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.
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6852 OF 2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Mr. Amit Satish Shah
versus
Mrs. Archana Amit Shah & Anr.
CORAM : M. S. SONAK, J.
Citation; 2014(6) MHLJ 707
Date of Pronouncing the Judgment : 14 October 2014
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
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
submitted that the impugned order is liable to be interfered with.
Court has completely disregarded. For all these reasons, learned counsel
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 under
Section 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
5]
Section 19 of the D.V. Act.
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
at the present stage, particularly since the impugned order does not
that the impugned order ought not to be interfered with.
concern the issue of maintenance. For all these reasons, she submitted
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 18, 19, 20, 21 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
after the commencement of this Act.
Any relief referred to in sub-section (1) may be sought for
(2)
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
From the aforesaid, it is evident that any relief which is available
7]
such relief.”
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.
In the making of a residence order, no doubt the court is required to
8]
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.
7/9
::: Downloaded on - 21/12/2014 18:54:57 :::
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
that the petitioner is
and the minor child some residence gratis, so
ig
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.
Therefore, there is no need to interfere with the impugned order. The
10]
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.
8/9
::: Downloaded on - 21/12/2014 18:54:57 :::
skc
With the aforesaid observations, this petition stands disposed of.
12]
WP-6852-13
(M. S. SONAK, J.)
ig
Chandka
9/9
::: Downloaded on - 21/12/2014 18:54:57 :::
No comments:
Post a Comment