Wife Can’t Prosecute Extra-Marital Partner Of Husband For Domestic Violence Only Because She Lived In Their House: Orissa High Court

The Orissa High Court has observed that an illicit/extra-marital partner of husband cannot be prosecuted under the Domestic Violence Act by wife merely because she lived in the house of the couple. The Court said, both the women (wife and extra-marital partner) do not share ‘domestic relationship’ as per Section 2(f) of the Act merely because they stayed under the same roof.

While quashing charges under the Act, the Single Judge Bench of Justice Sashikanta Mishra said,

“The only allegation is that the husband of the complainant had an illicit relationship with the petitioner No.2 and in so far as petitioner No.1 (husband of petitioner no.2) is concerned it is alleged that he did not object to such relationship. If such facts are true, the same may constitute criminal offences under the Indian Penal Code but, in no manner can be treated a ground to entangle the petitioners in a case under Domestic Violence Act.”

Brief Facts

The complainant (O.P. No. 2 herein) had married one Sudhir Kumar Kara in the year 1996. It was alleged that her in-laws subjected her to cruelty since her marriage was apparently solemnized against their will. The complainant has levelled several allegations citing instances of torture, both physical and mental.

In so far as the present petitioners are concerned, it has been alleged that her husband has an illicit relationship with the petitioner no. 2, who is married to petitioner no. 1. Asserting that no case of domestic violence is made out against them, the petitioners approached the High Court praying to quash the proceedings.

Contentions of Parties

Referring to the definition of ‘domestic relationship’ as per Section 2(f) of the Act, it was submitted for the petitioners that they are not related to the complainant in any manner. Again, nothing had also been claimed against them. Also referring to the definition of ‘respondent’ as per Section 2(q) of the Act, it was contended that the petitioners cannot be made respondents in the case.

However, it was has argued for the complainant-wife that her husband had illicit relationship with petitioner No.2 and both of them stayed together in a building in which she was also residing. Therefore, it became a ‘shared household’, which makes the lady amenable to prosecution under the Act.

Court’s Analysis

The Court was of the view that the question whether a person can be added as a respondent, is dependent upon whether he or she has a domestic relationship with the aggrieved person. Similarly, ‘shared household’ is also relatable to domestic relationship. Section 2(f) of the Act defined ‘domestic relationship’ as:

“(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.”

The Court said, unless there is a domestic relationship between the parties, mere residence in the same household will not come within the purview of the definition of ‘shared household’ as per Section 2(s).

The Court further made a reference to the observation made by the Apex Court in Shyamlal Devda & Ors. v. Parimala, that it has become a practice to implead several persons including outsiders without any specific allegations of domestic violence being made against them. Under such circumstances, the Apex Court held that in the absence of specific allegations, the case of domestic violence was liable to be quashed.

“The present case stands on a similar footing inasmuch as admittedly, the petitioners are not related to the opposite party no. 2 by consanguinity, marriage or relationship in the nature of marriage, adoption or members of the joint family etc,” the Court said.

Accordingly, the pending criminal proceedings against the petitioners were quashed. However, the wife was granted liberty to pursue other legal remedy, if any, against the petitioners if she has any grievance against them.

Case Title: Rabindra Kumar Mishra & Anr. v. State of Odisha & Anr.

Case No.: CRLMC No. 2334 of 2021

Date of Judgment: March 17, 2023

Counsel for the Petitioners: Mr. P.R. Singh & B. Das, Advocates

Counsel for the Respondents: Mr. S.K. Mishra, Additional Standing Counsel; Mr. N.B. Das, Advocate (For O.P. No. 2)

Citation: 2023 LiveLaw (Ori) 49

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