# 14 S.C.R. 1019 INDRA SARMA v. V.K.V. SARMA

- **Citation:** [2013] 14 S.C.R. 1019
- **Court:** Supreme Court of India
- **Decided:** 2013-11-26
- **Case number:** Criminal Appeal No. 2009 of 2013
- **Bench:** K.S. Radhakrishnan, Pinaki Chandra Ghose
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/14-s-c-r-1019-indra-sarma-v-v-k-v-sarma-28996
- **Pages:** 57

## Headnote

Protection of Women from Domestic Violence Act, 2005
A
B
-
ss. 2(f) and 3 - "Live-in relationship" - If would amount to a
C
"relationship in the nature of marriage" falling. within the
definition of "domestic relationship" uls.2(f) - Failure to
maintain a woman involved in such a relationship - If amounts
to "domestic violence" within meaning of s.3 - Held: All livein-relationships are not relationships in the nature of marriage
D
- On facts, appellant, an unmarried woman, entered into a
live-in-relationship with respondent knowing that he was
married person, with wife and two children, hence, the generic
proposition that where a man and a woman are proved to have
lived together as husband and wife, the law presumes that
E
they are living together in consequence of a valid marriage
will not apply and, hence, . the relationship between the
appellant and the respondent was not a relationship in the
nature of a marriage, and the status of the appellant was that
of a concubine - Relationship of appellant and respondent
F
had no inherent or essential characteristic of a marriage, and
did not fall within the definition of "domestic relationship" u/
s.2(f) - Consequently, any act, omission or commission or
conduct of the respondent in connection with that type of
relationship, would not amount to "domestic violence" uls.3 -
G
If any direction is 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
1019
H
1020
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A relationship and have a cause of action against the appellant
for alienating the companionship and affection of the husbat:1dl
parent which is an intentional tort - International Covenant on
Civil and Political Rights, 1966 (ICCPR) - Art. 23 - Universal
Declaration of Human Rights, 1948 - Art.16.
Protection of Women from Domestic Violence Act, 2005
- s. 2(f) - Guidelines for testing under what circumstances, a
live-in relationship will fall within the expression "relationship
I
in the nature of marriage" u/s.2(f) - Guidelines not exhaustive,
C but definitely giving some insight into such relationships, viz.
a) duration of period of relationship; b) shared household; c)
pooling of resources and financial arrangements; d) domestic
arrangements; e) sexual relationship; f) children; g) ·
socialization in public and h) intention and conduct of the
parties.
D
Protection of Women from Domestic Violence Act, 2005
-
s. 2(a) & (f) -
Held: The Act does not recognize the
relationship of same sex (gay or lesbian).
E
Protection of Women from Domestic Violence Act, 2005
- ss. 2(f) - Long standing relationship as a concubine, though
not a relationship in the nature of a marriage, of course, may
at times, deserve protection because that woman might not
be financially independent - The DV Act does not take care
of such relationships which may perhaps call for an
F amendment of the definition of s.2(f) of the DV Act, which is
restrictive and exhaustive - Parliament 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
G types of relationship might not be a relationship in the nature
of a marriage.
Family Law - Marriage - Concept of - Held: Marriage,
as a concept, is nationally and internationally recognized -
H Entering into a marriage, therefore, either through the Hindu
INDRA SARMA v. V.K.V. SARMA
1021
Marriage Act or the Special Marriage Act or any other A
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 recognised by various courts all over the world -
8
Hindu Marriage Act, 1955 - ss. 5 and 7.
Family La

## Text

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(2013] 14 S.C.R. 1019
INDRA SARMA
v.
V.K.V. SARMA
(Criminal Appeal No. 2009 of 2013)
NOVEMBER 26, 2013
[K.S. RADHAKRISHNAN AND
PINAKI CHANDRA GHOSE, JJ.]
Protection of Women from Domestic Violence Act, 2005
A
B
-
ss. 2(f) and 3 - "Live-in relationship" - If would amount to a
C
"relationship in the nature of marriage" falling. within the
definition of "domestic relationship" uls.2(f) - Failure to
maintain a woman involved in such a relationship - If amounts
to "domestic violence" within meaning of s.3 - Held: All livein-relationships are not relationships in the nature of marriage
D
- On facts, appellant, an unmarried woman, entered into a
live-in-relationship with respondent knowing that he was
married person, with wife and two children, hence, the generic
proposition that where a man and a woman are proved to have
lived together as husband and wife, the law presumes that
E
they are living together in consequence of a valid marriage
will not apply and, hence, . the relationship between the
appellant and the respondent was not a relationship in the
nature of a marriage, and the status of the appellant was that
of a concubine - Relationship of appellant and respondent
F
had no inherent or essential characteristic of a marriage, and
did not fall within the definition of "domestic relationship" u/
s.2(f) - Consequently, any act, omission or commission or
conduct of the respondent in connection with that type of
relationship, would not amount to "domestic violence" uls.3 -
G
If any direction is 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
1019
H
1020
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A relationship and have a cause of action against the appellant
for alienating the companionship and affection of the husbat:1dl
parent which is an intentional tort - International Covenant on
Civil and Political Rights, 1966 (ICCPR) - Art. 23 - Universal
Declaration of Human Rights, 1948 - Art.16.
Protection of Women from Domestic Violence Act, 2005
- s. 2(f) - Guidelines for testing under what circumstances, a
live-in relationship will fall within the expression "relationship
I
in the nature of marriage" u/s.2(f) - Guidelines not exhaustive,
C but definitely giving some insight into such relationships, viz.
a) duration of period of relationship; b) shared household; c)
pooling of resources and financial arrangements; d) domestic
arrangements; e) sexual relationship; f) children; g) ·
socialization in public and h) intention and conduct of the
parties.
D
Protection of Women from Domestic Violence Act, 2005
-
s. 2(a) & (f) -
Held: The Act does not recognize the
relationship of same sex (gay or lesbian).
E
Protection of Women from Domestic Violence Act, 2005
- ss. 2(f) - Long standing relationship as a concubine, though
not a relationship in the nature of a marriage, of course, may
at times, deserve protection because that woman might not
be financially independent - The DV Act does not take care
of such relationships which may perhaps call for an
F amendment of the definition of s.2(f) of the DV Act, which is
restrictive and exhaustive - Parliament 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
G types of relationship might not be a relationship in the nature
of a marriage.
Family Law - Marriage - Concept of - Held: Marriage,
as a concept, is nationally and internationally recognized -
H Entering into a marriage, therefore, either through the Hindu
INDRA SARMA v. V.K.V. SARMA
1021
Marriage Act or the Special Marriage Act or any other A
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 recognised by various courts all over the world -
8
Hindu Marriage Act, 1955 - ss. 5 and 7.
Family Law -
Marriage and live-in relationship -
Difference between -Held: A married couple has to discharge
legally various rights and obligatons, unlike the case of
persons having live-in relationship or, marriage-like
C
relationship or defacto relationship.
Interpretation of Statutes - Definition clause - Held:
When a definition clause is defined to "mean" such and such,
the definition is prima facie restrictive and exhaustive.
Dispute arose as to whether non-maintenance of the
appellant, an unmarried woman, in a broken live-inrelationship with respondent, a married adult male,
amounted to "domestic violence" within the definition of
Section 3 of the Protection of Women from Domestic
Violence Act, 2005 (DV Act), enabling the appellant to seek
one or more reliefs provided under Section 12 of the DV
Act.
The appellant contended before this Court that "livein relationship" is a "relationship in the nature of
marriage" and it is that relationship which was disrupted
D
E
F
in the sense that the respondent failed to maintain the
appellant, which amounts to "domestic violence". The
respondent, on the other hand, maintained the stand that
G
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
H
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SUPREME COURT REPORTS
[2013) 14 S.C.R.
A as to claim any protection orders under Sections 18, 19
or 20 of the DV Act.
·
The question of law which arose for consideration in
the present appeal was whether a "live-in relationship"
would amount to a "relationship in the nature of
B marriage" falling within the definition of "domestic
relationship" under Section 2(f) of the Protection of
Women from Domestic Violence Act, 2005 (DV Act) and
whether the disruption of such a relationship by failure
to maintain a woman involved in such a relationship
C amounts to "domestic violence" within the meaning of
Section 3 of the DV Act.
Dismissing the appeal, the Court
HELD: 1.1. Marriage and Marital relationship: Marriage is
o 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, recognizes
the parties as husband and wife. One of the most
important invariable consequences of marriage is the
E reciprocal support and the responsibility of maintenance
of the common household, jointly and severally. [Para 23]
[1050-D-F]
1.2. Marriages in India take place either following the
personal Law of the Religion to which a party is belonged
F or following the provisions of the Special Marriage Act.
Marriage, as per the Common Law, constitutes a contract
between a man and a woman, in which the parties
undertake to live together and support each other.
Marriage, as a concept, is also nationally and
G internationally recognized. Entering into a marriage,
therefore, either through the 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 gocial
H institution, many rights and liabilities flow out of that legal
INDRA SARMA v. V.K.V. SARMA
1023
relationship. The concept of marriage as a "civil right"
A
has been recognised by various courts all over the world.
[Paras 24 and 30] [1050-G-H; 1051-A, 1054-F-G]
1.3. The law has distinguished between married and
unmarried people, which cannot be said to be unfair
8
when one looks 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,
m•rriage-like relationship or defacto relationship. Married
C
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 the case of persons entering into live-in
relationship. [Paras 31, 32] [1054-G-H; 1055-A-C]
D
Pinakin Mahipatray Rawat v. State of Gujarat (2013) 2
SCALE 198 - referred to.
Dawood and Another v. Minister of Home Affairs and
E
Others 2000 (3) SA 936 (CC); Satchwell v. President of the
Republic of South Africa and Another 2002 (6) SA 1 (CC);
Du Toit and Another v. Minister of Welfare and Population
Development and Others (Lesbian and Gay Equality Project
as Amicus Curiae) 2003 (2) SA 198 (CC); Skinner v.
Oklahoma 316 US 535 (1942); Perez v. Lippold 198 P.2d 17,
20.1 (1948) and Loving v. Virginia 388 US 1 (1967) -
referred to.
F
Article 23 of the International Covenant on Civil and
Political Rights, 1996 (ICCPR) and Article 16 of the
G
Universal Declaration of Human Rights, 1948 - referred to.
2.1. Relationship in the nature of marriage: Modern
Indian society through the Protection of Women from
Domestic Violence Act, 2005 recognizes in reality,
H
1024
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A various other forms of familial relations, shedding the
idea that such relationship can only be through some
acceptable modes hitherto understood. Section 2(f) of the
DV Act, which defines the expression "domestic
relationship", deals with relationship between two
B persons (of the opposite sex) who live or have lived
together in a shared household when they are related by:
Consanguinity,' Marriage, Through a relationship in the
nature of marriage, Adoption and Family members living
together as joint family. [Para 33] [1050-E-H; 1056-A]
C
2.2. The definition clause in Section 2(f) mentions
only five categories of relationships which exhausts itself
since the expression "means", has been used. When a
definition clause is defined to "mean" such and such, the
definition is prima facie restrictive and exhaustive.
D Section 2(f) has not used the expression "include" so as
to make the definition exhaustive. It is in that context one
has to examine the meaning of the expression
"relationship in the nature of marriage". [Para 34] (1056A-B]
E
2.3. There is a distinction between the relationship in
the nature of marriage and marital relationship.
Relationship of marriage continues, notwithstanding the
fact that there are differences of opinions, marital unrest
etc., even if they are not sharing a shared household,
F 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 relationship
G 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".
H [Para 36] [1056-E-H]
INDRA SARMA v. V.K.V. SARMA
1025
2.4. Section 2(f) of the DV Act though uses the
A
expression "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
B
lead to domestic violence, entitling any relief under the
DV Act. [Para 38] [1058-E-F]
2.5. The expression "relationship in the nature of
marriage" cannot be construed in the abstract, one must
take it in the context in which it appears and apply the
C
same bearing in mind the purpose and object of the Act
as well as the meaning of the expression "in the nature
of marriage". [Para 39] [1059-A-B]
2.6. 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 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 relationship) etc. [Para 41]
[1059-F-G]
2.7. 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 need of those benefits is felt by both
unmarried and married cohabitants. Courts in various
countries have extended certain benefits to. heterosexual
unmarried cohabitants. Legislatures too, of late, through
legislations started giving benefits to heterosexual
cohabitants. [Para 42] [1059-H; 1060-A-B]
2.8. Live-in relationship, as such, is a relationship
which has not been socially accepted in India, unlike
D
E
F
G
H
1026
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A many other countries. 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
B having relationship in the nature of marriage, persons
related by consanguinity, marriages etc. For the first
time, through, the DV Act, the Parliament has recognized
a "relationship in the nature of marriage" and not a livein relationship simplicitor. [Para 52 and 53) [1067-C-D, HJ
c
2.9. When one examines 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, one should have a close analysis of the entire
relationship, in other words, all facets of the interpersonal
D relationship need to be taken into account. One 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
E of fact and degree, whether a relationship between two
unrelated persons of the opposite sex meets the tests
judicially evolved. [Para 54) [1068-A-C]
Lata Singh v. State of UP. AIR 2006 SC 2522: 2006
F (3) Suppl. SCR 350 - referred to.
Re Marriage of Lindsay, 101 Wn.2d 299 (1984); Litham
v. Hennessey 87 Wn.2d 550 (1976); Pennington 93 Wash.
App. at 917 Stack v. Dowden (2007) 2 AC 432; MW v. The
Department of Community Services (2008) HCA 12; Lynam
G v. The Director-General of Social Security (1983) 52 ALR 128;
Thompson v. Department of Social Welfare (1994) 2 SZLR
369 (HC) - referred to.
The Civil Partnership Act, 2004 and the Family Law
H Act, 1996 (United Kingdom); The Domestic Violence
INDRA SARMA v. V.K.V. SARMA
1027
Intervention Act, 2001 (Canada); The Violence Against
A
Women Act, 1994 (USA); The Interpretation Act, 1984
(Australia); The Domestic and Family Violence Protection
Act, 2012 (Queensland) andThe Property (Relationships)
Act, 1984 of North South Wales, Australia - referred to.
B
3. The following guidelines may be culled out for
testing under what circumstances, a live-in relationship
will fall within the expression "relationship in the nature
of marriage" under Section 2(f) of the DV Act. The
guidelines, of course, are not exhaustive, but will
C
definitely give some insight to such relationships.
(1) Duration of period of relationship
Section 2(f) of the DV Act has used the
expression "at any point of time", which o
means a reasonable period of time to maintain
and continue a relationship which may vary
from case to case, depending upon the fact
situation.
(2)
Shared household
E
(3)
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
F
Supporting each other, or any one of them,
financially, sharing bank accounts, acquiring
immovable properties in joint names or in the
G
name 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.
H
1028
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A
(4)
Domestic Arrangements
B
c
D
E
F
G
H
(5)
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 nature of marriage.
Sexual Relationship
Marriage like relationship refers to sexual
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
(7)
(8)
Having children is a strong indication of a
relationship in the nature of marriage. Parties,
therefore, intend to have a long stan~ing
relationship. Sharing the responsibility for
bringing up and supporting them is also a
strong indication.
Socialization in Public
Holding out to the public and socializing with
friends, relations and others, as if they are
husband and wife is a strong cir:cumstance to
hold the relationship is in the nature of
marriage.
Intention and conduct of the parties
Common intention of parties as to what their
relationship is to be and to involve, and as to
their respective roles and responsibilities,
INDRA SARMA v. V.K.V. SARMA
1029
primarily determines the nature of that
A
relationship. [Para 55] [1068-D-H;1069-A-H;
[1070-A]
4.1. Status of the appellant: In the case at hand, the
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 that where a man and a woman are proved
B
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
C
relationship between the appellant and the 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
D
exclusivity and will not be monogamous in character.
The continuous cohabitation of man and woman as
husband and wife may raise 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 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
E
F
the nature of marriage. [Para 56) [1070-B-H]
4.2. In the instant case, there is no necessity 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
G
the appellant is that of a concubine or a mistress, who
H
1030
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A cannot enter into relationship in the nature of a marriage.
Long standing relationship as a concubine, though not
a relationship in the nature of a marriage, of course, may
at times, deserve protection because that woman might
not pe financially independent, but the DV Act does not
B take care of such relationships which may perhaps call
for an amendment of the definition of Section 2(f) of the
DV Act, which is restrictive and exhaustive. [Para 57]
[1071-A-C]
4.3. The Parliament has to ponder over these issues,
C 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. [Para 62] [1072-F-G]
D
4.4. The appellant was not ignorant of the fact that
the respondent was a married person with· wife and two
children, hence, was party to an adulterous and
bigamous relationship. Admittedly, the relationship
E 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.
F 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
G mutual support and companionship. No material has
been produced to show that the parties have 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
H
INDRA SARMA v. V.K.V. SARMA
1031
out to the public that she was his wife. No evidence of A
socialization in public has been produced. There is
nothing to show that there was pooling 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
B ·
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 c
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. [Para 63] [1072-H; 1073-A-FJ
Badri Prasad v. Director of Consolidation 1978 (3) SCC
D
527: 1979 (1) SCR 1; Tulsa v. Durghatiya 2008 (4) SCC 520
and Gokal Chand v. Parvin Kumari AIR 1952 SC 231: 1952
SCR 825 - relied on.
Pinakin Mahipatray Rawal v. State of Gujarat (2013) 2
SCALE 198 and 0. Velusamy v. D. Patchaiammal (2010) 10
SCC 469: 2010 (13) SCR 706 and S. Khushboo v.
Kanniafr/mal and another (2010) 5 SCC 600: 2010 (5) SCR
322 - referred to.
Andrahennedige Dinohamy v. Wiketunge Liyanapatabendage Balshamy, AIR 1927 PC 185 - referred to.
Oeoki Panjhiyara v. Shashi Bhushan Narayan Azad and
Another (2013) 2 SCC 137: 2012 (11) SCR 825 - cited.
American Jurisprudence, Second Edition, Vol. 24 (2008)
- referred to.
5.1. Alienation of affection: The appellant had entered
into this relationship knowing well that the respondent
E
F
G
H
1032
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A was a married person and encouraged bigamous
relationship. By entering into such a relationship, the
appellant has committed an intentional tort, r.e.
interference in the marital relationship with intentionally
alienating respondent from his family, i.e. his wife and
B children. If the case set up by the appellant is accepted,
one has to conclude that there has 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
c far as the legally wedded wife and children of the
respondent are concerned, who resisted the relationship
from the very inception. Marriage and family are social
institutions of vital importance .. Alienation of affection, in
that context, is an intentional tort, which gives a cause
0 of action to the wife and children of the respondent to
sue the appellant for alienating the husbandlfather from
the company of his wifefchildren, knowing fully well they
are legally wedded wifefchildren of the respondent. [Para
64] [1073-F-H; 1074-A-C]
E
5.2. The appellant, having been fully aware of the fact
that the respondent was a married person, could not have
entered into a live-in relationship in the nature of
marriage. All live-in-relationships are not rel~tionships in
the nature of marriage. Appellant's and the. respondent's
F relationship is, therefore, not a "relationship in the nature
of marriage" because it has no inherent or essential
characteristic 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
G not fall within the definition of "domestic relationship"
under Section 2(f) of the DV Act. If it is held that the
relationship between the appellant and the respondent is
a relationship in the nature of a tnarriage, one will be
doing an injustice to the legally wedded wife and children
H who opposed that relationship. Consequently, any act,
INDRA SARMA v. V.K.V. SARMA
1033
omission or commission or conduct of the respondent
A
in connection with that type of relationship, would not
amount to "domestic violence" under Section 3 of the DV
Act. [Para 65) (1074-D-G]
5.3. On facts, the appellant's status was ·that of a
8
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 is more pronounced, which is a societal
reality. Children born out of such relationship also suffer C
most which calls for bringing in remedial measures by the
Parliament, through proper legislation. (Para 66) (1074-H;
1075-A)
5.4. If any direction is given to the respondent to pay
maintenance or monetary consideration to the appellant,
D
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
and affection of the husband/parent which is an
E
intentional tort. [Para 67) [1075-B-C]
Pinakin Mahipatray Rawat v. State of Gujarat (2013) 2
SCALE 198 - referred to.
Case Law Reference:
2010 (13) SCR 706
referred to
Para 8
2012 (11) SCR 825
Cited
Para 10
2000 (3) SA 936 (CC)
referred to
Para 24
2002 (6) SA 1 (CC)
referred to
Para 25
2003 (2) SA 198 (CC)
referred to
Para 25
316 us 535 (1942)
referred to
Para 30
F
G
H
A
B
c
D
E
F
G
1034
SUPREME COURT REPORTS
[2013) 14 S.C.R.
198 P.2d 17, 20.1 (1948)
referred to
388 us 1 (1967)
(2013) 2 SCALE 198
101 Wn.2d 299 (1984)
87 Wn.2d 550 (1976)
(2007) 2 AC 432
(2008) HCA 12
referred to
referred to
referred to
referred to
referred to
referred to
(1983) 52 ALR 128
referred to
(1994) 2 SZLR 369 (HC)
referred to
2006 (3) Suppl. SCR 350 referred to
AIR 1927 PC 185
1979 (1) SCR 1
2008 (4) sec 520
1952 SCR 825
2010 (5) SCR 322
referred to
relied on
relied on
relied on
referred to
Para 30
Para 30
Para 32
Para 47
Para 47
Para 48
Para 49
Para 50
Para 51
Para 62
Para 56
Para 56
Para 56
Para 56
Para 1
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 2009 of 2013
From the Judgment and Order dated 12. 08. 2011 of the
High Court of Karnataka at Bangalore in CRLR No. 856 of 2010
Jyotika Kalra (AC), Anish Kumar Gupta and Nikhil Majithia
(for Rameshwar Prasad Goyal), for the appearing parties.
The Judgment of the Court was delivered by
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:
D
E
F
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:
E
F
G
H
(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
B
c
D
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
1038
SUPREME COURT REPORTS
[2013] 14 S.C.R.
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 none 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, nonE 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
F
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
H
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.
H
1040
SUPREME COURT REPORTS
[2013] 14 S.C.R.
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.
F
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.