Rule. Returnable forthwith.

1. The Petitioner/husband has challenged the order of the learned Judge, Family Court, Mumbai, directing him to remove himself from the residential flat in which he resides being flat No.2102, 21st floor, Beverly Hills, Shastri Nagar, Lokhandwala Complex, Andheri (West), Mumbai (the suit flat) and from creating nuisance by attempting to enter in the suit flat until the hearing and final disposal of the Petition. The Respondent/wife sued the Petitioner/husband for divorce and other incidental reliefs, being inter alia a mandatory order directing her husband to remove himself, from entering into the suit flat and disturbing her possession. She applied for temporary injunction for the aforesaid reliefs in which the impugned order came to be passed.

2. Though the Petition is not expressly stated to be filed under the provisions of the Protection of women against Domestic Violence Act (DV Act), the substantial interim reliefs are available to the wife under it and it is gratifying to note that the learned Judge has impliedly treated the interim application as one also under the DV Act and granted reliefs.

3. The wife’s essential case is that her husband is an inveterate and consummate alcoholic. She has lodged several complaints with Versova Police Station. It is her case that her husband displays uncontrolled aggression due to excessive consumption of alcohol and abuses her and her children. The relief of injunction claimed by her is essentially upon the domestic violence caused to her by her husband’s behaviour which makes it impossible for her to continue to reside in the matrimonial home with her children if her husband continues to live there as before. She, therefore, claims protection against domestic violence, a statutory right granted to women under DV Act.

4. Though only the relief of prohibitory injunction against disturbance of possession has been granted to wives, as in the case of B.P. Achala Anand vs. Appi Reddy 2005 3 SCC 313, since prior to the enactment of the DV Act, in this case the wife has claimed and been granted the injunction against the entry of the husband in the matrimonial home. She has made out a case that her husband is a habitual alcoholic, unable to improve or withdraw from the symptoms of alcohol constituting domestic violence and entitling her and her children to the relief of protection from such onslaught in the matrimonial home under the impugned residence order. She must, therefore, show prima facie the case of alcoholism as would constitute domestic violence. Her case must be appreciated to see whether she would be entitled to the injunctions sought.

5. Aside from her oral statement as also her criminal complaint, which would be tested in trial, she has relied upon and produced the case papers of her husband of Holy Spirit Hospital, Mahakali Caves Road, Andheri (East), Mumbai-400 093, where he was hospitalised for treatment of alcohol dependence. The documentary evidence shown by her is not disputed as incorrect and untruthful. It shows the husband being hospitalised on 5th December 2007 under the treatment of Dr.Prabhu and Dr.Rai. The case papers show alcoholic dependence since 15-20 years. It shows that the husband drinks in the morning as well as in the evening, as shown by the expression:

“Morn drinks + Eve drinks, concomitant smoking on going and aggravating stressers etc.”

His case history shows two attempts at abstinence 9 years prior to the hospitalisation after father’s death, after which he returned to alcoholism. The conclusion of the case history shows - Imp : Alcohol dependence in withdrawal.”

It advises urgent admission to hospital. Hence started the treatment of the phase of retoxification.

6. This documentary evidence corroborates the case of the wife that the husband is abusive and violative. Judicial notice is required to be taken of the fact that persistent alcoholic husbands are invariably violative.

7. The wife has given an inst