Wife can not be denied residence in the house of her husband on the ground that divorce petition is pending as per Domestic violence Act
Even assuming that the interim order passed u/s. 23 for interim relief is appealable u/s. 29 of the Act, it is specifically observed by this Court that the appellate Court will interfere with it only if it is found that the discretion has been exercised arbitrarily, capriciously, perversely or if it is found that the trial Court has ignored settled position of law regulating grant or
refusal of interim relief.
refusal of interim relief.
Be that as it may, the approach of the learned Sessions Judge appears contrary to what has been observed by this Court in respect of entertaining appeals from the interim orders passed u/s. 23 of the Act. It cannot be said while reading the interim order passed by the learned Magistrate that it was arbitrary, capricious, perverse or contrary to the settled principles of law regarding grant of interim relief. Therefore, the order below Exh.16 ought not to have been interfered with. Even assuming for the sake of argument that the alleged tenant is occupying second floor premises on the basis of unregistered agreement entered into between the alleged tenant and deceased father of respondent no.1, prima facie by itself it would not form any legal basis to claim legal right as a tenant. [In view of law of tenancy which is in force today vide provisions of the Maharashtra Rent Control Act.] Furthermore, merely because the divorce proceedings are pending
between the husband and the wife, the same cannot deprive the applicant who was allegedly subjected to domestic violence from claiming residence in the shared household in the two storeyed building consisting of about eleven rooms. It is the liability of the husband to comply with the interim order passed during pendency of the main application or to provide residence to his wife, the said order being provisional subject to the final orders that will be passed in respect of the main application under the Act. Since such interim order is provisional in character, it may be altered, modified or revoked by any reasoned order if the learned Magistrate is satisfied about the change in circumstances as contemplated u/s. 25 of the Act of 2005.
Bombay High Court
Smt. Sheetal W/O. Hitesh Thawkar vs Hitesh S/O. Vijay Thawkar on 28 June, 2011
