Live-in relationships are covered under the purview of Domestic Violence Act 2005

Daniyal Qureshi | Symbiosis Law School Pune | 27th March 2020

Shikarini v. Hitendra Chudasmi Decided on 27/2/2020 The High Court of Madhya Pradesh (Jabalpur Bench)

Facts

The appellant aggrieved by the order of the Additional Sessions Judge who revered the order of the learned JMFC filed the present appeal. 

Before the JMFC it was contended by the appellant that the appellant is the wife of the respondent and that her marriage with the respondent according to Hindu Rituals and that the respondent has committed domestic violence against the appellant and the son born out this marriage. The appellant alleges that the respondent never took care of their son and even attempted to take the child’s life by throwing him from the roof. Therefore, filing for maintenance and compensation under the Domestic Violence Act.

 On the contrary the respondent contends that the marriage between the respondent and the appellant was a nullity as the appellant already had a husband living in Andhra Pradesh from whom she had not obtained a valid divorce at the time of the solemnization of the marriage between the respondent and the appellant and therefore she had no right to claim maintenance under the Domestic Violence Act. The respondent also contends that the claim for maintenance had exceeded its period of limitation of one year as the appeal has been filed one year after the order of the Additional Sessions Judge. The respondent also contends that under the definition of “aggrieved person” in Section 2 of the Domestic Violence Act does not encompass a child therefore the claim for maintenance in the present appeal does not stand. 

Issue 

Whether the appellant and her son are entitled to maintenance under the Domestic Violence Act 2005?

Judgement

• To the issue of limitation, the Hon’ble High Court laid down that upon the perusal of the Domestic Violence Act 2005, there is no such period of one year of limitation to file appeal given by law. The Hon’ble High Court further relied upon the judgement in Anthony Jose v. State of NCT Delhi^[1] wherein the court laid down that matrimonial offences are continuing offences. Therefore, from every moment till which maintenance is not paid there shall be a fresh period of limitation that will flow. Therefore, a claim of maintenance is not even as such barred by the usual three years of period under the statute of limitation.
• As to the contention of a valid marriage the Hon’ble High Court relied upon the judgement of the apex court in D. Veluswamy v D. Patchaiammal^[2] wherein the court ventured to understand Live-in relationships and compared them to common law marriages. In this case the Supreme Court laid down that all common law marriages shall be considered domestic violence. In the present case the court found that the facts of the cases satisfy the requirement of a common law marriage therefore the appellant would not be barred to avail protection under the Domestic Violence 2005.
• Furthermore, the High Court took note that the validity of the marriage was a sub-judice matter before the High Court and therefore the Additional Sessions Judge erred in making judgement on the grounds of the validity of the marriage. 
• The High Court observes that in evidence presented before the court it is obvious that the respondent had knowledge of the marriage of the appellant and her two daughters that she bore from her first marriage. That the appellant and the respondent had cohabited for a significant period of time and that there was no doubt that the child was the son of the respondent. Therefore, these relationships between the parties are clearly domestic relationships and the appellant cannot be separated from the remedies under the Domestic Violence Act. 
• Therefore, the appeal is allowed and the order of the JMFC is restored. 

^[1] MANU/DE/4617/2018

^[2] MANU/SC/0872/2010