DV Act | Couple Cohabiting During Subsistence Of Previous Marriage Do Not Share Domestic Relationship In Nature Of Marriage: Kerala High Court

Justice P. G. Ajithkumar relied on the Supreme Court decision in Velusamy D. v D. Patchaimmal (2010) to hold that the parties do not have a domestic relationship. Apex Court had laid down that the parties must be qualified to enter into a legal marriage, including being unmarried as one of the criteria of having a relationship in the nature of marriage.

A marriage ceremony took between the parties in 2011 at Varkala Sivagiri Mutt. At that time, both parties were already married. These previous marriages were subsequently dissolved at a later point of time. They lived together after their marriage ceremony for a considerable period of time.

The Magistrate Court as well as the sessions court relied on Indra Sarma v V. K. V. Sarma (2013) and held that there was a domestic relationship between the parties in spite of the earlier marriage. The petitioner challenged that finding before the High Court.

Indra Sarma had laid down guidelines for deciding when a live-in relationship can be considered as 'relationship in the nature of marriage'. The respondent submitted that these criteria were satisfied in this case.

The Court however noted that in Indra Sarma, the Apex Court had discussed the plight of women in relationships which do not satisfy the requirements of 'relationship in the nature of marriage' as laid down by Veluswamy (2010). It observed that they suffer social disadvantages, prejudices and social ostracism. The Supreme Court urged the Parliament to protect the women in these relationships and children born out of such relationships by way of legislations or amendments even though the relation 'might not be in the nature of marriage'.

The High Court observed:

“Therefore, the parties to the relationship in the nature of marriage must be persons qualified to enter into a legal marriage, including being unmarried. Without considering that aspect of the matter, the courts below took the view that the parameters enlisted by the Apex court in Indra Sarma were satisfied in the case and therefore there was a domestic relationship. The said view is incorrect.”

Hence, the petition was allowed.

Counsel for Petitioner: Advocates Johnson Gomez, S. Biju, Sanjay Johnson, John Gomez, Arun Johny, Deebu R.

Counsel for Respondent: Public Prosecutor Adv. Seena C., Advocates Resmi Nandan, P. Sujith Kumar

Case No: Crl. Rev. Pet. 14 of 2023

Case Title: Chandra Babu v Vidya Pushpan and Others

Citation: 2024 LiveLaw (Ker) 513