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REPORTABL
E
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELATE JURISDICTION
CRIMINAL APPEAL Nos.2032-2033 of 2012
(Arising out of SLP (Criminal) Nos. 8076-8077 of 2010
Deoki Panjhiyara
…Appellant
Versus
Shashi Bhushan Narayan Azad & Anr. …
Respondents

J U D G M E N T
RANJAN GOGOI, J.
1. Leave granted.
2. The appellant, who was married to the respondent
in the year 2006, had filed a petition under Section 12
of the Protection of Women from Domestic Violence Act,
2005 (hereinafter referred to as ‘the DV Act’) seeking
certain reliefs including damages and maintenance.
During the pendency of the aforesaid application the
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appellant filed an application for interim maintenance
which was granted by the learned trial court on
13.02.2008 at the rate of Rs.2000/- per month. The
order of the learned trial court was affirmed by the
learned Sessions Judge on 09.07.2008. As against the
aforesaid order, the respondent (husband) filed a Writ
Petition before the High Court of Jharkhand.
3. While the Writ Petition was pending, the respondent
sought a recall of the order dated 13.02.2008 on the
ground that he could subsequently come to know that
his marriage with the appellant was void on the ground
that at the time of the said marriage the appellant was
already married to one Rohit Kumar Mishra. In support,
the respondent – husband had placed before the
learned trial court the certificate of marriage dated
18.04.2003 between the appellant and the said Rohit
Kumar Mishra issued by the competent authority under
Section 13 of the Special Marriage Act, 1954 (hereinafter
referred to as ‘the Act of 1954’).
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4. The learned trial court by order dated 7.8.2009
rejected the aforesaid application on the ground that
notwithstanding the certificate issued under Section 13
of the Act of 1954, proof of existence of the conditions
enumerated in Section 15 of the Act would still required
to be adduced and only thereafter the certificate issued
under Section 13 of the Act can be held to be valid.
5. The aforesaid order dated 07.08.2009 was
challenged by the respondent-husband in a revision
application before the High Court which was heard
alongwith the writ petition filed earlier. Both the cases
were disposed of by the impugned common order dated
09.04.2010 holding that the marriage certificate dated
18.04.2003 issued under Section 13 of the Act of 1954
was conclusive proof of the first marriage of the
appellant with one Rohit Kumar Mishra which had the
effect of rendering the marriage between the appellant
and the respondent null and void. Accordingly, it was
held that as the appellant was not the legally wedded
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wife of the respondent she was not entitled to
maintenance granted by the learned courts below. It is
against the aforesaid order of the High Court that the
present appeals have been filed by the appellant – wife.
6. We have heard Shri Gaurav Agarwal, learned
counsel for the appellant and Shri Mahesh Tiwari,
learned counsel for the respondent.
7. Learned counsel for the appellant has strenuously
urged that the allegation of the earlier marriage
between the appellant and Rohit Kumar Mishra had been
denied by the appellant at all stages and the said fact is
not substantiated only by the Marriage Certificate dated
18.04.2003. Even assuming the marriage between the
appellant and the respondent to be void, the parties
having lived together, a relationship in the nature of
marriage had existed which will entitle the appellant to
claim and receive maintenance under the DV Act, 2005.
Placing the legislative history leading to the aforesaid
enactment, it is urged that in the Bill placed before the
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Parliament i.e. Protection from Domestic Violence Bill,
2002 an “aggrieved person” and “relative” was, initially,
defined in the following terms :
“Section 2………
(a) “aggrieved person” means any woman who is or has
been relative of the respondent and who alleges to have
been subjected to act of domestic violence by the
respondent;
(b)…
( c )…
(d)….
(e)….
(f)…
(g)…
(h)….
(i)”relative” includes any person related by blood, marriage
or adoption and living with the respondent.”
Thereafter, the different clauses of the Bill were
considered by a Parliamentary Standing Committee and
recommendations were made that having regard to the
object sought to be achieved by the proposed
legislation, namely, to protect women from domestic
violence and exploitation, clause (2)(i) defining “relative”
may be suitably amended to include women who have
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been living in relationship akin to marriages as well as in
marriages considered invalid by law. Pursuant to the
aforesaid recommendation made by the Standing
Committee, in place of the expression “relative”
appearing in clause 2(i) of the Bill, the expression
“domestic relationship” came be included in clause (f) of
Section 2 of the Act. Learned counsel by referring to the
definition of “aggrieved person” and “domestic
relationship” as appearing in the DV Act, 2005 has urged
that the legislative intent to include women, living in
marriages subsequently found to be illegal or even in
relationships resembling a marriage, within the
protective umbrella of the DV Act is absolutely clear and
the same must be given its full effect. It is submitted
that having regard to the above even if the marriage of
the appellant and the respondent was void on account
of the previous marriage of the appellant, the said fact,
by itself, will not disentitle the appellant to seek
maintenance and other reliefs under the DV Act, 2005.
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8. Before proceeding further it will be appropriate to
notice, at this stage, the definition of the expressions
“aggrieved person” and “domestic relationship”
appearing in Section 2(a) and (f) of the DV Act, 2005.
“Section 2…..
(a) “aggrieved person” means any women 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;
(b) ……
(c) ……
(d) ……
(e) ……
(f) “domestic relationship” means a relationship between
two persons who live or have, at any point of time, lived
together in a shared household, when they are related by
consanguinity, marriage, or through a relationship in the
nature of marriage, adoption or are family members living
together as a joint family.”
9. Learned counsel, in all fairness, has also drawn the
attention of the court to a decision rendered by a
coordinate Bench in D. Velusamy vs. D.Patchaimmal 1
wherein this court had occasion to consider the
provisions of Section 2(f) of the DV Act to come to the
1
(2010) 10 SCC 469
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conclusion that a “relationship in the nature of
marriage” is akin to a common law marriage which
requires, in addition to proof of the fact that parties had
lived together in a shared household as defined in
Section 2(s) of the DV Act, the following conditions to be
satisfied:
(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…….”
[Para 33]
10. Learned counsel has, however, pointed out that in
Velusamy (supra) the issue was with regard to the
meaning of expression “wife” as appearing in Section
125 Cr.P.C. and therefore reference to the provisions of
Section 2(f) of the DV Act, 2005 and the conclusions
recorded were not required for a decision of the issues
arising in the case. Additionally, it has been pointed out
that while rendering its opinion in the aforesaid case this
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Court had no occasion to take into account the
deliberations of the Parliamentary Standing Committee
on the different clauses of Protection of Women from
Domestic Violence Bill, 2002. It is also urged that the
equation of the expression “relationship in the nature of
marriage” with a common law marriage and the
stipulation of the four requirements noticed above is not
based on any known or acceptable authority or source of
law. Accordingly, it is submitted that the scope and
expanse of the expression “relationship in the nature of
marriage” is open for consideration by us and, at any
rate, a reference of the said question to a larger bench
would be justified.
11. Opposing the contentions advanced on behalf of
the appellant learned counsel for the respondent –
husband has submitted that the object behind insertion
of the expression “relationship in the nature of
marriage” in Section 2(f) of the DV Act is to protect
women who have been misled into marriages by the
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male spouse by concealment of the factum of the earlier
marriage of the husband. The Act is a beneficial piece of
legislation which confers protection of different kinds to
women who have been exploited or misled into a
marriage. Learned counsel has pointed out that in the
present case the situation is, however, otherwise. From
the marriage certificate dated 18.04.2003 it is clear that
the appellant was already married to one Rohit Kumar
Mishra which fact was known to her but not to the
respondent. The second marriage which is void and also
gives rise to a bigamous relationship was voluntarily
entered into by the appellant without the knowledge of
the husband. Therefore, the appellant is not entitled to
any of the benefits under the DV Act. In fact, grant of
maintenance in the present case would amount to
conferment of benefit and protection to the wrong doer
which would go against the avowed object of the Act.
Learned counsel has also submitted that the conduct of
the appellant makes it clear that she had approached
the court by suppressing material facts and with unclean
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hands which disentitles her to any relief either in law or
in equity. In this regard the decision of this court in S.P.
Changalvaraya Naidu vs. Jagannath and others2
has
been placed before us.
12. Having considered the submissions advanced by the
learned counsels for the contesting parties, we are of
the view that the questions raised, namely, whether the
appellant and the respondent have/had lived together in
a shared household after their marriage on 4.12.2006; if
the parties have/had lived together whether the same
gives rise to relationship in the nature of marriage within
the meaning of Section 2(f) of the DV Act, 2005; whether
the decision of this Court in Velusamy (supra) is an
authoritative pronouncement on the expression
“relationship in the nature of marriage” and if so
whether the same would require reference to a larger
Bench, may all be premature and the same need not be
answered for the present. Instead, in the first instance,
2
AIR 1994 SC 853
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the matter may be viewed from the perspective indicated
below.
13. The Respondent before us had claimed (before the
trial court as well as the High Court) that the marriage
between him and the appellant solemnised on
4.12.2006, by performance of rituals in accordance with
Hindu Law, was void on account of the previous marriage
between the appellant with one Rohit Kumar Mishra. In
support thereof, the respondent relied on a marriage
certificate dated 18.4.2003 issued under Section 13 of
the Special Marriage Act, 1954. Acting solely on the
basis of the aforesaid marriage certificate the learned
trial court as well as the High Court had proceeded to
determine the validity of the marriage between the
parties though both the courts were exercising
jurisdiction in a proceeding for maintenance. However, till
date, the marriage between the parties is yet to be
annulled by a competent court. What would be the effect
of the above has to be determined first inasmuch as if,
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under the law, the marriage between the parties still
subsists the appellant would continue to be the legally
married wife of the respondent so as to be entitled to
claim maintenance and other benefits under the DV Act,
2005. Infact, in such a situation there will be no occasion
for the Court to consider whether the relationship
between the parties is in the nature of a marriage.
14. Admittedly, both the appellant and the respondent
are governed by the provisions of the Hindu Marriage
Act, 1955. Section 11 of the Hindu Marriage Act makes it
clear that a marriage solemnised after the
commencement of the Act “shall be null and void and
may, on a petition presented by either party thereto
against the other party, be so declared by a decree of
nullity if it contravenes any one of the conditions so
specified in clauses (i), (iv) and (v) of Section 5.”
15. While considering the provisions of Section 11 of the
Hindu Marriage Act, 1955 this Court in Yamunabai v.
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Anantrao3
has taken the view that a marriage covered
by Section 11 is void-ipso-jure, that is, void from the very
inception. Such a marriage has to be ignored as not
existing in law at all. It was further held by this Court that
a formal declaration of the nullity of such a marriage is
not a mandatory requirement though such an option is
available to either of the parties to a marriage.
It must, however, be noticed that in Yamunabai
(supra) there was no dispute between the parties either
as regards the existence or the validity of the first
marriage on the basis of which the second marriage was
held to be ipso jure void.
16. A similar view has been expressed by this Court in a
later decision in M.M. Malhotra v. Union of India4
wherein the view expressed in Yamunabai (supra) was
also noticed and reiterated.
3
AIR 1988 SC 645
4
2005 (8) SCC 351
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17. However, the facts in which the decision in M.M.
Malhotra (supra) was rendered would require to be
noticed in some detail:
The appellant M.M. Malhotra was, inter alia, charged
in a departmental proceeding for contracting a plural
marriage. In reply to the charge sheet issued it was
pointed out that the allegation of plural marriage was
not at all tenable inasmuch as in a suit filed by the
appellant (M.M. Malhotra) for a declaration that the
respondent (wife) was not his wife on account of her
previous marriage to one D.J. Basu the said fact i.e.
previous marriage was admitted by the wife leading to a
declaration of the invalidity of the marriage between the
parties. The opinion of this court in M.M. Malhotra
(supra) was, therefore, once again rendered in the
situation where there was no dispute with regard to the
factum of the earlier marriage of one of the spouses.
18. In the present case, however, the appellant in her
pleadings had clearly, categorically and consistently
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denied that she was married to any person known as
Rohit Kumar Mishra. The legitimacy, authenticity and
genuineness of the marriage certificate dated 18.4.2003
has also been questioned by the appellant. Though
Section 11 of the aforesaid Act gives an option to either
of the parties to a void marriage to seek a declaration of
invalidity/nullity of such marriage, the exercise of such
option cannot be understood to be in all situations
voluntarily. Situations may arise when recourse to a
court for a declaration regarding the nullity of a marriage
claimed by one of the spouses to be a void marriage, will
have to be insisted upon in departure to the normal rule.
This, in our view, is the correct ratio of the decision of
this Court in Yamunabai (supra) and M.M. Malhotra
(supra). In this regard, we may take note of a recent
decision rendered by this Court in A. Subash Babu v.
State of Andhra Pradesh & Anr.
5
while dealing with the
question whether the wife of a second marriage
contracted during the validity of the first marriage of the
5
2011 (7) SCC 616
1
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husband would be a “person aggrieved” under Section
198 (1)(c) of the Code of Criminal Procedure to maintain
a complaint alleging commission of offences under
section 494 and 495 IPC by the husband. The passage
extracted below effectively illuminates the issue:
“Though the law specifically does not cast obligation on either
party to seek declaration of nullity of marriage and it may be
open to the parties even without recourse to the Court to
treat the marriage as a nullity, such a course is neither
prudent nor intended and a declaration in terms of
Section 11 of the Hindu Marriage Act will have to be asked
for, for the purpose of precaution and/or record. Therefore,
until the declaration contemplated by Section 11 of the Hindu
Marriage Act is made by a competent Court, the woman with
whom second marriage is solemnized continues to be the wife
within the meaning of Section 494 IPC and would be entitled
to maintain a complaint against her husband.”
19. In the present case, if according to the
respondent, the marriage between him and the
appellant was void on account of the previous marriage
between the appellant and Rohit Kumar Mishra the
respondent ought to have obtained the necessary
declaration from the competent court in view of the
highly contentious questions raised by the appellant on
the aforesaid score. It is only upon a declaration of
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nullity or annulment of the marriage between the parties
by a competent court that any consideration of the
question whether the parties had lived in a “relationship
in the nature of marriage” would be justified. In the
absence of any valid decree of nullity or the necessary
declaration the court will have to proceed on the footing
that the relationship between the parties is one of
marriage and not in the nature of marriage. We would
also like to emphasise that any determination of the
validity of the marriage between the parties could have
been made only by a competent court in an appropriate
proceeding by and between the parties and in
compliance with all other requirements of law. Mere
production of a marriage certificate issued under Section
13 of the Special Marriage Act, 1954 in support of the
claimed first marriage of the appellant with Rohit Kumar
Mishra was not sufficient for any of the courts, including
the High Court, to render a complete and effective
decision with regard to the marital status of the parties
and that too in a collateral proceeding for maintenance.
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Consequently, we hold that in the present case until the
invalidation of the marriage between the appellant and
the respondent is made by a competent court it would
only be correct to proceed on the basis that the
appellant continues to be the wife of the respondent so
as to entitle her to claim all benefits and protection
available under the DV Act, 2005.
20. Our above conclusion would render consideration of
any of the other issues raised wholly unnecessary and
academic. Such an exercise must surely be avoided.
21. We, accordingly, hold that the interference made by
the High Court with the grant of maintenance in favour of
the appellant was not at all justified. Accordingly, the
order dated 09.04.2010 passed by the High Court is set
aside and the present appeals, are allowed.
……………
……………………….J.
[ P. SATHASIVAM ]
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……………………………………J.
[RANJAN GOGOI]
New Delhi,
December 12, 2012