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
Mrs. Archana Amit Shah & Anr. ..Respondents