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DV Landmark Judgement #4: Sabita Mark Burges Vs Mark Lionel Burges: Man Can't Be Violent Towards His Wife And Can Be Forced To Leave Shared Household For The Safety & Security Of Wife & Children

Mayur Shrestha ,
  30 March 2022       Share Bookmark

Court :
Hon’ble High Court of Bombay
Brief :
In this instant petition, where the petitioner’s wife has challenged the order of the family court dated vide 14th March 2013, where the husband was allowed to reside in a shared household in a plot based in Bandra Mumbai, further it was observed that the petitioner had not questioned the prohibitory injunction order.
Citation :
WRIT PETITION NO. 4150 of 2013

Date of Judgment:
3rd MAY, 2013.

Bench:
Mrs. Roshan Dalvi, J.

Parties:
Appellant – Sabita Mark Burges.
Respondents – Mark Lionel Burges.

Subject

The Hon’ble High Court (hereinafter referred to as ‘Hon’ble High Court’ or ‘the Court’), in the present instance, has held that a man cannot be violent towards his spouse/wife. Further, he may be forced to leave the shared household to ensure the safety and security of his wife and children. The court added that the women’s are oppressed.

Legal Provisions

Protection of Women from Domestic Violence Act, 2005

  • Section 19(1)(b) – which stated that while the magistrate is disposing of an application under sub-section (1) of section 12, then he can direct the respondent to remove himself from contended shared household.

Constitution of India, 1950

  • Article 227 – states that each High Court shall have authority over all courts and tribunals in the territories in which it practices (apart from a court shaped under a law related to military or armed forces).
  • Article 226 – vests power upon the High Courts to issue certain writs, The High Court shall have the authority, throughout the territories on which it has authority, to issue to any person or authority, including, in appropriate cases, any Government, within those territories, directions, orders, or writs, including writs like habeas corpus, mandamus, prohibitions, quo warranto, and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

BRIEF FACTS

  • In this instant petition, where the petitioner’s wife has challenged the order of the family court dated vide 14th March 2013, where the husband was allowed to reside in a shared household in a plot based in Bandra Mumbai, further it was observed that the petitioner had not questioned the prohibitory injunction order.
  • Furthermore, it was the wife who had to move the petition for judicial separation and maintenance, and subsequently the husband has claimed, in this case, that the contended matrimonial home belongs to both the parties; therefore, he must be allowed to reside in the shared household.
  • The husband has not approached the Court for claiming the aforesaid right to enter upon the matrimonial home by force, ouster, or violence.
  • It was further noted that the husband who is supposed to be a Sailor, had made an application for entering the matrimonial home which he had left back in 2009, and upon further reading of the facts provided, it was alleged by the wife that the husband was abusive and there were a lot of disputes due to husbands physical violence. To which, the husband has contended that he did not resort to violence but he was voraciously argued for participating in other disputes.
  • Thus, the husband has filed this petition for seeking injunctive relief, regarding the aforesaid matter, simultaneously an interim order was passed for providing maintenance to the wife and protection of the matrimonial home against the sale or transfer; further, both the petitions are pending before the Court for hearing.

ISSUES RAISED

  • Whether an estranged husband who is prima facie shown to be violent can be allowed into the matrimonial home where the wife resides with her children?

ANALYSIS BY THE COURT

  • The Hon’ble High Court cited the concept of “Battered Wife’s right of protection against violence” placing reliance on this common-law statute the court has reasoned that a battered spouse had a right to be protected from her husband's physical violence under common law, further, the Court stated that she would be entitled to an injunction to protect herself in her matrimonial home and the same would be granted upon the principles of Justice, equity and good conscience.
  • Per contra, in India U/s.1 of the Domestic Violence Act, a matrimonial injunction could be granted, likewise, the person breaching the same would be liable to be arrested by the police.
  • The Court, further, stated that both the spouses hold equal rights in the matrimonial home regardless of what has been the behavior of the husband, likewise, the court stated that even in unhappy marriages the parties continue to have such rights unless there is a violent approach by the party.
  • The Hon’ble Court observed that the Courts primarily consider applications for injunctions about the respondent's domicile and possession based on the parties' proprietary. Further, stating that in the majority of the cases it is wives who suffer and primarily they do not own matrimonial homes; therefore, they are preferred to be vested with the right to peaceful enjoyment of their matrimonial home.
  • Additionally, the Hon’ble Court was of the view that Regardless of whether a man owns a house on his own, he has no right to be violent against his wife or the woman he resides with him, further, stating that if the same is taken into account by the Court then the Court shall not permit the respondent/husband to enter into the residence, primarily to protect the interest and peaceful livelihood of the wife and protect the children from further exposure into domestic violence.
  • Simultaneously, the Court noted that the violence was not only inflicted upon the wife but at the same time children were also involved in the heated debate between the spouses.
  • The husband already has a flat nearby the contentious shared household and it was claimed by the husband that he cannot reside in that place because it is unfurnished. Since he was contradicting his statement that he spent lavishly to live a peaceful life, the court noted that the husband’s contention of claiming domestic violence by the wife lacks substantial merit and cannot be relied upon.

CONCLUSION

Dismissing the petition, the court stated that an abusive and violent husband cannot be allowed to enter the shared matrimonial household to cause further concern. While the petition is being processed, further, stating that any illegal activity, including domestic violence, must be stopped by the Court. Thus, setting aside the impugned order dated 14th March 2013 that allowed the petitioner to use one bedroom flat with common facilities.

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