Indra Sarma v. V.K.V. Sarma

A woman lived for years with a married man who had two children. When he left without maintaining her, she claimed protection under the Protection of Women from Domestic Violence Act, 2005. The Supreme Court had to decide whether such a live-in relationship is a relationship in the nature of marriage.

Quick Revision

Read the full judgment: Supreme Court of India (sci.gov.in)

Parties

Indra Sarma — appellant; an unmarried woman aged 33 when the relationship began. She claimed reliefs under the DV Act against the respondent.

V.K.V. Sarma — respondent; a married man with two children, working as Personal Officer in a private company. He denied that the relationship was in the nature of marriage.

Amicus curiae — Ms. Jyotika Kalra, amicus curiae who assisted the Court (para 10).

Procedural History

1. The appellant filed Criminal Misc. No. 692 of 2007 under Section 12 of the DV Act before the III Additional Chief Metropolitan Magistrate, Bangalore. She sought protection, residence, monetary, compensation and interim orders (para 5).
2. The Magistrate found the parties had lived together for about 18 years. He held that non-maintenance was domestic violence. By order dated 21.7.2009 he directed the respondent to pay Rs.18,000 per month from the date of the petition (para 6).
3. The respondent appealed to the Sessions Court under Section 29 of the DV Act. The Sessions Court confirmed the order (para 7).
4. The respondent appealed to the High Court. The High Court held the relationship was not a relationship in the nature of marriage. It held the tests in D. Velusamy v. D. Patchaiammal were not satisfied and set aside the orders of the courts below (para 8).
5. The appellant appealed to the Supreme Court. Leave was granted.

Facts

1. The appellant and respondent worked together in a private company. The respondent, a Personal Officer, was married with two children. The appellant, aged 33, was unmarried (para 4).
2. In 1992 the appellant left the company. She began living with the respondent in a shared household (para 4).
3. Her father, brother and sister opposed the relationship. So did the respondent's wife (para 4).
4. The appellant said the respondent started a business in her name and both earned from it. Later he moved the business to his residence and ran it with his son. She said this deprived her of work and earnings (para 4).
5. She became pregnant three times. All three pregnancies ended in abortion. She said the respondent forced her to use contraception (para 4).
6. She said the respondent took Rs.1,00,000 from her to buy land in her name, but did not buy it. She said he also took money to start a beauty parlour for his wife (para 4).
7. She said that in 2006 the respondent took a loan of Rs.2,50,000 from her and did not return it (para 4).
8. She said the respondent harassed her in several ways (para 4):
   • he did not present her publicly as his wife;
   • he did not let her use his name as a suffix;
   • he never took her to relatives, friends or functions;
   • he never accompanied her to hospital; and
   • he never opened a joint bank account or executed documents with her.
9. His family kept opposing the relationship and forced him to leave her. She said he left without maintaining her (para 4).
10. The appellant sought these reliefs under the DV Act (para 5):
    • a protection order under Section 18, including a bar on alienating assets;
    • a residence order under Section 19 and maintenance of Rs.25,000 per month, or permanent maintenance at that rate for life;
    • a monetary order under Section 20 for Rs.75,000 towards operation, medication, tests and follow-up treatment;
    • compensation of Rs.3,50,000 under Section 22 for misuse of her sister's funds, mental torture and emotional distress; and
    • an ex-parte interim order under Section 23 for Rs.75,000 medical expenses and Rs.25,000 per month.
11. The respondent said he gave her shelter in a separate house out of sympathy. He said her parents and relatives had abandoned her after her father's death (para 6).
12. He said she had litigation against her sister over her father's property. She approached him for moral and monetary support because they worked together (para 6).
13. He admitted he cohabited with her since 1993. He said she knew he was married with two children (para 6).
14. He said the pregnancies were terminated with her and her brother's consent because her health was poor. He said he spent large amounts on her treatment and denied taking money from her (para 6).
15. In April 2007 he sent a cheque for Rs.2,50,000 for her medical expenses, drawn in her sister's name. It was encashed (para 6).
16. He said the application was filed to get more money and to tarnish his image (para 6).
17. The appellant examined herself as P.W.1. The respondent examined himself as R.W.1. A Child Development Project Officer was examined as R.W.2 (para 6).
18. In the High Court the respondent relied on D. Velusamy v. D. Patchaiammal (2010) 10 SCC 469. He said the appellant knew he was married and had two children, and continued despite opposition from his wife and her parents (para 8).

Issues Raised

1. Is a live-in relationship a relationship in the nature of marriage? The test is the definition of domestic relationship in Section 2(f) of the DV Act. (para 3)
2. Does the disruption of such a relationship by failure to maintain the woman amount to domestic violence under Section 3 of the DV Act? (paras 3, 12)
3. Does the non-maintenance of the appellant in a broken live-in relationship, said not to be in the nature of marriage, enable her to seek reliefs under Section 12? (para 12)
4. Was the appellant's relationship with the respondent, a man she knew to be married, a relationship in the nature of marriage? (paras 22, 37(b), 39)

Arguments Contended

For the appellant (Shri Anish Kumar Gupta):

• The relationship continued from 1992 to 2006. Since then the respondent avoided her without maintaining her (para 9).
• It was a relationship in the nature of marriage under Section 2(f) of the DV Act. That provision takes in every relationship of a man with a woman sharing a household, whether or not the man is married (para 9).
• The tests in D. Velusamy v. D. Patchaiammal were also satisfied (para 9).

Amicus curiae (Ms. Jyotika Kalra):

• The Act protects the rights of women who are victims of violence of any type in the family. It gives effect to constitutional principles in Article 15(3), reinforced by Article 39 (para 10).
• She referred to the Malimath Committee report. A man who marries a second wife during the first marriage should not escape liability to maintain the second wife, even under Section 125 Cr.P.C. (para 10).
• She relied on Deoki Panjhiyara v. Shashi Bhushan Narayan Azad and Another (2013) 2 SCC 137 (para 10).

For the respondent (Mr. Nikhil Majithia):

• Counsel made extensive research available. He referred to judgments of the constitutional courts of South Africa, Australia, New Zealand and Canada, and to parallel legislation in other countries (para 11).
• The High Court correctly applied the principle in D. Velusamy v. D. Patchaiammal. On the facts the appellant could not show a relationship in the nature of marriage under Section 2(f) (para 11).
• The parties were not qualified to enter a legal marriage, and the appellant knew the respondent was married (para 11).
• She was not the victim of a fraudulent or bigamous marriage. It was a live-in relationship for mutual benefit. So there was no domestic violence under Section 3 and no claim to maintenance (para 11).

Court's Reasoning

The judgment is a single opinion by K.S. Radhakrishnan, J. Pinaki Chandra Ghose, J. signed it. Paragraph numbers follow the judgment's own numbering.

Opinion of the Court (Radhakrishnan, J., for the Bench)

1. Noted: "Live-in or marriage like relationship is neither a crime nor a sin though socially unacceptable in this country." The decision to marry, or to have a heterosexual relationship, is intensely personal. (para 2)
2. Noted: The Court framed the question. Is a live-in relationship a relationship in the nature of marriage within the meaning of domestic relationship in Section 2(f)? Is failure to maintain the woman in it domestic violence under Section 3? (para 3)
3. Noted: The Court recorded the facts. Both parties worked in a private company. The respondent was married with two children. The appellant was aged 33 and unmarried. She left her job in 1992 and began living with him. (para 4)
4. Noted: The Court recorded the reliefs sought under Sections 18, 19, 20, 22 and 23 of the DV Act. (para 5)
5. Noted: The Court recorded the respondent's answer, the evidence and the Magistrate's order of 21.7.2009 for Rs.18,000 per month. (para 6)
6. Noted: The Court recorded the Sessions Court appeal under Section 29. That court noted the respondent admitted the relationship for over 14 years. It held that non-maintenance after a long live-in relationship was domestic violence under Section 3. It found the appellant had no income and the respondent was legally obliged to maintain her. (para 7)
7. Noted: The Court recorded that the High Court applied D. Velusamy v. D. Patchaiammal. The High Court held the relationship did not fall within relationship in the nature of marriage. It set aside the orders. (para 8)
8. Noted: The Court recorded the appellant's submissions on the relationship from 1992 to 2006, on Section 2(f) and on the Velusamy tests. (para 9)
9. Noted: The Court recorded the amicus curiae's submissions on the DV Act, Articles 15(3) and 39, the Malimath Committee report, Section 125 Cr.P.C. and Deoki Panjhiyara. (para 10)
10. Noted: The Court recorded the respondent's submissions, including the foreign judgments and legislation and the point that the parties could not lawfully marry. (para 11)
11. Noted: The Court stated what it had to examine. Does non-maintenance in a broken live-in relationship, said not to be in the nature of marriage, amount to domestic violence enabling reliefs under Section 12? (para 12)
12. Noted: The issues have far-reaching consequences for the rights and liabilities of parties in live-in relationships. So the Court first examined the DV Act provisions and their impact on such relationships. (para 13)
13. Noted: The DV Act gives a remedy in civil law to protect women from domestic violence and to prevent it. It also protects the constitutional rights of women who suffer violence of any kind within the family. (para 14)
14. Noted: Domestic violence is a human rights issue. The Vienna Accord 1994 and the Beijing Declaration and Platform for Action (1995) acknowledged this. The UN CEDAW Committee urged member countries to protect women against family violence. (para 15)
15. Noted: Cruelty by a husband or his relatives was already punishable under Section 498A IPC. Civil law did not address the problem fully. So Parliament enacted the DV Act to protect rights under Articles 14, 15 and 21. (para 15)
16. Noted: Chapter IV is the heart of the DV Act. It gives a woman who is or has been in a domestic relationship with an adult male several reliefs under Section 12. (para 16)
17. Noted: Section 12 allows compensation or damages without prejudice to a civil suit, with set-off against any decree. (para 16)
18. Noted: Section 18 allows a protection order. It bars the respondent from these acts (para 16):
    • committing or aiding domestic violence;
    • entering the aggrieved person's place of employment, or a child's school;
    • communicating with her in any form;
    • alienating assets, bank accounts or lockers, including her stridhan, without the Magistrate's leave; and
    • causing violence to dependants, relatives or persons who help her.
19. Noted: Section 19 allows a residence order. The Magistrate may bar dispossession from the shared household. He may direct the respondent to remove himself, but not against a woman. He may bar alienation of the household. He may direct alternate accommodation or rent. (para 16)
20. Noted: Section 20 allows monetary relief for loss of earnings, medical expenses, property loss and maintenance. Maintenance may be under or in addition to Section 125 Cr.P.C. The relief must be adequate, fair and reasonable, and consistent with her accustomed standard of living. (para 16)
21. Noted: Section 21 allows temporary custody of children. Section 22 allows compensation and damages for injuries, including mental torture and emotional distress. (para 16)
22. Noted: Section 26 allows the reliefs in Sections 18 to 22 to be sought in a civil, family or criminal court proceeding. The woman must tell the Magistrate of any relief obtained elsewhere. (para 17)
23. Noted: Section 3 defines domestic violence. It covers acts that harm or endanger health, safety, life, limb or well-being. It includes physical, sexual, verbal and emotional abuse and economic abuse (denying a woman financial resources or property she is entitled to). It also covers harassment over dowry demands, threats and other harm. (para 18)
24. Noted: Explanation I to Section 3 defines the four kinds of abuse. Explanation II says the overall facts and circumstances must be considered. (para 18)
25. Noted: Section 2(a) defines aggrieved person (a woman in a domestic relationship with the respondent who alleges domestic violence). Section 2(f) defines domestic relationship. Section 2(q) defines respondent as an adult male. Its proviso lets a wife or a female in a relationship in the nature of marriage complain against the male partner's relatives. Section 2(s) defines shared household (a household where the aggrieved person lives or has lived in a domestic relationship). (para 19)
26. Noted: The relationship in issue is a live-in relationship, which the appellant says is in the nature of marriage. The respondent said it was a live-in relationship simpliciter and not domestic violence. (para 20)
27. Noted: Section 2(f) lists five kinds of relationship: consanguinity, marriage, relationship in the nature of marriage, adoption and joint family. Only the third is in issue. (para 21)
28. Noted: Before deciding whether the respondent committed domestic violence, the Court first asked whether the relationship was in the nature of marriage. For that it examined what marriage is in law. (para 22)
29. Noted: Marriage is a basic civil right, entered voluntarily and in public. The three elements of common law marriage are agreement to be married, living together as husband and wife, and holding out to the public that they are married. (para 23)
30. Noted: A shared household and the duty to live together are part of Consortium Omnis Vitae (the spouses' shared married life). Reciprocal support and maintenance of the household is a key consequence. Marriage carries legal formality, publicity, exclusivity and legal consequences such as inheritance. (para 23)
31. Noted: In India marriage takes place under the personal law of the parties' religion or under the Special Marriage Act. Common law treats it as a contract to live together and support each other. (para 24)
32. Noted: The Court summarised, in one line, the passage from O'Regan, J. in Dawood v. Minister of Home Affairs 2000 (3) SA 936 (CC). It says marriage and family are social institutions of vital importance, with private and public significance. (para 24)
33. Noted: South African Constitutional Court judgments recognised the right to marry and raise a family. The Court noted Section 15(3)(a)(i) and Section 9(3) of the South African Constitution. (para 25)
34. Noted: Article 23 of the ICCPR, 1966 says the family is the fundamental group unit, and protects the right of men and women to marry. It requires free and full consent and equality of rights in marriage. (para 26)
35. Noted: Article 16 of the Universal Declaration of Human Rights, 1948 protects the right of men and women of full age to marry and found a family. (para 27)
36. Noted: The parties are Hindus governed by the Hindu Marriage Act, 1955. The Act does not define marriage. Section 5 sets the conditions for a Hindu marriage (para 28):
    • neither party has a living spouse;
    • neither is incapable of valid consent or unfit for marriage by mental disorder or recurrent insanity;
    • the groom is 21 and the bride 18;
    • the parties are outside prohibited degrees, unless custom permits; and
    • the parties are not sapindas (related through a shared ancestor within the prohibited degrees), unless custom permits.
37. Noted: Section 7 of the Hindu Marriage Act allows marriage by customary rites. Where the rites include saptapadi (seven steps taken jointly before the sacred fire), the marriage is complete at the seventh step. (para 29)
38. Noted: Marriage under the Hindu Marriage Act, the Special Marriage Act or another personal law is a relationship of public significance. Courts worldwide treat marriage as a civil right. The Court cited Skinner v. Oklahoma 316 US 535 (1942), Perez v. Lippold 198 P.2d 17 (1948) and Loving v. Virginia 388 US 1 (1967). (para 30)
39. Held: The law distinguishes between married and unmarried people. This is not unfair, given the rights and obligations of a lawful marriage. A married couple must discharge these duties by law. Live-in, marriage-like or de facto partners need not. (para 31)
40. Noted: Married couples know the legal obligations that arise on solemnisation. Live-in partners do not undertake them. The Court cited Pinakin Mahipatray Rawal v. State of Gujarat (2013) 2 SCALE 198. It described marital relationship as the legally protected interest of one spouse in the other, including companionship, a common roof, children and support. (para 32)
41. Noted: Through the DV Act, modern Indian society recognises other forms of familial relations. Section 2(f) covers two persons who live or have lived together in a shared household, related by five categories. (para 33)
42. Held: The five categories in Section 2(f) are exhaustive. The Act uses means, not include. The Court held that "the definition is prima facie restrictive and exhaustive". (para 34)
43. Held: A relationship in the nature of marriage has some inherent or essential characteristics of marriage, though it is not a legally recognised marriage. The two must be compared to see if the relationship has the characteristics of a regular marriage. (para 35)
44. Held: Marriage continues despite differences and unrest, even without a shared household, since it rests on law. A live-in relationship is purely an arrangement between the parties. It ends when one party decides to leave. (para 36)
45. Held: The party asserting a relationship in the nature of marriage "must positively prove the existence of the identifying characteristics of that relationship". Why: the legislature used the words in the nature of. (para 36)
46. Noted: The Court gave illustrative categories of relationship between an aggrieved person and a respondent (para 37):
    • (a) an unmarried adult woman and an unmarried adult man who lived together in a shared household fall under Section 2(f), and any domestic violence falls under Section 3;
    • (b) an unmarried woman who knowingly enters a relationship with a married man: is it in the nature of marriage?;
    • (c) a married woman who knowingly enters a relationship with an unmarried man: is it in the nature of marriage?;
    • (d) an unmarried woman who unknowingly enters a relationship with a married man may fall within Section 2(f). It may be in the nature of marriage so far as she is concerned; and
    • (e) same-sex partners: the DV Act does not recognise such a relationship.
47. Noted: Several countries recognise same-sex couples in their domestic violence laws. The Court named four laws:
    • the Interpretation Act 1984 (Western Australia);
    • the Interpretation Act 1999 (New Zealand);
    • the Domestic Violence Act 1998 (South Africa); and
    • the Domestic Violence, Crime and Victims Act 2004 (U.K.).
    (para 37)
48. Held: Section 2(f) says two persons. But aggrieved person in Section 2(a) means only a woman. So the Act does not recognise a same-sex relationship. Any act or omission of such a partner does not amount to domestic violence under the Act. (para 38)
49. Held: Courts should take a common sense and balanced approach. They should weigh the factors in each relationship. The common intention of the parties, expressed or implied, about matters characteristic of marriage primarily governs it. (para 39)
50. Held: The expression cannot be read in the abstract. It must be read in context, keeping in mind the Act's purpose and the meaning of in the nature of marriage. (para 39)
51. Noted: Vulnerable women need attention. Their labour and emotional support in a joint household is often lost sight of, especially in categories (a) and (d). Women in categories (b) and (c) stand on a different footing. The appellant falls in category (b). (para 39)
52. Noted: The expression is undefined in the Act. So guiding principles have to be evolved to test whether a relationship falls within it. (para 40)
53. Noted: The expression is also described as a de facto relationship, marriage-like relationship, cohabitation, couple relationship or meretricious relationship (now called a committed intimate relationship). (para 41)
54. Noted: Courts and legislatures in many countries began to think that denying benefits because of marital status is unjust. Courts have extended some benefits to heterosexual unmarried cohabitants. Legislatures have started doing the same. (para 42)
55. Noted: In the U.K., the Civil Partnership Act, 2004 recognises same-sex couples. Chapter IV of the Family Law Act, 1996 lets cohabitants seek relief for domestic violence. Canada enacted the Domestic Violence Intervention Act, 2001. In the USA, the Violence Against Women Act, 1994 (now the 2013 Reauthorization Act) treats violence against women as a crime. (para 43)
56. Noted: Clause 13A of the Interpretation Act, 1984 (Western Australia) lists non-essential indicators of a de facto relationship. They include duration, common residence, a sexual relationship, financial dependence, property, mutual commitment, children and public reputation. (para 44)
57. Noted: Clause 18 of the Domestic and Family Violence Protection Act, 2012 (Queensland) lists factors for a couple relationship. They include trust, dependence, duration, contact, intimacy, joint property, joint accounts, sexual nature and exclusivity. A negative finding on any factor does not bar a couple relationship. Dating a few times is not enough. (para 45)
58. Noted: Clause 4 of the Property (Relationships) Act, 1984 (New South Wales) lists similar matters. It adds household duties. No single finding is necessary. The court gives such weight to each matter as seems appropriate. (para 46)
59. Noted: In Re Marriage of Lindsay 101 Wn.2d 299 (1984), Litham v. Hennessey 87 Wn.2d 550 (1976) and Pennington 93 Wash.App. at 917, US courts listed factors for a meretricious relationship. They are continuous cohabitation, duration, purpose and pooling of resources. A relationship need not be long term, but duration is significant. A short relationship needs many other factors. (para 47)
60. Noted: In Stack v. Dowden [2007] 2 AC 432, Baroness Hale said cohabitation comes in many shapes and sizes. Some couples reject marriage. Others regard themselves as good as married. (para 48)
61. Noted: In MW v. The Department of Community Services [2008] HCA 12, Gleeson, CJ said living together differs from living together as a couple in a relationship in the nature of marriage. Such relationships have become common, so it is now harder to infer marriage-like character. (para 49)
62. Noted: In Lynam v. The Director-General of Social Security (1983) 52 ALR 128, Fitzgerald, J. said each element draws its colour from the others. The composite picture matters. Isolating factors and giving them weight is likely to be wrong. It is a question of fact and degree. (para 50)
63. Noted: In Thompson v. Department of Social Welfare (1994) 2 SZLR 369 (HC), Tipping, J. listed ten characteristics. They include (para 51):
    • living in the same house;
    • a sexual relationship;
    • emotional support and companionship;
    • socialising together as a couple;
    • sharing responsibility for children;
    • sharing household tasks;
    • sharing costs and pooling resources;
    • running a common household;
    • going on holiday together; and
    • being treated by others as a married couple.
64. Noted: Live-in relationship is not socially accepted in India, unlike many other countries. In Lata Singh v. State of U.P. AIR 2006 SC 2522 the Court said such a relationship between consenting adults is not an offence, though it may be seen as immoral. The DV Act was enacted, for the first time, to give a civil remedy to women in relationships in the nature of marriage. (para 52)
65. Noted: Other laws help women in vulnerable situations. Section 125 Cr.P.C. gives maintenance to a destitute wife. Section 498A IPC covers mental cruelty. Section 304-B IPC covers dowry death. The Dowry Prohibition Act, 1961 covers dowry demands. The Hindu Adoptions and Maintenance Act, 1956 gives maintenance to a wife. The Hindu Marriage Act, 1955 covers marriage and divorce. (para 53)
66. Held: Through the DV Act, Parliament for the first time recognised a relationship in the nature of marriage, and not a live-in relationship simpliciter. (para 53)
67. Held: The entire relationship must be closely analysed and all facets of it taken into account. Individual factors cannot be isolated. It is a question of fact and degree whether a relationship meets the tests. (para 54)
68. Held: The Court culled out guidelines to test when a live-in relationship falls within Section 2(f). They are not exhaustive. (para 55)
69. Held: Guideline (1), duration of the relationship. Section 2(f) uses at any point of time. This means a reasonable period to maintain and continue a relationship. It varies from case to case. (para 55)
70. Held: Guideline (2), shared household. It is defined in Section 2(s) and needs no further elaboration. (para 55)
71. Held: Guideline (3), pooling of resources and financial arrangements. Examples are financial support, joint bank accounts, immovable property in joint names or in the woman's name, long-term business investments and shares. These may be a guiding factor. (para 55)
72. Held: Guideline (4), domestic arrangements. Entrusting the woman with running the home, such as cleaning, cooking and upkeep, indicates a relationship in the nature of marriage. (para 55)
73. Held: Guideline (5), sexual relationship. A marriage-like relationship involves sexual relations not just for pleasure. It involves emotional and intimate ties, procreation, support, companionship and affection. (para 55)
74. Held: Guideline (6), children. Having children is a strong indication of a relationship in the nature of marriage. So is sharing responsibility for bringing them up and supporting them. (para 55)
75. Held: Guideline (7), socialisation in public. Holding out to the public and socialising as husband and wife is a strong circumstance. (para 55)
76. Held: Guideline (8), intention and conduct of the parties. Their common intention about the relationship and their roles and responsibilities primarily determines its nature. (para 55)
77. Held: The appellant entered the relationship knowing the respondent was married with a wife and two children. So the presumption of marriage from Andrahennedige Dinohamy v. Wiketunge Liyanapatabendage Balshamy AIR 1927 PC 185 does not apply. That presumption arises when a man and woman are proved to have lived together as husband and wife. (para 56)
78. Held: The relationship was not in the nature of marriage. The appellant's status was that of a concubine (as used here: a woman who knowingly lives with a married man). Such a relationship lacks exclusivity and is not monogamous. (para 56)
79. Noted: The Court referred to Badri Prasad v. Director of Consolidation 1978 (3) SCC 527 and Tulsa v. Durghatiya 2008 (4) SCC 520. (para 56)
80. Noted: In Gokal Chand v. Parvin Kumari AIR 1952 SC 231, the Court held that long cohabitation may raise a presumption of marriage. That presumption is rebuttable. Circumstances that weaken it cannot be ignored. (para 56)
81. Held: Bigamy (marrying while already married), polygamy or an adulterous relationship cannot be a relationship in the nature of marriage. (para 56)
82. Held: There is no need to rebut the presumption here. The appellant knew the respondent was married before the relationship began. Her status is that of a concubine or mistress, who cannot enter a relationship in the nature of marriage. (para 57)
83. Noted: A long relationship as a concubine may deserve protection, as the woman may not be financially independent. But "DV Act does not take care of such relationships". This may call for amending the restrictive and exhaustive definition in Section 2(f). (para 57)
84. Noted: The Court read D. Velusamy v. D. Patchaiammal as recording that many married men support such women for sexual pleasure or emotional support. The woman suffers social disadvantage and prejudice. She suffers social ostracism through denial of status and benefits. She cannot enter a relationship in the nature of marriage. (para 58)
85. Noted: Inequities exist in such relationships, and the woman is usually the sufferer when they break down. The law of constructive trust (a doctrine that recognises contributions, both money and non-money) may help her. (para 59)
86. Noted: "Unfortunately, there is no express statutory provision to regulate such types of live-in relationships upon termination or disruption". Disputes may also arise on children or when a party dies intestate (without a will). (para 59)
87. Noted: American Jurisprudence, Second Edition, Vol. 24 (2008) says courts recognise property rights of unmarried cohabitants. These rights do not rest on the marriage and divorce laws. Otherwise the state's policy to preserve marriage would be violated. (para 60)
88. Noted: Such relationships may last long and create dependency and vulnerability. They call for protection of the woman and children. Legislature cannot promote pre-marital sex, though such relationships are personal. The Court referred to S. Khushboo v. Kanniammal (2010) 5 SCC 600. (para 61)
89. Noted: Parliament has to consider proper legislation or an amendment of the Act. It should protect women and children born of such relationships, though they are not in the nature of marriage. (para 62)
90. Held: The Court applied the guidelines to the facts. The appellant knew the respondent was married with a wife and two children. She was a party to an adulterous and bigamous relationship. (para 63)
91. Held: The respondent's wife, and the appellant's parents, brother and sister, opposed the relationship. They knew the parties could not marry or maintain a relationship in the nature of marriage. (para 63)
92. Held: On the guidelines, the appellant failed to show these things (para 63):
    • the parties never intended to rear children, and three pregnancies were terminated;
    • no evidence of mutual support and companionship;
    • no evidence they presented themselves as husband and wife, and by her own case he never held her out as his wife;
    • no evidence of socialising in public;
    • no pooling of resources or financial arrangements, and no joint account or joint document; and
    • he never allowed her to use his name as a suffix.
93. Held: There was no evidence that the respondent harmed her health, safety, life, limb or well-being, or caused physical or sexual abuse. The only complaint was that he did not maintain her or continue the relationship. (para 63)
94. Held: The appellant entered the relationship knowing the respondent was married and encouraged a bigamous relationship. The Court held that she committed an intentional tort (a civil wrong) by interfering in his marriage. (para 64)
95. Noted: The respondent's wife and children resisted the relationship from the start. Their loss of companionship, assistance and consortium is at stake. (para 64)
96. Noted: Alienation of affection (an intentional tort of alienating a husband or father from his wife and children) is an intentional tort, as held in Pinakin Mahipatray Rawal. It gives the wife and children a cause of action against the appellant. (para 64)
97. Held: A woman fully aware that the man is married could not enter a live-in relationship in the nature of marriage. The Court held that this was not a relationship in the nature of marriage. It has no inherent or essential characteristic of marriage. (para 65)
98. Held: The appellant's status is lower than that of a wife. The relationship does not fall within domestic relationship under Section 2(f). (para 65)
99. Held: Holding otherwise would be an injustice to the wife and children who opposed the relationship. So the respondent's acts and omissions do not amount to domestic violence under Section 3. (para 65)
100. Noted: The appellant's status was that of a mistress in distress. Such women, especially if poor and illiterate, are vulnerable. Children born of such relationships suffer most. This calls for remedial legislation by Parliament. (para 66)
101. Held: Any direction to pay maintenance to the appellant would be at the cost of the legally wedded wife and children. They opposed the relationship and have a cause of action against her for alienating the husband's affection. (para 67)
102. Held: There was no reason to interfere with the High Court judgment. The appeal was dismissed. (para 68)

Authorities

• D. Velusamy v. D. Patchaiammal ((2010) 10 SCC 469): relied on by the respondent before the High Court. The High Court held its tests unmet. Counsel on both sides argued on it. The Court read it as saying a woman kept by a married man is not in a relationship in the nature of marriage (paras 8, 9, 11, 58).
• Deoki Panjhiyara v. Shashi Bhushan Narayan Azad and Another ((2013) 2 SCC 137): relied on by the amicus curiae (para 10).
• Dawood and Another v. Minister of Home Affairs and Others (2000 (3) SA 936 (CC)): O'Regan, J. on marriage and family as social institutions; quoted; summarised here (para 24).
• Satchwell v. President of the Republic of South Africa and Another (2002 (6) SA 1 (CC)): recognised the right to marry and raise a family (para 25).
• Du Toit and Another v. Minister of Welfare and Population Development and Others (2003 (2) SA 198 (CC)): recognised the right to marry and raise a family (para 25).
• Skinner v. Oklahoma (316 US 535 (1942)): marriage as a civil right (para 30).
• Perez v. Lippold (198 P.2d 17, 20.1 (1948)): marriage as a civil right (para 30).
• Loving v. Virginia (388 US 1 (1967)): marriage as a civil right (para 30).
• Pinakin Mahipatray Rawal v. State of Gujarat ((2013) 2 SCALE 198): meaning of marital relationship; alienation of affection as an intentional tort (paras 32, 64).
• In Re Marriage of Lindsay (101 Wn.2d 299 (1984)): US factors for a meretricious relationship (para 47).
• Litham v. Hennessey (87 Wn.2d 550 (1976)): same factors (para 47).
• Pennington (93 Wash.App. at 917): same factors (para 47).
• Stack v. Dowden ([2007] 2 AC 432): Baroness Hale on the varied forms of cohabitation (para 48).
• MW v. The Department of Community Services ([2008] HCA 12): Gleeson, CJ on the difference between living together and a relationship in the nature of marriage (para 49).
• Lynam v. The Director-General of Social Security ((1983) 52 ALR 128): Fitzgerald, J. on the composite picture of a relationship (para 50).
• Thompson v. Department of Social Welfare ((1994) 2 SZLR 369 (HC)): Tipping, J. listed ten characteristics (para 51).
• Lata Singh v. State of U.P. (AIR 2006 SC 2522): live-in relationship between consenting adults is not an offence (para 52).
• Andrahennedige Dinohamy v. Wiketunge Liyanapatabendage Balshamy (AIR 1927 PC 185): presumption of marriage from cohabitation; held not to apply here (para 56).
• Badri Prasad v. Director of Consolidation (1978 (3) SCC 527): referred to in the concubine discussion; the judgment states no proposition (para 56).
• Tulsa v. Durghatiya (2008 (4) SCC 520): referred to in the concubine discussion; the judgment states no proposition (para 56).
• Gokal Chand v. Parvin Kumari (AIR 1952 SC 231): long cohabitation may raise a rebuttable presumption of marriage (para 56).
• S. Khushboo v. Kanniammal and another ((2010) 5 SCC 600): referred to on personal and opposing opinions about live-in relationships (para 61).
• Also cited: the Malimath Committee report (para 10) and American Jurisprudence, Second Edition, Vol. 24 (2008) (para 60). The judgment has no footnotes.

Provisions mentioned

• Section 2(a), DV Act: defines aggrieved person as a woman in a domestic relationship with the respondent who alleges domestic violence (paras 19, 38).
• Section 2(f): defines domestic relationship, with five categories (paras 3, 19, 21, 33-34).
• Section 2(q): defines respondent as an adult male; the proviso lets a wife or a partner in a marriage-like relationship complain against his relatives (para 19).
• Section 2(s): defines shared household (paras 19, 55).
• Section 3: defines domestic violence, with Explanations I and II (paras 3, 18).
• Section 12: application to the Magistrate for reliefs (paras 5, 12, 16).
• Section 18: protection order (paras 5, 16).
• Section 19: residence order (paras 5, 16).
• Section 20: monetary reliefs, including maintenance (paras 5, 16).
• Section 21: temporary custody of children (para 16).
• Section 22: compensation and damages (paras 5, 16).
• Section 23: interim orders (para 5).
• Section 26: reliefs may be sought in other civil, family or criminal proceedings (para 17).
• Section 29: appeal to the Sessions Court (para 7).
• Chapter IV, DV Act: the reliefs available to an aggrieved person (para 16).
• Articles 14, 15 and 21 of the Constitution: rights the DV Act protects (para 15).
• Article 15(3) and Article 39: relied on by the amicus curiae (para 10).
• Section 498A IPC: cruelty to a wife by husband or relatives (paras 15, 53).
• Section 304-B IPC: dowry death (para 53).
• Section 125 Cr.P.C.: maintenance for a destitute wife (paras 10, 53).
• Dowry Prohibition Act, 1961: dowry demands (para 53).
• Hindu Adoptions and Maintenance Act, 1956: maintenance for a Hindu wife, and adoption (para 53).
• Hindu Marriage Act, 1955, Sections 5 and 7: conditions and ceremonies of a Hindu marriage (paras 28-29, 53).
• Special Marriage Act: an alternative way to marry in India (paras 24, 30).
• Article 23, ICCPR (1966) and Article 16, UDHR (1948): the right to marry and found a family (paras 26-27).
• Sections 15(3)(a)(i) and 9(3), Constitution of South Africa: recognition of religious and personal law marriages; non-discrimination on marital status (para 25).
• Foreign laws on domestic and de facto relationships (paras 37, 43-46):
  • Civil Partnership Act 2004 and Family Law Act 1996 (U.K.);
  • Domestic Violence Intervention Act 2001 (Canada);
  • Violence Against Women Act 1994 (USA);
  • Interpretation Act 1984 (Western Australia), clause 13A;
  • Domestic and Family Violence Protection Act 2012 (Queensland), clause 18; and
  • Property (Relationships) Act 1984 (New South Wales), clause 4.

Judgement

1. The Court found no reason to interfere with the High Court judgment (para 68).
2. The appeal is dismissed (para 68).
3. The appellant's relationship with the respondent is not a relationship in the nature of marriage. It is outside domestic relationship in Section 2(f) of the DV Act, so no domestic violence under Section 3 is made out (para 65).
4. The Court asked Parliament to consider legislation or an amendment to protect women, and children born of such relationships (paras 62, 66).
5. The judgment records no order on costs.

Legal Principle / Ratio

A live-in relationship is covered by Section 2(f) of the DV Act only if it is a relationship in the nature of marriage. That is judged on the whole relationship, using the eight guidelines. A woman who knowingly enters a relationship with a married man is a concubine. Her relationship is not in the nature of marriage, and the Act does not give her relief.

The Court held that a bigamous or adulterous relationship "cannot be said to be a relationship in the nature of marriage" (para 56).

Critical Analysis

Analysis based on the judgment text.

• The eight guidelines are not exhaustive. The Court says they are not exhaustive (para 55). It also says no single factor can be isolated (para 54). The judgment does not say how much weight each guideline carries.
• The result rests on the appellant's knowledge. Category (d), a woman who does not know the man is married, may qualify (para 37(d)). The Court found no need to rebut the presumption because she knew (para 57). The judgment does not apply the guidelines to category (c).
• The Court sees a gap it does not fill. It says the Act does not take care of a concubine (para 57). It says there is no statutory provision for such relationships on termination (para 59). It leaves the remedy to Parliament (para 62).
• The alienation of affection observation is not needed for the result. Paragraphs 64 and 67 say the appellant committed an intentional tort. The judgment does not record a suit by the wife or children.
• Much of the reasoning is comparative. Paragraphs 42-51 rely on foreign statutes and cases. The judgment does not say whether these are binding in India. They are used to develop guidelines.

Significance

• Commentary: the judgment sets out guidelines for a relationship in the nature of marriage under the DV Act. It builds on D. Velusamy v. D. Patchaiammal.
• It says that a live-in relationship is neither a crime nor a sin (para 2). It separates a marriage-like relationship from a live-in relationship simpliciter (para 53).
• It states that a woman who knowingly lives with a married man has no claim under Section 2(f) (paras 56-57, 65).
• It repeatedly asks Parliament to protect women and children in such relationships (paras 57, 62, 66).

Exam-Important Points

• Facts in one line: an unmarried woman lived with a married man with two children from 1992. She sought maintenance under the DV Act after he left her. The High Court set aside maintenance and the Supreme Court dismissed her appeal.
• Rule: only a relationship in the nature of marriage falls under Section 2(f). A live-in relationship simpliciter does not (paras 53, 65).
• Eight guidelines (para 55):
  • (1) duration of the relationship;
  • (2) shared household;
  • (3) pooling of resources and financial arrangements;
  • (4) domestic arrangements;
  • (5) sexual relationship;
  • (6) children;
  • (7) socialisation in public; and
  • (8) intention and conduct of the parties.
• Five illustrative categories (para 37):
  • (a) unmarried man and woman: covered;
  • (b) unmarried woman who knowingly enters a relationship with a married man: this case;
  • (c) married woman who knowingly enters a relationship with an unmarried man: question left open;
  • (d) unmarried woman who does not know the man is married: may be covered; and
  • (e) same-sex partners: not covered.
• Trap: the Court says the guidelines are not exhaustive. It also says a concubine has no remedy under the Act and Parliament should act (paras 55, 57, 62).
• Trap: Section 2(f) is prima facie restrictive and exhaustive because it uses means (para 34).
• The party asserting a relationship in the nature of marriage must positively prove its identifying characteristics (para 36).
• The Court held that the appellant had committed an intentional tort of alienation of affection (paras 64, 67). This is the Court's observation, not a decree in a suit.
• Read together with D. Velusamy v. D. Patchaiammal (2010).

Prepared from the full text of the judgment. Paragraph numbers follow the official Supreme Court judgment text; law reports may number the same paragraph differently.