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2023 DIGILAW 1499 (BOM)

Aditi Satish Khadse v. Karan Nitin Bhise

2023-07-12

M.S.KARNIK

body2023
JUDGMENT/ORDER 1. The marriage of the petitioner-Wife and the respondent no.1- husband was solemnized on 22/12/2017. On 26/4/2018, the couple went to United States of America(USA). 2. It is the case of the petitioner-wife that while in USA, there arose some dispute between the couple at a Halloween party on 30/10/2020. It is alleged by the wife that one of respondent no.1's friend misbehaved with her. It is alleged that on 31/3/2023, the petitioner on her own left the matrimonial house in USA and started residing separately in an Apartment. It is the husband's case that the deposit and rent was paid by him. On 25/8/2021, the petitioner left USA and came to Goa. There were some settlement talks for a divorce by mutual consent. The same did not materialise as according to the respondents, the demand of the petitioner was exorbitant. 3. The petitioner approached the learned Judicial Magistrate First Class, Mapusa on 6/12/2021 by filing proceedings under Ss. 12 and 23 of the Protection of Women from Domestic Violence Act, 2005 ( hereinafter referred to as "said DV Act'' for short). An application seeking interim relief under Sec. 23 of the DV Act was filed. The trial Court was of the opinion that the petitioner is not entitled for interim order of maintenance. The petitioner's challenge to the order passed by the trial Court failed before the Appellate Court. The concurrent orders passed by the Courts below denying interim relief to the petitioner are challenged in this petition. 4. The Appellate Court was of the opinion that merely because the petitioner is stating that there is domestic violence cannot be accepted as a gospel truth and the same has to be established by leading evidence. The Appellate Court further held that the petitioner failed to prove prima facie case that she was subjected to domestic violence. Further according to the Appellate Court, granting the interim relief would amount to virtually allowing the complaint of the petitioner, which is not be permissible. In paragraph 17, the Appellate Court records thus:- "Perused the case papers produced by the applicant. It is the case of the applicant that respondent no.1 was not supporting her financially whereas it is a case of respondent no.1 that he was giving all financial assistance to the applicant. Here the point has to be decided whether the respondent no.1 was financially assisting or not on merits. It is the case of the applicant that respondent no.1 was not supporting her financially whereas it is a case of respondent no.1 that he was giving all financial assistance to the applicant. Here the point has to be decided whether the respondent no.1 was financially assisting or not on merits. Prima facie there is nothing to say that there was financial abuse. Hence point is answered in negative." 5. Thus the Appellate Court was of the opinion that whether respondent no.1 was financially assisting the petitioner or not is a point to the decided on merits. The Appellate Court proceeds on the footing that there was nothing on record to show that there was financial abuse. 6. According to the learned counsel for the petitioner, the order passed by the Courts below in the teeth of the provisions of DV Act and therefore calls for interference. 7. Mr. Kapse, learned counsel for the respondents, on the other hand, invited my attention to the concurrent findings recorded by the Courts below and submitted that there is no material on record to establish that the respondent no.1 subjected the petitioner to any domestic violence. It is his case that the petitioner was always treated with respect and on her own volition left USA and came back to India. Learned counsel for the respondents argued in support of the impugned order. Learned counsel for respondents, on instructions, without prejudice to the rights and contention of the respondents even in this petition, voluntarily submitted that as a grace the respondent no.1 is willing to pay to the petitioner a sum of Rs.50, 000.00 per month during the pendency of the proceedings and subject to the final order that may be passed by the trial Court and even willing to pay to the petitioner the arrears at the rate of Rs.50, 000.00 per month from the date of the interim application filed before the trial Court. Learned counsel also produced on record an email from the respondent no.1 about his earnings to demonstrate that the respondent no.1 would be in a position to pay to the petitioner only a sum of Rs.50, 000.00 per month, as his saving are Rs.54, 500.00 per month after paying all expenses. The email is taken on record and marked "X" for identification. 8. The email is taken on record and marked "X" for identification. 8. In rejoinder, learned counsel for the petitioner submitted that considering the cost of living and having regard to the reasonable living standard the petitioner could least expect, the amount of Rs.50, 000.00 p.m. would be too less. It is pointed out that presently the petitioner is at the mercy of her sister. It is stated across the bar by the learned counsel for the petitioner that the petitioner is not working and she has no means to maintain herself. It is, therefore, prayed that the amount of Rs.50, 000.00p.m offered by the respondent no.1 toards compensation is too less. 9. Heard learned counsel for the petitioner and respondents. Perused the paper book and the orders passed by the Courts below. 10. I may briefly make reference to the relevant provisions of the DV Act to appreciate the controversy involved in the petition in the context of the petitioner's claim for interim relief. 11. Sec. 2(f) of the DV Act defines "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. Sec. 2(g) of the said DV Act provides that "domestic violence" has the same meaning as assigned to it in Sec. 3. 12. Sec. 3 provides for the definition of Domestic violence. Sec. 3 reads thus:- "3. Definition of domestic violence. Sec. 2(g) of the said DV Act provides that "domestic violence" has the same meaning as assigned to it in Sec. 3. 12. Sec. 3 provides for the definition of Domestic violence. Sec. 3 reads thus:- "3. Definition of domestic violence. -For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it - (a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or (b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or (c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or (d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person. Explanation I. - For the purposes of this Sec., - (i) "physical abuse" means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force; (ii) "sexual abuse" includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman; (iii) "verbal and emotional abuse" includes - (a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and (b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested; (iv) "economic abuse" includes - (a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, house hold necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared house hold and maintenance; (b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and (c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household. Explanation II. -For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes "domestic violence" under this Sec., the overall facts and circumstances of the case shall be taken into consideration. This clause defines the expression "domestic violence". Any act, omission or commission or conduct of the respondent shall amount to domestic violence in certain circumstances. It includes causing physical abuse, sexual abuse, verbal and emotional or economic abuse which are also explained in the clause. This clause defines the expression "domestic violence". Any act, omission or commission or conduct of the respondent shall amount to domestic violence in certain circumstances. It includes causing physical abuse, sexual abuse, verbal and emotional or economic abuse which are also explained in the clause. In determining whether any act, omission, commission or conduct of the respondent constitutes "domestic violence", the overall facts and circumstances of the case shall be a guiding factor. (Notes on Clauses)" ( Emphasis mine) 13. The substantive proceedings are filed by the petitioner under Sec. 12 of the DV Act. Interim relief is prayed for under Sec. 23 of the DV Act. Sec. 23 confers a power to grant interim and exparte orders. Sec. 23 provides thus:- "Power to grant interim and ex parte orders. -(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper. (2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under Sec. 18, Sec. 19, Sec. 20, Sec. 21 or, as the case may be, Sec. 22 against the respondent." 14. The petitioner was residing with the respondent no.1 in US. For a brief period after she left the matrimonial home to reside separately in USA, she resided in a rented premises. The deposit and rent for the rented premises was paid by the respondent no.1. It is also the case of the respondent no.1 that the maintenance of the petitioner while in USA was taken care of by the respondent no.1 till the petitioner came back to Goa on 25/8/2021. There is no dispute that the respondent no.1 was supporting the petitioner financially while she was in USA. 15. It is submitted that respondent no.1 is not averse to a settlement and is willing to provide reasonable alimony as and by way of a final settlement. Even in this Court, the respondent no.1 through his Advocate, submitted that he is willing to provide for compensation of Rs.50, 000.00 per month as a grace without prejudice to his rights and contentions. 16. Even in this Court, the respondent no.1 through his Advocate, submitted that he is willing to provide for compensation of Rs.50, 000.00 per month as a grace without prejudice to his rights and contentions. 16. According to me, the Courts below erred in proceeding on the footing that since the issue whether respondent no.1 was financially assisting or not has to be decided on merits and hence the petitioner is not entitled for maintenance. The Appellate Court further was not justified in observing that there is no prima facie evidence to come to the conclusion that there was domestic violence. Having regard to the express language of the term 'economic abuse' in Sec. 3 of the DV Act, in my view the materials on record are sufficient to hold for the purpose of interim relief that the petitioner has been deprived of the financial resources which she requires out of necessity. In my opinion, in the facts of the present case, it would be just and proper to pass an interim order in favour of the petitioner. 17. Mr. Kapse, learned counsel for the respondents submits that a collateral proceeding for maintenance under Sec. 125 Cr.P.C. is pending before the appropriate Court. He submits that any order passed in this petition will be burdensome for the respondents and hence the petitioner could be directed to pursue her remedy under Sec. 125 of Cr.P.C. instead of prosecuting the present petition. Undoubtedly, the interim compensation granted in this petition will have to abide by the adjustments as provided by the decision of the Supreme Court in Rajnesh Vs Nehal and anr. reeported in (2021) 2 SCC 324 . 18. The question now is what should be the interim order. The respondent no.1 is working in Tesla as a full time employee receiving package of Rs.87000.00 US dollars pre-tax annually. As per the calculations submitted by the respondent no.1, the saving of respondent no.1 is 1015 US dollars after excluding the expenses. In the email placed on record it is stated that respondent no.1 saves about 674 US dollars (Rs.54, 000.00) per month and can only pay a part of this. From the calculation sheet it is seen that the savings of the respondent no.1 in the mutual funds are Rs.1, 000.00 US dollars per month. In the email placed on record it is stated that respondent no.1 saves about 674 US dollars (Rs.54, 000.00) per month and can only pay a part of this. From the calculation sheet it is seen that the savings of the respondent no.1 in the mutual funds are Rs.1, 000.00 US dollars per month. As indicated earlier the respondent no.1 voluntarily offered to pay Rs.50, 000.00 per month to the petitioner without prejudice to his rights and contentions. 19. In my opinion, taking an over all view of the matter, it will be in the interest of justice, that pending the proceedings before the trial Court, the respondent no.1 pay to the petitioner a monthly compensation of Rs.70, 000.00 per month from the date of the interim relief application before the trial Court. Arrears to be paid within a period of six weeks from today. Order accordingly. 20. The impugned orders are set aside. The petition is allowed. It made clear that the above observations made in this petition are limited to deciding the interim application under Sec. 23 of the DV Act and shall not influence the trial Court while deciding the main application on merits. The trial Court is requested to decide the DV proceeding expeditiously and preferably within a period of one year from today. Parties to cooperate with the trial Court for expeditious disposal. No costs.