JOBY Vs. ELSY

JUDGEMENT

(1.) The revision petitioner is the respondent in M.C. No. 78/2009 of the Judicial First Class Magistrate Court, Cherthala. The said case was filed under S. 12 of the Protection of Women from Domestic Violence Act by the respondents 1 and 2 against the petitioner herein seeking a protection order from domestic violence, compensation of Rs. 4 lakhs and maintenance. The preliminary objection raised by the revision petitioner is that the 1st respondent is not a wife coming under S. 2(f) of the Protection of Women from Domestic Violence Act. Put it differently, objection is that there is no domestic relationship between the revision petitioner and the 1st respondent. After considering the objection, the trial court found that the averments in the petition disclose the domestic relationship between the revision petitioner and the 1st respondent and thereby the 1st respondent is a wife coming under S. 12 of the Family Court Act. Aggrieved by the dismissal of the preliminary objection the revision petitioner had preferred an appeal before the Sessions Court. After re-appreciating the evidence, the Sessions Court also confirmed the findings of the trial court. This Revision Petition is filed challenging the concurrent findings of the courts below. It is a case of the 1st respondent that she is an unmarried woman residing along with her mother. The petitioner used to visit the residence of the 1st respondent frequently and used to reside together at times. On 29.4.2009 the revision petitioner came to the residence of the 1st respondent and had sexual intercourse with her. This was repeated on various subsequent occasions and as a result of which the 1st respondent became pregnant and gave birth to 2nd respondent and the revision petitioner and 1st respondent resided together on various occasions. While the 1st respondent was pregnant the revision petitioner gave certain medicines so as to terminate her pregnancy and further threatened the 1st respondent causing fear of death. In connection with the said incident Pattanakad Police registered Crime No. 36/2009 against the revision petitioner. In the above context, the respondents filed the above case, seeking a protection order from domestic violence, compensation of Rs. 4 lakhs and maintenance.

(2.) The counsel for the revision petitioner contends that the courts below concurrently failed to consider the question whether there is any allegation of domestic relationship in view of S. 2(f) of the Protection of Women from Domestic Violence Act. The courts below have not considered the definition in its correct perspective and thereby the impugned order arises from misconception of law and procedural irregularity. The counsel further submits that in view of the conjoint reading of Ss. 2(a), 2(f) and 2(s) of the Protection of Women from Domestic Violence Act, 2005, the complaint itself is not maintainable and the averments do not disclose the ingredients of the said sections. The counsel further pointed out that there is no averment indicating that they had a relationship in the nature of marriage. Therefore, being a preliminary issue challenging the maintainability of the petition, the short question that arises for consideration is whether the averments in the petition disclose the domestic relationship defined under S. 2(f) of the Protection of Women from Domestic Violence Act. As a preliminary issue, this question does not warrant a meticulous scrutiny of the entire pleadings. What is required is whether the allegations prima facie disclose a domestic relationship as defined in the said Act. Going by para 2 of the petition, it is specifically stated that the revision petitioner and 1st respondent are neighbours and the 1st respondent is an unmarried woman. It is alleged that the revision petitioner used to come to her house and they developed an intimacy which culminated in pregnancy and she gave birth to the second respondent. It is specifically alleged that on 29.4.2009 the revision petitioner came to the residence of the 1st respondent and had sexual intercourse with her. This was repeated on various subsequent occasions and as a result of which the 1st respondent became pregnant and gave birth to 2nd respondent. She specifically averred that they used to live together at times. I am of the opinion that at this stage the averments in para 2 are sufficient to disclose a domestic relationship in view of the decision laid down by the Supreme Court in Velusamy v. Patchaiammal, 2010 4 KerLT 384 . What is intended under S. 2(a) of the said Act is a relationship in the nature of marriage and nothing more. A marriage which is valid in the eye of law is not required to claim the benefits under the said Act. The couple must have lived together akin to spouses; that alone is sufficient. The legislative indent of the said Act itself is that to give protection to the women who are living with the husband in the nature of a marriage but without a legal marriage. In the above said decision of the Supreme Court, it is specifically stated that they must be of legal age of marriage. They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. The averment that they used to live together at times will squarely satisfy the requirements in the decision stated above. Therefore, I am of the opinion that there is no irregularity or illegality in the impugned order under challenge and this Revision Petition is meritless and hence dismissed.