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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Ms. Trusha K. Patel, Advocate for the Petitioner(s) No. 1
  • Mr. Dipak Patel for Mr. JC Vyas, Advocate for the Respondent(s) No. 1
Judges
  • Abhilasha Kumari, J.
Acts
  • SECTION 17 PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT 2005
  • provisions of the Protection of Women from Domestic Violence Act, 2005. Section 2(s)
  • provisions of Section 2(s) and Section 17 of the Domestic Violence Act.
  • provisions of Section 2(5) of the Domestic Violence Act,
  • household.22. Section 17 of the Domestic Violence Act
  • SECTION 7 FAMILY COURTS ACT
  • Courts Act, 1984 (The Family Courts Act for short),
  • Section 4(4)(a) of the Family Courts Act, 1984
  • SECTION 4 FAMILY COURTS ACT
  • Section 17 of the Domestic Violence Act
  • Section 7(c) of the Family Courts Act,
  • Section 7(1) of the Family Courts Act
  • Courts Act, 1984
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Ms. Trusha K. Patel, Advocate for the Petitioner(s) No. 1
  • Mr. Dipak Patel for Mr. JC Vyas, Advocate for the Respondent(s) No. 1
Judges
  • Abhilasha Kumari, J.
Acts
  • SECTION 17 PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT 2005
  • provisions of the Protection of Women from Domestic Violence Act, 2005. Section 2(s)
  • provisions of Section 2(s) and Section 17 of the Domestic Violence Act.
  • provisions of Section 2(5) of the Domestic Violence Act,
  • household.22. Section 17 of the Domestic Violence Act
  • SECTION 7 FAMILY COURTS ACT
  • Courts Act, 1984 (The Family Courts Act for short),
  • Section 4(4)(a) of the Family Courts Act, 1984
  • SECTION 4 FAMILY COURTS ACT
  • Section 17 of the Domestic Violence Act
  • Section 7(c) of the Family Courts Act,
  • Section 7(1) of the Family Courts Act
  • Courts Act, 1984
See more information ...
Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The petition under Articles 226 and 227 of the Constitution challenges the Family Court's order dated 10.04.2014 which confirmed an ex-parte status-quo order dated 15.11.2013 in Family Suit No. 1555 of 2013. The respondent-husband had filed the suit seeking a declaration that the petitioner-wife is not entitled to enter the matrimonial house at 19, Heritage Residency, Thaltej, Ahmedabad, and prayed for permanent injunctions restraining her from entering the house. An application (Exh.5) for interim relief was filed with the suit; the Family Court initially granted ex-parte status-quo relief and thereafter allowed the interim injunction by the impugned order, thereby injuncting the petitioner and her two minor daughters from entering the matrimonial house. The petitioner, who had been driven out of the matrimonial home on 27.02.2013 with her two daughters, approached this Court by the present petition seeking quashing of the impugned interim order.

Legal Issues Presented

  1. Whether the Family Court had jurisdiction to entertain and decide a suit framed to restrain a legally-wedded wife from entering the matrimonial home — in particular, whether the suit falls within Clause (c) to the Explanation of Section 7(1) of the Family Courts Act, 1984 (i.e., "a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them").
  2. Whether the impugned interim order (which restrained the petitioner and her minor daughters from entering the matrimonial house) is consistent with the aims and objects of the Family Courts Act, 1984 and the statutory protections conferred by the Protection of Women from Domestic Violence Act, 2005 (notably Section 17 and the definition of "shared household" in Section 2(s)).
  3. Whether the Family Court properly disclosed and identified the legal source of its power for passing an order that restrains a legally-wedded wife from entering the matrimonial home, and whether the Family Court impermissibly pre-judged the question of maintainability at the interim stage.

Arguments of the Parties

Petitioner's Arguments

  • The suit by the respondent was not maintainable under the Family Courts Act because it does not fall within clauses (a) to (g) of the Explanation to Section 7(1); the respondent's assertion that Clause (c) applies (i.e., suit "with respect to the property") is incorrect since the proceedings concern the wife's right to live in the matrimonial home rather than a property dispute.
  • The Family Court did not assign reasons for holding the suit maintainable and thus pre-judged the issue at the interim stage.
  • Under Section 17 of the Protection of Women from Domestic Violence Act, 2005, every woman in a domestic relationship has a right to reside in the shared household (whether or not she has any right, title or beneficial interest), and the aggrieved woman cannot be evicted or excluded except in accordance with procedure established by law; the impugned order therefore deprives the petitioner of a statutory right.
  • Section 2(5) / Section 2(s) (definition of "shared household") supports the petitioner's right to live in the husband's household even if the household belongs to a joint family.
  • The Family Court's alternative direction (to provide a 2 BHK or failing that pay Rs. 20,000 per month and Rs. 5,00,000 for purchasing residential accommodation) is inadequate and not made mandatory; Rs. 5,00,000 is insufficient to secure comparable accommodation in the locality where the respondent lives, and thus the directions effectively permit the respondent to evade providing accommodation of comparable status for the petitioner and children.
  • The impugned order also unjustifiably restrains the two minor daughters from entering their father's house, contrary to their rights and the welfare of children.
  • The petitioner is willing to reconcile and live with the respondent; she was driven out under compulsion and has been subjected to threats and abusive SMSs from the respondent.

Respondent's Arguments

  • Although the plaint does not state specific provisions, the suit is maintainable under Section 7(c) of the Family Courts Act as it allegedly relates to property — namely, the matrimonial house.
  • The respondent asserts he has evidence that the petitioner had an illicit relationship with Mr. Chirag Patel and that she admitted the relationship in a statement dated 17.02.2012 signed by her and her parents; the petitioner allegedly continued the relationship thereafter.
  • The relationship between parties is not peaceful and there is apprehension that the petitioner may abuse laws favouring women by filing false complaints; to prevent multiplicity of litigation and to maintain peace, the respondent sought injunction restraining petitioner from entering the house.
  • The Family Court's order was proper and aimed at maintaining peace in the house; the respondent offered to provide accommodation equal to his status and the Family Court rightly considered that aspect in its order.
  • The respondent prayed for dismissal of the petition challenging the interim order.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court proceeded by examining statutory provisions and the impugned interim order; its analysis can be summarized step-by-step as follows:

  1. Jurisdiction under Section 7(1) of the Family Courts Act:

    The Court reviewed Clause (c) of the Explanation to Section 7(1) (a suit between parties to a marriage with respect to the property of the parties or of either of them) and observed that the relief sought by the respondent — a permanent restraint on the wife entering the matrimonial home — prima facie appears to concern the wife's right to reside rather than a property dispute between parties. Thus it is not obvious that Clause (c) applies. The question of whether Clause (c) covers such a suit is a larger one for the Trial Court to decide at the final stage.

  2. Findings on how the Family Court treated maintainability:

    The impugned interim order records the Trial Court's view that the suit is maintainable but did so without assigning reasons or conducting an in-depth analysis. The High Court observed that this amounts to pre-judging the suit at the interim stage and that an issue of jurisdiction cannot be decided in a peremptory manner.

  3. Requirement to disclose legal source of power:

    The Family Court did not disclose under which statute or legal provision it exercised the power to restrain the legally-wedded wife from entering the matrimonial house. The High Court noted this omission and emphasised that a Trial Court should indicate the source of its statutory or other legal power when passing such orders.

  4. Aims, objects and scheme of the Family Courts Act:

    The Court analysed the long title, objects, and selected provisions of the Family Courts Act, highlighting that the Act aims to promote conciliation, preserve the institution of marriage, protect the welfare of children, and adopt conciliatory methods rather than an adversarial approach. The presiding officers of Family Courts are expected to promote settlement by conciliation and counselling and to prefer settlement where possible.

  5. Applicability of the Protection of Women from Domestic Violence Act:

    The Court reproduced Section 2(s) (definition of "shared household") and Section 17 (right to reside in a shared household, with an overriding non obstante clause). Given that the marriage subsisted and there was no decree of separation or divorce, the Court concluded that the petitioner has a right to reside in her husband's house during the subsistence of the marriage under Section 17.

  6. Critique of the impugned order's effects and reasoning:

    The High Court found that the Family Court overlooked the aims and objects of the Family Courts Act and the statutory protections in the Domestic Violence Act. It observed that the impugned order not only restrained the petitioner but also effectively restrained the two minor daughters from entering their father's house. The Trial Court's attempt to provide alternate accommodation was deemed inadequate because the monetary direction (Rs. 20,000 per month and Rs. 5,00,000 for purchasing accommodation) was insufficient to secure comparable housing in the respondent's locality, and the Trial Court created an avoidable escape route for the respondent.

  7. On the evidence relied upon by the Trial Court:

    The High Court noted that the Trial Court relied upon the respondent's apprehension that the petitioner may file false cases; however, till date no such complaint had been filed by the petitioner. The Court held that a mere apprehension, not translated into reality, is an inadequate ground for passing such a drastic order. The Trial Court also made a passing reference to SMSs on record but failed to appreciate the abusive and threatening nature of the SMSs sent by the respondent.

  8. Conclusion on lawfulness of the impugned order:

    Having considered the foregoing, the High Court concluded that the impugned order was illegal, perverse, and a result of a patently erroneous exercise of jurisdiction, and therefore liable to be quashed and set aside.

Holding and Implications

Core Holding: The petition is allowed; the impugned interim order dated 10.04.2014 (which confirmed the ex-parte status-quo order of 15.11.2013 and restrained the petitioner and her minor daughters from entering the matrimonial house) is quashed and set aside. The Rule is made absolute and there are no orders as to costs.

Direct consequences for the parties (as reflected in the opinion):

  • The interim injunction preventing the petitioner and her two minor daughters from entering the matrimonial house has been vacated (the impugned order is quashed and set aside).
  • The High Court did not decide the larger question of jurisdiction definitively; it refrained from expressing a final view on whether Clause (c) of Section 7(1) covers such suits, leaving such questions to be decided by the Trial Court at the final stage of proceedings.
  • No new precedent purporting to settle the larger jurisdictional issue was laid down; the Court expressly refrained from pronouncing a final opinion on that larger question in view of the pending suit.

This summary has been prepared strictly from the contents of the provided opinion. No information beyond the text of the opinion has been added or inferred.

Show full summary ...

    Yama v. Ankit Manubhai Patel

    CAV JUDGMENT

    1. Rule. Mr. Dipak Patel, learned advocate, waives service of notice of Rule on behalf of the respondent. On the facts and in the circumstances of the case, and with the consent of learned counsel for the respective parties, the petition is being heard and decided finally.

    2. The challenge in this petition, preferred under Articles 226 and 227 of the Constitution of India, is to the order dated 10.04.2014, passed by the learned Judge, Family Court No. 2, Ahmedabad (“the Family Court” for short), below the application at Exh.5, preferred by the respondent-husband in Family Suit No. 1555 of 2013, whereby the ex-parte order of status-quo granted in favour of the respondent on 15.11.2013, has been confirmed, with certain conditions.

    3. Briefly stated, the relevant facts of the case are that the petitioner herein is the legally-wedded wife of the respondent. Their marriage took place on 30.04.2006 and out of the wedlock, a daughter, named, Henisha was born on 15.07.2007 Thereafter, on 15.11.2010, the petitioner gave birth to another daughter, named, Shanaya. According to the petitioner, after the birth of the second daughter, the respondent and his family members, who were expecting a son, started torturing her by making false and baseless allegations about her character. It is the case of the petitioner that the respondent, encouraged by his family members, was determined to divorce the petitioner because of the birth of a second daughter. The petitioner was pressurized and threatened to such an extent that she was forced to write a letter on 17.02.2012, upon the instructions of the respondent, admitting that she had an illicit relationship with one Chirag Patel. As per the case of the petitioner, because of the threat of divorce, she wrote the said letter as compelled by the respondent. According to the petitioner, she had no relationship of an illicit nature with the said Chirag Patel who is her brother-in-law, being married to a cousin of the petitioner. It is the case of the petitioner that her parents were also made to sign upon the letter under threat of divorce. Ultimately, on 27.02.2013, the petitioner was driven out of the matrimonial house with both her daughters. She was not permitted to take even her own clothes and belongings, or those of daughters, and had to leave the house in the clothes she was wearing. The petitioner had no other option but to go and reside at her paternal house. All the while, the petitioner expected that with the passage of time, the respondent and her in-laws would accept the factum of the birth of the second daughter. However, no positive or constructive action was taken from the side of the respondent. It is further the case of the petitioner that the harassment by the respondent did not stop even after she was made to leave the matrimonial house. Time and again, the respondent used to send the petitioner messages on the mobile phone in abusive language, threatening that he would ensure that their marriage results in a divorce. In those messages, the respondent has not only abused the petitioner but also her relatives, including her father and uncle. The respondent is repeatedly pressurizing the petitioner to give a divorce. However, the petitioner is interested in a reunion with the respondent and in continuing her marriage, in the interest of her two minor daughters. She, therefore, continued to request the respondent not to insist for a divorce. On 15.11.2013, the respondent filed Family Suit No. 1555 of 2013, seeking a declaration to the effect that the petitioner is not entitled to enter the matrimonial house, being, 19, Heritage Residency, Thaltej, Ahmedabad. In addition to the said declaration, the respondent also sought a permanent injunction against the petitioner, along with other ancillary reliefs. Along with the suit, the respondent filed an application at Exh.5, for the grant of a temporary injunction, restraining the petitioner from entering into the matrimonial house. On 15.11.2013, the Family Court granted ex-parte relief of status-quo in favour of the respondent, while issuing notice to the petitioner. Thereafter, the parties were heard. The Family Court allowed the application for interim injunction preferred by the respondent vide the impugned order dated 10.04.2014, which has the effect of injuncting the petitioner and her two minor daughters from entering the matrimonial house. Aggrieved thereby, the petitioner has approached this Court by way of the present petition.

    4. Ms. Trusha Patel, learned advocate for the petitioner, has forcefully submitted that the suit has been filed by the respondent to restrain the petitioner from entering into the matrimonial house. A question would arise whether such a suit of this nature is maintainable under the Family Courts Act, 1984 (“The Family Courts Act” for short), or not. It is submitted that the Family Court has held that the suit is maintainable, without assigning any reasons in support of the said conclusion. Referring to the provisions of the Section 7 of the Family Courts Act, it is submitted that the said Section deals with the jurisdiction of the Family Court. The suit filed by the respondent is not covered by clauses (a) to (g) of the explanation to the said Section. Though it may be asserted on behalf of the respondent that the suit is covered by Clause (c) of Section 7 of the Family Courts Act, the said assertion is incorrect, as the proceedings are not about any dispute regarding the property of either of the parties to the marriage. Elaborating further, learned advocate for the petitioner would submit that under the law, the Family Court has no jurisdiction to pass an order restraining a lawfully-wedded wife from entering the matrimonial home. It is not clear from which source the Family Court has derived the power exercised by it, while passing such a drastic order.

    4.1 That the impugned order has not only deprived the petitioner of her right to reside in the matrimonial home, but also prevents the minor daughters from entering into the house of their father, where they have a right to live, along with their mother, as a family.

    4.2 It is next submitted that even as per Section 17 of the Protection of Women from Domestic Violence Act, 2005 (“the Domestic Violence Act” for short), every women in a domestic relationship has a right to reside in the shared household, whether or not, she has any right, title or beneficial interest in the same. Subsection (2) of Section 17 provides that the aggrieved woman shall not be evicted or excluded from the shared household, or any part of it, by the respondent save in accordance with the procedure established by law. In the present case, the respondent has not followed any procedure established by law. On the contrary, by filing the suit and the application at Exh.5 the respondent is trying to abuse the process of law.

    4.3 It is emphasised that Section 17 of the Domestic Violence Act begins with a non obstante clause. This provision overrides anything contained in any other law for the time being in force. It is submitted on behalf of the petitioner that in view of the said provision of law that the impugned order passed by the Family Court is totally without jurisdiction.

    4.4 Learned advocate for the petitioner has further referred to the provisions of Section 2(5) of the Domestic Violence Act, which defines “shared household”. It is submitted that the petitioner is the legally-wedded wife of the respondent, therefore, she has a right to live in the household of her husband which is a shared household, even though such household may belong to the joint family of which respondent is a member, irrespective of whether the petitioner has a right, title or interest in the said household.

    4.5 It is further contended that at the first glance, it appears from the order of the Family Court that the said Court has provided accommodation to the petitioner, by directing the respondent to provide a 2 BHK apartment with full-fledged facilities, in the same area and locality where the respondent resides. However, at the same time, the Family Court has given the respondent a way to wriggle out of the said directions by further holding, that if the respondent fails to provide the residential accommodation to the petitioner, she would be entitled to Rs. 20,000/- per month as monthly rent for the premises, till the final decision of the suit and a further Rs. 5 lacs (Rupees Five Lacs) to purchase a residential facility. It is submitted that the direction to provide a two BHK residential accommodation in the area and locality where the respondent lives is not made mandatory and the respondent can easily get out of it by paying a paltry sum of Rs. 5,00,000/- under the pretext of purchasing a residential accommodation. It is well-known that in the Thaltej area and locality, where the respondent resides, no decent accommodation of the status matching that of the respondent, himself, is available for Rs. 5 lacs. The respondent is living in a bungalow which is worth Rupees two to two and a half crores. If the petitioner is forced to live outside the matrimonial home, she has a right to live according to the status of her husband. The minor daughters of the petitioner are also entitled to the same status and lifestyle as they were used to in the house of the respondent.

    4.6 That the respondent is not inclined to share the responsibility of the minor daughters of the petitioner, who are aged three and five years, respectively. The impugned order has the effect of restraining the minor children also, from entering the house of their father, which is against all principles of law.

    5. On the above grounds, it is submitted that the impugned order be quashed and set aside.

    6. Per contra, Mr. Dipak Patel, learned advocate for Mr. J.C Vyas, learned advocate on behalf of the respondent, has submitted that though the provisions of law under which the suit is filed are not stated in the plaint, however, the suit is maintainable under Section 7(c) of the Family Courts Act, as it relates to property, meaning the matrimonial house.

    6.1 It is submitted that the respondent has ample evidence to show that the petitioner has an illicit relationship with one Mr. Chirag Patel. She has also admitted as much in the statement that she has signed, along with her parents. Even thereafter, the petitioner has maintained her relationship with the said Mr. Chirag Patel and used to talk to him on a mobile phone.

    6.2 It is next submitted that the relations between the petitioner and the respondent are not at all peaceful and there are all chances that the petitioner may abuse the laws favouring women and file false complaints against the respondent and his family members. The petitioner has threatened to file such cases, therefore if she enters the house of the respondent, the situation would go beyond control and would lead to multiplicity of complaints and litigation.

    6.3 It is further submitted that the order passed by the Family Court is just and proper. That the main purpose of the Family Court in passing the said order was to maintain peace in the house. It is for this reason that the petitioner has been restrained from entering the matrimonial house. The respondent is ready to provide accommodation for the petitioner, equal to his status, therefore, this aspect of the matter has been rightly considered by the Family Court in the said order.

    7. On the above grounds, the learned advocate for the respondent has prayed for the dismissal of the petition.

    8. This Court has heard learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other material on record.

    9. The respondent has instituted the above-mentioned family suit seeking a declaration to the effect that the petitioner, who is allegedly continuing an illicit relationship in spite of the undertaking given by her on 17.02.2012, has no right to enter the house of the respondent, situated at 19, Heritage Residency, Near Heritage Homes, Thaltej, Ahmedabad. Further, the respondent has prayed for the grant of a permanent injunction, restraining the petitioner from illegally entering the above-described matrimonial house.

    10. The assertion on the part of the learned advocate for the respondent is that the suit has been filed under Sub-clause (c) to the explanation of Section 7(1) of the Family Courts Act and the Family Court has jurisdiction to entertain and decide the suit. The said provision is reproduced hereinbelow.

    “S.7 Jurisdiction- (1) Subject to the other provisions of this Act, a Family Court shall

    (a) **** **** *****

    (b) **** **** ****

    Explanation:- The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely-

    (a) **** **** ****

    (b) **** **** ***

    (c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;”

    (emphasis supplied)

    11. A perusal of Clause (c) to the explanation to Section 7(1) of the Family Courts Act makes it clear that the Family Court has jurisdiction to entertain and decide a suit or proceedings between the parties to a marriage with respect to the property of the parties or of either of them. Looking to the relief sought by the respondent in the suit, it does not transpire that there is any dispute regarding property between the petitioner and the respondent. The respondent is desirous of permanently restraining the petitioner from entering the matrimonial home. Entering and living in the matrimonial home, prima-facie, hardly appears to be a dispute regarding the property of the parties to the marriage, but would more likely involve the right of a legally-wedded wife of living in the matrimonial home during the subsistence of the marriage. Whether the suit would fall under Clause (c) to the explanation of Section 7(1) of the Family Courts Act, as asserted by the learned advocate for the petitioner, is a larger question that the Family Court would have to decide, while trying the suit. The question of jurisdiction would be one of prime importance that ought to be decided by the Trial Court before entering into the merits of the case. In the impugned order, the Trial Court has stated, in paragraph-34, that as allegations are made by the respondent (referred to as petitioner in the said order, who has come to the Court for grant of an injunction, the suit is maintainable, as no such contrary law is brought before the Trial Court by the respondent (petitioner herein). Though the impugned order is an interim order, however, it appears that without assigning any reasons or conducting an in-depth analysis of the applicable law, the Trial Court has summarily pronounced upon the maintainability of the suit. In the view of this Court, this amounts to pre-judging the suit at the interim stage, which is not appropriate. An issue such as jurisdiction cannot be decided in such a peremptory manner. It is the assertion of the respondent-husband, as reflected in the impugned order, that the house in which he resides does not belong to him, but is the property of his father. The Family Court has held, in the impugned order, that the house is an HUF property. The applicability of sub-clause (c) to the explanation of Section 7(1) of the Family Courts Act would have to be seen from this angle as well. There does not appear to be any dispute regarding the ownership of the property. The dispute is regarding the right of a wife to live in the house of her husband.

    12. This Court could have pronounced an opinion upon this issue in the present petition, as ample submissions have been advanced by learned counsel for the respective parties. However, being conscious of the fact that the Suit is pending, this court refrains from doing so.

    13. Another relevant aspect of the matter is that nowhere in the impugned order, has the Family Court disclosed the legal source of power exercised by it for passing the said order. Under which Statute or law the Family Court derives the power to restrain a legally-wedded wife from entering the matrimonial house, is also not reflected in the said order. If power has been exercised under the Family Courts Act, in that case, it would be apt and pertinent to refer to the aims, objects, and scheme of the said Act.

    14. The long title of the Family Courts Act, 1984 reads as below:

    “An Act to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith.”

    (emphasis supplied)

    15. The very purpose for which the Family Courts Act has been enacted is, firstly, to provide for the establishment of Family Courts in order to promote conciliation and secure speedy settlement of disputes relating to marriages, family affairs and for matters connected therewith. These are the key words that highlight the very aim and object for the establishment of Family Courts.

    16. The Family Courts Act, 1984, provides for establishment of Family Courts with a view to promoting conciliation in settlement of disputes relating to marriage and family affairs and to facilitate the speedy settlement of such disputes. Today, when there is an increase in conflicts within the family, leading to multifarious litigation and broken homes of which children are the worst sufferers, the Family Courts occupy a unique position in the system of dispensation of justice. The aim and object of the establishment of Family Courts is to preserve the institution of marriage, as far as possible, and to promote the welfare of children. To this end, the adoption of conciliatory methods is encouraged and it is expected that Family Courts would ensure speedy negotiation and settlement of family disputes in an amicable manner.

    17. The statement of objects and reasons of the Family Courts Act stipulates that the Law Commission, in its 59th Report (1974) has also stressed that in dealing with disputes concerning the family, the Court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and it should make reasonable efforts of settlement before the commencement of the trial. Family Courts are required to take assistance of counsellors, social welfare agencies, workers and professionals engaged in the welfare of the family. Though the procedure which is adopted by the Family Court is governed by the provisions of Code of Civil Procedure, 1908, and while the provisions of Code of Criminal Procedure, 1973 would apply to proceedings under Chapter 9 of the Criminal Procedure Code, 1973 (Maintenance of Wives, children and parents) before the Family Court; however, the Family Courts Act does not promote the adversarial system of litigation but encourages a more conciliatory approach and procedure. The Family Courts Act is, therefore, a beneficial piece of social legislation which emphasises a conciliatory approach rather than a bitter and adversarial one.

    18. Section 4 of the Family Courts Act deals with the appointment of Judges. Section 4(4)(a) of the Family Courts Act, 1984 reads as below:

    “(4) In Selecting persons for appointment as Judges:-

    (a) every endeavour shall be made to ensure that persons committed to the need to protect and preserve the institution of marriage and to promote the welfare of children and qualified by reason of their experience and expertise to promote the settlement of disputes by conciliation and counselling are selected; and

    (b) preference shall be given to women.”

    19. The above Section further reflects the intention of the legislature, that the main aim of the Presiding Officers of the Family Court is to preserve and protect the institution of marriage and to promote the welfare of children and the settlement of the disputes by conciliation and counselling by maintaining a sensitive approach while deciding matters under the Family Courts Act.

    20. of course, even after the best of efforts, if parties are not ready to go in for conciliation or mediation, the Court has no option but to adjudicate the matter. In that event the adjudicatory method and procedure ought to be in tune with the aims and objects of the Family Courts Act. However, at the first instance, an endeavour ought to be made to promote conciliation.

    21. After having noticed the relevant provisions of the Family Courts Act, at this juncture, it would be pertinent to notice that the relevant provisions of the Protection of Women from Domestic Violence Act, 2005. Section 2(s) defines a “shared household” in the following terms:

    “(s)“shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.”

    22. Section 17 of the Domestic Violence Act has considerable bearing in the context of the present petition, and is reproduced hereinbelow:

    “17. Right to reside in a shared household.-

    (1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.

    (2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.”

    (emphasis supplied)

    23. This Section opens with a non obstante clause and has a overriding effect over any other law for the time being in force. It mandates that every women in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. In the present case, the petitioner is, admittedly, the legally-wedded wife of the respondent. So far, no decree of separation or divorce has been granted in favour of the respondent. The marriage between the petitioner and the respondent still subsists. Therefore, during the subsistence of the marriage, in the view of this Court, the petitioner has a right to reside in the house of her husband, namely, the present respondent.

    24. The aims, objects and purpose for enacting the Family Courts Act appears to have been overlooked by the Family Court, while passing the impugned order. Similarly, the Family Court has not taken into consideration the provisions of Section 2(s) and Section 17 of the Domestic Violence Act. The impugned order has the effect of not only restraining the petitioner from entering, or living in, the matrimonial house, but also deprives the two minor daughters of their right to reside in their father's house, for no fault of their own. The impugned order is an order of injunction not only against the petitioner, but, in effect, against the two minor daughters as well.

    25. The Trial Court has made an attempt to provide some kind of alternate accommodation to the petitioner. However, having stated that the respondent shall provide the petitioner with an accommodation of two BHK along with furniture and utensils, the Trial Court has proceeded to qualify the said direction by stating, that if the respondent fails to provide a full-fledged residential facility in the same area and locality where he resides, then he would have to pay Rs. 20,000/- per month to the petitioner, till the final decision of the petition and a further sum of Rs. 5,00,000/-, to enable the petitioner to avail of residential accommodation.

    26. The assertion of the learned advocate for the petitioner that she and the minor children have a right to maintain the same lifestyle that they used to, while living with the petitioner, and are entitled to have the same status and type of residential accommodation as the respondent has, carries considerable weight. The Trial Court has given the respondent an escape route by directing him to pay Rs. 20,000/- as rent per month till the final decision of the petition and Rs. 5 lacs in order to purchase accommodation in the same locality. A paltry amount of Rs. 5 lacs would hardly enable the petitioner to get any suitable accommodation in the area where the respondent resides.

    27. In the considered view of this Court, the effect of the impugned order would be to tear apart and sever the relationship of marriage even before the passing of a decree for divorce though there may be a glimmer of hope for reconciliation in future. This Court had requested the learned counsel for the respective parties to explore the possibilities of an amicable settlement between the parties. While the learned advocate for the petitioner submitted that the petitioner is ready and willing to reconcile and live with the respondent, the learned advocate for the respondent submitted that the respondent is not interested in reconciliation. Hence, this Court proceeded to hear and decide the petition.

    28. A perusal of the impugned order reveals that what has weighed with the Family Court is the apprehension expressed by the respondent that the petitioner may involve him in false cases. It is an admitted fact that till date, not a single case or complaint has been filed by the petitioner against the respondent. A mere apprehension, which has not translated into reality, can hardly be a ground for passing an order so drastic in nature as the impugned order.

    29. The Trial Court has made a passing reference to the SMSs produced by the petitioner, that have allegedly been sent by the respondent and has dismissed them by observing that they show that an undesirable atmosphere existed between the petitioner and the respondent and their relations were not good. It has further been stated in the impugned order in the context of the SMSs that the apprehension expressed by the respondent suggests that a quarrel is going on in the family and there is no possibility of the parties leading a peaceful life under the same roof. What the Family Court has failed to notice are the threatening, abusive and filthy contents of the SMSs sent by the respondent to the petitioner. In spite of this, the petitioner is ready and willing to live with the respondent in the matrimonial home, to secure better future for her two minor daughters who are as much the responsibly of the respondent as of the petitioner.

    30. This Court finds that the tone and tenor of the impugned order is, prima-facie, not in consonance with the aims, objects and purpose for which the Family Courts Act has been enacted. The nature of the power exercised by the Family Court is also a question that requires consideration, at the final stage.

    31. The cumulative result of the above discussion is that this Court is of the considered view that the impugned order passed by the Trial Court is illegal, perverse and a result of a patently erroneous exercise of jurisdiction.

    32. For the aforestated reasons, the petition is allowed. The impugned order is quashed and set aside.

    Rule is made absolute. There shall be no orders as to costs.

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    Comments

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