WPCR-237-2023-F.

DOC

Vinita

IN THE HIGH COURT OF BOMBAY AT GOA

CRIMINAL WRIT PETITION NO. 237 OF 2023-FILING

Aditi Satish Khadse, Adult, Indian Inhabitant

Age:32 years, occupation:Service Residing at
B1/UG-1, Grande De Soccorro, Opp.
Corporation Bank, Near Soccorro Church,
Socccoro, Bardez- North Goa 403501. …Petitioner

Versus

1. Mr. Karan Nitin Bhise, Adult Age:32

years, occupation:Service, Residing at J/3,
Ambekar Nagar Eknath Gadi Marg, Parel
Village, Mumbai- 400012, Presently
residing at: 14100 Avery Ranch Blvd. Unit
903 Austin, Texas

2. Rajeshree Bhise

3. Nitin Bhise …Respondents.

Ms. G. Kamat Advocate for the petitioner.

Mr. V. Kapse and Mr. U. Mahadik, Advocate for respondents.

CORAM: M. S. KARNIK, J

DATE : 12th July 2023

ORAL JUDGMENT:

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).

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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 Sections 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 Section 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

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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. 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.

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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/- 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/- 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/- per month, as his saving are

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Rs.54,500/- per month after paying all expenses. 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/- 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/-p.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. Section 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

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nature of marriage, adoption or are family members living together as

a joint family. Section 2(g) of the said DV Act provides that

“domestic violence” has the same meaning as assigned to it in Section

3.

12. Section 3 provides for the definition of Domestic violence.

Section 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 section,—

(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

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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.

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Explanation II.—For the purpose of determining whether

any act, omission, commission or conduct of the
respondent constitutes “domestic violence” under this
section, 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. 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

Section 12 of the DV Act. Interim relief is prayed for under Section 23

of the DV Act. Section 23 confers a power to grant interim and

exparte orders. Section 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 section18, section 19, section
20, section 21 or, as the case may be, section 22
against the respondent.”

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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/- 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 Section 3 of the

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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 Section 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

Section 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/- 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) per month and can only pay a part
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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/- US dollars per

month. As indicated earlier the respondent no.1 voluntarily offered

to pay Rs.50,000/- 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/- 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 Section 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.

M. S. KARNIK J.
VINITA VIKAS NAIK Digitally signed by VINITA VIKAS NAIK
Date: 2023.07.18 20:28:09 +05'30'

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