.Bombay High Court
Mr.Ishpal Singh Kahai vs Mrs.Ramanjeet Kahai on 23 March, 2011
Bench: R. S. Dalvi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Writ Petition No.576 of 2011
Mr.Ishpal Singh Kahai ... ... Petitioner
Mrs.Ramanjeet Kahai ... ... Respondent
Hence notwithstanding the law relating to ownership of immovable property any victim of domestic violence in a domestic relationship would require to be granted the protective right of residence in the shared household, including the protection against dispossession therefrom whether or not she has any legal or equitable interest therein . This right to reside contains within itself not only an injunction for protection against her dispossession, but statutorily follows as a matter of corollary, the order of injunction of the Court for removal of the violator from such household and thereafter restraining him from entering thereupon. The order of removal of the violator and an order of injunction restraining him from entering upon the shared household is, therefore, conditioned upon his abusive behaviour violating the person of his wife or any other woman in domestic relationship and not upon his proprietary rights therein. Consequently, the right to reside without having any title to the property contains within itself the right to reside peaceably and to the exclusion of the violator. Further since the Act puts the woman s personal rights above proprietary interest, even if the Respondent who is the violator has title to the property, he would be restrained by a Court from 23 WP-576 exercising unrestrained domain over his ownership property by an order of injunction restraining him from alienating or disposing of or encumbering the shared household or the matrimonial home in which the victim has been granted the right of peaceful residence for her protection. This further brings within its sway, the servants, agents, assigns, who may be the relatives of the violator since what cannot be done directly also cannot be allowed to be done indirectly. This, of course, would be until and subject to the violator securing the same level of alternate accommodation for the victim as was enjoyed by her in the shared household and upon he paying for the same.
Consequently, reading sub-sections (a), (b), (c), (d) and (f) of Section 19(1) together, a holistic view of the protection of the victim is granted under the beneficial social legislation which seeks to remedy the malaise of domestic violence in a domestic relationship.
36.It may be mentioned that the orders required to be passed by a Magistrate can also be passed by the Family Court, as the jurisdiction under Section 26 of the DV Act is conferred upon Civil Court, Family Court or Criminal Court alike.
37.It is this protection that the learned Judge has 24 WP-576 sought to grant the violated wife in this case against her violative husband. As aforesaid, the fact of his alcoholism not only having been shown, but admitted and justified and the instance shown by the wife not only having been stated, but substantiated by the fact of the fire brigade assistance having had to be sought, a case of her protection in future against the expected aftermath of the disease to which the husband has succumbed as well as for the protection of her minor children is more than prima facie made out. In fact, the learned Judge ig has considered the aggressive attitude of the husband in even breaking a glass in a fit of rage upon the Petitioner having filed the Petition and applied for reliefs. The learned Judge has also considered the police complaints filed by her. She has appreciated the apprehension in the mind of the wife of further disturbance at the hands of her husband. The learned Judge has, however, also considered the joint ownership of the wife and her mother-in-law in the matrimonial home. It may be mentioned that is the only immaterial aspect in considering the relief of injunctions granted by the learned Judge.
38.The wife has made out a fit case for grant of the reliefs sought by her. The husband has not shown any apparent error on the part of the learned Judge. No 25 WP-576 interference whatsoever is called for.
39.The Writ Petition is, therefore, dismissed and Rule is discharged accordingly.
40.However, upon the application on behalf of the Petitioner/husband, the stay already granted by the trial Court, which has been continued pending the Writ Petition, shall be continued for a further period of two weeks from today.
ig (SMT.ROSHAN DALVI, J.)