The Karnataka High Court in its recent judgment in Smt Harini H v. Smt Kavya H @ Sangeetha & Ors observed that a complaint by a wife under the Protection of Women from Domestic Violence Act, 2005 is not maintainable against the extra marital partner of the husband.
The verdict has opened up a debate on who all can be hauled up by an aggrieved woman under the Domestic Violence Act (DV Act) for subjecting her to domestic violence.
The DV Act was enacted to provide for more effective protection of the rights of women who are victims of violence of any kind occurring within the family and for connected matters. With the Amendment Act No. 34 of 2019, the Act is applicable to the whole of India with effect from October 31, 2019, without any exception to any part of the country.
From the name of the Act, it is clear that it is meant to provide protection to women only. A complaint under this Act can be made only by those women who qualify to be declared an "aggrieved person" as defined under clause (a) of Section 2, to mean “any woman 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."
As per the definition, an “aggrieved person” needs to be a (i) “woman” (ii) in a “domestic relationship” with the respondent(s) and who has been (iii) subjected to “domestic violence”.
“Domestic Relationship” has been defined in clause (f) of Section 2 of the Act to mean "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."
It is clear by a conjoint reading of clauses (a) and (f) of Section 2 that what is needed to qualify to be an ‘aggrieved person/complainant’ is that the aggrieved woman is either currently living or has lived in a shared household with the respondent who had subjected her to any act of domestic violence.
A bare reading of clause (f) further makes it clear that the aggrieved woman can be related to the respondent by consanguinity (blood relationship), marriage, or through a relationship in the nature of marriage (live-in relationship akin to marriage), adoption or being family members living together as a joint family.
Thus, even a daughter, a mother, a wife or a grandmother, or in other words, a woman in any kind of domestic relationship who had shared a roof at one point of time with her perpetrator, is entitled to make a complaint under the DV Act if subjected to domestic violence defined under Section 3 of the Act.
The definition of domestic violence is very broad and inclusive. It brings within its ambit all kinds of harms to a woman in a domestic relationship, be it physical, emotional, mental, financial, verbal, sexual, or any kind of deprivation of any right/entitlement which accrues to a woman by virtue of the domestic relationship she is in.
Who can file a domestic violent complaint under the Act?
In the Act, a respondent is defined in clause (q) of Section 2, which states, “any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act," provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.
Clearly, the respondent against whom a DV Act complaint can be made needs to be an adult male. Such an adult male needs to be in a domestic relationship either at the time of lodging of the complaint or in the past and who had at one point of time or currently shared a household with the complainant/aggrieved woman. It is also clear from the above definition that a live-in relationship akin to marriage is also considered as a domestic relationship for the purpose of this Act.
The phrase "adult male" has been struck down by the Supreme Court in Hiral P Harsora v. Kusum Narottamdas Harsora, to include all persons in a domestic relationship, irrespective of their gender and age.
The proviso expands the ambit of the expression "respondent" to include relatives of the husband (in case of lawful marriage) or of the male partner (in case of live-in relationship akin to marriage). In view of the extension of the expression "respondent" by way of the proviso, the requirement of sharing the household at any point of time, would not be necessary qua the relatives of the husband or the male partner of the aggrieved woman.
Does extra-marital partner of husband fall under the definition of respondent?
It is clear from above discussion that a domestic violence complaint can be filed by an aggrieved woman against any person in a domestic relationship. Now, the extra-marital partner of the husband, to fall in the definition of respondent, needs to either fall in the main definition as defined in clause (q) of Section 2 or needs to fall under the proviso of clause (q).
To fall in the main definition of respondent, it is necessary that the extra-marital partner qualifies to be in a domestic relationship and shares or has shared a household with the complainant at any point of time. An extra-marital relation would certainly not fall in the definition of domestic relationship by way of either consanguinity or marriage or adoption or relationship in the nature of marriage or as family members living together as a joint family.
As regards the extended definition of respondent by way of the proviso clause where a complaint can be filed against a relative of the husband or the male partner, it is to be seen as to whether an extra-martial partner of the husband or the male partner of the complainant, enjoying a relationship akin to marriage, would fall within the proviso clause or not. In other words, whether such an extra-marital partner who is into a marriage-like live-in relationship with the husband or male partner of the complainant can be termed as his relative under the proviso clause or not?
The Supreme Court in D Velusamy v. D Patchaiammal held that for a 'relationship in the nature of marriage' to be akin to a common law marriage, the couple must:
(a) 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.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
The Court further construed that if a man is only maintaining a sexual relationship with a woman but not as a relationship in the nature of marriage, then that relationship would not be construed as 'relationship in the nature of marriage' for the purpose of the 2005 Act. A similar view has been taken in Indra Sarma v. VKV Sarma.
The expression ‘relative of a husband' of a woman also exists in Section 498-A of the Indian Penal Code. In U Suvetha v. State by Inspector Police, the issue involved was whether the ‘girlfriend’ of the husband of the woman would fall within the expression ‘relative of the husband’. The Supreme Court took note that the definition of the term ‘relative’ included any person related by blood, marriage or adoption. The Court stated that Section 498-A of Indian Penal Code, being a penal provision, requires strict construction and that the term ‘relative’ cannot be loosely construed. The Court further observed that a ‘girlfriend,’ and for that matter an extra-marital partner, cannot be construed as a relative of the husband to invite prosecution under Section 498A of IPC.
A similar issue had arisen in Sunita Jha v. State of Jharkhand, where again the Supreme Court held that an extra-marital partner of the husband cannot be considered as ‘relative’ of the husband of a woman for the purpose of Section 498-A IPC.
It is thus clear that an extra-marital partner cannot be construed as being a relative of the husband or the male partner of a woman, and thus would not fall within the definition of ‘respondent’ under clause (q) of Section 2 of the DV Act so to invite a complaint against them, though there may be remedies available under other laws.
The authors are lawyers practising at the Supreme Court of India.