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Determining the status of the co-existence of husband and wife in a marital tie as a deciding factor in matrimonial dispute: Calcutta high court

Determining the status of the Co-existence of husband and wife in a marital tie as a deciding factor in matrimonial dispute : Calcutta High Court

 

 

The wife who has the right to live with the husband in matrimonial home or the shared household due to existence of a marital tie with the husband will be deemed to have domestic relationship with the husband. Thus, the words “live”or “have at any point of time, lived” appearing in section 2(f) of the domestic violence act will include “right to live”, is upheld by the High court of Calcutta, through the learned bench The Honourable Mr. Justice Ranjit Kumar Bag in the case of Angshuman Chakraborty V Arpita Banerjee

 

FACTS

The defendant party was married to the petitioner on November 2nd, 2011 under the provisions of the special Marriage Act 1954. The social marriage scheduled to be held on December 4th 2011 did not materialise due to dispute between the parties. The further admitted position is that the petitioner husband has instituted a suit against the opposite party wife before the court of the learned District Judge at Alipore for annulment of the marriage under section 25 of the special Marriage Act, 1954.

 It is also disputed that the opposite party wife moved to the High Court for transfer of the said matrimonial proceeding from the court of the learned District Judge, Alipore to the court of the learned additional District Judge, Assansol by filling an application under section 24 of the code of Civil Procedure. In this said application for transfer of the matrimonial proceeding the opposite party wife specifically stated in paragraph 4 that the petitioner and the opposite party went back to their respective parental houses after the registration of the marriage before the marriage registrar on November 2, 2011. This statement of the opposite party wife is a statement on oath.

The fact that the opposite party did not live with the petitioner as husband and wife is given a go by when the opposite party wife started proceeding against the petitioner husband under section 12 of the domestic violence act under section 23 of the domestic violence act before the court of the learned magistrate.

 The opposite party wife has specifically stated on her application before the court of the learned, suggested that she has been subjected to torture by the petitioner and as such I was compelled to live in the house of her parents and has no income for her maintenance of her livelihood, whereas the petitioner husband has refused to provide maintenance in spite of having income worth ₹80,000 per month.

 

JUDGEMENT

As per the usual definition of domestic relationship it appears that 2 persons will have a domestic relationship if they live in the shared household by virtue of their relationship through consanguinity or marriage or through a relationship in the nature of marriage or adoption or they being members of the family are living together as a joint family.

 It was held by the court Party wife did not live with the petitioner husband shared household thus  by the literal interpretation of the definition of domestic relationship as appearing in section 2f of the domestic violence at the opposite party wife may not be in domestic relationship with the petitioner husband as both of addition and the opposite party lived in the respective parental houses after the registration of marriage on November 2nd, 2011.

 One of the main objects of enacting the domestic violence act as to provide for the right of the woman to decide in the matrimonial house or shared household, irrespective of whether she has any title in such home or household. The legally married wife whose deprived of the opportunity to live with her husband after the marriage for cruel abusive treatment of the husband will not be able to invoke the jurisdiction of the court under the domestic violence act for the protection of a right to reside in the matrimonial home.

 

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Judgement reviewed by – Rani Banerjee

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