When To Make A Residence Order Under The Domestic Violence Act

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. 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 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.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6852 OF 2013
Mr. Amit Satish Shah ..Petitioner
versus
Mrs. Archana Amit Shah & Anr. ..Respondents

maint

Wife’s Evidence Can be Recorded By Video Conferencing

The learned Judge of the Family Court has lost sight that recording
of evidence with the help of electronic methods and techniques is
acknowledged and recognized in the judicial system. In the case of
Amitabh Bagchi vs, Ena Bagchi (supra), wife was in India and husband remained in U.S. When there was an issue of maintenance between the parties, the husband made application before the Court for examining him through video conferencing. The Court has allowed the Application and also gave directions when the evidence was to be recorded by video conferencing by the trial Court.
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Can a widow be deprived simply because no other coparcerners demand partition

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
SECOND APPEAL NO.405 OF 2013

Smt. Kalawati Balasaheb Karne … Appellant
V/s.
Smt. Chanda Hanmant Karne & Anr. … Respondents

In the case in hand, a widow filed a suit for partition obviously
claiming her share through her deceased husband. In the wake of the revolution for emancipation of women and for recognizing their rights as human beings equal to the males in respect of the properties in Hindu family, I think depriving a widow simply because no other coparcerners demand partition would clearly be destructive of the movement. This court would like to consider the said larger question.

  Kalawati_Balasaheb_Karne.pdf (111.8 KiB)

What constitutes ‘cruelty’ as a matrimonial wrong

ZENOBIA GHADIALLY vs. MEHROUZ GHADIALLY (PARSI CHIEF MATRIMONIAL COURT AT BOMBAY, PARSI SUIT NO. 13 OF 2009)

In my summing up to the delegates, I asked that they each bear in mind while considering the facts what it is that is said to constitute ‘cruelty’ as a matrimonial wrong. This is a term that lends itself to no complete or exact definition. It lends itself to many interpretations, each fact-dependent.

Where there is evidence of a course of conduct sufficiently grave, beyond the vicissitudes of daily life, as would make it unreasonable to expect the complaining spouse to live with the other, cruelty must be held to have been established.

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HC directs man to return jewellery gifted to ex-wife

The Bombay high court has directed a Vile Parle resident to return the jewellery he had gifted to his former wife at the time of their wedding as it was a part of her streedhan.

Dismissing Prakash Sawant’s application, a division bench of Justice Abhay Oka and Justice Revati Dere upheld a family court order asking him to return the streedhan or pay the value of the ornaments at market rate to his former wife, Savitri.

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What Is Stridhan?

That takes us to consider the issue of Stridhan and the maintenance. The word “Stridhan” includes gifts made to the wife at the time of marriage by her parents, brother, inlaws, husband etc. She is absolute owner of her Stridhan property and she can deal with it in any manner she likes. In the event of divorce or desertion, she is entitled for her Stridhan and her claim in respect thereof, if proved, must be allowed and necessary directions to return the same must be issued by the courts. In the present case, there is no dispute that the certain ornaments were gifted to the appellant by her parents in the marriage, as stated by her in her written statement and in her evidence. The respondent has also deposed that some ornaments were gifted by him at the time of marriage to the appellant. The appellant in her written statement and in her evidence, however, has made reference only to the ornaments/gifts made by her parents as Stridhan. There are six articles, mentioned in paragraph 11(O) of the written statement and in paragraph 23 of her deposition, as Stridhan. She has not claimed ornaments/gifts made by the respondent in the marriage as Stridhan.

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Adulterous wife can’t get maintenance

‘Adulterous wife can’t get maintenance’

Rebecca Samervel TNN

Mumbai: A city court rejected a 38-year-old South Mumbai woman’s plea for maintenance from her estranged husband after it found she was involved in an adulterous relationship.
“The wife who engaged herself in (an) adulterous relationship with a man who owns a shop at the bottom of the building where her matrimonial house is situated cannot claim maintenance and cannot be allowed to take advantage of her own wrongdoings,” the court said.

The court accepted the 40-year-old husband’s plea seeking divorce on grounds of cruelty and adultery.

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