Live in Relation in the light of latest Judbment from Supreme Court of India

IN THE SUPREME COURT OF INDIA

Bench: M Katju, T Thakur

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 2028-2029__OF 2010

[Arising out of Special Leave Petition (Crl.) Nos.2273-2274/2010]

D. Velusamy  -versus- D. Patchaiammal

Judgment Delivered on 21 October, 2010

Cites 17 docs - [View All]
The Code Of Criminal Procedure, 1973
The Protection Of Women From Domestic Violence Act, 2005
The Indian Penal Code, 1860
Section 125 in The Code Of Criminal Procedure, 1973
Section 2(s) in The Code Of Criminal Procedure, 1973

JUDGMENT

Markandey Katju, J.

1. Leave granted.

2. Heard learned counsel for the appellant. None has appeared for the respondent although she has been served notice. We had earlier requested Mr. Jayant Bhushan, learned Senior counsel to assist us as Amicus Curiae in 2 the case, and we record our appreciation of Mr. Bhushan who was of considerable assistance to us.

3. These appeals have been filed against the judgment of the Madras High Court dated 12.10.2009.

4. The appellant herein has alleged that he was married according to the Hindu Customary Rites with one Lakshmi on 25.6.1980. Out of the wedlock with Lakshmi a male child was born, who is now studying in an Engineering college at Ooty. The petitioner is working as a Secondary Teacher in Thevanga Higher Secondary School, Coimbatore.

5. It appears that the respondent-D. Patchaiammal filed a petition under Section 125 Cr.P.C. in the year 2001 before the Family Court at Coimbatore in which she alleged that she was married to the appellant herein on 14.9.1986 and since then the appellant herein and she lived together in her father's house for two or three years. It is alleged in the petition that after two or three years the appellant herein left the house of the respondent's father and started living in his native place, but would visit the respondent occasionally.

6. It is alleged that the appellant herein (respondent in the petition under Section 125 Cr.P.C.) deserted the respondent herein (petitioner in the proceeding under Section 125 Cr.P.C.) two or three years after marrying her in 1986. In her petition under Section 125 Cr.P.C. she alleged that she did not have any kind of livelihood and she is unable to maintain herself whereas the respondent (appellant herein) is a Secondary Grade Teacher drawing a salary of Rs.10000/- per month. Hence it was prayed that the respondent (appellant herein) be directed to pay Rs.500/- per month as maintenance to the petitioner.

7. In both her petition under Section 125 Cr.P.C. as well as in her deposition in the case the respondent has alleged that she was married to the appellant herein on 14.9.1986, and that he left her after two or three years of living together with her in her father's house.

8. Thus it is the own case of the respondent herein that the appellant left her in 1988 or 1989 (i.e. two or three years after the alleged marriage in 1986). Why then was the petition under Section 125 Cr.P.C. filed in the year 2001, i.e. after a delay of about twelve years, shall have to be satisfactorily explained by the respondent. This fact also creates some doubt about the case of the respondent herein.

9. In his counter affidavit filed by the appellant herein before the Family Court, Coimbatore, it was alleged that the respondent (appellant herein) was married to one Lakshmi on 25.6.1980 as per the Hindu Marriage rites and customs and he had a male child, who is studying in C.S.I. Engineering college at Ooty. To prove his marriage with Lakshmi the appellant produced the ration card, voter's identity card of his wife, transfer certificate of his son, discharge certificate of his wife Lakshmi from hospital, photographs of the wedding, etc.

10. The learned Family Court Judge has held by his judgment dated 5.3.2004 that the appellant was married to the respondent and not to Lakshmi. These findings have been upheld by the High Court in the impugned judgment.

11. In our opinion, since Lakshmi was not made a party to the proceedings before the Family Court Judge or before the High Court and no notice was issued to her hence any declaration about her marital status vis-`- vis the appellant is wholly null and void as it will be violative of the rules of natural justice. Without giving a hearing to Lakshmi no such declaration could have validly be given by the Courts below that she had not married the appellant herein since such as a finding would seriously affect her rights. And if no such declaration could have been given obviously no declaration could validly have been given that the appellant was validly married to the respondent, because if Lakshmi was the wife of the appellant then without divorcing her the appellant could not have validly married the respondent.

12. It may be noted that Section 125 Cr.P.C. provides for giving maintenance to the wife and some other relatives. The word `wife' has been defined in Explanation (b) to Section 125(1) of the Cr.P.C. as follows : "Wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried."

13. In Vimala (K) vs. Veeraswamy (K) [(1991) 2 SCC 375], a three- Judge Bench of this Court held that Section 125 of the Code of 1973 is meant to achieve a social purpose and the object is to prevent vagrancy and destitution. Explaining the meaning of the word `wife' the Court held: "..the object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage. The term `wife' in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term `wife' consistent with the objective. However, under the law a second wife whose marriage is void on account of the survival of the first marriage is not a legally wedded wife, and is, therefore, not entitled to maintenance under this provision."

14. In a subsequent decision of this Court in Savitaben Somabhat Bhatiya vs. State of Gujarat and others, AIR 2005 SC 1809, this Court held that however desirable it may be to take note of the plight of an unfortunate woman, who unwittingly enters into wedlock with a married man, there is no scope to include a woman not lawfully married within the expression of `wife'. The Bench held that this inadequacy in law can be amended only by the Legislature.

15. Since we have held that the Courts below erred in law in holding that Lakshmi was not married to the appellant (since notice was not issued to her and she was not heard), it cannot be said at this stage that the respondent herein is the wife of the appellant. A divorced wife is treated as a wife for the purpose of Section 125 Cr.P.C. but if a person has not even been married obviously that person could not be divorced. Hence the respondent herein cannot claim to be the wife of the appellant herein, unless it is established that the appellant was not married to Lakshmi.

16. However, the question has also be to be examined from the point of view of The Protection of Women from Domestic Violence Act, 2005. Section 2(a) of the Act states :

"2(a) "aggrieved person" means 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";

Section 2(f) states :

"2(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"; Section 2(s) states :

"2(s) "shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household."

Section 3(a) states that an act will constitute domestic violence in case it-

"3(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse;" or

(emphasis supplied)

17. The expression "economic abuse" has been defined to include : "(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance".

(emphasis supplied)

18. An aggrieved person under the Act can approach the Magistrate under Section 12 for the relief mentioned in Section 12(2). Under Section 20(1)(d) the Magistrate can grant maintenance while disposing of the application under Section 12(1).

19. Section 26(1) provides that the relief mentioned in Section 20 may also be sought in any legal proceeding, before a civil court, family court or a criminal court.

20. 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.

21. In our opinion Parliament by the aforesaid Act has drawn a distinction between the relationship of marriage and a relationship in the nature of marriage, and has provided that in either case the person who enters into either relationship is entitled to the benefit of the Act. 1

22. It seems to us that in the aforesaid Act of 2005 Parliament has taken notice of a new social phenomenon which has emerged in our country known as live-in relationship. This new relationship is still rare in our country, and is sometimes found in big urban cities in India, but it is very common in North America and Europe. It has been commented upon by this Court in S. Khushboo vs. Kanniammal & Anr. (2010) 5 SCC 600 (vide para 31).

23. When a wife is deserted, in most countries the law provides for maintenance to her by her husband, which is called alimony. However, earlier there was no law providing for maintenance to a woman who was having a live-in relationship with a man without being married to him and was then deserted by him.

24. In USA the expression `palimony' was coined which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying him, and is then deserted by him (see `palimony' on Google). The first decision on palimony was the well known decision of the California Superior Court in Marvin vs. Marvin (1976) 18 C3d660. This case related to the famous film actor Lee Marvin, with whom a lady Michelle lived for many years without marrying him, and was then deserted by him and she claimed palimony. Subsequently in many decisions of the Courts in USA, the concept of palimony has been considered and developed. The US Supreme Court has not given any decision on whether there is a legal right to palimony, but there are several decisions of the Courts in various States in USA. These Courts in USA have taken divergent views, some granting palimony, some denying it altogether, and some granting it on certain conditions. Hence in USA the law is still in a state of evolution on the right to palimony.

25. Although there is no statutory basis for grant of palimony in USA, the Courts there which have granted it have granted it on a contractual basis. Some Courts in USA have held that there must be a written or oral agreement between the man and woman that if they separate the man will give palimony to the woman, while other Courts have held that if a man and woman have lived together for a substantially long period without getting married there would be deemed to be an implied or constructive contract that palimony will be given on their separation.

26. In Taylor vs. Fields (1986) 224 Cal. Rpr. 186 the facts were that the plaintiff Taylor had a relationship with a married man Leo. After Leo died Taylor sued his widow alleging breach of an implied agreement to take care of Taylor financially and she claimed maintenance from the estate of Leo. The Court of Appeals in California held that the relationship alleged by Taylor was nothing more than that of a married man and his mistress. It was held that the alleged contract rested on meretricious consideration and hence was invalid and unenforceable. The Court of Appeals relied on the fact that Taylor did not live together with Leo but only occasionally spent weekends with him. There was no sign of a stable and significant cohabitation between the two.

27. However, the New Jersey Supreme Court in Devaney vs. L' Esperance 195 N.J., 247 (2008) held that cohabitation is not necessary to claim palimony, rather "it is the promise to support, expressed or implied, coupled with a marital type relationship, that are indispensable elements to support a valid claim for palimony". A law has now been passed in 2010 by the State legislature of New Jersey that there must be a written agreement between the parties to claim palimony.

28. Thus, there are widely divergent views of the Courts in U.S.A. regarding the right to palimony. Some States like Georgia and Tennessee expressly refuse to recognize palimony agreements. 1

29. Written palimony contracts are rare, but some US Courts have found implied contracts when a woman has given up her career, has managed the household, and assisted a man in his business for a lengthy period of time. Even when there is no explicit written or oral contract some US Courts have held that the action of the parties make it appear that a constructive or implied contract for grant of palimony existed.

30. However, a meretricious contract exclusively for sexual service is held in all US Courts as invalid and unenforceable.

31. In the case before us we are not called upon to decide whether in our country there can be a valid claim for palimony on the basis of a contract, express or implied, written or oral, since no such case was set up by the respondent in her petition under Section 125 Cr.P.C.

32. Some countries in the world recognize common law marriages. A common law marriage, sometimes called de facto marriage, or informal marriage is recognized in some countries as a marriage though no legally recognized marriage ceremony is performed or civil marriage contract is entered into or the marriage registered in a civil registry (see details on Google).

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) 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.

(see `Common Law Marriage' in Wikipedia on Google) In our opinion a `relationship in the nature of marriage' under the 2005 Act must also fulfill 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'.

34. In our opinion not all live in relationships will amount to a relationship in the nature of marriag8e 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' whom 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'

35. No doubt the view we are taking would exclude many women who have had a live in relationship from the benefit of the 2005 Act, but then it is not for this Court to legislate or amend the law. Parliament has used the expression `relationship in the nature of marriage' and not `live in relationship'. The Court in the grab of interpretation cannot change the language of the statute.

36. In feudal society sexual relationship between man and woman outside marriage was totally taboo and regarded with disgust and horror, as depicted in Leo Tolstoy's novel `Anna Karenina', Gustave Flaubert's novel `Madame Bovary' and the novels of the great Bengali writer Sharat Chandra Chattopadhyaya.

37. However, Indian society is changing, and this change has been reflected and recognized by Parliament by enacting The Protection of Women from Domestic Violence Act, 2005.

38. Coming back to the facts of the present case, we are of the opinion that the High Court and the learned Family Court Judge erred in law in holding that the appellant was not married to Lakshmi without even issuing notice to Lakshmi. Hence this finding has to be set aside and the matter remanded to the Family Court which may issue notice to Lakshmi and after hearing her give a fresh finding in accordance with law. The question whether the appellant was married to the respondent or not can, of course, be decided only after the aforesaid finding.

39. There is also no finding in the judgment of the learned Family Court Judge on the question whether the appellant and respondent had lived together for a reasonably long period of time in a relationship which was in the nature of marriage. In our opinion such findings were essential to decide this case. Hence we set aside the impugned judgment of the High Court and Family Court Judge, Coimbatore and remand the matter to the Family Court Judge to decide the matter afresh in accordance with law and in the light of the observations made above. Appeals allowed.

....................................J.

(MARKANDEY KATJU)

.....................................J.

(T. S. THAKUR)

NEW DELHI;

21st OCTOBER, 2010

A social behaviour without intention may be offence of abetment- SC of India Judgment

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 681 OF 2003

Dammu Sreenu                              Versus                    State of A.P.                                                

JUDGMENT By-Dr. Mukundakam Sharma, J.
1. The appellant herein filed the present appeal seeking for his acquittal from the order of conviction under Section 306 of the Indian Penal Code (hereinafter referred to as `the IPC') whereby he was sentenced to undergo rigorous imprisonment for three years.

2. The appellant herein allegedly had illicit relationship with the wife of the deceased Bitra Nagarjuna Rao. The wife of the deceased was also made a co-accused in the same offence under Section 306 IPC and she was convicted for the aforesaid offence and was sentenced initially to undergo rigorous imprisonment for a period of three years which, however, later on was altered to one year of rigorous imprisonment by the High Court of Andhra Pradesh. The said sentence of one year has been served out by Accused No. 2, the wife of the deceased Bitra Nagarjuna Rao.

3. The prosecution has alleged in its case that the present appellant had developed an illicit intimacy with Accused No. 2, who was the wife of the deceased Bitra Nagarjuna Rao. On the night of 31.12.1995, accused No. 2, the wife of the deceased went out of her house and returned to her matrimonial home only on the next day. The deceased, Bitra Nagarjuna Rao was unhappy with the aforesaid conduct and so, naturally questioned her about her behaviour because of which there was a quarrel between the two. Being disturbed and perturbed on account of the behaviour of his wife (Accused No. 2), the deceased, Bitra Nagarjuna Rao called the father of Accused No. 2 and asked him to take her away so as to give her proper counselling. Accordingly, she was taken away by her father. On the same day the present appellant (Accused No. 1) came to the house of the deceased and when he was questioned by the inmates of the house of the deceased, he stated that he had illicit relations with the wife of the deceased and that he would keep coming to the house of the deceased so long she does not object to the same. When he was told that Accused No. 2 had gone with her father, Accused No. 1 went to the house of the brother of Accused No. 2 and took her away despite the protest of PW-5, brother of Accused No. 2, in whose house his father kept her. The appellant took her away and brought her back to the house of her brother only after 4 days and to her parents' house on 06.01.1996.

4. Having come to know about the aforesaid incident, the deceased felt humiliated and insulted. He committed suicide by hanging himself in the intervening night of 7th and 8th January, 1996. It is also to be noted, at this stage, that prior to his suicide, the deceased, Bitra Nagarjuna Rao expressed before his brother that it would be better to die as he felt very much insulted and humiliated. The deceased having committed suicide, his brother gave a report to the police which was registered as a case under Section 174 of Criminal Procedure Code, 1973 (for short `the CrPC') which was, during the course of investigation, altered to a case of Section 306 IPC.

5. The police after investigation submitted a charge-sheet against the accused. The accused, however, denied the charge. Accordingly, he was tried under the aforesaid charges. During the course of trial the prosecution examined as many as 13 witnesses and the appellant-accused was also examined under Section 313 of the CrPC wherein he denied his involvement in the offence.

6. The trial court appreciated the materials available on record and, thereafter, passed a judgment and order of conviction. He convicted the present appellant under Section 306 IPC and sentenced him to undergo rigorous imprisonment for a period of five years with a fine of Rs. 100/- in default to undergo simple imprisonment for one month. The trial court also convicted accused No. 2, i.e. wife of the deceased, under Section 306 IPC and sentenced her to undergo rigorous imprisonment for a period of    five years.

7. Being aggrieved by the aforesaid judgment and order of conviction and sentence the appellant as also the wife of the deceased filed a common criminal appeal in the court of IInd Additional Sessions Judge, Guntur which was registered as Criminal Appeal No. 32 of 1998. The said appeal was allowed in part and the conviction and sentence awarded by the trial court was altered and reduced by the learned Additional Sessions Judge to 3 years simple imprisonment.

8. In revision the High Court maintained the order of conviction against the accused-appellant but altered the sentence of Accused No. 2, i.e. the wife of the deceased to one year imprisonment which she has already undergone.

9. Now this appeal is, therefore, filed only by appellant No. 1, who was convicted and ordered to undergo simple imprisonment for three years. An order to release appellant No. 1 on bail was passed pursuant to which Accused No. 1 is on bail. The appeal was listed before us for hearing during the course of which we heard the learned counsel appearing for the parties and were also taken through the records.

10.According to the learned counsel appearing for the appellant, ingredients of abetment are totally absent as envisaged under Section 306 IPC read with Section 107 of the IPC and, therefore, Accused No. 1 is liable to be acquitted. It was submitted by him that on a proper interpretation of the facts as also the provisions of Section 306 IPC it cannot be said that the appellant herein was in any manner responsible for abetting the suicide committed by the deceased which was an independent act of the deceased. It was also submitted by him that the appellant did not in any manner substantially assisted the deceased in committing the offence of suicide and since there was no such participation of the appellant in abetting the offence of suicide, the conviction and sentence under Section 306 IPC is required to be set aside and quashed.

11.The aforesaid submissions were, however, refuted by learned counsel appearing for the State contending inter alia that there is a concurrent find of facts by three courts below finding the appellant guilty of the offence under Section 306 IPC and, therefore, the said findings cannot be said to be in any manner as untenable or unjustified. 12.The fact that the appellant had illicit relationship with Accused No. 2, who was the wife of the deceased, is an admitted position for which there was no cross-examination on the point which was clearly stated by PW-5, who is the brother of Accused No. 2, in his statement on 2.1.1996 which is reproduced herein below :

            "On 2-1-1996 my father brought A2 to my house at Tsunduru and he informed that she is having illicit contact with A1 to change her behaviour brought her to my house to keep some time. On the same day evening A1 came to my house and took away A2. Some discussion take place between myself and A1 regarding coming to my house. Due to fear, I could not resist for taking away A2."

13. We have carefully examined the aforesaid statement of PW-5 and on perusal of the statement we do not find that any suggestion was made to the said PW-5 that there did not exist an illicit relationship between Accused No. 1 and Accused No. 2. Besides, the close relatives of the deceased who were also examined as witnesses had categorically stated in their statements that on coming to know of the fact that Accused No. 1 has taken Accused No. 2 from the house of PW-5 and left her only on 06.01.1996 at her parents house, the deceased stated before the said inmates of his house that because of the said insult and humiliation he does not like to live. It is also proved that immediately thereafter in the night   intervening 7th and 8th of January, 1996 the deceased committed suicide. The aforesaid fact leads to only one conclusion that it is on account of humiliation and insult due to the behaviour and conduct of Accused No. 1 and Accused No. 2 that he proceeded to commit the suicide.

14.The facts which are disclosed from the evidence on record clearly establish that Accused No. 1 had illicit relationship with Accused No. 2 who is the wife of the deceased. It is also not in dispute that Accused No. 1 was visiting the house of the deceased to meet Accused No. 2 and that he even went to the house of deceased when he came to know that the wife of the deceased was sent with her father for counselling and advise. He loudly stated that he would continue to have relationship with Accused No. 2 and would come to her house so long she does not object to the same. He also took her away from the house of PW-5, her brother and kept her with him for 4 days. Immediately after the said incident the deceased committed the suicide. Therefore, there is definitely a proximity and nexus between the conduct and behaviour of Accused No. 1 and Accused No. 2 with that of the suicide committed by the deceased.         Besides, there is clear and unambiguous findings of fact of three courts that the appellant is guilty of   the offence under Section 306 of IPC. Such findings do not call for any interference in our hand. This Court also does not generally embark upon reappreciation of evidence on facts which are found and held against the appellant.

15.Considering the entire facts and circumstances of the case we are, therefore, not inclined to interfere with the order of conviction as also the order of sentence passed against the accused-appellant. We uphold the order of the High Court and dismiss this appeal. The bail bond of the accused-appellant stands cancelled. He shall surrender forthwith to serve out the remaining period of the sentence.

                                                             .................................J.
                                                                (Dr. Mukundakam Sharma)
                                                              ................................J.
                                                                (Dr. B.S. Chauhan)

New Delhi,
May 28, 2009

Legal marriage is not necessary for offence under Sec. 304B & 498A

REPORTABLE JUDGMENT

                   IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION
                CRIMINAL APPEAL NO. 867 OF 2009
                 (Arising out of SLP (Crl.) No. 4496 of 2006)


Koppisetti Subbharao @ Subramaniam                       ...Appellant


                                   Versus


State of A.P.                                            ...Respondent

                              JUDGMENT

Dr. ARIJIT PASAYAT, J.

1     Leave granted.

2.    Challenge in this appeal is to the order passed by a learned Single
Judge of the Andhra Pradesh High Court dismissing the petition filed under
Section 482 of the Code of Criminal Procedure, 1973 (in short the `Code').
The prayer in the petition was to quash the proceedings in C.C.No. 440 of1999 and CC No.325 of 2001 on the file of 3rd Additional Judicial First Class
Magistrate, Kakinada.
3.    Background facts in a nutshell are as follows:
      A case was registered against three accused persons including the
present appellant for alleged commission      of offence punishable under
Section 498-A read with Section 34 of the Indian Penal Code, 1860 (in short
the `IPC'). Initially, the presence of A-1 could not be secured and therefore
court separated the case against A-1 and proceeded the trial against A-2 and
A-3. In the said case A-2 and A-3 were acquitted. Thereafter, the present
application was filed before the High Court taking the stand that the
complainant was not be the legally wedded wife of the appellant as he was
already married and, therefore, Section 498-A has no application to the facts
of the case.

      The High Court dismissed the application on the ground that disputed
questions of fact are involved.
                            
4.    Learned counsel for the appellant submitted that in view of the
acquittal of the co-accused persons the proceedings against the appellant
should not proceed.

5.    Learned counsel for the respondent-State on the other hand submitted
that whether there was valid legal marriage subsisting qua the appellant is a
question of fact and, therefore, the High Court was justified in dismissing
the application under Section 482 of Code.

6.    Parties to a marriage tying nuptial knot are supposed to bring about
the union of souls. It creates a new relationship of love, affection, care and
concern between the husband and wife. According to Hindu Vedic
philosophy it is sanskar - a sacrament; one of the sixteen important
sacraments essential to be taken during one's lifetime. There may be
physical union as a result of marriage for procreation to perpetuate the lineal
progeny for ensuring spiritual salvation and performance of religious rites,
but what is essentially contemplated is union of two souls. Marriage is
considered to be a junction of three important duties i.e. social, religious and
spiritual. A question of intricate complexity arises in this appeal where
factual scenario has to be also considered.

 7.    Stand of the appellant was that it was required to be shown that the
victim-woman was the legally married wife of the accused. Since victim
claim to have married during the lifetime of the appellant, prosecution has
failed to establish that it stood dissolved legally. Prosecution having failed to
bring any material record in that regard, Section 498-A has no application.

8.    The marriages contracted between Hindus are now statutorily made
monogamous. A sanctity has been attributed to the first marriage as being
that which was contracted from a sense of duty and not merely for personal
gratification. When the fact of celebration of marriage is established it will
be presumed in the absence of evidence to the contrary that all the rites and
ceremonies to constitute a valid marriage have been gone through. As was
said as long as 1869 "when once you get to this, namely, that there was a
marriage in fact, there would be a presumption in favour of there being a
marriage in law". (See Inderun Valungypooly v. Ramaswamy (1869 (13)
MIA 141.) So also where a man and woman have been proved to have lived
together as husband and wife, the law will presume, until contrary be clearly
proved, that they were living together in consequence of a valid marriage
and not in a state of concubinage. (See Sastry Velaider v. Sembicutty (1881
(6) AC 364) following De Thoren v. Attorney General (1876 (1) AC 686)
and Piers v. Piers (L.R.(2) H.L.C. 331). Where a marriage is accepted as                                
valid by relations, friends and others for a long time it cannot be declared as
invalid. In Lokhande's case (supra), it was observed by this Court "The
bare fact that man and woman live as husband and wife it does not at any
rate normally give them the status of husband and wife even though they
may hold themselves before the society as husband and wife and the society
treats them as husband and wife". These observations were cited with
approval in Surjit Kaur v. Garja Singh and Ors. (AIR 1994 SC 135). At first
blush, it would seem that these observations run counter to the long catena
of decisions noted above. But on closer examination of the facts of those
cases it is clear that this Court did not differ from the views expressed in the
earlier cases. In Lokhande's case (supra), this Court was dealing with a case
of prosecution for bigamy. The prosecution had contended that second
marriage was gandharva form of marriage and no ceremonies were
necessary and, therefore, did not allege or prove that any customary
ceremonies were performed. In that background, it was held that even in the
case of gandharva marriages, ceremonies were required to be performed. To
constitute bigamy under Section 494 IPC, the second marriage had to be a
valid marriage duly solemnized and as it was not so solemnized it was not a
marriage at all in the eye of law and was therefore invalid. The essential
ingredient constituting the offence of Bigamy is the "marrying" again during
the lifetime of husband or wife in contrast to the ingredients of Section 498A
which, among other things, envisage subjecting the woman concerned to
cruelty. The thrust is mainly "marrying" in Section 494 IPC as against
subjecting of the woman to cruelty in Section 498A. Likewise, the thrust of
the offence under Section 304B is also the "Dowry Death". Consequently,
the evil sought to be curbed are distinct and separate from the persons
committing the offending acts and there could be no impediment in law to
liberally construe the words or expressions relating to the persons
committing the offence so as to rope in not only those validly married but
also any one who has undergone some or other form of marriage and thereby
assumed for himself the position of husband to live, cohabitate and exercise
authority as such husband over another woman. In Surjit Singh's case
(supra) the stand was that the marriage was in Karewa form. This Court held
that under the custom of Karewa marriage, the widow could marry the
brother or a relation of the husband. But in that case the man was a stranger.
Further even under that form of marriage certain ceremonies were required
to be performed which were not proved. Dealing with the contention relating
to presumption, reference was made to Lokhande's case (supra). As the
parties had set up a particular form of marriage which turned out to be
invalid due to absence of proof of having undergone the necessary
ceremonies related to such form of marriage, the presumption of long
cohabitation could not be invoked.

9.    The presumption may not be available in a case, for example, where
the man was already married or there was any insurmountable obstacle to
the marriage, but presumption arises if there is strong evidence by
documents and conduct. Above position has been highlighted in Mayne's
Hindu Law and Usage.

10.   The question as to who would be covered by the expression `husband'
for attracting Section 498A does present problems. Etymologically, in terms
of the definition of "husband" and "marriage" as given in the various Law
Lexicons and dictionaries - the existence of a valid marriage may appear to
be a sine qua non for applying a penal provision. In Smt. Yamunabai
Anantrao Adhav v. Anantrao Shivram Adhav and Anr. (AIR 1988 SC 644) a
woman claimed maintenance under Section 125 of the Code of Criminal
Procedure, 1973 (in short the `Cr.P.C.'). This Court applied the provision of
the Marriage Act and pointed out that same was a law which held the field
after 1955, when it was enacted and Section 5 lays down that for a lawful
marriage the necessary condition that neither party should have a spouse
living at the time of the marriage is essential and marriage in contravention
of this condition therefore is null and void. The concept of marriage to
constitute the relationship of `husband' and `wife' may require strict
interpretation where claims for civil rights, right to property etc. may follow
or flow and a liberal approach and different perception cannot be an
anatheme when the question of curbing a social evil is concerned.
11.   The question of origin of dowry or dos has been the subject of study
by theoreticians. Mayne says that it was a contribution by the wife's family,
or by the wife herself, intended to assist the husband in bearing the expenses
of the conjugal household (Mayne on "Early History of Institution" page
319). While dos or dowry previously belonged to husband, his right over it
being unrestricted, all the property of the wife not included in the dowry was
called her "paraphra" and was her absolute property over which her husband
had no control. (See Banerjee on `Marriage and Stridhan' 345) In Pratibha
Rani v. Suraj Kumar and Anr. (AIR 1985 SC 628) after tracing out the
history of stridhan it was held that wife is the absolute owner of such
property under Section 27 of the Marriage Act. Property presented to the
husband and wife at or about the time of marriage belongs to them jointly.

12.   The Dowry Prohibition Act, 1961 (in short the `Dowry Act') was
introduced to combat the ever-increasing menace of dowry. The avowed
object is prohibition on giving and taking of dowry. Section 2 defines
"dowry". Section 4 provides the penalty for demanding "dowry", whileSection 5 is a significant provision making agreement for giving or taking
dowry to be void. Section 6 is another provision which reflects statutory
concern for prevention of dowry, be it taking or giving. It is provided therein
that pending transfer of the dowry, the person who received the dowry holds
it in trust for benefit of the woman. Amendment to Section 2 by Amendment
Act 43 of 1986 has made the provision clear and demand made after the
marriage is a part of dowry, in view of addition of words "at or before or
after the marriage". (See State of H.P. v. Nikku Ram (AIR 1996 SC 67).

13.   The definition of the term `dowry' under Section 2 of the Dowry Act
shows that any property or valuable security given or "agreed to be given"
either directly or indirectly by one party to the marriage to the other party to
the marriage "at or before or after the marriage" as a "consideration for the
marriage of the said parties" would become `dowry' punishable under the
Dowry Act. Property or valuable security so as to constitute `dowry' within
the meaning of the Dowry Act must, therefore, be given or demanded "as
consideration for the marriage."

14.   Section 4 of the Dowry Act aims at discouraging the very "demand"
of "dowry" as a `consideration for the marriage' between the parties thereto
and lays down that if any person after the commencement of the Act,"demands", directly or indirectly, from the parents or guardians of a `bride'
or `bridegroom', as the case may be, any `dowry' he shall be punishable
with imprisonment or with fine or within both. Thus, it would be seen that
Section 4 makes punishable the very demand of property or valuable
security as a consideration for marriage, which demand, if satisfied, would
constitute the graver offence under Section 3 of the Act punishable with
higher imprisonment and with fine which shall not be less than fifteen
thousand rupees or the amount of the value of such dowry whichever is
more.

15.     The definition of the expression `dowry' contained in Section 2 of the
Dowry Act cannot be confined merely to be `demand' of money, property or
valuable security' made at or after the performance of marriage. The
legislature has in its wisdom while providing for the definition of `dowry'
emphasized that any money, property or valuable security given, as a
consideration for marriage, `before, at or after' the marriage would be
covered by the expression `dowry' and this definition as contained in
Section 2 has to be read wherever the expression `dowry' occurs in the Act.
Meaning of the expression `dowry' as commonly used and understood is
different than the peculiar definition thereof under the Act. Under Section 4,
mere demand of `dowry' is sufficient to bring home the offence to an
accused. Thus, any `demand' of money, property or valuable security made
from the bride or her parents or other relatives by the bridegroom or his
parents or other relatives or vice-versa would fall within the mischief of
`dowry' under the Act where such demand is not properly referable to any
legally recognized claim and is relatable only to the consideration of
marriage. Marriage in this context would include a proposed marriage also
more particularly where the non-fulfilment of the "demand of dowry" leads
to the ugly consequence of the marriage not taking place at all.           The
expression "dowry" under the Dowry Act has to be interpreted in the sense
which the statute wishes to attribute to it. The definition given in the statute
is the determinative factor. The Dowry Act is a piece of social legislation
which aims to check the growing menace of the social evil of dowry and it
makes punishable not only the actual receiving of dowry but also the very
demand of dowry made before or at the time or after the marriage where
such demand is referable to the consideration of marriage. Dowry as a quid
pro quo for marriage is prohibited and not the giving of traditional presents
to the bride or the bridegroom by friends and relatives. Thus, voluntary
presents given at or before or after the marriage to the bride or the
bridegroom, as the case may be, of a traditional nature, which are given not
as a consideration for marriage but out of love, affection or regard, would
not fall within the mischief of the expression `dowry' made punishable
under the Dowry Act.

16.   Aryan Hindus recognised 8 forms of marriage, out of which four were
approved, namely, Brahma, Daiva, Arsha and Prajapatya. The dis-approved
forms of marriages were Gandharva, Asura, Rakshasa and Paisacha. In the
Brahma form of marriage, some amounts had to be spent by father/guardian,
as the case may be, to go ultimately to the spouses. The origin of dowry may
be traced to this amount either in cash or kind.

17.   The concept of "dowry" is intermittently linked with a marriage and
the provisions of the Dowry Act apply in relation to marriages. If the legality
of the marriage itself is an issue further legalistic problems do arise. If the
validity of the marriage itself is under legal scrutiny, the demand of dowry in
respect of an invalid marriage would be legally not recognizable. Even then
the purpose for which Sections 498A and 304B-IPC and Section 113B of the
Indian Evidence Act, 1872 (for short the `Evidence Act') were introduced
cannot be lost sight of. Legislations enacted with some policy to curb and
alleviate some public evil rampant in society and effectuate a definite public
purpose or benefit positively requires to be interpreted with certain element
of realism too and not merely pedantically or hyper technically. The obvious
objective was to prevent harassment to a woman who enters into a marital
relationship with a person and later on, becomes a victim of the greed for
money. Can a person who enters into a marital arrangement be allowed to
take a shelter behind a smokescreen to contend that since there was no valid
marriage the question of dowry does not arise? Such legalistic niceties
would destroy the purpose of the provisions. Such hairsplitting legalistic
approach would encourage harassment to a woman over demand of money.
The nomenclature `dowry' does not have any magic charm written over it. It
is just a label given to demand of money in relation to marital relationship.
The legislative intent is clear from the fact that it is not only the husband but
also his relations who are covered by Section 498A. Legislature has taken
care of children born from invalid marriages. Section 16 of the Marriage Act
deals with legitimacy of children of void and voidable marriages. Can it be
said that legislature which was conscious of the social stigma attached to
children of void and voidable marriages closed eyes to plight of a woman
who unknowingly or unconscious of the legal consequences entered into the
marital relationship. If such restricted meaning is given, it would not further
the legislative intent. On the contrary, it would be against the concern shown
by the legislature for avoiding harassment to a woman over demand of
money in relation to marriages. The first exception to Section 494 has also
some relevance. According to it, the offence of bigamy will not apply to
"any person whose marriage with such husband or wife has been declared
void by a Court of competent jurisdiction". It would be appropriate to
construe the expression `husband' to cover a person who enters into marital
relationship and under the colour of such proclaimed or feigned status of
husband subjects the woman concerned to cruelty or coerce her in any
manner or for any of the purposes enumerated in the relevant provisions -
Sections 304B/498A, whatever be the legitimacy of the marriage itself for
the limited purpose of Sections 498A and 304B IPC. Such an interpretation,
known and recognized as purposive construction has to come into play in a
case of this nature. The absence of a definition of `husband' to specifically
include such persons who contract marriages ostensibly and cohabitate with
such woman, in the purported exercise of his role and status as `husband' is
no ground to exclude them from the purview of Section 304B or 498A IPC,
viewed in the context of the very object and aim of the legislations
introducing those provisions.

18.   In Chief Justice of A.P. v. L.V.A. Dixitulu (1979 (2) SCC 34), this
Court observed:

             "The primary principle of interpretation is that a
             constitutional or statutory provision should be construed
             "according to the intent of they that made it" (Coke).              Normally, such intent is gathered from the language of
              the provision. If the language or the phraseology
              employed by the legislation is precise and plain and thus
              by itself proclaims the legislative intent in unequivocal
              terms, the same must be given effect to, regardless of
              the consequences that may follow. But if the words used
              in the provision are imprecise, protean or evocative or
              can reasonably bear meanings more than one, the rule of
              strict grammatical construction ceases to be a sure guide
              to reach at the real legislative intent. In such a case, in
              order to ascertain the true meaning of the terms and
              phrases employed, it is legitimate for the Court to go
              beyond the arid literal confines of the provision and to
              call in aid other well-recognised rules of construction,
              such as its legislative history, the basic scheme and
              framework of the statute as a whole, each portion
              throwing light, on the rest, the purpose of the
              legislation, the object sought to be achieved, and the
              consequences that may flow from the adoption of one in
              preference to the other possible interpretation.

19.   In Kehar Singh v. State (Delhi Admn.) (AIR 1988 SC 1883), this
Court held:

              "....But, if the words are ambiguous, uncertain or any
              doubt arises as to the terms employed, we deem it as out
              paramount duty to put upon the language of the
              legislature rational meaning. We then examine every
              word, every section and every provision. We examine
              the Act as a whole. We examine the necessity which
              gave rise to the Act. We look at the mischiefs which the
              legislature intended to redress. We look at the whole
              situation and not just one-to-one relation. We will not
              consider any provision out of the framework of the
              statute. We will not view the provisions as abstract
              principles separated from the motive force behind. We
              will consider the provisions in the circumstances to              which they owe their origin. We will consider the
              provisions to ensure coherence and consistency within
              the law as a whole and to avoid undesirable
              consequences.

20.   In District Mining Officer v. Tata Iron & Steel Co. (JT 2001 (6) SC
183), this Court stated:

              "The legislation is primarily directed to the problems
              before the legislature based on information derived from
              past and present experience. It may also be designed by
              use of general words to cover similar problems arising
              in future. But, from the very nature of thing, it is
              impossible to anticipate fully in the varied situations
              arising in future in which the application of the
              legislation in hand may be called for the words chosen
              to communicate such indefinite referents are bound to
              be in many cases, lacking in charity and precision and
              thus giving rise to controversial questions of
              construction. The process of construction combines both
              literal and purposive approaches. In other words, the
              legislative intention i.e. the true or legal meaning of an
              enactment is derived by considering the meaning of the
              words used in the enactment in the light of any
              discernible purpose or object which comprehends the
              mischief and its remedy to which the enactment is
              directed".

21.   The suppression of mischief rule made immortal in Heydon's case (3
Co Rep 7a 76 ER 637) can be pressed into service. With a view to suppress
the mischief which would have surfaced had the literal rule been allowed to
cover the field, the Heydon's Rule has been applied by this Court in a
number of cases, e.g. Bengal Immunity Co. Ltd., v. State of Bihar and Ors.
(AIR 1955 SC 661), Goodyear India Ltd. v. State of Haryana and Anr. (AIR
1990 SC 781), P.E.K. Kalliani Amma and Ors. v. K. Devi and Ors. (AIR
1996 SC 1963) and Ameer Trading Corporation Ltd., v. Shapporji Data
Processing Ltd. (2003 (8) Supreme 634).

22.   In Reserve Bank of India etc. etc. v. Peerless General Finance and
Investment Co. Ltd. and others etc. etc. (1987 (1) SCC 424) while dealing
with the question of interpretation of a statute, this Court observed:

                    "Interpretation must depend on the text and the
             context. They are the bases of interpretation. One may
             well say if the text is the texture, context is what gives
             the colour. Neither can be ignored. Both are important.
             That interpretation is best which makes the textual
             interpretation match the contextual. A statue is best
             interpreted when we know why it was enacted. With
             this knowledge, the statute must be read, first as a whole
             and then section by section, clause by clause, phrase by
             phrase and word by word. If a statute is looked at in the
             context of its enactment, with the glasses of the statute-
             maker, provided by such context, its scheme, the
             sections, clauses, phrases and words may take colour
             and appear different than when the statute is looked at
             without the glasses provided by the context. With these
             glasses we must look at the Act as a whole and discover
             what each section, each clause, each phrase and each
             word is meant and designed to say as to fit into the
             scheme of the entire Act. No part of a statute and no
             word of a statute can be construed in isolation. Statutes             have to be construed so that every word has a place and
             everything is in its place."

23.   In Seaford Court Estates Ltd. v. Asher (1949) 2 All ER 155 (CA),
Lord Denning, advised a purposive approach to the interpretation of a word
used in a statute and observed:

                     "The English language is not an instrument of
             mathematical precision. Our literature would be much
             the poorer if it were. This is where the draftsmen of
             Acts of Parliament have often been unfairly criticised. A
             Judge, believing himself to be fettered by the supposed
             rule that he must look to the language and nothing else,
             laments that the draftsmen have not provided for this or
             that, or have been guilty of some or other ambiguity. It
             would certainly save the Judges trouble if Acts of
             Parliament were drafted with divine prescience and
             perfect clarity. In the absence of it, when a defect
             appears, a Judge cannot simply fold his hands and
             blame the draftsman. He must set to work on the
             constructive task of finding the intention of Parliament,
             and he must do this not only from the language of the
             statute, but also from a consideration of the social
             conditions which gave rise to it and of the mischief
             which it was passed to remedy, and then he must
             supplement the written word so as to give `force and
             life' to the intention of the legislature......A Judge should
             ask himself the question how, if the makers of the Act
             had themselves come across this ruck in this texture of
             it, they would have straightened it out? He must then do
             so as they would have doe. A Judge must not alter the
             material of which the Act is woven, but he can and
             should iron out the creases."

24.      These aspects were highlighted by this Court in S. Gopal Reddy v.
State of A.P. (1996 (4) SCC 596) and Reema Aggarwal v. Anupam (2004
(3) SCC 199.

25.      The High Court was justified in holding that disputed questions of fact
are involved and the application under Section 482 of Code has been rightly
rejected. We do not find any scope for interference with the order of the
High Court. However, we make it clear that we have not expressed any
opinion on the merits of the case.

26.      The appeal is dismissed.

                                            ........................................J.
                                            (Dr. ARIJIT PASAYAT)

                                            ........................................J.
                                            (ASOK KUMAR GANGULY)

      New Delhi,
      April 29, 2009