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Friday, November 29, 2013


Whether a “live-in-relationship” would amount to a “relationship in the nature of marriage” falling within the definition of “domestic relationship”?

A women, entered into a live-in-relationship with a man knowing that he was married person with wife and children 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 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, 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 cohabitation 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 the nature of marriage.

A relationship between a women and a married man could not be termed a relationship in the nature of marriage. The Hon’ble Supreme Court in Indra Sarma Versus V.K.V. Sarma observed.

In the instant case, 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 relationship as a concubine, though that 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 the Domestic Violence Act does not take care of such relationships.

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 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 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 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 of action to the wife and children of the respondent to sue the appellant for alienating the husband/father from the company of his wife/children, knowing fully well they are legally wedded wife/children of the respondent.

Appellant and respondent were working together in a private company. The Respondent, who was working as a Personal Office 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. After several years, the man moved out of such live-in-relationship. The appellant preferred Criminal Miscellaneous Petition under section 12 of the Domestic Violence Act before the Magistrate, Bangalore. Seeking reliefs of independent residence, monetary order, compensation and maintenance. The learned 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-maintenance of the appellant and passed the order directing the respondent to pay an amount of Rs. 18,000/- per month towards maintenance from the date of the petition. Subsequently the Sessions Court upheld the Trial Court Decision.

But the Karnataka High Court set aside the Trial Court order saying that live-in- relationship did not fall within the ambit of “relationship in the nature of marriage”, a cardinal principal for one to invoke Domestic Violence Act.

The Hon’ble Supreme Court held that 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 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 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 whould not fall within the definition of “domestic relationship” under Section 2(f) of the Domestic Violence Act. If we hold that the relationship between the appellant and the 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 violence” under Section 3 of the Domestic Violence Act.

The Hon’ble Court Supreme Court further held 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 is more pronounced, which is a societal reality. Children born out of such relationship also suffer most which calls for bringing in remedial measures by the Parliament, through proper legislation.

We are conscious of the fact that 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 relationship and have a cause of action against the appellant for alienating the companionship and affection of the husband/parent which is an international tort.

Prepared by: S. Hemanth