Indra Sarma v. V.K.V. Sarma
K.S. RADHAKRISHNAN, J. 1. Leave granted.
2. Live-in or marriage like relationship is neither a crime
H nor a sin though socially unacceptable in this country. The
INDRA SARMA v. V.K.V. SARMA
[K.S. RADHAKRISHNAN, J.]
1035
decision to marry or not to marry or to have a heterosexual A
relationship is intensely personal.
3. We are, in this case, concerned with the question
whether a "live-in relationship" would amount to a "relationship
in the nature of marriage" falling within the definition of 8 "domestic relationship" under Section 2(f) of the Protection of
Women from Domestic Violence Act, 2005 (for short "the DV
Act") and the disruption of such a relationship by failure to
maintain a women involved in such a relationship amounts to
"domestic violence" within the meaning of Section 3 of the DV C
Act.
FACTS:
4. Appellant and respondent were working together in a
private company. The Respondent, who was working as a
Personal Officer of the Company, was a married person having
two children and the appellant, aged 33 years, was unmarried.
Constant contacts between them developed intimacy and in the
year 1992, appellant left the job from the above-mentioned
Company and started living with the respondent in a shared
household. Appellant's family members, including her father,
brother and sister, and also the wife of the respondent,
opposed that live-in-relationship. She has also maintained the
stand that the respondent, in fact, started a business in her
name and that they were earning from that business. After some
time, the respondent shifted the business to his residence and
continued the business with the help of his· son, thereby
depriving her right of working and earning. Appellant has also
stated that both of them lived together .in a shared household
and, due to their relationship, appellant became pregnant on
G three occasions, though all resulted in abqrtion. Respondent,
it was alleged, used to force the appellant to take contraceptive
methods to avoid pregnancy. Further, it was also stated that
the respondent took a sum of Rs.1,00,000/- from the·appellant
stating that he would buy a land in her name, but the same was
not done. Respondent also took money from the appellant to H
1036 SUPREME COURT REPORTS [2013) t4 S.C.R.
A start a beauty parlour for his wife. Appellant also alleged that,
during the year 2006, respondent took a loan of Rs.2,50,000/
- from her and had not returned. Further, it was also stated that
the respondent, all along, was harassing the appellant by not
exposing her as his wife publicly, or permitting to suffix his name
B after the name of the appellant. Appellant also alleged that the
respondent never used to take her anywhere, either to the
houses of relatives or friends or functions. Appellant also
alleged that the respondent never used to accompany her to
the hospital or make joint Bank account, execute documents,
c etc. Respondent's family constantly opposed their live-in
relationship and ultimately forced him to leave the company of
the appellant and it was alleged that he left the company of the
appellant without maintaining her.
5. Appellant then preferred Criminal Misc. No. 692 of 2007
D under Section 12 of the DV Act before the Ill Additional Chief
Metropolitan Magistrate, Bangalore, seeking the following
reliefs:
(1) Pass a Protection Order under Section 18 of the
DV Act prohibiting the respondent from committing
any act of domestic violence against the appellant
and her relatives, and further prohibiting the
respondent from alienating the assets both
moveable and immoveable properties owned by the
respondent;
(2) Pass a residence order under Section 19 of the DV
Act and direct the respondent to provide for an
independent residence as being provided by the
respondent or in the alternative a joint residence
along with the respondent where he is residing
presently and for the maintenance of Rs.25,000/
per month regularly as being provided earlier or in
the alternative to pay the permanent maintenance
charges at the rate of Rs.25,000/- per month for the
rest of the life;
INDRA SARMA v. V.K.V. SARMA 1037
[K.S. RADHAKRISHNAN, J.]
(3) Pass a monetary order under Section 20 of the DV A
Act directing the respondent to pay a sum of
Rs.75,000/- towards the operation, pre and post
operative medication, tests etc and follow up
treatments;
(4)
(5)
Pass a compensation order under Section 22 of
the DV Act to a sum of Rs.3,50,000/- towards
damages for misusing the funds of the sister of the
appellant, mental torture and emotional feelings;
and
Pass an ex-parte interim order under Section 23 of
the DV Act directing the respondent to pay
Rs.75,000/- towards the medical expenses and pay
the maintenance charges @ Rs.25,000/- per month
as being paid by the respondent earlier.
6. Respondent filed detailed objections to the application
stating that it was on sympathetical grounds that he gave
shelter to her in a separate house after noticing the fact that
she was abandoned by her parents and relatives, especially E
after the demise of her father. She had also few litigations
against her sister for her father's property and she had
approached the respondent for moral as well as monetary
support since they were working together in a Company. The
respondent has admitted that he had cohabited with the
appellant since 1993. The fact that he was married and had F
two children was known to the appellant. Pregnancy of the
appellant was terminated with her as ·well as her brother's
consent since she was not maintaining good health. The
respondent had also spent large amounts for her medical
treatment and the allegation that he had taken money from the G
appellant was denied. During the month of April, 2007, the
respondent had sent a cheque for Rs.2,50,000/- towards her
medical expenses, drawn in the name of her sister which was
encashed. Further, it was stated, it was for getting further
amounts and to tarnish the image of the respondent, the H
A application was preferred under the DV Act. Before the learned
Magistrate, appellant examined herself as P.W.1 and gave
evidence according to the averments made in the petition.
Respondent examined himself as R.W.1. Child Development
Project Officer was examined as R.W.2. The learned
B Magistrate found proof that the parties had lived together for a
considerable period of time, for about 18 years, and then the
respondent left the company of the appellant without
maintaining her. Learned Magistrate took the view that the plea
of "domestic violence" had been established, due to the non-
e maintenance of the appellant and passed the order dated
21.7.2009 directing the respondent to pay an amount of
Rs.18,000/- per month towards maintenance from the date of
the petition.
7. Respondent, aggrieved by the said order of the learned
D Magistrate, filed an appeal before the Sessions Court under
Section 29 of the DV Act. The Appellate Court, after having
noticed that the respondent had admitted the relationship with
appellant for over a period of 14 years, took the view that, due
to their live-in reJationship for a considerable long period, non-
E maintenance Of the appellant would amount to domestic
violence within the meaning of Section 3 of the DV Act. The
appellate Court also concluded that the appellant has no source
of income and that the respondent is legally obliged to maintain
her and confirmed the order passed by the learned Magistrate.
8. The respondent took up the matter in appeal before the
High Court. It was contended before the High Court that the
appellant was aware of the fact that the respondent was a
married person having two children, yet she developed a.
G relationship, in spite of the opposition raised by the wife of the
respondent and also by the appellant's parents. Reliance was
also placed on the judgment of this Court in D. Velusamy, v.
D. Patchaiammal (2010) 10 SCC 469 and submitted that the
tests l,aid down in Velusamy case (supra) had not been
satisfied. The High Court held that the relationship between the
INDRA SARMA v. V.K.V. SARMA 1039
[K.S. RADHAKRISHNAN, J.]
parties would not fall within the ambit of "relationship in the A
nature of marriage" and the tests laid down in Velusamy case
(supra) have not been satisfied. Consequently, the High Court
allowed the appeal and .-set aside the order passed by the
Courts below. Aggrieved by the .same, this appeal has been
preferred. B
9. Shri Anish Kumar Gupta, learned counsel appearing for
the appellant, submitted that the relationship between the parties
continued from 1992 to 2006 and since then, the respondent
started avoiding the appellant without maintaining her. Learned C
counsel submitted that the relationship between them
constituted a "relationship in the nature of marriage" within the
meaning of Section 2(f) of the DV Act, which takes in every
relationship by a man with a woman, sharing household,
irrespective of the fact whether. the respondent is a married
person or not. Learned counsel also submitted that the tests D
laid down in Ve/usamy case (supra) have also been satisfied.
10. Ms. Jyotika Kalra, learned amicus curiae, took us
elaborately through the provisions of the DV Act as well as the
objects and reasons for enacting such a legislation. Learned E
amicus curiae submitted that the Act is intended to provide for
protection of rights of women who are victims of violence of any
type occurring in the family. Learned amicus curiae also
submitted that the various provisions of the DV Act are intended
to achieve the constitutional principles laid down in Article 15(3), F
reinforced vide Article 39 of the Constitution of India. Learned
amicus curiae also made reference to the Malimath Committee
report and submitted that a man who marries a second wife,
during the subsistence of the first wife, should not escape his
liability to maintain his second wife, even under Section 125 G
CrPC. Learned amicus curiae also referred to a recent
judgment of this Court in Deoki Panjhiyara v. Shashi Bhushan
Narayan Azad and Another (2013) 2 SCC 137 in support of
her contention.
A 11. Mr. Nikhil Majithia, learned counsel appearing for the
respondent, made extensive research on the subject and made
available valuable materials. Learned counsel referred to
several judgments of the Constitutional Courts of South Africa,
Australia, New Zealand, Canada, etc. and also referred to
B parallel legislations on the subject in other countries. Learned
couniel submitted that the principle laid down in Velusamy
case (supra) has been correctly applied by the High Court and,
on facts, appellant could not establish that their relationship is
a "relationship in the nature of marriage" so as to fall within
c Section 2(f) of the DV Act. Learned counsel also submitted that
the parties were not qualified to enter into a legal marriage and
thei appellant knew that the respondent was a married person.
Further, the appellant was not a victim of any frauduient or
bigamous marriage and it was a live-in relationship for mutual
0 benefits, consequently, the High Court was right in holding that
there has not been any domestic violence, within the scope of
Section 3 of the DV Act entitling the appellant to claim
maintenance.
1 ?.. We have to examine whether the non maintenance of
E the appellant in a broken live-in-relationship, which is stated to
be a relationship not in the nature of a marriage, will amount to
"domestic violence" within the definition of Section 3 of the DV
Act, enabling the appellant to seek one or more reliefs provided
under Section 12 of the DV Act.
13. Before examining the various issues raised in this
appeal, which have far reaching consequences with regard to
the rights and liabilities of parties indulging in live-in relationship,
let us examine the relevant provisions of the DV Act and the
G impact of those provisions on such relationships.
D.V.ACT
14. The D.V. Act has been enacted to provide a remedy
in Civil Law for protection of women from being victims of
H domestic violence and to prevent occurrence of domestic
INDRA SARMA v. V.K.V. SARMA 1041
[K.S. RADHAKRISHNAN, J.]
·violence in the society. The DV Act has been enacted also to A
provide an effective protection of the rights of women
guaranteed under the Constitution, who are victims of violence
of any kind occurring within the family.
15. "Domestic Violence" is undoubtedly a human rights
issue, which was not properly taken care of in this country even
though the Vienna Accord 1994 and the Beijing Declaration
and Platform for Action ( 1995) had acknowledged that
domestic violence was undoubtedly a human rights issue. UN
Committee on Convention on Elimination of All Forms of
Discrimination Against Women in its general recommendations C
had also exhorted the member countries to take steps to protect
women against violence of any kind, especially that occurring
within the family, a phenomenon widely prevalent in India.
Presently, when a woman is subjected to cruelty by husband
or his relatives, it is an offence punishable under Section 498A D
IPC. The Civil Law, it was noticed, did not address this
phenomenon in its entirety. Consequently, the Parliament, to
provide more effective protection of rights of women
guaranteed under the Constitution under Articles 14, 15 and 21,
who are victims of violence of any kind occurring in the family,
enacted the DV Act.
8
16. Chapter IV is the.heart and soul of the DV Act, which
provides various reliefs to a woman who has or has been in
domestic relationship with any adult male person and seeks one F
or more reliefs provided under the Act. The Magistrate, while
entertaining an application from an aggrieved person under
Section 12 of the DV Act, can grant the following reliefs:
(1) Payment of compensation or damages without
prejudice to the right of such person to institute a G
suit for compensation or damages for injuries
caused by the acts of domestic violence committed
by the adult male member, with a prayer for set off
against the amount payable under a decree
1042 SUPREME COURT REPORTS (2013) 14 S.C.R.
A obtained in Court;
(2) The Magistrate, under Section 18 of the DV Act,
can pass a "protection order" in favour of the
aggrieved person and prohibit the respondent from:
B (a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts
of domestic violence;
c (c) entering the place of employment of the
aggrieved person or, if the person aggrieved
is a child, its school or any other place
frequented by the aggrieved person;
(d) attempting to communicate in any form,
D whatsoever, with the aggrieved person,
including personal, oral or written or
electronic or telephonic contact;
(e) .. alienating any assets, operating bank
E lockers or bank accounts used or held or
enjoyed by both the parties, jointly by the
aggrieved person and the respondent or
singly by the respondent, including her
stridhan or any other property held either
F jointly by the parties or separately by them
without the leave of the Magistrate;
(f) causing violence to the dependants, other
relatives or any person who give the
aggrieved person assistance from domestic
G violence;
(g) committing any other act as specified in the
protection order.
(3) The Magistrate, while disposing of an application
INDRA SARMA v. V.K.V. SARMA 1043
[K.S. RADHAKRISHNAN, J.]
under Section 12(1) of the DV Act, can pass a A
"residence order" under Section 19 of the DV Act,
in the following manner:
"19. Residence orders.- (1) While disposing of an
application under sub-section (1) of section 12, the 8 Magistrate may, on being satisfied that domestic violence
has taken place, pass a residence order-
(a) restraining the respondent from
dispossessing or in any other manner
disturbing the possession of the aggrieved C
person from the shared household, whether
or not the respondent has a legal or
equitable interest in the shared household;
(b) directing the respondent to remove himself D
from the shared household;
(c) restraining the respondent or any of his
relatives from entering any portion of the
shared household in which the aggrieved
person resides; E
(d) restraining the respondent from alienating or
disposing off the shared household or
encumbering the same;
(e)
(f)
restraining the respondent from renouncing
his rights in .the shared household except with
the leave of the Magistrate; or
directing the respondent to secure same
level of alternate accommodation for the G
aggrieved person as enjoyed by her in the
shared household or to pay rent for the
same, if the circumstances so require: ·
Provided that no order under clause (b) shall be H
A passed against any person who is a woman.
)()()( )()()( )()()(
)()()( )()()( xxx"
B (4) An aggrieved person, while filing an application
under Section 12(1) of the DV Act, is also entitled,
under Section 20. of the DV Act, to get "monetary
reliefs" to meet the expenses incurred and losses
suffered by the aggrieved person and any child of
c the aggrieved person as a result of the domestic
violence and such relief may include, but is not
limited to,-
"20. Monetary reliefs.- (1) While disposing of an
application under sub- section (1) of section 12, the
.Magistrate may direct the respondent to pay
monetary relief to meet the expenses incurred and
losses suffered by the aggrieved person and any
child of the aggrieved person as a result of the
domestic violence and such relief may include, but
not limited to,-
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage
or removal of any property from the control of the
aggrieved person; and
(d) the maintenance for the aggrieved person as
well as her children, if any, including an order under
or in addition to an order of maintenance under
section 125 of the Code of Criminal Procedure,
1973 (2 of 197 4 ) or any other law for the time
being in force.
INDRA SARMA v. V.K.V. SARMA 1045
[K.S. RADHAKRISHNAN, J.]
)()()( )()()( )()()( A
)()()( )()()(
The monetary reliefs granted under the above
mentioned section shall be adequate, fair,
reasonable and consistent with the standard of B
living to which an aggrieved person is accustomed
and the Magistrate has the power to order an
appropriate lump sum payment or monthly
payments of maintenance.
(5) The Magistrate, under Section 21 of the DV Act,
has the power to grant temporary custody of any
child or children to the aggrieved person or the
person making an application on her behalf and
specify, if necessary, the arrangements for visit of o
such child or children by the respondent.
(6) The Magistrate, in addition to other reliefs, under
Section 22 of the DV Act, can pass an order
directing the respondent to pay compensation and
damages for the injuries, including mental torture
and emotional distress, caused by the acts of
domestic violence committed by the respondent.
17. Section 26 of the DV Act provides that any relief
available under Sections 18, 19, 20, 21 and 22 may also be
sought in any legal proceeding, before a Civil Court, family court
or a criminal court~ affecting the aggrieved person and the
respondent whether such proceeding was initiated before or
after the commencement of this Act. Further, any relief referred
to above may be sought for in addition to and along with any G
other reliefs that the aggrieved person may seek in such suit
or legal proceeding before a civil or criminal court. Further, if
any relief has been obtained by the aggrieved person in any
proceedings other than a proceeding under this Act, she shall
be bound to inform the Magistrate of the grant of such relief. H
A 18. Section 3 of the DV Act deals with "domestic violence"
and reads as under:
"3. Definition of domestic violence.- For the purposes
of this Act, any act, omission or commission or conduct
of the respondent shall constitute domestic violence in
case it-
(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
(b) harasses, harms, injures or en-dangers the
aggrieved person with a view to coerce her or any
other person related to her to meet any unlawful
demand for any dowry or other property or valuable
security; or
(c) has the effect of threatening the aggrieved person
or any person related to her by any conduct
mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical
or mental, to the aggrieved person.
Explanation 1.- For the purposes of this section,-
(i) "physical abuse" means any act or conduct which is
of such a nature as to cause bodily pain, harm, or
danger to life, limb, or health or impair the health
or development of the aggrieved person and
includes assault, criminal intimidation and criminal
force;
(ii) "sexual abuse" includes any conduct of a sexual
nature that abuses, humiliates, degrades or
otherwise violates the dignity of woman;
INDRA SARMA v. V.K.V. SARMA 1047
[K.S. RADHAKRISHNAN, J.]
(iii) "verbal and emotional abuse" includes- A
(a) insults, ridicule, humiliation, name calling and
insults or ridicule specially with regard to not
having a child or a male child; and
(b) repeated threats to cause physical pain to B
any person in whom the aggrieved person is
interested.
(iv) "economic abuse" includes-
deprivation of all or any economic or financial
(a)
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 D 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;
(b) 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 F
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; and
(c) prohibition or restriction to continued access to G
resources or facilities which the aggrieved person
is entitled to use or enjoy by virtue of the domestic
relationship including access to the shared
household.
A Explanation II.- For the purpose of determining whether any
act, omission, commission or conduct of the respondent
constitutes" domestic violence" under this section, the
overall facts and circumstances of the case shall be taken
into consideration."
B 19. In order to examine as to whether there has been any
act, omission, or commission or conduct so as to constitute
domestic violence, it is necessary to examine some of the
definition clauses under Section 2 of the DV Act. Section 2(a)
C of the DV Act defines the expression "aggrieved person" as
follows:
"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
D act of domestic violence by the respondent."
Section 2(f) defines the expression "domestic relationship"
as follows:
"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(q) defines the expression "respondent" as
follows:
"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
INDRA SARMA v. V.K.V. SARMA
[K.S. RADHAKRISHNAN, J.]
1049
complaint against a relative of the husband or the male A
partner."
Section 2(s) defines the expression "shared
household" and reads as follows:
"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 C
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 D
aggrieved person has any right, title or interest in the
shared household."
20. We are, in this case, concerned with a "live-in
relationship" which, according to the aggrieved person, is a
"relationship in the nature of marriage" and it is that relationship
which has been disrupted in the sense that the respondent
failed to maintain the aggrieved person, which, according to the
appellant, amounts to "domestic violence". The respondent
maintained the stand that the relationship between the appellant
and the respondent was not a relationship in the nature of
marriage but a live-in-relationship simplicitor and the alleged
act, omission, commission or conduct of the respondent would
not constitute "domestic violence" so as to claim any protection
orders under Section 18, 19 or 20 of the DV Act.
21. We have to first examine whether the appellant was
involved in a domestic relationship with the respondent. Section
2(f) refers to five categories of relationship, such as, related by
consanguinity, marriage, relationship in the nature of marriage,
adoption, family members living together as a joint family, of H
A which we are, in this case, concerned with an alleged
relationship in the nature of marriage.
22. Before we examine whether the respondent has
committed any act of domestic violence, we have to first
B examine whether the relationship between them was a
"relationship in the nature of marriage" within the definition of
Section 3 read with Section 2(f) of the DV Ac:t. Before
examining the term "relationship in the nature of marriage", we
have to first examine what is "marriage", as understood in law.
C MARRIAGE AND MARITAL RELATIONSHIP:
23. Marriage is often described as one of the basic civil
rights of man/woman, which is voluntarily undertaken by the
parties in public in a formal way, and once concluded,
0 recognizes the parties as husband and wife. Three elements
of common law marriage are (1) agreement to be married (2)
living together as husband and wife, (3) holding out to the public
that they are married. Sharing a common household and duty
to live together form part of the 'Consortium Omnis Vitae" which
E obliges spouses to live together, afford each other reasonable
marital privileges and rights and be honest and faithful to each
other. One of the most important invariable consequences of
marriage is the reciprocal support and the responsibility of
maintenance of the common household, jointly and severally.
Marriage as an institution has great legal significance and
F various obligations and duties flow out of marital relationship,
as per law, in the matter of inheritance of property,
successionship, etc. Marriage, therefore, involves legal
requirements of formality, publicity, exclusivity and all the legal
consequences flow out of that relationship.
24. Marriages in India take place either following the
personal Law of the Religion to which a party is belonged or
following the provisions of the Special Marriage Act. Marriage,
as per the Common Law, constitutes a contract between a man
H and a woman, in which the parties undertake to live together
INDRA SARMA v. V.K.V. SARMA 1051
[K.S. RADHAKRISHNAN, J.]
and support each other. Marriage, as a concept, is also A
nationally and internationally recognized. O'Regan, J., in
Dawood and Another v. Minister of Home Affairs and Others
2000 (3) SA 936 (CC) noted as follows:
"Marriage and the family are social institutions of vital 8 importance. Entering into and sustaining a marriage is a
matter of intense private significance to the parties to that
marriage for they make a promise to one another to
establish an~ maintain an intimate relationship for the rest
of their lives which they acknowledge obliges them to
support one another, to live together and to be faithful to C
one another. Such relationships are of profound
significance to the individuals concerned. But such
relationships have more than personal significance at least
in part because human beings are social beings whose
humanity is expressed through their relationships with D
others. Entering into marriage therefore is to enter into a
relationship that has public significance as well.
The institutions of marriage and the family are
important social institutions that provide for the security, E
support and companionship of members of our society and
bear an important role in the rearing of children. The
celebration of a marriage gives rise to moral and legal
obligations, particularly the reciprocal duty of support
placed upon spouses and their joint responsibility for F
supporting and raising children born of the marriage. These
legal obligations perform an important social function. This
importance is symbolically acknowledged in part by the
fact that marriage is celebrated generally in a public
ceremony 1 often before family and close friends .... " G
I
25. South African Constitutional Court in various judgments
recognized the above mentioned principle. In Satchwell v.
President of the Republic of South Africa and Another 2002
(6) SA 1 (CC), Ou Tait and Another v. Minister of Welfare and
Population Development and Others (Lesbian and Gay H
A Equality Project as Amicus Curiae) 2003 (2) SA 198 (CC),
the Constitutional Court of South Africa recognized the right
"free to marry and to raise family". Section 15(3)(a)(i) of the
Constitution of South Africa, in substance makes provision for
the recognition of "marriages concluded under the tradition, or
B a system of religious, personal or family law." Section 9(3) of
the Constitution of South Africa reads as follows:
'The State may not unfairly discriminate directly or
indirectly against anyone on one or more grounds,
including race, gender, sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, culture, language and
birth."
26. Article 23 of the International Covenant on Civil and
D Political Rights, 1966 (ICCPR) provides that:
"1. The family is the natural and fundamental group unit
of society and is entitled to protection by society
and the State.
2. The right of men and women of marriageable age
to marry and to found a family shall be recognized.
3. No marriage shall be entered into without the free
and full consent of the intending spouses.
4. States Parties to the present Covenant shall take
appropriate steps to ensure equality of rights and
responsibilities of spouses as to marriage, during
marriage and at its dissolution. In the case of
dissolution, provision shall be made for the
necessary protection of any children."
27. Article 16 of the Universal Declaration of Human
Rights, 1948 provides that:
H "1. Men and women of full age, without any limitation
INDRA SARMA v. V.K.V. SAR MA 1053
[K.S. RADHAKRISHNAN, J.]
due to race, nationality or religion, have the right to A
marry and to found a family. They are entitled to
equal rights as to marriage, during marriage and
2.
at it dissolution.
Marriage shall be entered into only with the free and
full consent of the intending spouses.
3. The family is the natural and fundamental group unit
of society and is entitled to protection by society
and the State."
28. Parties in the present case are Hindus by religion and
are governed by the Hindu Marriage Act, 1955. The expression
"marriage", as stated, is not defined under the Hindu Marriage
Act, but the "conditions for a Hindu marriage" are dealt with in
Section 5 of the Hindu Marriage Act and which reads as under: 0
"5. Conditions for a Hindu marriage - A marriage
may be solemnized between any two hindus, if the following
conditions are fulfilled, namely:-
(i) neither party has a spouse living at the time of the E
marriage
(ii) at the time of the marriage, neither party-
(a) is incapable of giving a valid consent to it in
consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has
been suffering from mental disorder of such
a kind or: to such an extent as to be unfit for
marriage and the procreation of children; or G
(c) has been subject to recurrent attacks of
insanity;
(iii) the bridegroom has completed the age of twenty"
1054 SUPREME COURT REPORTS [2013) 14 S.C.R.
one years and the bride the age of eighteen years
at the time of the marriage;
(iv) the parties are not within the degrees of prohibited
relationship unless the custom or usage governing
each of them permits of a marriage between the
two;
(v) the parties are not sapindas of each other, unless
the custom or usage governing each of them
permits of a marriage between the two."
29. Section 7 of the Hindu Marriage Act deals with the
"Ceremonies for a Hindu marriage" and reads as follows:
"7. Ceremonies for a Hindu marriage. -
(1) A Hindu marriage may be solemnized in
accordance with the customary rites and
ceremonies of either party thereto.
(2) Where such rites and ceremonies include the
saptapadi (that is, the taking of seven steps by the
bridegroom and the bride jointly before the sacred
fire), the marriage becomes complete and binding
when the seventh step is taken."
30. Entering into a marriage, therefore, either through the
F Hindu Marriage Act or the Special Marriage Act or any other
Personal Law, applicable to the parties, is entering into a
relationship of "public significance", since marriage being a
social institution, many rights and liabilities flow out of that legal
relationship. The concept of marriage as a "civil right" has been
G recognised by various courts all over the world, for example,
Skinner v. Oklahoma 316 US 535 (1942), Perez v. Lippold
198 P.2d 17, 20.1 (1948), Loving v. Virginia 388 US 1 (1967).
31. We have referred to, in extenso, about the concept of
H "marriage and marital relationship" to indicate that the law has
INDRA SARMA v. V.K.V. SARMA 1055
[K.S. RADHAKRISHNAN, J.]
distinguished between married and unmarried people, which A
cannot be said to be unfair when we look at the rights and
obligations which flow out of the legally wedded marriage. A
married couple has to discharge legally various rights and
obligations, unlike the case of persons having live-in
relationship or, marriage-like relationship or defacto 8
relationship.
32. Married couples who choose to marry are fully
cognizant of the legal obligation which arises by the operation
of law on solemnization of the marriage and the rights and
duties they owe to their children and the family as a whole, unlike C
the case of persons entering into live-in relationship. This Court
in Pinakin Mahipatray Rawat v. State of Gujarat (2013) 2
SCALE 198 held that marital relationship means the legally
protected marital interest of one spouse to another which
include marital obligation to another like· companionship, living D
under the same roof, sexual relation and the exclusive
enjoyment of them, to have children, their up-bringing, services
in the home, support, affection, love, liking and so on.
RELATIONSHIP IN THE NATURE OF MARRIAGE: E
33. Modern Indian society through the DV Act recognizes
in reality, various other forms of familial relations, shedding the
idea that such relationship can only be through some
acceptable modes hitherto understood. Section 2(f), as already F
indicated, deals with a relationship between two persons (of
the opposite sex) who live or have lived together in a shared
household when they are related by:
(a) Consanguinity
(b) Marriage
(c) Through a relationship in the nature of marriage
{d) Adoption
A (e) Family members living together as joint family.
34. The definition clause mentions only five categories of
relatio·nships which exhausts itself since the expression
"means", has been used. When a definition clause is defined
8 to "mean" such and such, the definition is prima facie restrictive
and exhaustive. Section 2(f) has not used the expression
"include" so as to make the definition exhaustive. It is in that
context we have to examine the meaning of the expression
"relationship in the nature of marriage".
C 35. We have already dealt with what is "marriage", "marital
relationship" and "marital obligations". Let us now examine the
meaning and scope of the expression "relationship in the
nature of marriage" which falls within the definition of Section
2(f) of the DV Act. Our concern in this case is of the third
D enumerated category that is "relationship in the nature of
marriage" which means a relationship which has some inherent
or essential characteristics of a marriage though not a marriage
legally recognized, and, hence, a comparison of both will have
to be resorted, to determine whether the relationship in a given
E case constitutes the characteristics of a regular marriage.
36. Distinction between the relationship in the nature of
marriage and marital relationship has to be noted first.
Relationship of marriage continues, notwithstanding the fact that
F there are differences of opinions, marital unrest etc., even if they
are not sharing a shared household, being based on law. But
live-in-relationship is purely an arrangement between the parties
unlike, a legal marriage. Once a party to a live-in-relationship
determines that he/she does not wish to live in such a
relationship, that relationship comes to an end. Further, in a
G relationship in the nature of marriage, the party asserting the
existence of the relationship, at any stage or at any point of time,
must positively prove the existence of the identifying
characteristics of that relationship, since the legislature has
used the expression "in the nature of'.
NORA SARMA v. V.K.V. SARMA 1057
[K.S. RADHAKRISHNAN, J.]
37. Reference to certain situations, in which the relationship A
between an aggrieved person referred to in Section 2(a) and
the respondent referred to in Section 2(q) of the DV Act, would
or would not amount to a relationship in the nature of marriage,
would be apposite. Following are some of the categories of
cases which are only illustrative: B
(a) Domestic relationshiQ between an unmarried adult
woman and an unmarried adult male: Relationship
between an unmarried adult woman and an
unmarried adult male who lived or, at any point of c time lived together in a shared household, will fall
under the definition of Section 2(f) of the DV Act and
in case, there is any domestic violence, the same
will fall under Section 3 of the DV Act and the
aggrieved person can always seek reliefs provided
D under Chapter IV of the DV Act.
(b) Domestic relationship between an unmarried
woman and a married adult male: Situations may
arise when an unmarried adult women knowingly
enter~ into a relationship with a married adult male. E
The question is whether such a relationship is a
relationship "in the nature of marriage" so as to fall
within the definition of Section 2(f) of the DV Act.
(c) Domestic relationshiQ between a married adult F woman and an unmarried adult male: Situations
may also arise where an adult married woman,
knowingly enters into a relationship with an
unmarried adult male, the question is whether such
a relationship would fall within the expression
G relationship "in the nature of marriage".
(d) Domestic relationshiQ between an unmarried
woman unknowingl)'. enters into a relationshiQ with
a married adult male: An unmarried woman
unknowingly enters into a relationship with a married H
adult male, may, in a given situation, fall within the
definition of Section 2(f) of the DV Act and such a
relationship may be a relationship in the "nature of
marriage", so far as the aggrieved person is
concerned.
(e) Domestic relationship between same sex partners
(Gay and Lesbians): DV Act does not recognize
such a relationship and that relationship cannot be
termed as a relationship in the nature of marriage
under the Act. Legislatures in some countries, like
the Interpretation Act, 1984 (Western Australia), the
Interpretation Act, 1999 (New Zealand), the
Domestic Violence Act, 1998 (South Africa), the
Domestic Violence, Crime and Victims Act, 2004
(U.K.), have recognized the relationship between
the same sex couples and have brought these
relationships into the definition of Domestic
relationship.
38. Section 2(f) of the DV Act though uses the expression
E "two persons''., the expression "aggrieved person" under Section
2(a) takes in only "woman", hence, the Act does not recognize
the relationship of same sex (gay or lesbian) and, hence, any
act, omission, commission or conduct of any of the parties,
would not lead to domestic violence, entitling any relief under
F the DV Act.
39. We should, therefore, while determining whether any
act, omission, commission or conduct of the respondent
constitutes "domestic violence", have a common sense/
balanced approach, after weighing up the various factors which
G exist in a particular relationship and then reach a conclusion
as to whether a particular relationship is a relationship in the
"nature of marriage". Many a times, it is the common intention
of the parties to that relationship as to what their relationship
is to be, and to involve and as to their respective roles and
H responsibilities, that primarily governs that relationship.
INDRA SARMA v. V.K.V. SARMA 1059
[K.S. RADHAKRISHNAN, J.]
Intention may be expressed or implied and what is relevant is A
their intention as to matters that are characteristic of a marriage.
The expression "relationship in the nature of marriage", of
course, cannot be construed in the abstract, we must take it in
the context in which it appears and apply the same bearing in
mind the purpose and object of the Act as well as the meaning 8
of the expression "in the nature of marriage". Plight of a
vulnerable section of women in that relationship needs attention.
Many a times, the women are taken advantage of and essential
contribution of women in a joint household through labour and
emotional support have been lost sight of especially by the c
women who fall in the categories mentioned in (a) and (d)
supra. Women, who fall under categories (b) and (c), stand on
a different footing, which we will deal with later. In the present
case, the appellant falls under category (b), referred to in
paragraph 37(b) of the Judgment.
40. We have, therefore, come across various permutations
and combinations, in such relationships, and to test whether a
particular relationship would fall within the expression
"relationship in the nature of marriage'', certain guiding
principles have to be evolved since the expression has not been E
defined in the Act.
41. Section 2(f) of the DV Act defines "domestic
relationship" to mean, inter alia, a relationship between two
persons who live or have lived together at such point of time in F
a shared household, through a relationship in the nature of
marriage. The expression "relationship in the nature of
marriage" is also described as defacto relationship, marriage
- like relationship, cohabitation, couple relationship,
meretricious relationship (now known as committed intimate G
relationship) etc.
42. Courts and legislatures of various countries now began
to think that denying certain benefits to a certain class of
persons on the basis of their marital status is unjust where the
1060 SUPREME COURT REPORTS [2013) 14 S.C.R.
A need of those benefits is felt by both unmarried and married
cohabitants. Courts in various countries have extended certain
benefits to hetero.sexual unmarried cohabitants. Legislatures
too, of late, through legislations started giving bErnefits to
heterosexual cohabitants.
B 43. In U.K. through the Civil Partnership Act, 2004, the
rights of even the same-sex couple have been recognized.
Family Law Act, 1996, through the Chapter IV, titled 'Family
Homes and Domestic Violence', cohabitants can seek reliefs
if there is domestic violence. Canada has also enacted the
C Domestic Violence Intervention Act, 2001. In USA, the violence
against woman is a crime with far-reaching consequences
under the Violence Against Women Act, 1994. Now Violence
Against Women Reauthorization Act, 2013.
44. The Interpretation Act, 1984 (Australia) has laid down
certain indicators to determine the meaning of "de facto
relationship", which are as follows:
"13A . De facto relationship and de facto partner,
references to
(1) A reference in a written law to a de facto relationship
shall be construed as a reference to a relationship (other
than a legal marriage) between 2 persons who live
together in a marriage-like relationship.
(2) The following factors are indicators of whether or not a
de facto relationship exists between 2 persons, but are not
essential-
(a) the length of the relationship between them;
(b) whether the 2 persons have resided together;
(c) the nature and extent of common residence;
(d) whether there is, or has been, a sexual
INDRA SARMA v. V.K.V. SARMA
[K.S. RADHAKRISHNAN, J.]
relationship between them;
1061
(e) the degree of financial dependence or
interdependence, and any arrangements for
financial support, between them;
(f) the ownership, use and acquisition of their B
property (including property they own individually);
(g) the degree of mutual commitment by them to a
shared life;
(h) whether they care for and support children;
(i) the reputation, and public aspects, of the
relationship between them.
)()()( )()()( xxx D
)()()( )()()( X:XX:.'
45. The Domestic and Family Violence Protection Act,
2012 (Queensland) has defined the expression "couple
relationship" to mean as follows": E
"18. Meaning of couple relationship
(1) )()()( )()()( )()()(
(2) In deciding whether a couple relationship exists, a F
court may have regard to the following -
(a) the circumstances of the relationship
between the persons, including, for
example- G
(i) the degree of trust between the persons; and
(ii) the level of each person's dependence on, and
commitment to, the other person;
(b) the length of time for which the relationship has
existed or did exist;
(c) the frequency of contact between the persons;
(d) the degree of intimacy between the persons.
(3) Without limiting sub-section (2), the court may
consider the following factors in deciding whether
a couple relationship exists-
(a) Whether the trust, deP'enqence or
commitment is or was of the same level;
(b) Whether one of the persons is or was
financially dependent on the other; ·
(c) Whether the persons jointly own or owned
any property;
(d) Whether the persons have or had joint bank
accounts;
(e) Whether the relationship involves or involved
a relationship of a sexual nature;
(f) Whether the relationship is or was exclusive.
(4) A couple relationship may exist even if the court
makes a negative finding in relation to any or all of
the factors mentioned in subsection (3).
(5) A couple relationship may ex:st between two
persons whether the persons are of the same or a
different gender.
(6) A couple relationship does not exist merely
because two persons date or dated each other on
a number of occasions."
INDRA SARMA v. V.K.V. SARMA 1063
[K.S. RADHAKRISHNAN, J.]
46. The Property (Relationships) Act, 1984 of North South A
Wales, Australia also provides for some guidelines with regard
to the meaning and content of the expression "de facto
relationship", which reads as follows:
"4 De facto relationships
(1) For the purposes of this Act, a de facto relationship is
a relationship between two adult persons:
(a) who live together as a couple, and
c (b) who are not married to one another or related by
family.
(2) In determining whether two persons are in a de facto
relationship, all the circumstances of the relationship are
to be taken into account, including such of the following D
matters as may be relevant in a particular case:
(a) the duration of the relationship,
(b) the nature and extent of common residence,
(c) whethe( or not a sexual relationship exists,
(d) the degree of financial dependence or
interdependence, and any arrangements for
financial support, between the parties, F
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children, .G
(h) the performance of household duties,
(i) the reputation and public aspects of the relationship.
(3) No finding in respect of any of the matters mentioned H
1064 SUPREME COURT REPORTS (2013] 14 S.C.R.
A in subsection (2) (a)-(i), or in respect of any combination
of them, is to be regarded as necessary for the existence
of a de facto relationship. and a court determining whether
such a relationship exists is entitled to have regard to such
matters, and to attach such weight to any matter, as may
B seem appropriate to the court in the circumstances of the
case.
(4) Except as provided by section 6, a reference in this
Act to a party to a de facto relationship includes a
reference to a person who, whether before or after the
commencement of this subsection, was a party to such a
relationship."
47. "In Re Marriage of Lindsay, 101 Wn.2d 299 (1984),
Litham v. Hennessey 87 Wn.2d 550 (1976), Pennington 93
D Wash.App. at 917, the Courts in United States took the view
that the relevant factors establishing a meretricious relationship
include continuous cohabitation, duration of the relationship,
purpose of the relationship, and the pooling of resources and
services for joint projects. The Courts also ruled that a
E relationship need not be "long term" to be characterized as
meretricious relationship. While a long term relationship is not
a threshold requirement, duration is a significant factor. Further,
the Court also noticed that a short term relationship may be
characterized as a meretricious, but a number of other important
F factors must be present.
48. In Stack v. Dowden (2007] 2 AC 432, Baroness Hale
of Richmond said:
"Cohabitation comes in many different shapes and sizes.
G People embarking on their first serious relationship more
commonly cohabit than marry. Many of these relationships
may be quite short-lived and childless. But most people
these days cohabit before marriage ..... So many couples
are cohabiting with a view to marriage at some later date
H - as long ago as 1998 the British Household Panel Survey
INDRA SARMA v. V.K.V. SARMA 1065
[K.S. RADHAKRISHNAN, J.]
found that 75% of current cohabitants expected to marry, A
although only a third had firm plans: John Ermisch,
Personal Relationships and Marriage Expectations (2000)
Working Papers of the Institute of Social and Economic
Research: Paper 2000-27. Cohabitation is much more
likely to end in separation than is marriage, and B
cohabitations which end in separation tend to last for a
shorter time than marriages which end in divorce. But
increasing numbers of couples cohabit for long periods
without marrying and their reasons for doing so vary from
conscious rejection of marriage as a legal institution to c
regarding themselves 'as good as married' anyway: Law
Commission, Consultation Paper No 179, Part 2, para
2.45."
49. In MW v. The Department of Community Services
[2008] HCA 12, Gleeson, CJ, made the following observations: D
"Finn J was correct to stress the difference between living
together and living together 'as a couple in a relationship
in the nature of marriage or civil union'. The relationship
between two people who live together, even though it is a E
sexual relationship, may, or may not, be a relationship in
the nature of marriage or civil union. One consequence of
relationships of the former kind becoming commonplace
is that it may now be more difficult, rather than easier, to
infer that they have the nature of marriage or civil union, at F
least where the care and upbringing of children are not
involved."
50. In Lynam v. The Director-Genera/ of Social Security
(1983) 52 ALR 128, the Court considered whether a man and
a woman living together 'as husband and wife on a bona fide G
domestic basis' and Fitzgerald, J. said:
"Each element of a relationship draws its colour and its
significance from the other elements, some of which may
point in one direction and some in the other. What must H
A be looked at is the composite picture. Any attempt to
isolate individual factors and to attribute to them relative
degrees of materiality or importance involves a denial of
common experience and will almost inevitably be
productive of error. The endless scope for differences in
B human attitudes and activities means that there will be an
almost infinite variety of combinations of circumstances
which may fall for consideration. In any particular case, it
will be a question of fact and degree, a jury que:;tion,
whether a relationship between two unrelated persons of
c the opposite sex meets the statutory test."
51. Tipping, J. in Thompson v. Department of Social
Welfare (1994) 2 SZLR 369 (HC), listed few characteristics
which are relevant to determine relationship in the nature of
marriage as follows:
"(1) Whether and how frequently the parties live in the
same house.
(2) Whether the parties have a sexual relationship.
E (3) Whether the parties give each other emotional
support and companionship.
(4) Whether the parties socialize together or attend
activities together as a couple.
(5) Whether and to what extent the parties share the
responsibility for bringing up and supporting any
relevant children.
(6) Whether the parties share household and other
domestic tasks.
(7) Whether the parties share costs and other financial
responsibilities by the pooling of resources or
otherwise.
INDRA SARMA v. VK.V SARMA
[K.S. RADHAKRISHNAN, J.)
1067
(8) Whether the parties run a common household, even A
if one or other partner is absent for periods of time.
(9) Whether the parties go on holiday together.
(10) Whether the parties conduct themselves towards,
and are treated by friends, relations and others as
if they were a married couple."
52. Live-in relationship, as such, as already indicated, is
a relationship which has not been socially accepted in India,
unlike many other countries. In Lata Singh v. State of UP. [AIR
2006 SC 2522] it was observed that a five-in relationship
between two consenting adults of heterosexual sex does not
amount to any offence even though it rnay be perceived as
immoral. However, in order to provide a remedy in Civil Law
for protection of women, from being victims of such relationship,
and to prevent the occurrence of domestic violence in the
society, first time in India, the DV Act has been enacted to cover
the couple having relationship in the nature of marriage,
persons related by consanguinity, marriages etc. We have few
other legislations also where reliefs have been provided to
woman placed in certain vulnerable situations.
53. Section 125 Cr.P .C., of course, provides for
maintenance of a destitute wife and Section 498A IPC is
related to mental cruelty inflicted on women by her husband and
in-laws. Section 304-B IPC deals with the cases ,relating to
dowry death. The Dowry Prohibition Act, 1961 was enacted to
deal with the cases of dowry demands by the husband and
.family members. The Hindu Adoptions and Maintenance Act,
1956 provides for grant of maintenance to a legally wedded
Hindu wife, and also deals with rules for adoption. The Hindu
Marriage Act, 1955 refers to the provisions dealing with
solemnization of marriage also deals with the provisions for
divorce. For the first time, through, the DV Act, the Parliament
has recognized a "relationship in the nature of marriage" and
not a live-in relationship simplicitor.
1068 SUPREME COURT REPORTS (2013) 14 S.C.R.
A 54. We have already stated, when we examine whether a
relationship will fall within the expression "relationship in the
nature of marriage" within the meaning of Section 2(f) of the
DV Act, we should have a close analysis of the entire
relationship, in other words, all facets of the interpersonal
B relationship need to be taken into account. We cannot isolate
individual factors, because there may be endless scope for
differences in human attitudes and activities and a variety of
combinations of circumstances which may fall for consideration.
Invariably, it may be a question of fact and degree, whether a
c relationship between two unrelated persons of the opposite sex
meets the tests judicially evolved.
55. We may, on the basis of above discussion cull out
some guidelines for testing under what circumstances, a live
in relationship will fall within the expression "relationship in the
D nature of marriage" under Section 2(f) of the DV Act. The
guidelines, of course, are not exhaustive, but will definitely give
some insight to such relationships.
(1)
(2)
(3)
Duration of period of relationship
Section 2(f) of the DV Act has used the expression
"at any point of time'', which means a reasonable
period of time to maintain and continue a
relationship which may vary from case to case,
depending upon the fact situation.
Shared household
The expression has been defined under Section
2(s) of the DV Act and, hence, need no further
elaboration.
Pooling of Resources and Financial Arrangements
Supporting each other, or any one of them,
financially, sharing bank accounts, acquiring
INDRA SARMA v. V.K.V. SARMA 1069
[K.S. RADHAKRISHNAN, J.]
immovable properties in joint names or in the name A
of the woman, long term investments in business,
shares in separate and joint names, so as to have
a long standing relationship, may be a guiding
factor.
(4) Domestic Arrangements B
Entrusting the responsibility, especially on the
woman to run the home, do the household activities
like cleaning, cooking, maintaining or upkeeping the
house, etc. is an indication of a relationship in the c
nature of marriage.
(5) Sexual RelationshiQ
Marriage like relationship refers to sexual D relationship, not just for pleasure, but for emotional
and intimate relationship, for procreation of
children, so as to give emotional support,
companionship and also material affection, caring
etc.
(6) Children
Having children is. a strong indication of a
relationship in the nature of marriage. Parties,
therefore, intend to have a long standing F relationship. Sharing the responsibility for bringing
up and supporting them is also a strong indication.
(7) Socialization in Public
Holding out to the public and socializing with G
friends, relations and others, as if they are husband
and wife is a strong circumstance to hold the
relationship is in the nature of marriage.
(8) Intention and conduct of the Qarties
1070 SUPREME COURT REPORTS [2013) 14 S.C.R.
Common intention of parties as to what their
relationship is to be and to involve, and as to their
respective roles and responsibilities, primarily
determines the nature of that relationship.
STATUS OF THE APPELLANT
56. Appellant, admittedly, entered into a live-in .. relationship
with the respondent knowing that he was married person, with
wife and two children, hence, the generic proposition laid down
by the Privy Council in Andrahennedige Dinohamy v.
C Wiketunge Liyanapatabendage Balshamy, AIR 1927 PC 185,
that where a man and a woman are proved to have lived
together as husband and wife, the law presumes that they are
living together in consequence of a valid marriage will not apply
and, hence, the relationship between the appellant and the
D respondent was not a relationship in the nature of a marriage,
and the status of the appellant was that of a concubine. A
concubine cannot maintain a relationship in the nature of
marriage because such a relationship will not have exclusivity
and will not be monogamous in character. Reference may also
E be made to the judgments of this Court in Badri Prasad v.
Director of Consolidation 1978 (3) SCC 527 and Tulsa v.
Durghatiya 2008 (4) SCC 520. In Gokal Chand v. Parvin Kumari
AIR 1952 SC 231 this Court held that the continuous
cohabitation of man and woman as husband and wife may raise
F the presumption of marriage, but the presumption which may
be drawn from long cohabition is a rebuttable one and if there
are circumstances which weaken and destroy that presumption,
the Court cannot ignore them. Polygamy, that is a relationship
or practice of having more than one wife or husband at the
G same time, or a relationship by way of a bigamous marriage
that is marrying someone while already married to another and/
or maintaining an adulterous relationship that is having voluntary
sexual intercourse between a married person who is not one's
husband or wife, cannot be said to be a relationship in the
nature of marriage.
INDRA SARMA v. V.K.V. SARMA
[K.S. RADHAKRISHNAN, J.]
1071
57. We may note, in the instant case, there is no necessity A
to rebut the presumption, since the appellant was aware that
the respondent was a married person even before the
commencement of their relationship, hence the status of the
appellant is that of a concubine or a mistress, who cannot enter
into relationship in the nature of a marriage. Long standing B
relationship as a concubine, though not a relationship in the
nature of a marriage, of course, may at times, deserves
protection because that woman might not be financially
independent, but we are afraid that DV Act does not take care
of such relationships which may perhaps call for an amendment c
of the definition of Section 2(f) of the DV Act, which is restrictive
and exhaustive.
58. Velusamy case (supra) stated that instances are many
where married person maintain and support such types of
women, either for sexual pleasure or sometimes for emotional D
support. Woman, a party to that relationship does suffer social
disadvantages and prejudices, and historically, such a person
has been regarded as less worthy than the married woman.
Concubine suffers social ostracism through the denial of status
and benefits, who cannot, of course, enter into a relationship E
in the nature of marriage.
59. We cannot, however, lose sight of the fact that
inequities do exist in such relationships and on breaking down
such relationship, the woman invariably is the sufferer. Law of
Constructive Trust developed as a means of recognizing the
contributions, both pecuniary and non-pecuniary, perhaps
comes to their aid in such situations, which may remain as a
recourse for such a woman who find herself unfairly
disadvantaged. Unfortunately, there is no express statutory G
provision to regulate such types of live-in relationships upon
termination or disruption since those relationships are not in the
nature of marriage. We can also come across situations where
the parties entering into live-in-relationship and due to their joint
efforts or otherwise acquiring properties, rearing children, etc. H
A and disputes may also arise when one of the parties dies
intestate.
60. American Jurisprudence, Second Edition, Vol. 24
(2008) speaks of Rights and Remedies of property
8 accumulated by man and woman living together in illicit relations
or under void marriage, which [eads as under:
"Although the courts have recognized the property rights
of persons cohabiting without benefit of marriage, these
rights are not based on the equitable distribution
C provisions of the marriage and divorce laws because the
judicial recognition of mutual property rights between
unmarried cohabitants would violate the policy of the state
to strengthen and preserve the integrity of marriage, as
demonstrated by its abolition of common-law marriage."
61. Such relationship, it may be noted, may endure for a
long time and can result pattern of dependency and
vulnerability, and increasing number of such relationships, calls
for adequate and effective protection, especially to the woman
E and children born out of that live-in-relations~ip. Legislature, of
course, cannot promote pre-marital sex, though, at times, such
relationships are intensively personal and people may express
their opinion, for and against. See S. Khushboo v.
Kanniammal and another (2010) 5 SCC 600.
F 62. Parliament has to ponder over these issues, bring in
proper legislation or make a proper amendment of the Act, so
that women and the children, born out of such kinds of
relationships be protected, though those types of relationship
might not be a relationship in the nature of a marriage.
63. We may now consider whether the tests, we have laid
down, have been satisfied in the instant case. We have found
that the appellant was not ignorant of the fact that the
respondent was a married person with wife and two children,
H hence, was party to an adulterous and bigamous relationship.
INDRA SARMA v. V.K.V. SARMA 1073
[K.S. RADHAKRISHNAN, J.]
Admittedly, the relationship between the appellant and
respondent was opposed by the wife of the respondent, so also
by the parents of the appellant and her brother and sister and
they knew that they could not have entered into a legal marriage
or maintained a relationship in the nature of marriage. Parties
never entertained any intention to rear children and on three
occasions the pregnancy was terminated. Having children is a
strong circumstance to indicate a relationship in the nature of
marriage. No evidence has been adduced to show that the
parties gave each other mutual support and companionship.
No .material has been produced to show that the parties have C
ever projected or conducted themselves as husband and wife
and treated by friends, relatives and others, as if they are a
married couple. On the other hand, it is the specific case of the
appellant that the respondent had never held out to the public
that she was his wife. No evidence of socialization in public has
been produced. There is nothing to show that there was pooling D
of resources or financial arrangements between them. On the
other hand, it is the specific case of the appellant that the
respondent had never opened any joint account or executed
any document in the joint name. Further, it was also submitted
that the respondent never permitted to suffix his name after the
name of the appellant. No evidence is forthcoming, in this case,
to show that the respondent had caused any harm or injuries
or endangered the health, safely, life, limb or well-being, or
caused any physical or sexual abuse on the appellant, except
that he did not maintain her or continued with the relationship.
ALIENATION OF AFFECTION
64. Appellant had entered into this relationship knowing
well that the respondent was a married person and encouraged
bigamous relationship. By entering into such a relationship, the G
appellant has committed an intentional tort, i.e. interference in
the marital relationship with intentionally alienating respondent
from his family, i.e. his wife and children. If the case set up by
the appellant is accepted, we have to conclude that there has
1074 SUPREME COURT REPORTS (2013] 14 S.C.R.
A been an attempt on the part of the appellant to alienate
respondent from his family, resulting in loss of marital
relationship, companionship, assistance, loss of consortium
etc., so far as the legally wedded wife and children of the
respondent are concerned, who resisted the relationship from
8 the very inception. Marriage and family are social institutions
of vital importance. Alienation of affection, in that context, is an
intentional tort, as held by this Court in Pinakin Mahipatray
Rawal case (supra), which gives a cause of action to the wife
and children of the respondent to sue the appellant for alienating
C the husband/father from the company of his wife/children,
knowing fully well they are legally wedded wife/children of the
respondent..
65. We are, therefore, of the view that the appellant, having
been fully aware of the fact that the respondent was a married
D person, could not have entered into a live-in relationship in the
nature of marriage. All live-in-relationships are not relationships
in the nature of marriage. Appellant's and the respondent's
relationship is, therefore, not a "relationship in the nature of
marriage" because it has no inherent or essential characteristic
E of a marriage, but a relationship other than "in the nature of
marriage" and the appellant's status is lower than the status of
a wife and that relationship would not fall within the definition
of "domestic relationship" under Section 2(f) of the DV Act. If
we hold that the relationship between the appellant and the
F respondent is a relationship in the nature of a marriage, we will
be doing an injustice to the legally wedded wife and children
who opposed that relationship. Consequently, any act, omission
or commission or conduct of the respondent in connection with
that type of relationship, would not amount to "domestic
G violence" under Section 3 of the DV Act.
66. We have, on facts, found that the appellant's status was
that of a mistress, who is in distress, a survivor of a live-in
relationship which is of serious concern, especially when such
persons are poor and illiterate, in the event of which vulnerability
INDRA SARMA v. V.K.V. SARMA 1075
[K.S. RADHAKRISHNAN, J.]
is more pronounced, which is a societal reality. Children born A
out of such relationship also suffer most which calls for bringing
in remedial measures by the Parliament, through proper
legislation.
67. We are conscious of the fact that if any direction is 8 given to the respondent to pay maintenance or monetary
consideration to the appellant, that would be at the cost of the
legally wedded wife and children of the respondent, especially
when they had opposed that relationship and have a cause of
action against the appellant for alienating the companionship C
and affection of the husband/parent which is an intentional tort.
68. We, therefore, find no reason to interfere with the
judgment of the High Court and the appeal is accordingly
dismissed.
Bibhuti Bhushan Bose Appeal dismissed.