore, once again rendered in the situation where there was no dispute with regard to the factum of the earlier marriage of one of the spouses.

18. In the present case, however, the appellant in her

pleadings had clearly, categorically and consistently denied that she was married to any person known as Rohit Kumar Mishra. The legitimacy, authenticity and genuineness of the marriage certificate dated 18.4.2003 has also been questioned by the appellant. Though Section 11 of the aforesaid Act gives an

option to either of the parties to void marriage to seek

declaration of invalidity/nullity of such marriage, the exercise of such option cannot be understood to be in all situations voluntarily. Situations may arise when recourse to court for declaration regarding the nullity of marriage claimed by one of the spouses to be void marriage, will have to be insisted upon in departure to the normal rule. This, in our view, is the correct ratio of the decision of this Court in Yamunabai (supra) and M.M. Malhotra (supra). In this regard, we may take note of recent decision rendered by this Court in A. Subash Babu v. State of Andhra Pradesh & Anr6. while dealing with the question whether the wife of second marriage contracted during the validity of the first marriage of the husband would be "person aggrieved" under Section 198 {1)(c) of the Code of Criminal Procedure to maintain complaint alleging commission of offences under section 494 and 495 IPC by the 0 husband. The passage extracted below effectively illuminates the issue:

"Though the law specifically does not cast obligation on

either party to seek declaration of nullity of marriage and it may be open to the parties even without recourse to the Court to treat the marriage as nullity, such course is neither prudent nor intended and declaration in terms of Section 11 of the Hindu Marriage Act will have to be asked for, for the purpose of precaution and/or record. Therefore, until the declaration contemplated by Section 11 of the Hindu Marriage Act is made by competent Court, the woman with whom second marriage is solemnized continues to be the wife within the meaning of Section 494 IPC and would be entitled to "maintain complaint against her husband."

19. In the present case, if according to the respondent, the

marriage between him and the appellant was void on account of the previous marriage between the appellant and Rohit Kumar Mishra the respondent ought to have obtained the 5. 2011 (7) sec 616.

necessary declaration from the competent court in view of the highly contentious questions raised by the appellant on the aforesaid score. It is only upon declaration of nullity or annulment of the marriage between the parties by competent court that any consideration of the question whether the parties had lived in "relationship in the nature of marriage" would be justified. In the absence of any valid decree of nullity or the necessary declaration the court will have to proceed on the footing that the relationship between the parties is one of marriage and not in the nature of marriage. We would also like to emphasise that any determination of the validity of the marriage between the parties could have been made only by competent court in an appropriate proceeding by and between the parties and in compliance with all other requirements of law. Mere production of marriage certificate 0 [issued ][under ][Section ][13 ][of ][the ][Special ][Marriage ][Act, ][1954 ][in ]support of the claimed first marriage of the appellant with Roh it Kumar Mishra was not sufficient for any of the courts, including the High Court, to render complete and effective decision with regard to the marital status of the parties and that too in collateral proceeding for maintenance. Consequently, we hold that in the present case until the invalidation of the marriage between the appellant and the respondent is made by competent court it would only be correct to proceed on the basis that the appellant continues to be the wife of the respondent so as to entitle her to claim all benefits and protection available

under the DV Act, 2005.

20. Our above conclusion would render consideration of

any of the other issues raised wholly unnecessary and academic. Such an exercise must surely be avoided.

21. We, accordingly, hold that the interference made by the

High Court with the grant of maintenance in favour of the appellant was not at all justified. Accordingly, the order dated 09.04.2010 passed by the High Court is set aside and the present appeals, are allowed.

Appeals allowed.