D. Velusamy v. D. Patchaiammal (2010)

The domestic violence statute protects a woman in a domestic relationship, which includes a relationship "in the nature of marriage" — an expression Parliament did not define. This is the decision that defines it, and in doing so draws the line that excludes many women in live-in relationships from the Act. It is the essential authority both for the reach of that statute and for the criticism of its reach.

The appellant said he had married one woman according to Hindu customary rites on 25 June 1980, and that a son of that marriage was studying engineering. He worked as a secondary grade teacher.

In 2001 the respondent filed a maintenance petition before the Family Court, alleging that she had been married to the appellant on 14 September 1986 and that they had lived together in her father's house for two or three years, after which he left for his native place and visited her only occasionally. She said she had no livelihood and could not maintain herself, while he drew ten thousand rupees a month, and asked for five hundred rupees a month.

On her own case he had left her in 1988 or 1989 — and the petition was filed after a delay of about twelve years, a delay the Court said would have to be satisfactorily explained and which cast some doubt on her case. The Family Court and the High Court had held that the appellant was not married to the first woman, without even issuing notice to her.

The judgments of the High Court and the Family Court were set aside and the matter remanded. The finding that the appellant was not married to the first woman, arrived at without notice to her, could not stand; the Family Court must issue notice to her and give a fresh finding, and only then could the question whether he was married to the respondent be decided. There was also no finding on whether the appellant and the respondent had lived together for a reasonably long period in a relationship in the nature of marriage, and such a finding was essential.

1. Parliament drew a distinction. The Act distinguishes the relationship of marriage from a relationship in the nature of marriage, and a person entering either is entitled to the benefit of the Act. The relief for monetary reliefs may also be sought in any legal proceeding before a civil, family or criminal court.

1. The expression needed authoritative interpretation. It is not defined in the Act and there was no direct decision of the Court on it; since a large number of cases would come up, an authoritative decision was required.

1. Notice the social change. Parliament has taken notice of a new social phenomenon, the live-in relationship, still rare in India and found chiefly in big cities, though common in North America and Europe. Where a wife is deserted the law of most countries provides maintenance, but there was earlier no law providing maintenance for a woman in a live-in relationship who was then deserted.

1. Survey the foreign experience. The judgment describes the American term coined for maintenance to a woman who has lived a substantial time with a man without marrying him and is then deserted, and the line of State decisions, which have granted it, denied it, or granted it on conditions, generally on a contractual basis — express or implied. Some courts have found an implied contract where a woman gave up her career, managed the household and assisted the man in his business over a lengthy period. In one case a relationship described as nothing more than a married man and his mistress, without stable and significant cohabitation, was held to rest on an invalid consideration; in another, cohabitation was held unnecessary, the indispensable elements being a promise to support, express or implied, coupled with a marital-type relationship. A contract exclusively for sexual service is invalid and unenforceable everywhere. The Court expressly did not decide whether such a contractual claim exists in India, no such case having been set up.

1. The definition adopted. A relationship in the nature of marriage is akin to a common law marriage, and must satisfy four requirements: (a) the couple must hold themselves out to society as being akin to spouses; (b) they must be of legal age to marry; (c) they must be otherwise qualified to enter into a legal marriage, including being unmarried; and (d) they must have voluntarily cohabited and held themselves out to the world as akin to spouses for a significant period of time. In addition, under the Act they must have lived together in a shared household as the Act defines it.

1. What is excluded. Merely spending weekends together, or a one-night stand, would not make it a domestic relationship. Not all live-in relationships qualify; the conditions must be satisfied and proved by evidence. Where a man keeps a woman financially and uses her mainly for sexual purposes or as a servant, that is not a relationship in the nature of marriage.

1. The Court acknowledges the cost. The view taken would exclude many women who have had a live-in relationship from the benefit of the Act. But it is not for the Court to legislate or amend the law: Parliament used the expression "relationship in the nature of marriage" and not "live-in relationship", and the Court cannot, in the garb of interpretation, change the language of the statute.

It opens any question on the domestic violence statute's scope, and any question on live-in relationships. State the statutory phrase, give the four requirements plus the shared-household condition, and then state what is excluded.

It disposes of the assumption that every live-in relationship attracts the Act.

It does not decide whether a contractual claim of the American kind can be made in India — the Court left that open. Note the built-in criticism, which the judgment itself supplies: the requirement that the parties be otherwise qualified to marry, including being unmarried, excludes precisely the woman who has been deceived into a relationship with a man who already has a wife. The later decision granting maintenance to such a woman under the maintenance provision should be read immediately after this one.