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BOMBAY HIGH COURT
Roshan Dalvi, J.
Sabita Mark Burges —Petitioner
versus
Mark Lionel Burges —Respondent
Writ Petition No. 4150 of 2013
Decided on 3.5.2013
For the Petitioner:Rohan Cama a/w Sapna Raichure, Advocates,
For the Respondent:P.S. Chavan, Advocate.
IMPORTANT POINT
An estranged husband who is prima facie shown to be violent cannot be allowed into the matrimonial home where the wife resides with her children.
Headnote:Protection of Women from Domestic Violence Act, 2005—Section 19(1b) —Residence order—Whether an estranged husband who was prima facie shown to be violent could be allowed to the matrimonial home where the wife resided with her children—No—Battered wife’s right of protection against violence—Court has a duty to prevent more violence when wife apprehended escalation of domestic violence.
Held: The husband, who is a Seaman, has made an application for entering upon the matrimonial home which he had admittedly left in January, 2009 after the parties had certain disputes. The wife claims that the disputes were due to the husband’s physical violence amongst other disputes. The husband has disputed the violence, but not the disputes. He has in turn alleged violence at the hands of the wife including “with knives”.
It is common observance that the applications for grant of injunction in respect of the residence and possession of the respondent is essentially seen by Courts upon the proprietary rights of the parties. Since in most cases wives do not own matrimonial homes, they are statutorily given rights therein which were not given to them by Courts under the principles of common law so that they have a right to peaceful enjoyment of their matrimonial home. Section 19 of the D. V Act came to be enacted in the first place granting essentially the wives women peace against domestic violence in their residence, their title notwithstanding. This statutory grant is upon the sublime principle of human rights prevailing over proprietory rights. (Paras 9 & 10)
It must be seen whether this is a prima facie case of violence as proved. The husband’s own notes of arguments shows that he was thrown out of the house and not allowed to enter into the house on 26th January, 2009. It shows that he is away from the matrimonial home since then. The husband’s own allegations made to rebut the wife’s allegations show that police visited his house 4 times. The husband has alleged domestic violence at the hands of the wife, not only at her bare hands but also with knives.
1. The respondent states that the police visited their house in Singapore 4 times. All 4 times the petitioner attacked the respondent with knives.
2. He also alleged that the wife’s domestic violence caused his children to cry and scream “mama stop hurting him”.
A case of physical cruelty has been alleged to obtain judicial separation. Pending that due to certain disputes the husband admittedly left the home. He has desired to enter thereupon. This would only escalate the situation. There may be further such incidents and disputes. The Court has the duty to prevent more violence. The wife apprehends escalation of domestic violence. She claims that it will become impossible for her and her children to live there in peace. (Paras 13 & 14)
The husband’s own case of violence by his wife demonstrates his lack of bonafides. It exhibits how he wants to breach the domestic peace that has prevailed in the matrimonial home since 26th January, 2009.
It may be mentioned that even in the absence of such an alternate accommodation a violent husband cannot be allowed to enter upon the matrimonial home to cause more apprehension pending the petition. The Court must restrain any illegal activities including domestic violence. However in this case an alternate premises is available. The husband’s application is made under common law. He claims the right because he is an equal owner of the flat and has used it as matrimonial home. He would otherwise be entitled to it, but for the violence prima facie seen.
In the interest of both the parties the entering by the husband into the matrimonial home must be prevented pending the petition since the husband has admittedly not lived in the matrimonial home since 26th January, 2009. (Paras 17 to 19)
JUDGMENT
Roshan Dalvi, J.— Rule, made returnable forthwith. The petitioner wife has challenged the order of the Judge, Family Court No.3, Bandra, Mumbai dated 14th March, 2013 allowing the application of the respondent husband to use and occupy one bedroom and to allow him to use facilities like kitchen, hall, w.c. and bathroom in flat Nos. B-101 and 102, Wilfred Apartments Co-operative Housing Society Ltd., Plot No.112, St. Leo Road, Bandra (W), Mumbai-400050. The petitioner has not challenged the order of prohibitory injunction restraining her from selling, disposing off, transferring, letting out, alienating in any manner, the above mentioned matrimonial house and also restraining her from selling or disposing off or part with the articles existing in the house property.
2. In this writ petition the Court is only called upon to see whether an estranged husband who is prima facie shown to be violent can be allowed into the matrimonial home where the wife resides with her children.
3. The concept of a battered wife’s right of protection against violence has been considered in common law in England just as the concept of a deserted wife’s equity was. In common law a battered wife had a right to be protected from the physical violence of her husband. She would be entitled to a right of injunction for her protection in her matrimonial home.
4. These injunctions were granted upon the principle of justice, equity and good conscience.
5. This right came to be statutorily recognised in the U.K under the Domestic Violence and Matrimonial Proceedings Act 1976 (D.V. Act).
Under Section 1 of the D.V. Act, an injunction could be issued (termed as a matrimonial injunction). The breach of the injunction empowered the Police to arrest the violator.
Under Section 3 of the D.V. Act, Section 1(2) of the Matrimonial Homes Act, 1967 came to be amended. The order of regulating the exercise of the right of occupation by a spouse in the dwelling house came to be substituted by the order of prohibiting, suspending or restricting such a right.
Under Section 4 of the Act, in the case of spouses, who are joint owners of the matrimonial home, the right to occupy it or to prohibit, suspend or restrict the other party could be granted by an order of the Court.
6. Both the spouses are entitled to an equal right in the matrimonial home. This is upon the precondition that both live there peacefully, happily and lovingly. Even in unhappy marriages parties continue to have such rights unless there is violence which has always been protected against by Courts in common law and later under statutory provisions.
7. The specific statutory provision in India has been under Section 19(1)(b) of the Protection of Women from Domestic Violence Act, 2005 (D.V. Act) in which various injunctions are granted in favour of a woman in respect of her residence titled “Residence orders.”
The relevant part of Section 19 runs thus:
“19. Residence orders—(1) While disposing of an application under sub-section (1) of Section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order:
(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;
(b) directing the respondent to remove himself from the shared household;
(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;
(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or
(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the sa
