Bombay HC refuses to “fall victim to the tricks played by husband” in divorce case

The Bombay High Court last week separately decided two issues while hearing petitions challenging Family Court orders in a divorce case. In one of the judgments, the Court frowned upon the tactics employed by husbands in order to shirk away from paying maintenance to their estranged wives..The two issues that were decided separately were firstly, whether the wife can stay at the matrimonial home pending divorce proceedings, and secondly, whether she is entitled to receive interim maintenance during the pendency of a petition for nullity of marriage filed by the husband..The single judge bench of Justice Shalini Phansalkar-Joshi answered both these questions in the affirmative. The petitioner wife was represented by advocate Rajesh Dharap, while the respondent husband was represented by SR Dubey..The brief facts of the case are that the husband had filed a petition for a decree of nullity on the ground that his marriage with the petitioner-wife was null and void. In response, the wife stated that she was subjected to mental and physical torture by the husband and his family members, and was forced to leave her matrimonial home. Before the Family Court, she sought an interim injunction, restraining the respondent-husband and his family members from dispossessing her from her matrimonial home..In September 2014, the Family Court saw it fit to grant the injunction and directed the husband to allow the wife to stay at the home till further orders. However, this order was later lifted after the Family Court held that since the flat belonged to the father of the husband, and the husband was living elsewhere, the wife could not stay in what was her matrimonial home..While deciding the issue of whether the petitioner had the right to reside in her matrimonial home, the High Court noted that the Family Court had failed to take into account the provisions of the Domestic Violence Act. According to Justice Phansalkar-Joshi, the home in dispute would qualify as ‘shared household’ under Section 2(s) of the Act. Further, under Section 19 of the Act, the wife may not be disposed of the shared household, whether or not she has a legal or equitable interest in the same..The Court held,.“The question of title or proprietary right in the property is not at all of relevance, when the provisions of the D.V. Act; especially Section 19 thereof, are to be considered..As a matter of fact, it needs to be emphasized that…this D.V. Act was brought in the Statute Book with the specific and clear language and the unequivocal Clause that the ‘title of the husband or that of the family members to the said flat’, is totally irrelevant…”.The Court went on to note that there was no evidence to suggest that the husband had actually moved out of the matrimonial home..“Therefore, it is clear that, this ploy is adopted by the Respondent just to deprive the Petitioner from her rightful claim to reside in the ‘shared household’, which is the Flat at Mulund. This Court cannot fall victim to the tricks or ploys played by the Respondent-husband in such cases.”.Thus, the Court set aside the Family Court order and made it clear that the wife would be entitled to reside at the home pending the disposal of the divorce petition by the Family Court within six months..The Family Court had also, in the aforementioned order, rejected the petitioner wife’s claim for interim maintenance for her and their young daughter pending the disposal of the case..The husband had refused to pay the same on the grounds that she had received Rs. 1 lakh in alimony from her previous husband, and that she was employed as a jewelry designer, earning Rs. 22,000 a month. He did, however, agree to pay Rs. 2,500 per month for the maintenance of the daughter..The petitioner, however, claimed that since the time she was residing separately from the Respondent husband, she has not been able to do work, as she has to take care of her daughter. The High Court again pulled up the Family Court for not considering this fact..“Therefore, it follows that, when there is nothing on record to show that the Petitioner has her own source of income and when she has stated that she is now jobless and having no source of income, it has to be held that, she becomes entitled to get interim amount of maintenance; especially, having regard to the fact that she is having now liability to look after her small school going daughter of seven years…”.The Court also found that the husband did not disclose his real annual income, a trend that has been on the rise..“It has to be noted that, the Court cannot close its eyes to the reality, as it is often noticed these days that the moment the litigation starts, every attempt is made by the husbands not to disclose their real income.”.Moreover, the claim that the wife had received alimony from her previous husband was, in the Court’s view, irrelevant..“…it has to be held that, the said amount or her entitlement against her first husband cannot be confused or mixed up with her entitlement against the present husband – the Respondent…”.Therefore, the Court directed the respondent husband to pay interim maintenance of Rs. 5,000 per month for the wife, and a separate Rs. 5,000 a month for the daughter..Read order on right to reside in matrimonial home:.Read order on interim maintenance:.Click here to download the Bar & Bench Android App