Sunday, 15 November 2015

Whether family court can grant residence order to wife in domestic violence proceeding ?

 From the aforesaid, it is evident that any relief which is available under Sections 18 to 22 of the D.V. Act from the Magistrate may also be sought in any legal proceedings, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent, whether such proceedings were initiated before or after commencement of the Act.
Sub Section (3) of Section 26 only provides that in case any relief has been obtained by the aggrieved person in any proceedings other than the proceedings under the D.V. Act, then she should be bound to inform the Magistrate of the grant of such relief or perhaps so that such relief is not obtained twice over. In the present case, as noted earlier, relief in terms of section 19 of the D.V. Act was claimed by the respondent in the proceedings before the Family Court under the Hindu Marriage Act, which is clearly permissible in the light of provisions contained in Section 26 of the D.V. Act. Section 24 of the Hindu Marriage Act, 1955 specifically empowers the parties to claim maintenance pendente lite and expenses of the proceedings. The Family Court, by virtue of Section 26 of the D.V.
Act is empowered to grant reliefs, inter alia under Section 19 of the D.V.
Act. In such a situation, there is no question of either making any application under Section 12 of the D.V. Act or awaiting the disposal thereof. There is no question of awaiting the disposal of the main proceedings under the Hindu Marriage Act, 1955 and only at that stage making a residence order in terms of Section 19 of the D.V. Act. If such a strained interpretation is permitted to prevail, then the very object of enabling the court to make residence orders, is likely to be frustrated.
Bombay High Court
Mr. Amit Satish Shah vs Mrs. Archana Amit Shah And Anr on 14 October, 2014
Bench: M.S. Sonak

Citation; 2015(3) Crimes 590 Bom
Date of Reserving the Judgment : 11 September 2014 Date of Pronouncing the Judgment : 14 October 2014 JUDGMENT :-
1] This petition is directed against the order dated 11 March 2013 made by the Family Court directing the petitioner to pay rent / licence fee towards the 'share household' i.e. flat No. B/20, Pournima Park, Salisibury Park, Pune or in the alternate to make arrangement for alternative premises for the respondent and minor child on or before the termination of the leave and licence in respect of the share household or pay an amount of Rs.8,000/- per month towards rent for acquisition of alternate premises by the respondent.
2] As of now, the respondent and the minor child have acquired alternate premises, in respect of which the respondent claims to pay rent of Rs.9,000/- per month. The petitioner disputes this position by asserting skc WP-6852-13 that the premises wherein the respondent now resides, are premises owned by her own brother and therefore the respondent cannot be said to be paying any rent for such premises. Besides, the petitioner points out that the respondent owns yet another premises, which she has rented out for Rs.7,000/- per month. On these grounds as also others adverted to hereafter, the learned counsel for the petitioner contends that the impugned order is liable to be interfered with.
3] Mr. Kapre, learned counsel for the petitioner, apart from making the aforesaid contentions, submitted that there is material on record which establishes that the respondent is an I.T. Professional currently earning about Rs.61,000/- per month. In contrast, the petitioner having lost his previous job, has presently taken up new employment which earns him hardly Rs.35,000/- per month. The Family Court, in making the impugned order has glossed over such relevant and vital circumstances. Further, the Family Court had no jurisdiction in making the impugned order even before the main application under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (D.V. Act) could be disposed of. Mr. Kapre submitted that residence order under Section 19 of the D.V. Act can be made only whilst disposing of an application under sub section (1) of Section 12 of the D.V. Act and not prior to the same. Further, in making any residence order, the Court is required to have regard to the financial needs and resources of the parties, which in present case, the Family skc WP-6852-13 Court has completely disregarded. For all these reasons, learned counsel submitted that the impugned order is liable to be interfered with.
4] On the other, Ms. Sarnaik, learned counsel for the respondent submitted that the impugned order has been made in the proceedings instituted by the petitioner under Section 13 of the Hindu Marriage Act, 1955. In such proceedings, the respondent has made an application underSection 24 of the Hindu Marriage Act, 1955 read with Section 19 of the D.V. Act, which is perfectly permissible course of action to adopt. In such circumstances, there was no bar to making of a residence order under Section 19 of the D.V. Act.
5] Ms. Sarnaik submitted that the petitioner despite means and obligation, defaulted in securing the renewal of leave and licence in respect of the share household with the sole intention of harassing the respondent and their minor child. There is no basis to assume that the petitioner earns any rent from her own apartment, which incidentally is not even occupied by her and further the respondent pays rent of Rs.9,000/-
to her brother, in respect of the premises which she presently occupies along with her minor son. Ms. Sarnaik further submitted that the petitioner has not only the means to pay but further obligation to pay towards the premises presently occupied by the respondent and the minor child. In so far as the respondent's income is concerned, the same is quite irrelevant skc WP-6852-13 at the present stage, particularly since the impugned order does not concern the issue of maintenance. For all these reasons, she submitted that the impugned order ought not to be interfered with.
6] There is no merit in the submission that the Family Court could not have made a residence order and that such an order can be made only at the stage of final disposal of the proceedings.Section 12 of the D.V. Act enables an aggrieved person or protection officer or any other person on behalf of the aggrieved person to present an application to the Magistrate to seek one or more reliefs under the D.V. Act. One of the reliefs contemplated is in the context of right to reside in a share household. To enforce such a right, an application under Section 12 can be made by the aggrieved person as also others referred to in Section 12 of the D.V. Act, to the Magistrate. It is in this context that Section 19 of the D.V. Act provides that while disposing of an application under sub section (1) of Section 12, the Magistrate may, on being satisfied that the domestic violence has taken place pass a residence order. This is again to be read and understood in the context of provisions contained in Section 26 of the D.V. Act, which reads thus :
"26. Relief in other suits and legal proceedings.- (1) Any relief available under sections 18192021 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or skc WP-6852-13 after the commencement of this Act.
(2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.
(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief."
7] From the aforesaid, it is evident that any relief which is available under Sections 18 to 22 of the D.V. Act from the Magistrate may also be sought in any legal proceedings, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent, whether such proceedings were initiated before or after commencement of the Act.
Sub Section (3) of Section 26 only provides that in case any relief has been obtained by the aggrieved person in any proceedings other than the proceedings under the D.V. Act, then she should be bound to inform the Magistrate of the grant of such relief or perhaps so that such relief is not obtained twice over. In the present case, as noted earlier, relief in terms of section 19 of the D.V. Act was claimed by the respondent in the proceedings before the Family Court under the Hindu Marriage Act, which is clearly permissible in the light of provisions contained in Section 26 of the D.V. Act. Section 24 of the Hindu Marriage Act, 1955 specifically skc WP-6852-13 empowers the parties to claim maintenance pendente lite and expenses of the proceedings. The Family Court, by virtue of Section 26 of the D.V.
Act is empowered to grant reliefs, inter alia under Section 19 of the D.V.
Act. In such a situation, there is no question of either making any application under Section 12 of the D.V. Act or awaiting the disposal thereof. There is no question of awaiting the disposal of the main proceedings under the Hindu Marriage Act, 1955 and only at that stage making a residence order in terms of Section 19 of the D.V. Act. If such a strained interpretation is permitted to prevail, then the very object of enabling the court to make residence orders, is likely to be frustrated.
Therefore, there is no jurisdictional error in making of the impugned order.
8] In the making of a residence order, no doubt the court is required to have due regard to financial needs and the resources of the parties. In this case, there is material on record which indicates that the respondent has her own independent financial income. However, the petitioner, admittedly has to provide for the minor child. At the present stage, we are not concerned with the issue of maintenance per se. However there is nothing on record to indicate that the petitioner has been providing for any maintenance with respect to the minor child or his educational or medical needs. There can be no serious doubt that the responsibility to provide for not mere maintenance but also shelter to the minor child, is equally that of both the parents. In these circumstances, if the impugned order, requires the petitioner to bear the expenses to the extent of Rs.8,000/- per month skc WP-6852-13 towards providing of shelter to the respondent and the minor child, there is nothing either unreasonable or unjustified in the same. This is not a case where the Family Court has completely disregarded the financial needs and resource of the parties. The test, in all cases cannot be that if the wife is in a position to provide for the financial needs of the child her spouse is relieved altogether of his obligation to contribute to the financial needs of such child. The phrase 'having regard to financial needs and resources of the parties' is required to be interpreted in a reasonable manner. All that the phrase requires is that the court must have due regard to both the financial needs and the resources of the parties. Therefore, in making orders under sub section (1) of section 19 of the D.V. Act, the court is not expected to impose some undue burden on any of the parties, by emphasizing disproportionately upon the needs and ignoring the aspect of resources. However, this does not mean that in a situation where one of the spouses has the resource to provide for the minor children, the other spouse ought to be completely relieved of his obligation to provide for the same. Ultimately, it has to be borne in mind that the respondent in the present case continues to bear the expenses towards maintenance, educational and medical needs of the minor child. In these circumstances, if the impugned order, requires the petitioner to make a contribution of Rs.8,000/- per month towards the residence requirements, then there is nothing unreasonable, which warrants interference of this court in the exercise of powers of judicial review.
     skc                                                                            WP-6852-13



    9]    The submission that the premises in which the respondent and the

minor child presently reside is owned by the respondent's brother and the inference therefrom that the respondent must not be paying any rent to her own brother, cannot be accepted. In any case, there is no reason to probe into this aspect any deeper. There is no legal requirement at least in the present case, that the respondent's brother provides for the respondent and the minor child some residence gratis, so that the petitioner is relieved of his obligation to make some reasonable contribution, at least towards the residence requirements of the minor child, even if, similar claim of the wife is to be ignored at the present stage.
10] Therefore, there is no need to interfere with the impugned order. The petition is liable to be dismissed. The interim order, if any, to stand vacated. In the facts and circumstances of the present case, there shall be no order as to costs.
11] The parties were referred to mediation with a view to arrive at some amicable settlement, particularly as interest of minor child was involved.
The Mediator, Advocate P. K. Gaikwad made earnest efforts as Mediator.
However, the mediation did not succeed. This Court records its appreciation at the efforts of Advocate P. K. Gaikwad and further earnestly hopes that the parties make yet another attempt at amicable settlement, particularly in the interest of the welfare of the minor child.

    12]       With the aforesaid observations, this petition stands disposed of.




                                                                                 
                                                         
                                                          (M. S. SONAK, J.)

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