Interim Order 1

Order Details: Copy of Interim Maintenance Order
Pdf Text: C. C. No. 88 DV 2023 Mrs Amrita Vs Mr Suresh and anr.
CNR MHMM18-003780-2023
ORDER BELOW EXH.6
Aim, object and nature of P.W.D.V. Act -
1. The jurisprudence of granting civil reliefs and jurisprudence
pertaining to means of their execution is different. But taking exception to
the general rules of enforcement of civil remedies in larger interest of
society, statutes in criminal forms were enacted to grant reliefs of civil
nature expeditiously using criminal measures. In such statutes the line of
distinction between civil and criminal reliefs is thin. The means of
execution of such reliefs are intermingled with reliefs themselves,
therefore, those statues poses situations before courts of law, where it is
difficult to maintain the balance of interests of both the parties. Many
times such situations leads to abuse of process of law.
2. The Protection of Women from Domestic Violence Act, 2005,
hereinafter referred as D.V. Act, is one of such statute. While discussing
it’s nature and consequences of granting reliefs under it, the Madras High
Court (Coram Hon’ble Justice Shri. N. Anand Venkatesh), in case of Dr. P.
Pathmanathan Vs Tmt. V. Monica (Cri. OP. No.28458 of 2019), and while
deciding several other petitions with it, in it’s common judgment,
described the prevalent state of the matters under D. V. Act, as -
Para No.3 - Upon a close reading of the D. V. Act, this Court found that the nature of
rights that were protected and enforced under the Act were purely civil in nature.
However, considering the forum which was dealing with such applications, and the
procedure adopted, a criminal color has been unwittingly given to these proceedings.
Like a chameleon changing its colour depending on the situation, the proceedings
under the D. V. Act were also camouflaged due to the nature of the forum provided
under the Act.
3. In this matter the back ground of D.V. Act is also discussed, as
stating that the aim of the 124th Report on the Bill (2002) which is later
approved and passed as D. V. Act, submitted by Standing Committee of
the Ministry of Human Resource Development, to the Rajya Sabha, is
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reproduced as, providing a remedy under the Civil Law which is intended
to preserve the family and at the same time provide protection to victims
of Domestic Violence. The statement made by Secretary, Department of
Women and Child Development mentioned in the said report, is also
reproduced as follows, -
“Outlining the basic features of the Bill, he stated that the existing civil,
personal or criminal laws leave certain gaps in addressing the issue of
Domestic Violence. Under criminal law, if a husband perpetrates violence on
his wife, she may file a complaint under Section-498 A of IPC. Similarly,
under the civil law, if there is disharmony in a family and the husband and
wife cannot live together, any one of them may file a suit for separation
followed by divorce. However, the present Bill addresses such situation where
there is some disharmony in the family but the situation has not yet reached a
stage where either separation or divorce proceeding has become inevitable and
the aggrieved woman also for some reasons does not want to initiate criminal
proceedings against her perpetrator. Therefore, the Bill seeks to give the
aggrieved woman an alternative avenue whereby she can insulate herself from
violence without being deprived of the basic necessities of life and without
disintegrating her family.”
4. Thus, the aim and object of D. V. Act is wide, to bridge the gap
between existing laws and address the issue of domestic violence, if there
is disharmony in the family, but parties do not want to separate. For the
said purpose the court of Magistrate (criminal court), is entrusted with a
power to grant reliefs of civil nature such as injunction, compensation,
accessory rights, etc. Thus, civil remedies can be enforced by this Act
through criminal court. For the said purpose Section 28, confers
jurisdiction on Court of Magistrate, to follow the procedure to enforce
these reliefs as per Code of Criminal Procedure, or he can evolve his own
procedure.
5. If this statute is read in it’s whole context, it can be said that civil
remedies are mainly sought to be enforced through urgent measures,
through a court of Magistrate, exercising criminal jurisdiction. As stated
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in opening paragraph of this order, in the larger interest of the society, the
civil remedies are sought to be enforced through urgent criminal
measures.
6. The situation becomes more difficult for the court of Magistrate, in
case of the interim reliefs, for certain reasons. Such reliefs are being
claimed by parties as extreme urgent reliefs, to be granted immediately.
Sometimes such a relief are claimed by parties at very initial stage of the
matter and even ex parte also which are to be granted only on the basis of
affidavits and some material produced, which is generally not subjected to
any detailed scrutiny or cross examination. Interim reliefs are to be
decided without considering them on their main merits, came on record
after recording evidence during trial after subjecting it to strict scrutiny
through cross examination and other factors.
7. Such mandates of D. V. Act and situation accrued on account of
them, increases the possibility of abuse of process of law. Such possibility
puts courts on alert note and hence, such situation compels the courts to
pass orders of such nature, which will maintain the balance of interests of
both the parties and meet the ends to justice. Therefore, courts are bound
to pass orders utilizing the other settled principles of law which are not
specifically incorporated, in the D.V. Act.
Background facts -
8. The present matter, is one of such matter. It is filed by Mrs. Amrita
Ashish Kalra, hereinafter referred as Applicant, under Section 12 of D. V.
Act, wherein she sought various reliefs under Sections 17, 18 and 19 of
the said Act. By filing present separate application, Exh.6, applicant also
sought interim relief of injunction, praying that Mr. Suresh Bulakiram
Kalra and Mrs. Beena Suresh Kalra, her father in-law and mother-in-law,
respectively, hereinafter referred as respondents, shall not dispossess her
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and her children without following due process of law, from their
common residence, situated at 28, Deep Bella, 230, Mount Merry Road,
Near Mehaboob Studio, Bandra West, Mumbai – 400 050, hereinafter
referred as shared household.
Case of the applicant in brief -
9. By way of separate pleadings, Exh.5, applicant contended that she
is the wife of Mr. Ashish Suresh Kalra, the elder son of respondents. Her
marriage took place in the month of February 2005. She was assured of
her residence at 28, Deep Bella, 230, Mount Merry Road, Near Mehaboob
Studio, Bandra West, Mumbai – 400 050 and started residing there. It is
five B.H.K. house. It is not personal property of respondent Mr. Suresh
Kalra, but received by him out of family arrangement of H.U.F., in which
his both sons i.e. including husband of applicant is having interest as he
became major.
10. After marriage the behavior of the respondents towards her
changed. They started her addressing outsider and teasing her on various
counts. They started harassing her for one reason or another. Her children
also suffered. Respondents recorded applicant’s voice and circulated it.
They assaulted and threatened to applicant repeatedly.
11. Applicant’s access was restricted and was not allowed to enter into
kitchen. No food was provided to her. Therefore, she was compelled to
procure outside food for about nine months. The cooking vessels were
hidden. Respondents trying to throw her out of house. They demanded
dowry. Therefore, offence was also registered against respondents at the
instance of applicant. She informed about it to her husband. He tried to
settle the matter, but both the respondents avoided to be so. She is
residing in the above referred household. Her children and husband also
residing there. They are having various daily activities connected with the
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said place. Respondents trying to remove her out of house. Respondents
also lodged false complaints to police and also approached Sr. Citizenship
Forum. Apprehending removal from the above house, which she claimed
to be shared household, applicant sought directions against respondents
that they shall not dispossess the applicant and her children without
following due process of law.
Respondents’ case -
12. Respondents filed their say vide, Exh.14. They denied all the
adverse allegations. The summary of their contention is that after
marriage applicant started residing in the shared household. She behaved
with them in a very dangerous manner. She used to quarreled, fought and
threatened them. Taking advantage of the laws favoring women, she
lodged various false complaints to police and other authorities. She made
their life miserable, uneasy and restless. Therefore, they approached other
forums. They also lodged report with police.
13. The husband of applicant Mr. Ashish, owns a separate flat at
Vileparle, Mumbai. They suppressed said fact from respondents and with
intention to grab the said household, they filed this present application.
14. The shared household is property of Respondent No.1, received by
him from his mother out of love and affection as a gift. The respondents
are senior citizens. No domestic violence caused by them. All facts
pleaded by the applicant are false. The conduct of the applicant disturbed
their life. In the role of their son they noticed significant reversal which
resulted in causing applicant to assert her control over the property. They
are struggling to come to term with new situations totally inconsistent
with their status. Their values were negatively influence by the conduct of
applicant.
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15. They tried to settle peacefully and waited for four years, but failed.
The applicant caused tremendous mental pain, agony and harassment to
them. The respondents found bewildered as applicant was aided by her
husband i.e. son of respondent. Their peaceful and dignitified home
transformed into place of misery. The applicant and her husband
receiving substantial monthly income from their flat. Despite that they
want to grab the shared household. The applicant herself wants to
dispossess the respondent. Applicant and her husband installed C.C. T.V.
cameras and microphone audio recording system in their house and
violated their right. They finding extremely difficult to live in the shared
household. They have no other accommodation. Rather, as applicant is
having alternate accommodation, the prayer shall be rejected.
Submissions of both the parties -
16. Both the parties argued at length. The submissions are in tune with
their respective pleadings and contentions. The applicant contended that
she has no other place of residence. Both the respondents harassing her
and caused various acts of domestic violence, on account of which she
was compelled to file this application. She also lodged report with police
and offence was registered against respondents. She may be dispossessed
from shared household. Therefore, application shall be allowed.
17. Against it respondent submitted that the shared household is owned
by respondents. They had not caused any domestic violence, rather they
suffered on account of conduct of the applicant. The applicant and her
husband is having separate house in their own name. Despite that with
intention to harass them the applicant filed present application and
causing harassment to them. Considering adverse pleadings, submissions
made and other aspects, following points arrived for determination and
recorded my findings on each of them as for the reasons discussed below-
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POINTS FINDINGS
1. Does from the material on record applicant succeeded
in making out prima facie case of commission of
domestic violence against her by the respondent ? ....In the affirmative.
2. Whether applicant is entitled for the relief of injunction
as prayed for ? ....In the affirmative.
3. What order ? ….Application is allowed,
subject to certain conditions.
R E A S O N S
Point No.1 – Prima facie case of domestic violence
18. The summary of the allegations, on the basis of which applicant
sought the interim relief, is that she is daughter-in-law of the respondents.
After the marriage applicant started residing in the shared household and
she is still residing there with her husband and children. After marriage
respondents caused various acts of domestic violence as narrated in
pleadings, Exh.5. In the said shared household the applicant’s husband
Mr. Ashish, is also having share/interest. The respondents are not
exclusive owners. They are about to dispossess her from shared
household. Therefore, they shall be directed not to do so without
following due process of law.
19. Against it respondents, both senior citizens, in their seventies,
contended that they are of reputed family and earn lot of respect during
their whole life. After marriage of applicant with their son Mr. Ashish,
their life changed tremendously. Applicant- their daughter-in-law is
intending to assert control over the shared household. The applicant and
her husband, are doing various acts to harass them. Their conduct created
situations totally inconsistent with their status and values. It caused
tremendous harassment to them. Despite efforts no change took place in
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the conduct of the applicant and her husband. Though applicant and her
husband are having their own separate house, they are harassing the
respondents. They had not caused any domestic violence. Therefore, their
application shall be rejected.
20. On the basis of above facts pleaded it needs to be considered and
decided, whether respondents caused any domestic violence to the
applicant in the shared household and succeeded in making out prima
facie case of domestic violence against respondents or not? For this
purpose it is necessary to bear upon the pleadings and material produced
in support of it. If we considered all the facts pleaded and other evidence
produced, the facts admitted by both the parties and disputed by them, can
be summarized, as follows -
Admitted facts -
i. The relationship between the parties, i.e. applicant is daughter-in-law of the
respondents is admitted.
ii. Both the parties are residing in the same household, i.e. at 28, Deep Bella, 230,
Mount Merry Road, Near Mehaboob Studio, Bandra West, Mumbai – 400 050, is
admitted. The said house, therefore, can be said to be shared household.
iii. The fact that parties are not at cordial terms and certain disputes are going on
between them, is admitted.
iv. The husband of the applicant and the son of respondents Mr. Ashish Kalra, is
residing with applicant and is against the stand of respondents, is also admitted.
v. The respondents also approached certain authorities and sought reliefs against
applicant and her husband. Initially, their prayers were allowed, but later on in an
appeal their prayers were rejected.
Disputed facts -
i. The respondents caused domestic violence.
ii. The shared household is exclusive property of respondents.
iii. Applicant claimed reliefs falsely to have control over the shared household,
though she has another separate house to reside standing in the name of her husband.
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21. From these admitted and disputed facts it is clear that both parties
are residing in the same house and there are disputes going on between
them. The allegations against respondents are mainly in respect of
physical and emotional violence in a shared household.
22. In support of these allegations the applicant filed on record, besides
her affidavit, various other documents. The copy of First Information
Report, the copies of orders passed in proceedings initiated by the
respondents against applicant and her husband, the copies of reports
lodged before police from time to time, copies of documents pertaining to
ownership and other transactions relating to shared household, etc. Except
the fact of causing domestic violence at the instance of respondents,
respondents has not disputed these documents seriously.
23. Against these allegations and documents on record, respondents
also relied on the contents of affidavits in support of their contentions/
defence. They made counter allegations and alleged harassment to them at
the instance of applicant and her husband. They claimed their exclusive
ownership over shared household and contended that they want to live
peacefully at their late stage of life and applicant shall move herself in the
house owned by her with her husband at Santacruz, Mumbai. The whole
false set of allegations made to have control over the property i.e. shared
household.
24. Prima facie case means whether there exist any disputed question
of law or fact to be tried and decided on merits, made out from the
pleadings and other material produced on record. The above stated
admitted and disputed facts and adverse contentions, discussed above
clearly reflect that it needs to be decided on merits whether respondents
caused any domestic violence to the applicant in a shared household. The
parties also raised adverse contentions about the ownership of the shared
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household and the reliefs based on it. This Court is not vested with power
of Civil Court for deciding the aspect of ownership. But for limited
purpose of granting final reliefs, this aspect needs some consideration on
merits. Thus, there involves serious disputed question based on law and
facts, to be adjudicated upon merits.
25. Both the parties belonged to elite class. Their perceptions about
social standards, decent behaviour, public life and other aspects are some
what different from general people. The applicant is educated woman of
independent thought and stature. Her husband is in clear support of her
and both of them pursuing the present matter and other litigation jointly
against parents. The social status of parties and these social, economical
and education aspects of the applicant if considered collectively with the
pleadings of respondents it is very difficult to draw the inference of
domestic violence by them against them in respect of applicant.
26. Further, the applicant sought direction only against in-laws that
they shall not dispossess her without following due process of law,
relieving her husband from providing one of the basic liability of shelter
to the applicant and her son and that too when such separate house is
owned by her husband. It is also necessary to bear in mind that
applicant’s husband is in clear support of her claim and fighting her cause
jointly with her. Applicant also raised dispute about ownership of the
shared household and claimed that her husband is also having stake in it.
These aspects supports defence of the respondents that the proceedings
are lodged with intention to have control over the shared household.
Further, the reliefs claimed are based only on affidavits and no substantial
evidence is on record.
27. Against it respondents claimed that the house is owned by one of
them. False prosecution and present matter lodged against them with
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intention to have control over the shared household. The husband of the
applicant shook hands with her and harassing them. In support of this
defence there is substantial documentary evidence on record to show that
one of the respondent is owner of the house and other respondent also
held stake in it through him.
28. The question of ownership can not be gone into at this stage. In the
alternative, even if it is presumed that the applicant also through her
husband Mr. Ashish, is having any interest in the shared household, it can
be devolved on him only through Respondent No.1, Mr. Suresh, in whose
name shared household is standing. Therefore, at present it is clear that
applicant have no interest in the shared household except very limited
right of residence on the basis of prima facie allegations of domestic
violence made against respondents on the basis of affidavits.
29. In addition to it on the basis of relief claimed, applicant herself
alone is not going to reside in the shared household. Her supporting able-
bodied husband Mr. Ashish and child, are also going to reside there
taking advantage of the said order, though prima facie responsibility of
providing food and shelter to the applicant and her child is of Mr. Ashish,
the husband of the applicant.
30. Not just that it is also came on record that applicant and her
husband, are having another house in their name at Santacruz, Mumbai.
They rented it to third person, earning profit from it and despite that they
wants to reside in the shared household only on the ground of
convenience. Therefore, possibility of defence can not be ruled out.
31. However, to draw the inference of prima facie case of domestic
violence not much serious scrutiny of the material produced is required.
The D. V. Act, is beneficial legislation, the strict consideration of
pleadings at initial stage is not required. Therefore, if we considered the
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pleadings of both the parties in the light of admitted facts particularly,
relationship, common residence in shared household and the fact that
parties are at differences and disputes are going on between them, balance
tilts in favour of the applicant. The definition of domestic violence
provided in Section 3 of the D.V. Act, if considered in the light of
differences and disputes going on between the parties, those differences
and disputes can be termed as acts of domestic violence and hence, it can
be said that the respondents caused acts of domestic violence against
applicant. Accordingly, I recorded my findings on Point No.1, in the
affirmative.
Point No.2 – Reliefs
32. As stated in opening paragraph of this order when the reliefs
claimed are of civil nature and sought to be enforced through criminal
measures it is very difficult to maintain balance of interests of both the
parties. Such findings are purely based only on prima facie case and
without going into the main merits of the matter by way of evidence.
Therefore, while granting interim reliefs the possible consequences going
to accrue on account of other factors needs to be weighed with the
consequences of granting of reliefs so that the interests of both the parties
can be maintained to meet the ends of justice and to prevent the abuse of
process of law. Those factors are many in number. But, important
amongst them can be taken into account, which finds it necessary to
provide certain riders. Some of those important factors can be
summarized, as follows.
Contradictory situation -
33. In view of finding on Point No.1, if blanket relief is granted, it will
pose somewhat contradictory situation. If injunction as prayed is granted
the owner of the house will be deprived of it’s full benefits and the third
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person will enjoy it’s possession and fruits bore therefrom. Not just that
such third person on the basis of somewhat weak claim will retain his
possession by the order of court and gain additional advantage of rent and
other benefits from his other property owned by him. Thus, passing of
such order may have an effect of granting undue advantage to the
applicant and her husband without compensating the owner of property,
which is against the law and equity.
Status of respondents -
34. Another important point in this regard to be noted and take into
account is that such owners are not an ordinary healthy able-bodied
persons. They are old aged parents of the husband of the applicant. They
have right to lead their remaining life peacefully and without having any
detriment to their rights over property. Therefore, if any order against
them is passed without compensating respondents for enjoyment of
shared household by the applicant and her husband, will have an adverse
effect on their substantial rights of the respondents.
Relief sought is having effect of granting protection order -
35. The nature of the prayer and order sought to be passed by the
applicant is such that, if it is passed, it will have serious consequences.
Granting directions that respondents shall not dispossess the applicant
also implies that indirectly protection order is passed in favour of
applicant. The breach of protection order is having serious consequences.
The Section 31 of D. V. Act provides that breach of protection order is an
offence of cognizable and non-bailable nature.
36. The respondents are already facing one of the prosecution, which
they claimed to be false. Granting prayer may ensue another prosecution
for breach of order. If prayer is allowed for ex gracia residence of the
applicant and her family members, it will have serious adverse
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consequences on the interest of the respondents. Therefore, there must
have some rider so that interest of respondents can also be protected
effectively through the means of law only.
Possibility of delay -
37. This court is heavily burdened with several types of matters,
besides other day to day consequential proceedings commencing in
respect of such matters. So also present application involves some what
complex issues. Final decision of the present matter on merits will take
substantial time. Both these factors if taken into account it can be inferred
that final decision of the matter on merits will take long time. As
discussed above the effect of passing order in favour of applicant will
have severe adverse impact on the rights of respondents particularly their
right of enjoyment of their property i.e. shared household, as per their free
volition. Further, they are at advanced stage of life and if their right of
free enjoyment is encumbered with any burden put on such right by the
order of this court and matter is prolonged their interest will severely
affected. Therefore, before saddling any such encumbrance on their right
of enjoyment of property freely, they must be compensated to certain
extent.
Magistrate can evolve his own procedure -
38. From the factors discussed above, it is clear that if blanket order is
passed without having any rider to protect the interest of respondents in
the property and to compensate them certain extent, respondents may
suffer irreparable loss. For the reasons discussed above, the situation
going to be accrued on account of passing of order in favour of applicant
in view of findings recorded on Point No.1, is some what peculiar. The
D.V. Act is special statute. For enforcement of the reliefs granted, Section
28(1) of the said Act provides that, all such proceedings shall be governed
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by Code of Criminal Procedure, 1973, and Section 28(2), further provides
that nothing shall prevent the Court from laying down it’s own procedure
for application under Section 12 or application under Section 23(2).
39. The Act is silent about the peculiarities going to be accrued on
account of or for the purpose of passing of the orders, as in the present
matter. The Act is mainly of quasi-civil or quasi-criminal nature. In such
a situation this court can evolve it’s own solutions to meet the niceties. To
meet the ends of justice Court is not helpless. Therefore, while granting
relief to the applicant, the interest of respondents must be taken care of.
The applicant, particularly her husband, may not be absolved of his
liability to take care of applicant and that too against his parents and when
there is cloud of doubt over it, on account of his conduct. As such the
applicant and her husband Mr. Ashish, needs to be saddled with burden of
payment of rent to the respondents, about the premises they are in
possession of and utilizing it for their own benefit without knocking door
of Civil Court for adjudication of their proprietary rights and though they
are having separate house to reside.
Right to be heard of Mr. Ashish -
40. One can say that in a proceeding initiated by applicant against
respondents, the husband of applicant may not be saddled with burden of
payment of rent and other amount without hearing him by impleading him
in the proceeding as a party. But law about the action between the spouses
is now settled. They are one and some juristic persons in law. So also in
this matter, though respondent Ashish, is not made party he is present
with the applicant continuously in the court. He is direct beneficiary of
the order so far going to be passed in favour of applicant. It is his primary
responsibility to maintain and provide shelter to the applicant without
doing so he came before Court in hand to hand with the applicant and
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fighting her cause with all his wit. Therefore, he is bound to take care and
provide everything for the benefit and maintenance of the applicant and
their child. In such a situation there is no need to hear him. He can be
saddled with the burden of payment of house rent and compensation to
the respondents, for the maintenance and well being of the applicant and
child.
41. In view of findings on Point No.1, peculiar facts and circumstances
discussed above, implications of the order and it’s legal aspects, I am of
the opinion that following order will serve the cause of justice.
Accordingly, order -
ORDER
a. The application is allowed.
b. The respondents or any person on their behalf is herewith directed
not to remove the applicant from the shared household i.e. the common
residence of both the parties situated at 28, Deep Bella, 230, Mount Merry
Road, Near Mehaboob Studio, Bandra West, Mumbai – 400 050, subject
to following conditions, -
i. That applicant or her husband on behalf of applicant shall pay rent of
Rs.25,000/- per month to the respondents, from the month of February, 2024,
with an annual increase of Rs.5,000/-, from the month of February 2025.
ii. That applicant or her husband on behalf of applicant shall deposit
Rs.3,00,000/- in the Court within one month from today, as a security towards
the house rent, future maintenance costs of the house and other consequential
expenses which may accrued against the applicant or ordered by Court.
c. The above order will come into existence only after depositing
security amount and remain in existence only during payment of house
rent as ordered above. If applicant or her husband, failed to comply any of
these conditions, the above order of injunction passed vide above Clause -
b, is deemed to be vacated.
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d. If respondents failed to comply the order the applicant is directed to
file separate application bearing separate number for execution of order
after compliance of the above conditions.
e. The copy of this order shall be given free of costs to both the
parties.
Sd/-
MUMBAI (KOMALSING RAJPUT)
DATE – 05.02.2024 M.M., 12TH COURT, BANDRA, MUMBAI
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