DEOKI PANJHIYARAversusSHASHI BHUSHAN NARAYAN AZAD & ANR.

                   [2012] 11 S.C.R. 825


                   DEOKI PANJHIYARA                           A
                             v.
      SHASHI BHUSHAN NARAYAN AZAD & ANR.
       (Criminal Appeal Nos. 2032-2033 of 2012)
                  DECEMBER 12, 2012
                                                               B
      [P. SATHASIVAM AND RANJAN GOGOi, JJ.]

     Protection of Women from Domestic Violence Act, 2005:
s. 12 - Proceedings before trial court -Interim maintenance
granted by trial court - Set aside by High Court on production C
of marriage certificate showing the first marriage of appellant
with another man - Held: If according to respondent, the
marriage between him and the appellant was void on acpount
of the previous marriage of the appellant, he ought to have
obtained the necessary declaration from competent court in D
view of the highly contentious questions raised by appellant
on the said score - In the absence of any valid decree of
nullity or the necessary declaration, court will have to proceed
on the footing that the relationship between the parties is one
of marriage and not in the nature of marriage, and appellant E
would be entitled to claim maintenance and other benefits
under the D. V. Act, 2005 - Mere production of a marriage
certificate issued u/s 13 of the Special Marriage Act in support
of the claimed first marriage of the appellant was not sufficient
for High Court, to render a complete and effective decision F
with regard to the marital status of the parties and that too in
a collateral proceeding for maintenance - Impugned order of
High Court set aside.
    The respondent-husband filed a writ petition before
the High Court challenging the order dated 13.2.2008 of        G
the trial court granting interim maintenance to the
appellant-wife in her petition u/s 12 of the Protection of
Women from Domestic Violence Act, 2005(DV Act, 2005).
Meanwhile, the respondent filed an application before the
                            825                                H
   826      SUPREME COURT REPORTS             [2012] 11 S.C.R.

A trial court for recall of the order dated 13.2.2008 on the
  ground that subsequently he came to know that the
  appellant was already married to one 'RKM', and placed
  before trail court the first marriage certificate dated
  18.4.2003. The trial court rejected the said application.
B The respondent filed a revision petition before the High
  Court, which allowed both the writ petition and revision
  of the respondent-husband holding that the marriage
  certificate dated 18.4.2003 issued u/s 13 of the Special
  Marriage Act, 1954, was conclusive proof of the first
c marriage of the appellant and, as such, she was not
  entitled to maintenance.

         Allowing the appeals, the Court

       HELD: 1.1 Admittedly, both the appellant and the
D respondent are governed by the provisions of the Hindu
  Marriage Act, 1955, s. 11 whereof makes it clear that a
  marriage solemnised after the commencement of the Act
  "shall be null and void and may, on a petition presented
  by either party thereto against the other party, be so
E declared by a decree of nullity if it contravenes any one
  of the conditions so specified in clauses (i}, (iv) and (v)
  of s.5." [para 14] [835-E-F]

       1.2 In the instant case, the appellant in her pleadings
F had clearly, categorically and consistently denied that she
  was married to any person known as 'RKM'. The
  legitimacy, authenticity and genuineness of the marriage
  certificate dated 18.4.2003 has also been questioned by
  the appellant. Though s.11 of the 1955 Act gives an option
  to either of the parties to a void marriage to seek a
G declaration of invalidity/nullity of such marriage, the
  exercise of such option cannot be understood to be in
  all situations voluntarily. Situations may arise when
  recourse to a court for a declaration regarding the nullity
  of a marriage claimed by one of the spouses to be a void
H
DEOKI PANJHIYARA v. SHASHI BHUSHAN NARAYAN 827
                AZAD & ANR.
marriage, will have to be insisted upon in departure to the    A
normal rule. [para 18] [836-G; 837-A-B]

     A. Subash Babu v. State of Andhra Pradesh & Anr. 2011
(9) SCR 453  = 2011 (7) SCC 616 - relied on

    Yamunabai v. Anantrao AIR 1988 SC 645; and M.M.            B
                                                     =
Malhotra v. Union of India 2005 (3) Suppl. SCR 1026 2005
(8) sec 351 - referred to.

     1.3 If according to the respondent, the marriage
between him and the appellant was void on account of           c
the previous marriage between the appellant and 'RKM',
he ought to have obtained the necessary declaration
from the competent court in view of the highly
contentious questions raised by the appellant on the said
score. It is only upon a declaration of nullity or annulment   0
of the marriage between the parties by a competent court
that any consideration of the question whether the parties
had lived in a "relationship in the nature of marriage"
would be justified. In the absence of any valid decree of
nullity or the necessary declaration, the court will have      E
to proceed on the footing that the relationship between
the parties is one of marriage and not in the nature of
marriage. It may also be emphasised that any
determination of the validity of the marriage between the
parties could have been made only by a competent court
in an appropriate proceeding by and between the parties        F
and in compliance with all other requirements of law.
Mere production of a marriage certificate issued uls 13 of
the Special Marriage Act, 1954 in support of the claimed
first marriage of the appellant was not sufficient for any
of the courts, including the High Court, to render a           G
complete and effective decision with regard to the marital
status of the parties and that too in a collateral
proceeding for maintenance. [para 19] [837-G-H; 838-A-
E]
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    828      SUPREME COURT REPORTS              [2012] 11 S.C.R.


A      1.4 Consequently, this Court holds that until the
  invalidation of the marriage between the appellant and the
  respondent is made by a competent court it would only
  be corre-ct to proceed on the basis that the appellant
  continues to be the wife of the respondent so as to entitle
B her to claim all benefits and protection available under the
  DV Act, 2005. Accordingly, the interference made by the
  High Court with the grant of maintenance in favour of the
  appellant was not at all justified. The order dated
  09.04.2010 passed by the High Court is set aside. [para
C 19 and 21] [838-E-F-G-H]

        D. Velusamy vs. D.Patchaimmal 2010 (13) SCR 706 =
    (2010) 10 SCC 469; and S.P. Changa/varaya Naidu vs.
    Jagannath and others 1993 (3) Suppl. SCR 422 =AIR 1994
    SC 853 - cited.
D
                         Case Law Reference:
          2010 (13) SCR 706             cited          para 9
          1993 (3) Suppl. SCR 422       cited          para 11
E
          AIR 1988 SC 645               referred to    para 15
          2005 (3) Suppl. SCR 1026      referred to    para 16
          2011 (9) SCR 453              relied on      para 18
F       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 2032-2033 of 2012.
        From the Judgment & Order dated 09.04.2010 of the High
    Court of Jharkhand at Ranchi in W.P. (Crl.) No. 205 of 2008
    and Cr. Rev. No. 819 of 2009.
G
          Gaurav Agrawal, Shankar Narayanan for the Appellant.
       Mahesh Tiwari, Bishnu Tiwari, Dr. Kailash Chand, Ratan
    Kumar Chaudhuri for the Respondents.
H         The Judgment of the Court was delivered by
DEOKI PANJHIYARA v. SHASHI BHUSHAN NARAYAN 829
                AZAD & ANR.
    RANJAN GOGOi, J. 1. Leave granted.                           A

     2. The appellant, who was married to the respondent in the
year 2006, had filed a petition under Section 12 of the
Protection of Women from. Domestic Violence Act, 2005
(hereinafter referred to as 'the DV Act') seeking certain reliefs 8
including damages and maintenance. During the pendency of
the aforesaid application the appellant filed an application for
interim maintenance which was granted by the learned trial
court on 13.02.2008 at the rate of Rs.2000/- per month. The
order of the learned trial court was affirmed by the learned
Sessions Judge on 09.07.2008. As against the aforesaid C
order, the respondent (husband) filed a Writ Petition before the
High Court of Jharkhand.

     3. While the Writ Petition was pending, the respondent
sought a recall of the order dated 13.02.2008 on the ground D
that he could subsequently come to know that his marriage with
the appellant was void on the ground that at the time of the said
marriage the appellant was already married to one Rohit
Kumar Mishra. In support, the respondent - husband had
placed before the learned trial court the certificate of marriage E
dated 18.04.2003 between the appellant and the said Rohit
Kumar Mishra issued by the competent authority under Section
13 of the Special Marriage Act, 1954 (hereinafter referred to
as 'the Act of 1954').

      4. The learned trial court by order dated 7.8.2009 rejected F
the aforesaid application on the ground that notwithstanding the
certificate issued under Section 13 of the Act of 1954, proof
of existence of the conditions enumerated in Section 15 of the
Act would still required to be adduced and only thereafter the
certificate issued under Section 13 of the Act can be held to G
be valid.
     5. The aforesaid order dated 07.08.2009 was challenged
by the respondent-husband in a revision application before the
High Court which was heard alongwith the writ petition filed     H
    830        SUPREME COURT REPORTS               [2012] 11 S.C.R.


A earlier. Both the cases were disposed of by the impugned
  common order dated 09.04.2010 holding that the marriage
  certificate dated 18.04.2003 issued under Section 13 of the Act
  of 1954 was conclusive proof of the first marriage of the
  appellant with one Rohit Kumar Mishra which had the effect of
B rendering the marriage between the appellant and the
  respondent null and void. Accordingly, it was held that as the
  appellant was not the legally wedded wife of the respondent she
  was not entitled to maintenance granted by the learnea courts
  below. It is against the aforesaid order of the High Court that
c the present appeals have been filed by the appellant - wife.
          6. We have heard Shri Gaurav Agarwal, learned counsel
    for the appellant and Shri Mahesh Tiwari, learned counsel for
    the respondent.

D       7. Learned counsel for the appellant has strenuously urged
  that the allegation of the earlier marriage between the appellant
  and Rohit Kumar Mishra had been denied by the appellant at
  all stages and the said fact is not substantiated only by the
  Marriage Certificate dated 18.04.2003. Even assuming the
E marriage between the appellant and the respondent to be void,
  the parties having lived together, a relationship in the nature of
  marriage had existed which will entitle the appellant to claim
  and receive maintenance under the DV Act, 2005. Placing the
  legislative history leading to the aforesaid enactment, it is urged
F that in the Bill placed before the Parliament i.e. Protection from
  Domestic Violence Bill, 2002 an "aggrieved person" and
  "relative" was, initially, defined in the following terms :
          "Section 2........ .

G       (a) "aggrieved person• means any woman who is or has
        been relative of the respondent and who alleges to have
        been subjected to act of domestic violence by the
        respondent;

        (b) ...
H
DEOKI PANJHIYARA v. SHASHI BHUSHAN NARAYAN 831
       AZ.AD & ANR. [RANJAN GOGOi, J.]
    (c)...                                                            A

    (d) ....

     (e) ....

    (f) ...                                                           B
     (g) ...

     (h) ....

     (i)"relative" includ.,es any person related by blood,            C
     maniage or adoption and living with the respondent."

      Thereafter, the different clauses of the Bill were considered
by a Parliamentary Standing Committee and recommendations
were made that having regard to the object sought to be
                                                                      0
achieved by the proposed legislation, namely, to protect women
from domestic violence and exploitation, clause (2)(i) defining
"relative" may be suitably amended to include women who have
been living in relationship akin to marriages as well as in
marriages considered invalid by law. Pursuant to the aforesaid
recommendation made by the Standing Committee, in place               E
of the expression "relative" appearing in clause 2(i) of the Bill,
the expression "domestic relationship" came be included in
clause (f) of Section 2 of the Act. Learned counsel by referring
to the definition of "aggrieved person" and "domestic
relationship" as appearing in the DV Act, 2005 has urged that         F
the legislative intent to include women, living in marriages
subsequently found to be illegal or even in relationships
resembling a marriage, within the protective umbrella of the DV
Act is absolutely clear and the same must be given its full effect.
It is submitted that having regard to the above even if the           G
marriage of the appellant and the respondent was void on
account of the previous marriage of the appellant, the said fact,
by itself, will not disentitle the appellant to seek maintenance
and other reliefs under the DV Act, 2005.
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    832       SUPREME COURT REPORTS                 [2012] 11 S.C.R.

A        8. Before proceeding further it will be appropriate to notice,
    at this stage, the definition of the expressions "aggrieved
    person" and "domestic relaJionship" appearing in Section 2(a)
    and (f) of the DV Act, 2005.

          "Section 2.....
B
          (a) "aggrieved person" means any women who is, or has
          been, in a domestic relationship with the respondent and
          who alleges to have been subjected to any act of domestic
          violence by the respondent;
c
          (b) ......

          (c) ......

          (d) ......
D
          (e) ......

          (f) "domestic relationship" means a relationship between
          two persons who live or have, at any point of time, lived
          together in a shared household, when they are related by
E         consanguinity, marriage, or through a relationship in the
          nature of marriage, adoption or are family members living
          together as a joint family."
       9. Learned counsel, in all fairness, has also drawn the
F attention. of the court to a decision rendered by a coordinate
  Bench in D. Velusamy vs. D.Patchaimma/1 wherein this court
  had occasion to consider the provisions of Section 2(f) of the
  DV Act to come to the conclusion that a "relationship in the
  nature of marriage" is akin to a common law marriage which
G requires, in addition to proof of the fact that parties had lived
  together in a shared household as defined in Section 2(s) of
  the DV Act, the following conditions to be satisfied:

          (a) The couple must hold themselves out to society as
H 1. c2010) 10 sec 469.
OEOKI PANJHIYARA v. SHASHI BHUSHAN NARAYAN 833
       AZAD & ANR. [RANJAN GOGOi, J.)
    being akin to spouses.                                           A

    (b) They must be of legal age to marry.

    (c) They must be otherwise qualified to enter into a legal
    marriage, including being unmarried.
                                                                     B
•   (d) They must have voluntarily cohabited and held
    themselves out to the world as being akin to spouses for
    a significant period of time ....... "
                                                       [Para 33)     C

     10. Learned counsel has, however, pointed out that in
Velusamy (supra) the issue was with regard to the meaning
of expression "wife" as appearing in Section 125 Cr.P.C. and
therefore reference to the provisions of Section 2(f) of the DV
Act, 2005 and the· conclusions recorded were not required for        D
a decision of the issues arising in the case. Additionally, it has
bean pointed out that while rendering its opinion in the
aforesaid case this Court had no occasion to take into account
the deliberaiions of the Parliamentary Standing Committee on
the different clauses of Protection of Women from Domestic           E
Violence Bill, 2002. It is also urged that the equation of the
expression "relationship in the nature of marriage" with a
common law marriage and the stipulation of the four
requirements noticed above is not based on any known or
acceptable authority or source of law. Accordingly, it is            F
submitted that the scope and expanse of the expression
"relationship in the nature of marriage• is open for consideration
by us and, at any rate, a reference of the said question to a
larger bench would be justified.

     11. Opposing the contentions advanced on behalf of the          G
appellant learned counsel for the respondent - husband has
submitted that the object behind insertion of the expression
"relationship in the nature of marriage• in Section 2(f) of the DV
Act is to protect women who have been misled into marriages
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    834      SUPREME COURT REPORTS                 [2012] 11 S.C.R.


A by the male spouse by concealment of the factum of the earlier
  marriage of the husband. The Act is a beneficial piece of
  legislation which confers protection of different kinds to women
  who have been exploited or misled into a marriage. Learned
  counsel has pointed out that in the present case the situation
B is, however, otherwise. From the marriage certificate dated
  18.04.2003 it is clear that the appellant was already married
  to one Rohit Kumar Mishra which fact was known to her but not
  to the respondent. The second marriage which is void and also
  gives rise to a bigamous relationship was voluntarily entered
c into by the appellant without the knowledge of the husband.
  Therefore, the appellant is not entitled to any of the benefits
  under the DV Act. In fact, grant of maintenance in the present
  case would amount to conferment of benefit and protection to
  the wrong doer which would go against the avowed object of
  the Act. Learned counsel has also submitted that the conduct
0
  of the appellant makes it clear that she had approached the
  court by suppressing material facts and with unclean hands
  which disentitles her to any relief either in law or in equity. In
  this regard the decision of this court in S.P. Changalvaraya
E Naidu vs. Jagannath and others2 has been placed before us.
        12. Having considered the submissions advanced by the
  learned counsels for the contesting parties, we are of the view
  that the questions raised, namely, whether the appellant and the
  respondent have/had lived together in a shared household after
F their marriage on 4.12.2006; if the parties have/had lived
  together whether the same gives rise to relationship in the
  nature of marriage within the meaning of Section 2(f) of the DV
  Act, 2005; whether the decision of this Court in Velusamy
  (supra) is an authoritative pronouncement on the expression
G "relationship in the nature of marriage" and if so whether the
  same would require reference to a larger Bench, may all be
  premature and the same need not be answered for the present.
  Instead, in the first instance, the matter Jllay be viewed from the
  perspective indicated below.
H 2.   AIR 1994 SC 853.
DEOKI PANJHIYARA v. SHASHI BHUSHAN NARAYAN 835.
       AZAD & ANR. [RANJAN GOGOi, J.]
      13. The Respondent before us had claimed (before the trial A
court as well as the High Court) that the marriage between him
and the appellant solemnised on 4.12.2006, by performance
of rituals in accordance with Hindu Law, was void on account
of the previous marriage between the appellant with one Rohit
Kumar Mishra. In support thereof, the respondent relied on a B
marriage certificate dated 18.4.2003 issued under Section 13
of the Special Marriage Act, 1954. Acting solely on the basis
of the aforesaid marriage certificate the learned trial court as
well as the High Court had proceeded to determine the validity
of the marriage between the parties though both the courts c
were exercising jurisdiction in a proceeding for maintenance.
However, till date, the marriage between the parties is yet to
be annulled by a competent court. What would be the effect of
the above has to be determined first inasmuch as if, under the
law, the marriage between the parties still subsists the appellant 0
would continue to be the legally married wife of the respondent
so as to be entitled to claim maintenance and other benefits
under the DV Act, 2005. Intact, in such a situation there will be
no occasion for the Court to consider whether the relationship
between the r-Jarties is in the nature of a marriage.
                                                                    E
      14. Admittedly, both the appellant and the respondent are
governed by the provisions of the Hindu Marriage Act, 1955.
Section 11 of the Hindu Marriage Act makes it clear that a
marriage solemnised after the commencement of the Act "shall
be null and void and may, on a petition presented by either F
party thereto against the other party, be so declared by a decree
of nullity if it contravenes any one of the conditions so specified
in clauses (i), (iv) and (v) of Section 5."
     15. While considering the provisions of Section 11 of the
Hindu Marriage Act, 1955 this Court in Yamunabai v. G
Anantrao 3 has taken the view that a marriage covered by
Section 11 is void-ipso-jure, that is, void from the very inception.
Such a marriage has to be ignored as not existing in law at all.
It was further held by this Court that a formal declaration of the
3. AIR 1988 SC 645.                                                  H
    836     SUPREME COURT REPORTS                 [2012] 11 S.C.R.

A nullity of such a marriage is not a mandatory requirement
  though such an option is available to either of the parties to a
  marriage.
       It must, however, be noticed that in Yamunabai (supra)
  there was no dispute between the parties either as regards the
B existence or the validity of the first marriage on the basis of
  which the second marriage was held to be ipso jure void.
        16. A similar view has been expressed by this Court in a
  later decision in M.M. Malhotra v. Union of lndia4 wherein the
C view expressed in Yamunabai (supra) was also noticed and
  reiterated.
        17. However, the facts in which the decision in M.M.
    Malhotra (supra) was rendered would require to be noticed in
    some detail:
D       The appellant M.M. Malhotra was, inter alia, charged in a
  departmental proceeding for contracting a plural marriage. In
  reply to the charge sheet issued it was pointed out that the
  allegation of plural marriage was not at all tenable inasmuch
  as in a suit filed by the appellant (M.M. Malhotra) for a
E declaration that the respondent (wife) was not his wife on
  account of her previous marriage to one D.J. Basu the said fact
  i.e. previous marriage was admitted by the wife leading to a
  declaration of the invalidity of the marriage between the parties.
  The opinion of this court in M.M. Malhotra (supra) was,
F therefore, once again rendered in the situation where there was
  no dispute with regard to the factum of the earlier marriage of
  one of the spouses.
        18. In the present case, however, the appellant in her
  pleadings had clearly, categorically and consistently denied that
G she was married to any person known as Rohit Kumar Mishra.
  The legitimacy, authenticity and genuineness of the marriage
  certificate dated 18.4.2003 has also been questioned by the
  appellant. Though Section 11 of the aforesaid Act gives an

H 4. 2005 cai sec 351.
DEOKI PANJHIYARA v. SHASHI BHUSHAN NARAYAN 837
       AZAD & ANR. [RANJAN GOGOi, J.]
option to either of the parties to a void marriage to seek a A
declaration of invalidity/nullity of such marriage, the exercise of
such option cannot be understood to be in all situations
voluntarily. Situations may arise when recourse to a court for a
declaration regarding the nullity of a marriage claimed by one
of the spouses to be a void marriage, will have to be insisted B
upon in departure to the normal rule. This, in our view, is the
correct ratio of the decision of this Court in Yamunabai (supra)
and M.M. Malhotra (supra). In this regard, we may take note
of a recent decision rendered by this Court in A. Subash Babu
v. State of Andhra Pradesh & Anr6. while dealing with the c
question whether the wife of a second marriage contracted
during the validity of the first marriage of the husband would be
a "person aggrieved" under Section 198 {1)(c) of the Code of
Criminal Procedure to maintain a complaint alleging
commission of offences under section 494 and 495 IPC by the 0
husband. The passage extracted below effectively illuminates
the issue:
      "Though the law specifically does not cast obligation on
      either party to seek declaration of nullity of marriage and
      it may be open to the parties even without recourse to the E
      Court to treat the marriage as a nullity, such a course is
      neither prudent nor intended and a declaration in terms of
      Section 11 of the Hindu Marriage Act will have to be asked
      for, for the purpose of precaution and/or record. Therefore,
      until the declaration contemplated by Section 11 of the F
      Hindu Marriage Act is made by a competent Court, the
      woman with whom second marriage is solemnized
      continues to be the wife within the meaning of
      Section 494 IPC and would be entitled to "maintain a
      complaint against her husband."                              G
     19. In the present case, if according to the respondent, the
marriage between him and the appellant was void on account
of the previous marriage between the appellant and Rohit
Kumar Mishra the respondent ought to have obtained the
5.   2011 (7) sec 616.                                              H
    838      SUPREME COURT REPORTS                 (2012] 11 S.C.R.


A necessary declaration from the competent court in view of the
   highly contentious questions raised by the appellant on the
  aforesaid score. It is only upon a declaration of nullity or
  annulment of the marriage between the parties by a competent
  court that any consideration of the question whether the parties
B had lived in a "relationship in the nature of marriage" would be
  justified. In the absence of any valid decree of nullity or the
  necessary declaration the court will have to proceed on the
  footing that the relationship between the parties is one of
  marriage and not in the nature of marriage. We would also like
c to emphasise that any determination of the validity of the
  marriage between the parties could have been made only by
  a competent court in an appropriate proceeding by and
  between the parties and in compliance with all other
  requirements of law. Mere production of a marriage certificate
  issued under Section 13 of the Special Marriage Act, 1954 in
0
  support of the claimed first marriage of the appellant with Roh it
  Kumar Mishra was not sufficient for any of the courts, including
  the High Court, to render a complete and effective decision with
  regard to the marital status of the parties and that too in a
  collateral proceeding for maintenance. Consequently, we hold
E that in the present case until the invalidation of the marriage
  between the appellant and the respondent is made by a
  competent court it would only be correct to proceed on the basis
  that the appellant continues to be the wife of the respondent
  so as to entitle her to claim all benefits and protection available
F under the DV Act, 2005.
        20. Our above conclusion would render consideration of
    any of the other issues raised wholly unnecessary and
    academic. Such an exercise must surely be avoided.
G       21. We, accordingly, hold that the interference made by the
    High Court with the grant of maintenance in favour of the
    appellant was not at all justified. Accordingly, the order dated
    09.04.2010 passed by the High Court is set aside and the
    present appeals, are allowed.
H R.P.                                            Appeals allowed.