Consult Sexual Harassment at Workplace Lawyers in India

A man and a woman not married, but having a live-in relationship is enough for the woman who is entitled to maintenance under the Protection of Women from Domestic Violence Act. But merely living a live-in relationship is not entitled to get maintenance. The woman has to show that though there was no marriage but the relationship was in the nature of marriage. Having sexual relations with a woman frequently is not a live-in relationship. It is a nature of living as a husband and wife without undergoing a marriage. "Relationship in the nature of marriage" must fulfill the following ingredients:- (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. (d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. (e) The parties must have lived together in a 'shared household' as defined in Section 2(s) of the Act - Merely spending weekends together or a one night stand would not make it a 'domestic relationship'. (f) If a man has a 'keep' whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, be a relationship in the nature of marriage. A legally wedded wife or divorced wife can claim maintenance from husband under Section 125 of the Criminal Procedure Code. A woman who was in a live-in relationship with a man but not legally wedded is not entitled to claim maintenance under Section 125 of the Criminal Procedure Code. However, if such a woman proves that she was in a domestic relationship with the man in this nature marriage would be entitled to claim maintenance under Section 20(3) of Protection of Domestic Violence At, 2005. The Supreme Court of India has also confirmed this proposition in the Velusamy Vs Patchaiammal case. This is a progressive judgment and a great boon to the suppressed women. Article by K.P.Satish Kumar M.L. Advocate Madras High Court

In my recent blog, I shall be discussing about the two provisions which confuse people as they cannot decide how to proceed further and under what provision should one head so that he gets justice and his case does not lag. Most of the common man having no idea about the provisions have the concept that Section 156(3) can be skipped for speedy trial and a complaint u/s 200 CrPc, as the provision says ‘Examination of a complaint by magistrate’ is a better option because under that, the magistrate shall have authority and sanction. Reference of Sections in the blog shall be of CrPc until and unless specifically mentioned to be of some other Act or Code. In this blog I shall briefly discuss the following points as under – mentioned. 1.    What is section 156(3) and section 200.2.    Can investigation be made u/s 156(3) even though complaint is made u/s 200.3.    How important is section 190?4.    Why is there a confusion with section 190 and section 200?5.    Conclusion.What is section 156(3) and section 200 CrPcBefore going into further discussion, it is very important that one understands what is the section. Hence, the start of my blog shall contain the meaning of these two sections as has been produced in the Code of Criminal Procedure. Section 156(3) – Power of Magistrate empowered u/s 190 to order for investigation u/s 156.Section 200 – Examination of Complainant. If a case is registered u/s 156(3) which shall thereafter have two reasons for such, which are the following: 1.    The Police Station and the Superintendent of Police have not lodged your FIR. 2.    The Police Station and the Superintendent of Police have lodged your FIR, but proper investigation is not being done. Under the above circumstances an aggrieved person can knock the doors of the court vide provision 156(3) and the Magistrates empowered u/s 190 shall thereafter order for proper investigation as in Point 2 or order for registration of FIR and to investigate the matter properly as in Point 1. If a case is registered u/s 200 then, a magistrate needs to follow a full throttle process as has been laid down by the code which starts from Section 200 [Examination of Complainant] and ends at Section 203 [Dismissal of Complaint]. However, it must be stated here that in the recent times there have been a huge number of Private Complaints against parties and the usage of Section 200 has resulted to a lot of false complaints between private parties, many of which have been found to be of frivolous nature. This makes it necessary to verify the details of such complaint by examining the Complainant on Oath and thereafter direct for an inquiry by the magistrate himself or to direct for an investigation by the Police Officers. Can investigation be made u/s 156(3) even though complaint is made u/s 200.As I have already mentioned above, the answer to this is a big YES.The Magistrate has complete powers to give direction for investigation by the Police u/s 156(3) even though the Complaint was filed u/s 200 as a ‘Private Complaint’. Relevant Citation – Madhao vs State of Maharashtra, 2013, 5 SCC 615.In light of the above – 1.    It is not the primary duty of the Magistrate to take immediate cognizance of a complaint filed u/s 200 only because of the fact that it is a ‘Private Complaint’. The Magistrates do have discretionary powers as to whether they will or will not take cognizance. Section 200 in itself is a pre – cognizance stage, therefore the Magistrate is at full liberty to direct for inquiry by the magistrate himself or direct for investigation by police. It is after such inquiry or investigation that the Magistrate shall take cognizance based on merits and facts. 2.    The Magistrate in this case is justified in taking an alternative remedy or an alternative course of action before taking cognizance. Investigation u/s 156(3) shall be conducive to justice and shall also save the time of the court from wasting time to enquiring into a matter which primarily should’ve been investigated by the Police Officers. However, once the Magistrate has taken cognizance of the matter and decides to proceed as per the procedure established in chapter XV of the Code, he shall not be allowed to proceed under the pre – cognizance stage to avail the liberty of invoking Section 156(3). How important is section 190?If we read the bare provision of Section 156(3) it clearly states “Any Magistrate empowered u/s 190 may order such an investigation” This in itself means that 156(3) is not self-reliable but needs to be r/w Section 190 which therefore empowers a Magistrate to duly order for investigation u/s 156(3). Both these provisions are interlinked and cannot be left alone. It is only when we read both of them together, that we can come to a conclusion. Now, when we read chapter XIV of the Code it starts with Section 190. Let us start by understanding this Section in itself. Section 190 – Cognizance of offences by Magistrates. The clear mention of the word ‘Cognizance’ means that the magistrate is bound to take cognizance of this complaint and thereafter proceed as per process of Section 200 and dismiss the complaint u/s 203, the same which we have read under the chapter named ‘Complaints to Magistrate’. In the above view, the Magistrate shall take cognizance u/s 190 and then proceed. Section 190 has wider scope and perspective than Section 200. Why is there a confusion with section 190 and section 200?Both these sections would basically mean the same thing. They are interlinked to each other and are interwoven. A complaint u/s 200 is also a Complaint u/s 190. However, both these sections serve different purpose. Wherein Section 190 lays down the process as to how cognizance of offences can be taken by a Magistrate. It is also a well settled rule of law that only when cognizance is taken up, is the legal machinery set in motion and not before that. Now, cognizance can be taken in one of the following ways as mentioned u/s 190 reproduced below, 1.    By way of a Complaint. 2.    Police report u/s 173 [Charge Sheet, Closure Report, etc]3.    Own knowledge of the Magistrate or on the basis of information received from any person who is not a police officer. Stressing on Point 1, if the Magistrate is taking cognizance by way of a Complaint, [Which may or may not be a Private Complaint]Then, such Magistrate has to proceed as per provisions of Section 200 to 203 and if needed, also Section 204. Thus, we can say that power to take cognizance of a Complaint is u/s 190 whereas u/s 200 the power of examining the complainant and other witness [if any] for the purpose of verification is laid down. Both these sections refer complaint to the same thing as has been defined u/s 2(d) of the Code which defines the term ‘Complaint’.The relevancy of Section 200 is only for a Complaint, the cognizance of which is being taken u/s 190(1)(a) and the same shall not be relevant when cognizance is taken u/s 190(1)(b), i.e., Police Report filed u/s 173 after the completion of investigation. ConclusionAfter all that we have read, we can conclude, 1.    That the Magistrate is not expected to act in a mechanical way on the mere submission of a 156(3) Petition and direct the registration of FIR only because a party is asking for it. 2.    That the court needs to be satisfied as to the substance of the application filed and must decide whether there has been the commission of a cognizable offence [Non-Bailable] and that such offence requires proper investigation and inquiry. 3.    Also, if the Magistrate so feel, he can treat an application u/s 156(3) to be a complaint case and thereafter adopt the procedure laid down u/s 200 to 202 by recording evidences and thereafter a)    Dismiss such complaint u/s 203. b)    Summon the accused u/s 204 if evidences laid down u/s 200 to 202 bring in enough light to the same. To end with, in my opinion: 1.    One should proceed u/s 190 r/w section 156(3) only in case of cognizable offences. 2.    One should proceed u/s 200 when offence committed is of non - cognizable in nature.