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Saturday, April 20, 2013


Whether a relationship in the nature of marriage which existed will entitle woman to claim and receive maintenance under the DV Act, 2005

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 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 Respondent sought a recall of the order dated 13.02.2008 on the ground 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. The learned trial court by order dated 7.8.2009 rejected the aforesaid application on the ground that notwithstanding the certificate issued Under special marriage act (first marriage) would still require to the adduced and only thereafter the certificate can be held to be valid. The High Court held that the marriage certificate dated 18.04.2003 was conclusive proof of the first marriage of the Appellant, which had the effect of 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 learned courts below.

The Hon’ble Supreme Court in Deoki Panjhiyara Vs Shashi Bhushan Narayan Azad and Anr, [Criminal Appeal Nos. 2032-2033 of 2012] had observed:

If according to the Respondent, the marriage between him and the Appellant was void on account of the previous marriage of the Appellant, the Respondent ought to have obtained the 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 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 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 support of the claimed first marriage of the Appellant, 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.

The Hon’ble Court concluded that “the interference made by the High Court with the grant of maintenance in favour of the Appellant was not at all justified”.

Prepared by: S. Hemanth
Advocate at Hemanth & Associates