p. 1 IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.15 of 2024 Dhanu Hansdah and others &. Petitioners Mr. B. Mahapatra, Advocate -Versus- Arati Murmu @ Hansdah and another &. Opposite Parties Mr. B.K. Mohanty, Advocate CORAM: JUSTICE R.K. PATTANAIK DATE OF HEARING:16.09.2025 DATE OF JUDGMENT:06.01.2026 1. Instant revision is filed by the petitioners assailing the impugned judgment as at Annexure-6 passed in connection with Criminal Appeal No.01 of 2023 by the learned Additional Sessions Judge, Rairangpur, Mayurbhanj, whereby, the decision dated 15th December, 2022 of the learned SDJM, Rairangpur in CMC Case No.03 of 2021 in a proceeding under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 8the Act9) has been overruled on the grounds inter alia that the same is legally not tenable and hence, it is liable to be interfered with and set aside. 2. The opposite parties approached the learned SDJM, Rairangpur with an application under Section 12 of the Act demanding various reliefs therein against the petitioners with the allegations that petitioner No.1 is not providing AFR p. 2 maintenance to them. In the said proceeding, the petitioners appeared and challenged the maintainability of the same and pleaded for a decision thereon as a preliminary issue. Such request of the petitioners was entertained by the Court and finally, the impugned order dated 15th December, 2022 at Annexure-5 was passed with a conclusion that no any relief can be granted to the opposite parties as opposite party No.1 is not to be treated as an aggrieved person within the meaning of the Act. With such a conclusion reached at, the learned SDJM, Rairangpur dismissed the application filed under Section 12 of the Act for not being maintainable. Being aggrieved of, the opposite parties preferred the appeal under Section 29 of the Act and it was disposed of vide Annexure-6 with the conclusion that the maintainability of the proceeding can only be adjudicated upon after receiving evidence from both the sides. The conclusion of the Court below is that the status of opposite party No.1 and her claim regarding divorce and relationship with petitioner No.1 being accepted as a wife are disputed by the petitioners, it can only be examined upon receiving evidence as all such issues are questions of fact determinable at the end of the proceeding and accordingly, it was followed by a direction to the learned SDJM, Rairangpur for its disposal in accordance with law. The aforesaid decision of the learned court below is under challenge at the behest of the petitioners on the premise that there has been no domestic relationship ever existed between them and opposite party No.1, who is a married woman with her first marriage still p. 3 subsisting by the time when the alleged relationship was maintained. 3. Petitioner No.1 is alleged to be the husband of opposite party No.1 and father of opposite party No.2, whereas, petitioner Nos.2 to 7 are his other family members. As earlier discussed, the opposite parties moved the application under Section 12 of the Act seeking reliefs under the Act with the plea that opposite party No.1 is the legally married wife of petitioner No.1 and opposite party No.2 to be their son born out of their wedlock. It has been pleaded by opposite party No.1 that petitioner No.1 accepted her as his wife before the village gentlemen and it was followed by an agreement. By claiming that such a relationship has been maintained between the two with petitioner No.1 providing them the monthly maintenance between July, 2019 and December, 2020, it has been further pleaded that thereafter, no support or any financial assistance was received by them. With such other facts pleaded on record, the opposite parties demanded maintenance and other reliefs before the court of first instance but as stated before, the proceeding was disposed of and dismissed at the threshold on a preliminary objection received from the petitioners later unsettled by the learned court below, while dealing with the appeal. 4. Perused a copy of the application under Section 12 of the Act filed before the learned SDJM, Rairangpur as at Annexure-1. The show cause received from petitioner No.1 in that proceeding is at Annexure-2 series and it is gone p. 4 through. A separate show cause was filed by petitioner Nos.2 to 7 and the same is also perused. The petition challenging the maintainability of the proceeding in CMC No.03 of 2021 is at Annexure-3 and upon a reading of the same, it is pleaded therein that opposite party No.1 could not have had a second marriage during the subsistence of the first one, which was not dissolved. It is also pleaded that petitioner No.1 got married in the meantime in 2013 and had been living with his wife, which is within the knowledge of opposite party No.1 and therefore, under such circumstances, any such proceeding under Section 12 of the Act should not be entertained as the same is not maintainable in the eye of law. 5. Heard Mr. Mahapatra, learned counsel for the petitioners and Mr. Mohanty, learned counsel appearing for the opposite parties. 6. Mr. Mahapatra, learned counsel for the petitioners would submit that the learned court below fell into serious error in setting aside the order at Annexure-5 with a finding that the question of maintainability is required to be examined only upon receiving evidence at the end of the trial. The submission of Mr. Mahapatra, learned counsel is that there has been no domestic relationship between petitioner No.1 and others with opposite party No.1, who is a married woman. It is submitted that in absence of any such evidence regarding divorce between opposite party No.1 and her husband, the demand for monetary and such other relief could not have been p. 5 entertained by the learned SDJM, Rairangpur and rightly, considering the facts pleaded by the opposite parties in the application under Section 12 of the Act and decision of the Apex Court in Indra Sarma Vrs. V.K.V. Sarma (2014) 57 OCR (SC) 58, it has been held that such relationship was not in the nature of marriage, furthermore, when opposite party No.1 maintained an adulterous life during the existence of her marriage. It is contended that the kind of relationship between petitioner No.1 and opposite party No.1 does not have sanction of law much less a relationship in the nature of marriage and hence, the latter is not entitled to any such reliefs under the Act. It is lastly contended with all such aspects have been considered by the court of first instance and correctly, it was held that the proceeding under Section 12 of the Act is not maintainable and accordingly dismissed the same but it was not found favour with the learned court below thereby allowing the appeal with its restoration for a decision according to law on the erroneous premise that disputed questions of fact are involved, which need determination upon receiving evidence and therefore, such a decision vide Annexure-6 cannot be sustained in law, hence, to be set at naught. 7. On the contrary, Mr. Mohanty, learned counsel for the opposite parties would submit that a right decision has been rendered by the learned court below while dealing with the appeal against the impugned order at Annexure-5 and the proceeding has been restored to file vide Annexure-6. It is contended that the parties are belong to p. 6 tribal community and dissolution of marriage etc. and the rights of opposite party No.1 are to be considered after receiving the evidence and hence, on such disputed facts yet to be determined, the proceeding could not have been terminated and therefore, the decision of the learned court below at Annexure-6 is, therefore, perfectly justified. It is contended that existence of a marriage and the claim of its dissolution by custom and existence of a relationship between petitioner No.1 and opposite party No.1 as per the caste and customs and decision thereon needs evidence and could not have been considered at the initial stage and therefore, the learned SDJM, Rairangpur grossly erred in entertaining preliminary objection of the petitioners and in dismissing the application under Section 12 of the Act, a wrong, which was corrected in appeal by the learned court below. It is finally submitted that there has been a dissolution of marriage of opposite party No.1 with her husband and thereafter, the relationship between her and petitioner No.1 was developed and such relationship is in the nature of marriage, if not a legal marriage admitted for the sake of argument and therefore, the proceeding with all such reliefs sought for with an application under Section 12 of the Act is maintainable, hence, the decision of the learned Additional Sessions Judge, Rairangpur as per Annexure-6 does not deserve any interference. 8. 8. On a reading of Annexure-1, the Court finds that opposite party No.1 claimed herself to be the legal wedded wife of petitioner No.1 admitting the fact that she had an p. 7 earlier marriage with one Meghari Tudu and both blessed with a son, namely, Sushanta Tudu born in the year 2005 and lived at Rourkela but thereafter, the alleged relationship was developed with petitioner No.1 and as a result of their relationship, a male child, namely, Abhinash Hansdah was born on 2nd December, 2012, whereafter, the marriage was dissolved with the intervention of the village gentries and such dissolution of marriage has been achieved as per their custom and in the meantime, petitioner No.1 married one Madhuri Hansdah, namely, petitioner No.2 and they lived at Balangir and during that time, she was even identified as his wife and opposite party No.2 as their son. It is also pleaded that in 2019, petitioner No.1 in presence of village gentries accepted opposite party No.1 as his wife but the other petitioners did not admit the same and thereafter, the ill-treatment started and she was tortured mentally and physically and even assaulted and under such helplessness and living like a destitute, had to make an application under Section 12 of the Act demanding monthly maintenance and other expenses. 9. Mr. Mohanty, learned counsel for the opposite parties cited the decision of the Apex Court in Dr. Surajmani Stella Kujur Vrs. Durga Charan Hansdah AIR 2001 SC 938 with the argument that a second marriage is not void in absence of any custom shown with solemnization of such marriage and therefore, in the case at hand, opposite party No.1 being the legally wedded wife of p. 8 petitioner No.1 pleaded on record is entitled to the rights of maintenance and other benefits under the Act. The submission is that in the decision (supra), the parties were tribals, wherein, it has been held and observed that their marriage being out of the purview of the Hindu Marriage Act, 1955 otherwise profess Hinduism are thus governed by customs and usage and similarly, the case herein both sides belong to the tribal community, hence to hold that the second marriage is void during the subsistence of the first one, is also an aspect required to be gone into and the same is possible only after receiving evidence and therefore, the learned court below was not right and justified to pass the impugned order at Annexure-5. 10. In Indra Sarma (supra), the Apex Court held and concluded that marriage recognizes the parties as husband and wife if there is an agreement to be married; living together as spouses; and holding out to the public that they are married. Referring to a decision in Dawood and another Vrs. Minister of Home Affairs and others 2000(3) SA 936 (CC), it has been held therein that sharing a common household and duty to live together form part of the consortium omnis vitae, which obliges spouses to live together, afford each other reasonable marital privileges and rights and be honest and faithful to each other and one of the most important invariable consequences of marriage is the reciprocal support and responsibility of maintenance of the common household, jointly and severally. Since marriage as an institution has great legal significance and p. 9 various obligations and duties flow out of such marital relationship in the matter of inheritance, succession etc. and therefore, it involves legal requirements of formality, publicity, exclusivity and all the legal consequences arising out of the said relationship. At the same time, while dealing with the meaning and scope of the expression 8relationship in the nature of marriage9 which falls within the definition of Section 2 (f) of the Act, it has been further observed that such a relationship has some inherent or essential characteristics of a marriage though not a marriage legally recognized and hence, a comparison of both shall have to be resorted to determine whether such relationship in a given case constitutes the elements of a regular marriage. A distinction has been drawn between a relationship in the nature of marriage, marriage and a live- in relationship and the Apex Court while discussing further in the case (supra) held that the marriage continues notwithstanding marital unrest even if the parties are not sharing a household, whereas, in a relationship in the nature of marriage, the party asserting the existence of the relationship at any stage or point of time must positively prove the existence of the identifying characteristics of that relationship since the Legislature has used the expression as such but in a live-in relationship, it is dependent on the wish of the parties to continue or to bring such a relationship to an end. Finally, it has been held by the Apex Court therein that continuous cohabitation may raise presumption of marriage but such presumption is rebuttable in nature and if, there are circumstances that p. 10 weaken and destroy the presumption, the same cannot be ignored and when one of the parties is having a marital status and the other one is aware of the same, the status of the woman becomes a concubine or mistress, who cannot claim to have a relationship in the nature of marriage. Of course, it was followed by an observation that a long- standing relationship even as a concubine though not a relationship in the nature of a marriage may at the times deserves protection because that woman might not be financially independent but it is most unlikely that the Act does not take care of such relationship which may perhaps call for an amendment to the definition of Section 2(f) thereof, which is restrictive and equally exhaustive. In Indra Sarma (supra) with the view expressed therein, it has to be held that not every live-in relationship is covered by the Act, but only a relationship in the nature of a marriage apart from the legal marriage. 11. In D.Velusamy Vrs. D. Patchaiammal (2010) 10 SCC 469, the Apex Court discussed the essential elements of relationship in nature of marriage and held that it is akin to a common of law marriage which inter alia requires that the parties must have voluntarily cohabited and held themselves out to the world as spouses for a significant period of time and that apart, the parties should also have a shared household as defined in Section 2(s) of the Act and merely, spending weekends or a one night together does not constitute a domestic relationship defined under Section 2(f) thereof and therefore, not all live-in p. 11 relationship form a relationship in the nature of marriage because several parameters have to be satisfied in order to constitute such relationship. 12. In Reshma Begum Vrs. State of Maharashtra and another 2018 SCC Online Bombay 1827, the Bombay High Court referring to the case law in D.Velusamy and also Indra Sarma (supra) concluded that live-in relationships are not in the nature of marriage as therein first marriage of the petitioner was still subsisting and hence, there could not have been a possibility of legal marriage between her and the respondent and furthermore, a statute should not be interpreted in a manner which would promote illegality and thus, it was held that the alleged relationship was not covered under the domestic relationship and hence, she is not entitled to any relief under the Act. 13. 13. Petitioner Nos.2 to 7 questioned the maintainability of the action under Section 12 of the Act on the ground that they were never in a domestic relationship with opposite party No.1 or ever stayed together in a shared household and therefore, the proceeding as against them is not maintainable. In the case at hand, petitioner No.1 is alleged to be the husband and in a domestic relationship with the opposite parties, whereas, it is denied by him and also other petitioners. As earlier mentioned, petitioner No.2 is the wife of petitioner No.1 and their marriage took place in 2013 as revealed from Annexure-1 with the pleading that even after the alleged marriage, the relationship between p. 12 the two continued and opposite party No.1 with opposite party No.2 was looked after and maintained by him providing them the financial assistance till 2020. With such pleading on record, a pertinent question would arise as to if the proceeding is maintainable vis-a-vis petitioner Nos.2 to7? According to opposite party No.1, her parents interfered and intervened and as a result, petitioner No.1 identified and accepted her as his spouse and opposite party No.2 as their son and during that time, upon such acceptance, vermilion was put on her head. It is nowhere pleaded in Annexure-1 that petitioner Nos.2 to 7 lived along with the opposite parties at Balangir under one roof or shared a common household and had been in a domestic relationship, which may quite not be possible after the arrival of petitioner No.2 in normal circumstances. The dispute is primarily between opposite party No.1 and petitioner No.1 alleging that the latter accepted her as his wife but thereafter did not provide them the financial assistance and that she was subjected to mental and physical abuse and assault. It is also alleged therein that petitioner Nos.2 to 7 threatened opposite party No.1 and on account of demand for a motor cycle, a colour TV and since such demand could not be fulfilled, she was made to suffer for the abuse she was meted out and eventually, left with no choice, filed the application under Section 12 of the Act. Considering the facts pleaded in Annexure-1, the Court finds that there is no any assertion made by opposite party No.1 for having shared a common household with petitioner Nos.2 to 7, one among whom is the wife of p. 13 petitioner No.1. In absence of any such specific pleading of having shared a common household with the other petitioners, according to the Court, it would not be proper to involve them in the proceeding alleging existence of a domestic relationship. Law is well settled that the parties who are in a domestic relationship and shared a household are amenable to the jurisdiction under the Act. One of the essential conditions in an action under Section 12 of the Act is that the aggrieved person defined under Section 2(a) of the Act shall have to be in a domestic relationship with the respondents. If the parties never lived together or the spouses lived somewhere else whereas other respondents resided at a different place, there can be no domestic relationship between them to invite an action under Section 12 of the Act. In the case of the petitioners herein, nothing is pleaded by opposite party No.1 in Annexure-1 stating the fact that she and her son, namely, opposite party No.2 ever lived with petitioner Nos.2 to 7 in shared household and had been in a domestic relationship. So, the conclusion of the Court is that the action under Section 12 of the Act is not maintainable vis-à-vis petitioner Nos.2 to 7. 14. As regards, the alleged marriage between petitioner No.1 and opposite party No.1, it is claimed that the same was solemnized after the first marriage was dissolved. From Annexure-1, the Court finds that opposite party No.1 maintained a relationship with petitioner No.1 during the subsistence of her first marriage and in fact, opposite party No.2 was born to them in 2012 and thereafter, the said p. 14 marriage ended and it was claimed to have been dissolved socially with the involvement of the village gentries. It is further made to understand from Annexure-1 that after dissolution of her marriage with first husband, opposite party No.1 was visited by petitioner No.1 frequently and he later married to opposite party No.2 and started staying at Balangir and during that time, she was accepted as wife with the intervention of her parents, whereas, on the hand, it is denied by petitioners by alleging that the first marriage was never dissolved and opposite party No.1 was still a married lady and the second marriage did not take place as such there is no proof of such marriage and the fact of the earlier marriage is clearly admitted on record. Whether the first marriage was dissolved as per the customs and usage or it was not a valid divorce between the parties and if any such second marriage had taken place and even permissible since claimed or the parties had been in a relationship in the nature of a marriage before petitioner Nos.1 and 2 tied their knot in 2013 is required to be examined and for that, evidence is necessary. Nowhere, it is claimed by opposite party No.1 that it was a live-in relationship between her and petitioner No.1. As it appears from Annexure-1, the relationship is alleged to be in the nature of a marriage or a valid marriage after dissolution of the first one. Under such circumstances, petitioner No.1 having married petitioner No.2 in 2013, whether, it was during the survival of a relationship in the nature of marriage or an existing marriage between him and opposite party No.1 is also a matter that need enquiry and p. 15 investigation possible with the receipt of evidence. It is no denial to the fact that existence of a domestic relationship either by a marriage or in the nature of marriage is sine qua non to maintain an action under Section 12 of the Act. In the instant case, what was the nature of relationship between petitioner No.1 and opposite party No.1 is to be determined. Of course, during the subsistence of first marriage, opposite party No.1 being away from her husband developed intimacy with petitioner No.1 and finally, their marriage was dissolved but before that, opposite party No.2 was born to them in 2012. After such dissolution of marriage since pleaded on record by opposite party No.1 which was managed with the involvement of the village gentries, the relationship between her and petitioner No.1 continued. It is to be ascertained whether after the marriage was dissolved socially as per customs and usage, the relationship between the parties was admitted to be in the nature of marriage or a valid marriage is also to be examined. Whether with the continuation of such a relationship between petitioner No.1 and opposite party No.1, his marriage with petitioner No.2 was accomplished and under such circumstances, whether, he is liable to maintain the opposite parties allegedly being in a relationship in the nature of marriage prior to the same is required to be examined as well. The Court considering the rival claims and having regard to the fact that a marriage is alleged and even considering such relationship to be in the nature of marriage whether the opposite parties are entitled to any relief under the Act needs a threadbare p. 16 enquiry for a decision but the proceeding under Section 12 of the Act was terminated at the threshold. Of course, it could have been terminated vis-à-vis petitioner Nos.2 to 7 in absence of any averments revealing the details of the domestic relationship and sharing a household with them by the opposite parties but for the relief sought for as against petitioner No.1, evidence was necessary and rightly, therefore, the learned court below held that when the parties are tribals and dissolution of marriage may take place according to the customs and usage, it was not justified to dismiss the proceeding at the very inception. It is of course to be borne in mind that someone in an adulterous relationship is not entitled to any reliefs under the Act, to which, she would be eligible and entitled to provided there is a legal marriage with the respondent or they maintained a relationship in the nature of marriage. So, the conclusion of the Court is that the learned court below should have dismissed the action under Section 12 of the Act as against petitioner Nos.2 to 7 only leaving it for the court of first instance to consider whether the opposite parties are entitled to monthly maintenance and other reliefs from opposite party No.1 and to that extent, the impugned order at Annexure-6 deserves to be set aside. 15. Accordingly, it is ordered. 16. In the result, the revision petition stands allowed in part. As a necessary corollary, the impugned judgment at Annexure-6 in Criminal Appeal No.01 of 2023 of the learned Additional Sessions Judge, Rairangpur p. 17 corresponding to CMC No.03 of 2021 is hereby set aside to the extent as aforesaid. 17. In the circumstances, however, the parties are directed to bear their respective costs. (R.K. Pattanaik) Judge Rojina Designation: Junior Stenographer