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Statement of Jurisdiction This Special Leave Petition is filed under Art.136 of the Indian Constitution before the Supreme Court of India by Reshma, against Anubhav challenging the order of the Hon’ble High Court of Harithasthan and the view taken by the Supreme Court regarding Live-in-relationships in the judgment of D. Velusamy V. D. Patchaiammal. The Hon’ble Supreme Court may accept and adjudge the petition.
Synopsis of Facts
? Reshma aged about 30 years and Anubhav aged about 42 years are two IT Professionals working in a metro city Jhanpur, the capital of the State Harithasthan in Indian Union. ? Both the parties executed an agreement on 14-10-2003 according to which the parties are unregistered domestic partners who desire to live together in an unregistered relationship where in  First party Financially supports Second Party  Second Party renders Service as companion, house keeper, home maker and cook.  They desire to combine their efforts and earnings and share equally the property accumulated through their individual or combined efforts  They also mentioned about conditions for termination of agreement and permanent separation in the agreement.
? Both the parties signed the agreement before two witnesses.
? They both started a consultancy service on 01-01-2004 in their office cum Residence flat in the small town of Dhanpur.
? They both lived together till 1st week of March 2010.
? Anubhav sold Reshma?s gold ornaments worth Rs.22 lakhs without her consent to start joint business with another lady Madhurima and he left the flat in the 1st week of March 2010.
? Reshma filed a complaint before protection officer and again before First Class Judicial Magistrate under Sec.12 of DVA, 2005.
? Magistrate after examining ten witnesses including protection officer awarded Rs.23 lakhs as compensation while dismissing the contentions of Anubhav which are based upon the recent Supreme Court Judgment in D. Velusamy V. D. Patchaiammal.
? The aggrieved Respondent filed writ in the High Court of Harithasthan under Art.226 challenging the order of the first class Magistrate on the ground that its failure to consider judgment in D. Velusamy V. D. Patchaiammal would amount to error apparent on the face of record.
? Hon’ble High Court of Harithasthan set aside the findings of the Magistrate and remanded the case back to Magistrate with a direction to decide the case based on the views expressed by Supreme Court in D. Velusamy V. D. Patchaiammal judgment.
? Now Reshma is filing this Special Leave Petition under Art.136 before Supreme Court challenging the order of the High Court and Paras 33 & 34 of D. Velusamy V. D. Patchaiammal Judgment.
Chronology of Events 14-10-2003 Reshma and Anubhav executed agreement
01-01-2004 They both started Consultancy Services in Dhanpur
March 2010 Anubhav sold Reshma?s gold Ornaments worth of Rs.22 lakhs and left the flat in the 1st week of March.
07-04-2010 Reshma filed a Complaint before Protection Officer.
03-06-2010 She also filed an application before First Class Magistrate, Dhanpur.
09-11-2010 Magistrate after examining all the witnesses gave the judgment favoring Petitioner, rejecting Anubhav?s contention to consider Veluswamy judgment.
16-11-2010 Anubhav filed a writ before High Court under Article 226.
02-12-2010 Hon’ble High Court gave the judgment wherein the judgment of Magistrate was set aside.
16-12-2010 Reshma filed a petition before Supreme Court under Article 136 challenging the order of the High Court and leave to appeal was granted.
Issues Raised
1. Whether the action of the High Court of Harithasthan is against the well settled principles of writ jurisdiction under Article 226 of the Constitution of India?
2. Whether the D. Velusamy V. D. Patchaiammal case?s judgment be considered a valid precedent for the instant case?
3. Whether the relation between the Petitioner and the Respondent is in the nature of marriage?
4. Whether the provisions of The Protection of Women form Domestic Violence Act, 2005 are applicable in the instant case?
Summary of Arguments
1. The action of the High Court is not against the well settled principles of writ jurisdiction. a. Locus Standi of the petitioner under Article 136 b. The action of the High Court is in conformation of Well Settled principles of Writ Jurisdiction. i. Locus Standi of the Respondent/Petitioner under Article 226 ii. The Order of the High Court
2. The judgment in D. Velusamy V. D. Patchaiammal case should be considered as a valid precedent.
3. The relationship between the petitioner and the respondent is not in the nature of marriage.
4. The provisions of The Protection of Women from Domestic Violence Act, 2005 are not applicable in the instant case. a. Not according to the agreement between the parties. b. The person is not the person aggrieved.
Body of Arguments
1. Whether the action of the High Court of Harithasthan is against the well settled principles of writ jurisdiction under Article 226 of the Constitution of India? A. Locus standi of the petitioner under Article 136. Respondent is filing this written submission questioning the locus standi of the petitioner for filing this S.L.P under Art.136 before this Hon’ble Supreme Court. The Supreme Court under Art.136 has very wide power to deal with the lower courts judgments. But according to, G.W. LEATHER MFG. CO. V. COMMISIONER, Income Tax, ?Though the discretionary powers vested in the Supreme Court under Art.136 are not subjected to any limitations, the court has imposed certain limitations upon its own powers1?. ?Thus it has laid down that this power is to be exercised sparingly & in exceptional cases only2.? So there are some general principles laid down by the Supreme Court itself through different case laws relating to granting of Special Leave Petition under Art.136. Supreme Court rightly discussed about exercising the discretionary power under Art 136 in a land mark judgment Pritam Singh v State3 and said that ?this power can be exercised only in the circumstances where there is miscarriage of justice?. ?Normally the Supreme Court does not interfere with concurrent findings of the trial court and the High Court unless there is sufficient ground to do so4?. According to Muncipal Council, Khurai & Ors. V. Kamal Kumar & Anr, ?The Supreme Court would not interfere unless the discretion was exercised by the High Court improperly or arbitrarily?. In the present case the High Court rightly exercised its discretion in passing the order dated 2/12/2010 wherein it just remanded the case back to the lower court with discretion to decide the case based upon the views expressed in D. Velusamy V. D. Patchaiammal6.
1 - AIR 1962 SC 1362 & (2000) 6 SCC 359 2 - AIR 1950 SC 188 & AIR 1950 SC169 3 - AIR 1950 SC 169 4 - AIR 1975 SC 1828, (1986)1 SCC 75, (1990)3 SC 374 5 - AIR 1965 SC 1321, (1996)9 SSC 456, AIR 1997 SC 2424 6 - (2010) 10 SCC 469 Thus petitioners have no locus standi under Art 136 to question the order of the High Court wherein properly exercised its discretion.
According to Bharwada Bhogin Bhai V. State of Gujarat7, ?In an appeal under Art 136 the Supreme Court doesn?t interfere with the concurrent findings of the facts unless it is established that the finding is perverse or if it is, the judgment which no reasonable man could arrive at such conclusion even after considering the evidence?. ?Art 136 is worded in wide terms, powers conferred by it is, not hedged in by any technical hurdles. This overriding and exceptional power is known to be exercised sparingly and only in furtherance of cause of justice.8? The same is also confirmed in other case Anderson Wright V. Moran & Co9. The court held that ?It being exceptional and overriding powers it has to be exercised sparingly and with caution and only in special extra ordinary situations beyond that it is not possible to fetter the exercise of this power by any set formula or rule?.
Coming back to the present case there are no such exceptional circumstances prescribed in the present case. Thus it is clear that Supreme Court is refraining from interfering if special circumstances are not shown to exist and the justice of the case does not require interference or if the relief can be moulded in a different fashion. In fact even in the present case the decision of the High Court will not at least affect either party because it simply remanded the case back to the lower court and the lower is yet to pass its judgment. Thus the judgment of the High Court is no where affecting both the parties and it is good for the petitioner to appeal after the lower court actually passes its judgment. Thus petitioner in the present case, in spite of having other alternative remedies, is misusing the Art 136 without having proper locus standi.
According to Pioneer Rubber Plantation V. State of Kerala and Another10, ?It has been held that a party cannot gain advantage by approaching the Supreme Court directly under Article 136 instead of approaching the High Court under Article 226. It is a limitation which the Supreme Court imposes on itself?. Thus it is clear that even though the Supreme Court allows appeals under Article 136, the appellant is expected to exhaust all the other remedies provided under the law.
7 - AIR 1983 SC 753 8 - AIR 1971 SC 125 9 - AIR 1955 SC 55 10 - AIR 1993 SC 192
Further it is also submitted that ?In petty matters the court may refuse to decide even on a question of law. It is not as if once special leave is granted the court is bound to decide every question of law, be it big, small or petty.11? ?It is always for the Supreme Court to decide whether to entertain an appeal or not.12? Thus in the light of the above submissions it is clear that the High Court rightly used its discretion in granting the order dated 2/12/2010. There are no exceptional circumstances prevailing in the present case to approach the Supreme Court under Article 136 of the Indian Constitution because the order of the High Court will not affect either of the parties. Further, the fact that the petitioner has other alternative remedies should be considered while dealing with the matter. Thus, the order of the High Court may be upheld by this Hon’ble Supreme Court and may dismiss this Special Leave Petition as the petitioner has no proper locus standi.
11 - AIR 1978 SC 764 12 - AIR 1998 SC 591
B. The action of the High Court is in conformation of Well Settled principles of Writ Jurisdiction. i. Locus Standi of the Respondent/Petitioner under Article 226
Article 226 empowers the High Court to issue writs, directions or orders in the cases of Habeas Corpus, mandamus, prohibition, quo warranto or certiorari. a. for the enforcement of Fundamental Rights b. for any other purpose
Speaking on the scope of this power of the High Court in T. C Basappa V. Nagappa.13 the Supreme Court held that ?the article 226 is couched in comprehensive phraseology and it confers a wide power on the High Court to remedy injustice wherever it is found. The constitution has purposefully used a wide language in describing the nature of the power, the purpose for which and the person or authority against which it can be exerted. It can issue the writs as understood in England. Apart from that, the High Court can also issue directions, orders or writs other than the prerogative writs.? Thus, Article 226 enables the High Court to mould the relief?s to meet the peculiar and complicated requirements of this country.
Hence, according to the wide discretionary power provided under article 226, the respondent/petitioner approached the Hon’ble High Court treating that the failure of the lower court to consider the decision in D. Velusamy V. D. Patchaiammal would be treated as an error apparent on the face of record. ?When the decision of inferior tribunal is vitiated by an error apparent on the face of the record, it is liable to be quashed by certiorari14.? Of course, not only under writ of certiorari, but the High Court can also deal with the error apparent on the face of record within the scope of its wide discretionary power within the purview of Article 226. The meaning of error in the context of Article 226 is error of law15.
?It is not easy to define how far the court would be entitled to go for the purpose of determining whether there has been an error apparent on the face of record16.? 13 - AIR 1966 SC 81; AIR 1954 SC 440 14 - AIR 1955 SC 233 15 - AIR 1958 SC 398; AIR 1631 SC 1087; AIR 1631 SC 970; AIR 1961 SC 1526; AIR 1964 SC 477 16 - AIR 1955 SC 233
?Nor, would it be expedient to lay down any general tests to determine which error of law can be described as error apparent on face of record.17? It has to be decided in each case based on their merits and on the facts of the cases in question. The purpose of certiorari, on the ground of error apparent on the face of record, is to determine on examination of the record whether the inferior tribunal has not proceeded in accordance with the essential requirements of the law which it was meant to administer18.
In the light of the above submissions, in the present case, the act of the lower court in not considering the binding precedent of the Supreme Court which is one of the essential requirements of law, will amount to an error apparent on the face of record. Thus respondent/petitioner herein has the locus standi under Article 226 to question such an error made by the Judicial Magistrate of First Class.
17 - AIR 1964 SC 477 18 - AIR 1958 SC 398; AIR 1961 SC 970; AIR 1961 SC 1526
ii. The Order of the High Court The Hon’ble High Court in the present case in its order dated 2/12/2010 remanded the case back to the lower court with a direction to decide the case based upon the interpretation give in the judgment by the Supreme Court in D. Velusamy V. D. Patchaiammal. This order of the High Court is not against the well settled principles of writ jurisdiction.
The remedy under Article 226 being extra ordinary and discretionary, it is open to the court to pass such order as public interest dictates and equity projects. ?The powers of the High court under Article 226, like those of the Supreme Court under Article 32 are not confined to the prerogative writs and the High Court in issuing directions orders and writs under Article 226 can travel beyond the contents of the writs which are normally issued as writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari19.?
Thus, the petitioner, even though may not specifically apply under any kind of writ, the High Court has wide power to deal with the matter and to give such directions to the lower court within the purview of Article 226.
It is further submitted that the respondent/petitioner approached the High Court on the ground that there is an error apparent on the face of record. Even though this ground is attracted by the writ of certiorari, the High Court is authorized to give such directions even under the purview of the writ of certiorari in spite of the formal limitation that ?the High Court should only quash or set aside the order of the lower court but cannot give directions under writ of certiorari.?
?Interference on the ground of error apparent on the face of record is an exception to the rule that, in exercising its power to issue certiorari, the court can not act as a court of appeal. This does not mean, however, that in exercising this power, the court issuing writ of certiorari can interfere in case of every error of law which could be corrected by a court of appeal20.?
?The preceding general rule does not mean that in a certiorari proceeding, the court is powerless to make any further orders, after quashing the order even if the interest of justice requires that such further orders or directions should be made in the circumstances of a particular case21.? 19 - AIR 1961 SC 1731; AIR 1966 SC 81 20 - AIR 1955 SC 233 21 - AIR 1950 SC 656
?Generally it is open to the applicant to ask for some specific reliefs and such other relief as the court may deem fit and proper22.? Under such residuary prayer, the court may grant an applicant the proper relief which he should get in view of changed circumstances even though that relief may be altogether different from the specific reliefs asked for23. It was also supported in cases like Mohammed Yasin V. Town Area Committee and Another24, where in the Supreme Court held that ?Where the petitioner has asked relief in a very wide form, the court would issue the order in proper form?
Hence, it is clear that the petitioner here in approached the Hon’ble High Court on the ground that there was ?an Error apparent on the face of record.? The High Court rightly remanded the case back to the lower court with the direction to consider D. Velusamy V. D. Patchaiammal while deciding the matter and this action of the High Court is not against the well settled principles of writ jurisdiction, but is in conformation of the principles of the writ jurisdiction acted upon by the High Court under Article 226. Further it is also submitted that ?the rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law25.?
Also, ?where the order is quashed because the discretion of the authority was not properly exercised, the court will ask the authority to reconsider the matter, if the discretion of the authority is fettered by statutory limitations, the court, in making the remand shall further direct to comply with those statutory requirement or condition, in reconsidering the matter26.?
22 - AIR 1962 SC 1161 23 - AIR 1954 SC 207 24 - AIR 1952 SC 115; AIR 1966 SC 81 25 - AIR 1969 SC 556 26 - AIR 1960 SC 321
2. Whether the D. Velusamy V. D. Patchaiammal case?s judgment be considered a valid precedent for the instant case? a. Doctrine of Precedent
Judicial precedent is the law declared by the highest court of the country through its judgement. It is an important source of law, enjoyed high authority at all times and in all countries. According to Article 141 of the Indian Constitution, the law declared by the Supreme Court is binding on all the other courts.
According to Blackstone, ?For, it is an established rule to abide by former precedents, where the same points come again in litigation as well as to keep the scale of justice even and steady and not liable to waver with every new judge?s opinion, as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the behest of any subsequent judge to alter or vary from according to his private sentiment.?
According to Dr. Julius Stone, ?Precedent has played and will continue to play a most important part in common law judicial achievement. In the first place, precedents present for the instant case are rapid if incomplete review of social contacts comparable to the present, and of a rule thought suitable for those contexts by other minds after careful inquiry. In the second place, precedents serve to indicate what kind of result will be reached of a particular premises or category, is chosen for application in the instant case and permit comparison with the results if some other premises or category is adopted, either drawn from other cases, or judicially invented.?
The operation of precedent is based on the legal presumption that judicial decisions are correct. A matter once decided is decided for all. What has been delivered in a judgment must be taken to be an established truth. In all probability, it is true in fact.
According to the above discussion, it is clear that the judicial precedent is the highest source of law in India which is called as ?Doctrine of Stare Decisis.? Thus, according to this doctrine, the respondent/petitioner in the present case, approached the Hon’ble High Court of Harithasthan with a plea to consider the interpretation given in D. Velusamy V. D. Patchaiammal while dealing with the matter, the High Court rightly decided the matter by remanding the case back to the Lower Court with a direction to consider the observations of the Supreme Court in the said judgment because according to Article 141 of the Indian Constitution, all the High court?s with in the territory of India are bound by the law laid down by the Supreme Court.
b. Paragraphs 33 and 34 of the judgment in D. Velusamy V. D. Pathchaiammal is Ratio Decidendi.
According to Dicey, ?As all lawyers are aware, a large part of the law is judge made law. That is to say, consists of rules to be collected from the judgments of the courts. This portion of the law has not been created by Act of parliament and is not recorded in the statute book. It is the work of the courts. It is recorded in the reports; it is, in short, the fruit of legislation.? Thus, it is clear that judge made laws and various rules according to necessity of the changing society and of course for the better implementation of the legislations made by the parliament.
Thus, the apex court even in D. Velusamy V. D. Patchaiammal case laid down a few guidelines to be followed while dealing with the live-in-relationships. According to the judgment, not all live-in-relations are the relationships in nature of marriage.
The Supreme Court in Velusamy?s case has said that a relationship in nature of marriage is akin to a common law marriage and it has laid down a few guidelines to recognize the relationship in the nature of marriage.
The guidelines as in Paragraph 33 are: (a) The couple must hold themselves out to society as being akin to spouses. (b) They must be of legal age to marry. (c) They must be otherwise qualified to enter into a legal marriage, including being unmarried. (d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
Further, it is also submitted that the Supreme Court also explained the situations which compelled to lay down the above guidelines in paragraph 19 of the said judgment. The Supreme Court pointed saying ?Having noted the relevant provisions in The Protection of Women from Domestic Violence Act, 2005, we may point out that the expression domestic relationship includes not only the relationship of marriage but also a relationship in the nature of marriage. The question, therefore, arises as to what is the meaning of the expression a relationship in the nature of marriage. Unfortunately this expression has not been defined in the Act. Since there is no direct decision of this Court on the interpretation of this expression we think it necessary to interpret it because a large number of cases will be coming up before the Courts in our country on this point, and hence an authoritative decision is required.?
Thus it is clear that the apex court in this case wanted to lay down a test or guidelines for determining the scope of relationships to fall in the purview of ?Relationship in the nature of marriage.? This was especially done because the court regarded that there would be numerous cases that could come up before the judiciary and the Hon’ble Supreme Court wanted to lay down these guidelines to guide the lower court to provide a fair, just and speedy remedy to the parties. Hence, these guidelines are not mere Obiter Dicta but Ratio Decidendi recorded to guide the lower courts in their quest for justice. The Supreme Court in the Velusamy?s case observed that, according to petitioner he married another lady called Lakshmi. But according to respondent she is the wife of the petitioner. Supreme Court under these circumstances laid down the important guide lines to differentiate and recognize the relationships the ?relationships in the nature of marriage? which is very important to determine the relation between Velusamy and respondent and the relation between Velusamy and Lakshmi. Thus in the present case the apex court after deciding the question of law rightly remanded the case back to the lower court and it is Ratio Decidendi.
c. Articles 141 and 142 of the Constitution of India
?142. (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order1 prescribe.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.?
Hence it is clear that the guidelines laid down in the D.Velusamy V. D. Patchaiammal case are decided by the question of law by the Apex Court and is binding in nature upon all the other judgments in the country. According to Salmond ?A precedent is a Judicial Decision which contains in itself a principle. The underlying principle which thus forms its authoritative element is often termed ?Ratio decidendi??.
According to Rupert Cross ?a ?ratio decidendi? is a rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion?. Thus, even in the Velusamy?s case Supreme Court laid down the guidelines to determine the relation between Petitioner and Respondent and these guidelines are to be treated by the lower court and in turn all the subordinate courts as necessary to decide the case. Thus, the interpretation regarding live-in-relationship in Velusamy?s case is ?ratio decidendi?. It is binding precedent according to Article 141 of the Constitution ?141. The law declared by the Supreme Court shall be binding on all courts within the territory of India.?
The power of the Supreme Court under Article 142 of the Indian Constitution is meant to supplement the existing legal framework to do complete justice between the parties and not to supplant it. It is conceived to meet the situations which cannot be effectively and appropriately tackled by the existing provisions of law. These Articles provide that the Supreme Court in exercise of its jurisdiction may pass such a decree or make such order as is necessary for doing complete justice in any case of matter which would include any proceeding pending before any court.
In case of conflict between decisions of the Supreme Court itself, the latest pronouncement would be binding upon the lower courts, unless, the earlier was a larger bench as held in Mattulal V. Radhelal27.
In Union of India V. Kantilal Hematram Pandya28, the Supreme Court has stated that the law laid down in a particular case is the applicable law, the High Court cannot consider of rely on any supposedly conflicting decision. ?The court under Article 141 of the constitution is enjoined to declare law. The law declared by the Supreme Court is the law of the land. No doubt a statute is binding, but it is the statute as interpreted by the highest court which is binding on all the courts.?
Thus, the Hon’ble High Court in the present case rightly directed the lower court to decide the case based upon the interpretation given in Velusamy?s case and this judgement of the Hon’ble High Court may be upheld.
27 - AIR 1974 SC 1596 28 - AIR 1995 SC 1349; (1995) 3 SCC 17 3. Whether the relationship between the petitioner and the respondent is in the nature of marriage? a. Paragraphs 33 and 34 of the said judgment may be upheld
The DVA was enacted to give more effective protection to women who have been recognized as a class deprived of equality. This act empowers such women to come forward and seek remedy and protection from the abuse that they have been subject to. The DVA in Section 2 (a) defines an aggrieved person as: ?any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.? Domestic relationship in Section 2(f) has been defined as ?a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.? The term ?relationship in nature of marriage? has been included to increase the scope of the enactment. Though this term has been used, the Supreme Court in D. Velusamy V. D. Patchaiammal has observed that it has not been defined by the legislature in the statute. Thus, the court to discharge its duties more effectively has tried to define the term and its scope in paragraphs 33 and 34 of the said judgment.
The object of these paragraphs is to differentiate between a live-in-relationship and relationship in the nature of marriage which by itself is a live-in- relationship. The court has expressed its need to do so in paragraph 35 of the same judgment. The court in the same judgment has referred to the famous Khushboo V. Kanniammal29 where it has observed that relationships as such which were once considered taboo are no longer so in the modern urbanized society. The legislature sought it fit to extend the protection to the relationships which can be termed as relationships in the nature of marriage.
Paragraph 33 specifically lays out a test to see whether a relationship is in the nature of marriage or not. It recognizes that ?a relationship in nature of marriage? is akin to a common law marriage as held by a few jurisdictions across the world.
29 - (2010) 5 SCC 600 In a nutshell, the court said that any relationship that has been held out to the world as akin to spouses, where the parties are of legal age to marry, are not married during the subsistence of that relationship, and have been living together for a reasonable or significant period of time in a shared household can be termed as live in relationships.
The Supreme Court while formulating the test has also observed that these relationships as has been submitted are no longer a taboo and the stigma attached to these relationships is slowly dissipating. Hence, there may be an increasing number of people who would want to be in such relationships. These relationships as rightly identified by the legislature are more prone to be abused by the parties. Again, as most of these relationships are in the urbanized society, the parties may seek the help of the judiciary to solve these disputes. Any relationship where either or both of the parties are already married while the relationship is subsisting, can also be termed as a live-in-relationship. These would also include week-end relationships, short term relationships and also instantaneous relationships which are also popularly known as one-night-stands.
The High Court of Delhi has already witnessed an issue as such where the female partner of a live-in-relationship has sought to prosecute the male partner under Section 376 of the Indian Penal Code. The court found that the partner alleged this to get back at other party. In the same case that is Alok Kumar V. State30, the court has held that, ?live-in-relationships create no legal liabilities on either of the parties as it is similar to a contract which can be renewed or terminated at the will of either of the parties.? Though the High Court had dismissed the Supreme Court may have considered these instances and would have foreseen that the guise of live-in-relationships could be used to get back at the other partner in the relationship as such.
The Supreme Court also had a chance to look at a relationship as such in Bharatha Matha V. R. Vijaya Renganathan31. In this case, the court had to decide the validity of a claim of children born out of a live-in-relationship. The woman was already married and was having a live-in-relation with the man.
30 - Crl.M.C.No. 299/2009, Decided on 09-08-2010; High Court of Delhi 31 - C.A. No. 7108 of 2003; Decided on 17-05-2010 b. The relationship between the petitioner and the respondent is excluded from the purview of the provisions of the Protection of Women from Domestic Violence Act, 2005
As submitted above, the scope of the definition of a live-in-relationship is vast and this scope can always be misused if extended the same protection to it as is being done to a relationship in the nature of marriage. The court while laying down the test has asked the parties to be more vigilant. To differentiate between a short-term and a prolonged relationship, the court has inserted the time factor and the shared house-hold. The court has also sought the intention of the parties to be in these relationships. Any couple should have held them out akin to spouses during the entire period of cohabitation and that period of cohabitation should be significant.
The onus of proving that a relation is indeed a relation in nature of marriage and not a live-in-relationship lies completely on the aggrieved person or the female partner of the relationship. The court mentions the requirement of evidence in paragraph 34. It has also recognized that any person who is in a domestic kind of relationship such as a servant, keep or a concubine may use the provisions of this act to get back at the male party claiming to have had a live in relationship with that party.
In other words, the said paragraphs mention that only a relationship where only the ceremony of a marriage is missing can be termed as a relationship in the nature of marriage and not otherwise. Bringing other live-in-relationships within the purview of the DVA will absolve the purpose of marriage and would result in breakage of harmony and the sanctity of this sacramental union.
4. Whether the provisions the Protection of Women from Domestic Violence Act, 2005 are applicable in the present case? a. Not according to the agreement between the parties.
The parties before entering into this relationship had a four point agreement where one party does house hold chores such as cooking, home making, etc. and the other party strives to get the money. They have agreed to split the money accrued through individual or joint efforts and share it equally when they separate. The end of the relationship has also been accounted for. The parties may separate by consent or by will. The agreement here is between two persons who can recognize the merits and the deficiencies of any agreement.
The court has presumed in favour of marriage when the parties have cohabited continuously for a significant period of time. The court has expressed that the question of validity of a relationship as ?marriage cannot be tried like any other issue of fact independent of presumption. The court held that law will presume in favour of marriage and such presumption could only be rebutted by strong and satisfactory evidence.? This was also held in Gokal Chand V. Parvin Kumari32 where the court reiterated that,
?Continuous cohabitation of a man and a woman as husband and wife may raise a presumption of marriage, but the presumption which may be drawn from this long cohabitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the court cannot ignore them.? The court also said that ?although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin? in Badri Prasad V. Dy. Director of Consolidation & amp and others33.
In the present case, the relationship is governed by the agreement entered into by the parties on 14th of October, 2003. It was signed in the presence of two witnesses, Haritha and Shamlal. The agreement between the parties is express agreements to which both the parties have consented to. There are a few jurisdictions around the globe which have ratified such agreements. The Supreme Court has commented on these agreements while referring to a judgment by the California Supreme Court.
32 - AIR 1952 SC 231 33 - (1978) 3 SCC 527
The California Supreme Court in Marvin V. Marvin34 held that:
(1) The provisions of the Family Law Act do not govern the distribution of property acquired during a non-marital relationship; such a relationship remains subject solely to judicial decision. (2) The courts should enforce express contracts between non-marital partners except to the extent that the contract is explicitly founded on the consideration of meretricious sexual services. (3) In the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties. The courts may also employ the doctrine of quantum meruit, or equitable remedies such as constructive or resulting trusts, when warranted by the facts of the case.
The concept of a live-in-relationship which is in the nature of marriage is not a concept that has completely evolved in India. The court therefore has the authority to refer to prevalent case laws around the world and especially where relationships as such are more common place. The law laid down by the California Supreme Court has already been cited in Chinmuniya V. Virendra Kumar Singh Kushwaha and another35 in paragraph 33. These guidelines clearly indicate that any relationship as such cannot be governed by any personal laws applicable to the parties. If the parties have entered into these relationships with an agreement, then the terms of that agreement is paramount subject to some conditions. As mentioned in Marvin V. Marvin, the current case has such an agreement, which is not explicitly founded on the consideration of meretricious sexual services and hence is an authority governing the relationship.
Hence, when such is the case, the relationship between the petitioner and the respondent cannot be termed as a relationship in the nature of marriage but just a live-in-relationship.
34 - (1976) 18 Cal. 3d 660 35 - (2011) 1 SCC 141
b. The person is not the person aggrieved.
The legislature while formulating DVA, wanted to ensure that this enactment would be used properly and not misused. It also wanted to recognize the rights of women who are cohabiting with their partners without a sacramental married status. To balance both, the legislature coined the term ?a relation in nature of marriage? and not defined it as a live-in-relationship. This status can be conferred upon deserving couples on a case-to-case basis. The Supreme Court has tried to overcome the short coming of the DVA by defining the term ?relationship in the nature of marriage.? The Supreme Court in Paragraph 33 of the said judgment has said:
33. in our opinion a relationship in the nature of marriage is akin to a common law marriage. Common law marriages require that although not being formally married (a) Couple must hold themselves out to society as being akin to spouses. (b) They must be of legal age to marry. (c) They must be otherwise qualified to enter into a legal marriage, including being unmarried. (d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.The see Common Law Marriage in Wikipedia on Google In our opinion a relationship in the nature of marriage under the 2005 Act must also fulfil the above requirements, and in addition the parties must have lived together in a shared household as defined in Section 2 s of the Act. Merely spending weekends together or a one night stand would not make it a domestic relationship. Further, the court added in the next paragraph has said:
34. in our opinion not all live in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005. To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence. If a man has a keep, which he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage. The points to be examined to determine whether the relationship between the respondent and the petitioner is in fact a relationship in the nature of marriage or not are mentioned in paragraph 33. All the Four conditions have to be satisfied by the parties to claim that theirs is a relationship in the nature of marriage.
In the present case, before the parties started to reside together, they had entered an agreement. According to this agreement, the couple had no intention of holding themselves out to society as akin to a married couple. This can be deduced from the clause which reads, ?The parties are unregistered domestic partners who desire to live together in an unregistered relationship? and further from, ?Second Party shall render services to First Party as companion, housekeeper, homemaker and cook, and assume responsibility for related household tasks.? This intention is lacking when the agreement between the parties is also taken into consideration. The petitioner and the respondent, at the start of the live-in-relationship made an agreement which described the roles of each party and also mentioned the liability of each in case they separate. The law in a few jurisdictions across the world recognizes such agreements. In a few jurisdictions, they ask for such agreements for the grant of palimony.
The Hon’ble Supreme Court in Para 35 has cited its helplessness in excluding women who are in a Live-in-relationship and not in a relationship in the nature of marriage. The court also says that it is for the legislature and not the court to legislate or amend the law. In the present case, the parties did not intend to be known akin to a married couple, and their relationship is not in the nature of marriage which was also implied by the Hon’ble High court of Harithasthan, the petitioner cannot claim relief under DVA as she does not satisfy the condition of the person aggrieved.
Prayer In light of the arguments advanced and the authorities cited the counsel for the respondent humbly prays before this Hon’ble Court that it may be pleased ? To adjudge and dismiss the Special Leave Petition in limini filed by the petitioner ? To uphold the order passed by the High Court of Harithasthan and ? To pass any other order the Hon’ble Court may deem fit and proper in the interest of equity and good conscience.
Respectfully submitted on behalf of the Respondent
Sd/- Counsel for the Respondent |
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