Rohit Bhimsen Khurana v. Advocate Neha Rohit Khurana And ANR

* 1/44 *

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 235 OF 2011 Rohit Bhimsen Khurana ... Petitioner vs.

Adv. Neha Rohit Khurana and anr.

... Respondent no.1 WITH CRIMINAL APPLICATION NO. 414 OF 2013 IN CRIMINAL WRIT PETITION NO. 235 OF 2011

1. Mr. Bhimsen Bhagwandas Khurana

2. Lalita Bhimsen Khurana ... Applicants

IN THE MATTER BETWEEN :-

Rohit Bhimsen Khurana ... Petitioner vs.

Adv. Neha Rohit Khurana and anr.

... Respondent no.1 * * * * * * Mrs. V. V. Thorat a/w Prathibha Shelke, Advocate for the petitioner.

Mr. Nitin Deshpande, Advocate for respondent no.1. Ms. A. Malhotra, APP for respondent no.2/State. WITH CRIMINAL APPLICATION NO. 522 OF 2013 IN CRIMINAL WRIT PETITION NO. 235 OF 2011

* 2/44 * Rohit Bhimsen Khurana ... Applicant (Orig. Petitioner) vs.

Adv. Neha Rohit Khurana and anr.

... Respondents (Ori. Respondent) AND CRIMINAL WRIT PETITION NO. 917 OF 2011 Mrs. Neha Rohit Khurana and anr.

... Petitioners vs.

Captain Rohit Bhimsen Kurana and anr .... Respondents * * * * * Mr. Nitin Deshpande, Advocate for the petitioners. Mrs. V. V. Thorat a/w Prathibha Shelke, Advocate for respondent no.1.

Ms. A. Malhotra, APP for respondent no.2/State. Coram : Smt. R. P. SondurBaldota, J.

Date : 7th April, 2016.

P.C. :

1.

The above writ petitions challenge the same order passed by the Sessions Court, Raigad, Alibaug in the appeals filed under the Protection of Women from Domestic Violence Act, 2005 ('the D.V. Act', for short). The petitioner in the first petition is the husband and the petitioner in the second petition

* 3/44 * is the wife. The parties hereinafter shall be referred to accordingly. Out of two civil applications, the first civil application is taken out by the parents of the husband for permission to intervene in the writ petition and the other civil application is by the husband for interim reliefs. All the four proceedings are being disposed off by this common order. 2.

The parties got married at Delhi on 28th July, 1999. At the time of marriage the husband was working as a Chief Officer in Merchant Navy. The wife was a practicing Lawyer. She is also qualified as a Cost Accountant and Company Secretary. There are two children born from the wedlock, the daughter born on 6th August, 2000 and the son born on 10th February, 2006. Initially, the parties resided at Delhi. In the year 2004, the husband with the financial assistance from his father purchased a house at Kharghar, Navi Mumbai and they shifted to Mumbai.

Three years thereafter, the wife filed proceedings under the D.V. Act for protection order under Section 18, for residence under Section 19, for compensation of Rs.5,65,000/- and maintenance at the rate of Rs.80,000/- per month under Section 20 and for compensation of Rs.50,000/- towards mental torture and emotional distress under Section 22 thereof. In the same year, the wife also preferred proceedings seeking maintenance by filing Suit No. 45 of 2007 in the Court of Civil Judge, Senior Division, Panvel under the Hindu Adoption and Maintenance Act, 1956. In the year 2008, the husband filed Hindu Marriage Petition No. 82 of 2008 seeking divorce under

* 4/44 * Section 13(1)(i)-A of the Hindu Marriage Act in which the wife had applied for maintenance under Section 24 of the Act. The trial Court allowed the petition by its judgment and order dated 17th February, 2011 and granted divorce to the husband. The wife has preferred Appeal to the District Court being Civil Appeal No. 72 of 2011.

4.

The husband contested the application under the D.V. Act, denying all the allegations of cruelty and domestic violence made therein against him and contended that, the wife had an independent income, being a qualified person of Rs.50,000/- per month and needed no monetary relief. He had in turn made allegations of cruelty against her and sought dismissal of the complaint under the D.V. Act. The parties led evidence in the application with the wife examining herself and five witnesses and the husband examining himself and one witness. On appreciation of the evidence, the trial Court by its judgment and order dated 11th February, 2010 allowed the application in following terms :- .

"1.

The application is allowed.

2.

The respondent is prohibited from committing any act of Domestic Violence to the applicant and from entering the place of residence of the applicant forcibly in Flat No.J-1203, Nargis Building, Jalvayu Defence Enclave, Sector 20, Plot 20, Kharghar, Navi Mumbai, under section 18 and 19 of the Protection of Women from Domestic Violence Act, 2005.

3.

The respondent is further restrained from dispossessing the applicant from the above residential Flat No.J-1203, Nargis Building, Jalvayu Defence

* 5/44 * Enclave, Sector 20, Plot 20, Kharghar, Navi Mumbai and disturbing her possession by taking entry forcibly, under section 19 of the Protection of Women from Domestic Violence Act, 2005.

4.

The respondent is directed to pay compensation of Rs.10,000/- (Rupees Ten Thousand only) to the applicant, under section 22 of the Protection of Women from Domestic Violence Act, 2005.

5.

The respondent is directed to pay monthly maintenance allowance of Rs.5,000/- (Rupees Five Thousand only) to the applicant, from the date of filing of this application i.e. from 8-3-2007, under section 20(1)(d) of the Protection of Women from Domestic Violence Act, 2005.

6.

The respondent is further directed to pay monthly maintenance allowance of Rs.2,500/- (Rupees Two Thousand Five Hundred only) to each children viz. Rashika and Krish, from the date of this order, under section 20(1)(d) of the Protection of Women From Domestic Violence Act, 2005.

7.

Provide copy of this order free of costs to the parties of the application and to the officer-in-charge of Kharghar Police Station, and also to the Protection Officer, under section 24 of the Protection of Women from Domestic Violence Act, 2005."

5.

Being aggrieved with the judgment and order, both sides preferred Appeals to the District Court. The wife preferred Criminal Appeal No. 20 of 2010 and the husband preferred Criminal Appeal No. 23 of 2010. By the judgment and order dated 8th December, 2010 both the appeals were partly allowed with the following order :-

* 6/44 * "1. The Criminal Appeal bearing No. 20/2010 partly allowed to the extent of maintenance allowance granted under impugned order to the petitioners no.2 and 3.

2. Respondent shall pay to each of the petitioners No.2 and 3 maintenance allowance at the rate of Rs.5,000/- instead of Rs.2,500/- per month from the date of the application.

3. Prayer of petitioner No.1 for enhancement in her maintenance allowance, rejected.

4.

Criminal Appeal bearing No.23/2010 partly allowed.

5. The impugned order where under maintenance allowance is awarded to the petitioner No.1 is set aside.

6.

Compensation awarded and Protection and residence orders passed by the learned J.M.F.C. in favour of petitioners confirmed.

7. Respondent shall pay to the petitioners cost of the application as well as of the criminal appeal no.20/2010.

8. Copy of this judgment be supplied to the petitioners and to the respondent free of costs. 9.

Copy of the judgment be sent along with Record and Proceedings to the trial Court.

10. Copy of this judgment be kept in the record of Criminal Appeal No. 23/2010."

6.

The challenge of the husband to the impugned order is that, the findings of the Courts below, that he had subjected

* 7/44 * the wife to domestic violence is not justified at all and consequently there could be no relief granted to her under the D.V. Act. Similarly, the direction as regards the residential premises being Flat No.J-1203 of Nargis Building are also not justified by the material on record. As regards award of maintenance to the children, the only grievance made by the husband is about the date from which the maintenance is made payable to them, as also, the quantum of maintenance. According to him, since there are orders for maintenance passed in other proceedings also, the direction for enhancement contained in the impugned order ought to have been from the date of the order of the appeal and not from the date of the application. As regards the challenge by the wife, the objection to the impugned order is of refusal of maintenance to her and of the extent of enhancement of the maintenance to the children. 7).

Since, one of the grounds of challenge to the impugned order, which has been argued at length in all seriousness, is that, no case of domestic violence is made out by the wife, it would be necessary to set out the allegations in respect thereof and the evidence in support thereon in some details. Though the complaint filed by the wife was only against the husband, the allegations made therein were also against their parents-in-law. She alleged that, since the time of marriage, the attitude of her in-laws was always rude and indifferent towards her. There was resentment in the house over the articles gifted at the time of the marriage. The wife alleges that, her mother and sister were insulted and humiliated whenever they visited her. The in-laws

* 8/44 * harassed her on one pretext or the other, generally on the household work and complained to the husband. The husband would listen to them, act as per the wish of his parents and harass her. The allegations against the parents-in-law and the consequent allegations made against the husband as seen from the text of the complaint are bald and without any particulars whatsoever.

8).

The next allegation is that, the husband compelled the wife to leave her well established job and accompany him on the ship continuously for a period of 7 months. On the birth of the daughter, the parents of the husband showed resentment about the birth of a girl child and refused to take the wife and the daughter in the house compelling the wife to take shelter with her mother. On 3rd October, 2000 the husband and wife alongwith the child shifted to a small single terrace room at Vikas Puri, Delhi. Within a week thereafter, the husband left them to go to Chennai for giving some examination. From February, 2002 the wife re-joined service with her previous employer. Soon thereafter i.e. in August, 2002 the husband insisted her to join him on the ship.

Accordingly, the wife left her job and joined him on ship on 1st October, 2002 and sailed till 29th October, 2002. In the month of November, 2002 the husband also signed off and came back from the ship. Later, she was again on the ship with him during the period 19th March, 2003 to 9th June, 2003. During that time, her sister got married on 19th April, 2003 but the husband did not allow her to attend the wedding.

* 9/44 * house at Kharghar. The wife claims that, in order to financially help him, she sold the jewellery received by her at the time of the marriage.

9.

In the month of September, 2005, the husband went to his main office in Mumbai at around 7 o'clock. Later he called up the wife and told her that he would be returning late since there was an office party. Then at around at 1.30 am. she received a call from her husband saying that he was in trouble but was reluctant to disclose the trouble. He appeared to be drunk. When he did not return home till 2.30 am. the wife called up his boss and learnt that there was no office party. The husband returned home at about 4 am. and told the wife that there was a girl in his car, who was fainted in the rear seat. He asked the wife to get the girl from the car. Though the wife was three months pregnant, she went to the car to see the girl and she found a girl in fast sleep on the rear seat of the car and the car was full of vomit smell.

Somehow the wife got the girl out of the car, and with the help of one car cleaner, brought her into the house. She was there in the house till 2 pm. The wife had noticed from the mobile handset of the girl that her name is Rose Mary and she had been called by the husband at 7'up Disco in Bandra.

10).

There are allegations made also of physical assault. When the wife was six months pregnant the husband had hit her on her ribs with legs over a petty argument. She had been slapped and pushed at another time.

* 10/44 * 11).

On 16th January, 2006, the parents-in-law of wife came for the second delivery of the wife. But from the third day they stopped talking to her. In their presence, the behaviour of the husband became extremely bad. He left the wife and daughter unattended on various occasions. On 6th February, 2006 i.e. four days before the delivery, he had slapped the wife on the face and pushed her. When she tried to call police on 100 number, he snatched the phone. The wife then went to the neighbour's house for support. She returned at 9 am. By that time, the husband and his parents had left the house along with their luggage and shifted to a hotel.

12).

For the delivery, the husband had taken the wife to the hospital but even at that time, he had made nasty remarks against her. After the delivery, he completely neglected her. Then, on 22nd May, 2006 the whole family went to Delhi to reside with the parents of the husband and returned on 5th June, 2006. On 15th August, 2006 the husband had presented his resignation from service without informing the wife. He left the house on the night of 17th September, 2006 with his belongings and two cars. He returned some days later only to leave again. 13.

The last incident narrated in the complaint is of the date 18th February, 2007. The wife alleges that on that day the husband came to the house at about 6.30 pm. along with an unknown girl. He broke-up the outer safety door, the main door of the house as well as two bed-room doors. He was carrying a hammer and a screw driver. He threatened the wife by placing the screw driver to her neck and took away household items.

* 11/44 * 14.

The husband in his reply to the complaint denied all the allegations against himself and his parents and alleged that in fact the wife had subjected him and his parents to extreme cruelty and has thrown them out of the house. They are presently residing in tenanted premises. The husband also claimed that, almost 60% of the consideration for the Kharghar house has been paid by his father and he desires to return the money to his father. In the unfortunate circumstances in which he is placed, the only way to do that is to sell the house. He is willing to make suitable alternate arrangement for the wife and the children. The proposal is not acceptable to the wife. 15.

The true facts of the case as claimed by the husband in his reply to the complaint are as follows : .

After the marriage, which was an arranged marriage, the husband realized that the wife was from a poor and broken family. She used to reside in one bed-room school quarters, which did not have basis amenities. Her mother had a long legal battle with her father and his family members over properties in which the wife had actively helped the mother. After 15 years, the proceedings ended in divorce for the mother, the father went bankrupt and also lost his mental balance. The wife had a broken love affair and in fact did not desire to get married. She married only at the insistence of her mother. After the marriage the husband also realized that the wife has an extremely bad eyesight which was no disclosed before the marriage. Her eye sight is minus 6 and the fact could be concealed because the wife

* 12/44 * always used lenses. After the marriage in the year 2002 the husband got her treated with "LKIS" surgery. The wife was used to attending late night parties at Delhi. After the marriage, when she was unable to attend the late night parties, she started throwing tantrums and creating big scenes in the house. Later, with the support of her mother she continued her late night parties much to the dislike of the husband. Soon after the marriage, the husband realized that the wife is a short-tempered and a spendthrift person. She has no respect for the marriage and family ties. She did not hesitate creating scenes even at a public places.

16.

The husband denied that he had compelled the wife to resign from her service. He alleged that, the wife left her job on her own to explore the world, all pleasures of the ship and enjoy lavish life. Within 10 days after marriage she insisted on accompanying the husband to China by joining the ship and the husband had to spend huge amount at the last minute for securing her visa and hotel stay. On the ship, she insulted and humiliated the husband in the presence of the subordinate staff. On one occasion, while on ship she demanded US $3,000 for sending to her mother to purchase a car. On denial she walked out of the ship. The husband gave her US $ 3,000 to avoid complications in alien country.

17.

In the year 2000, the husband was required to appear for his Masters examination at Calcutta. But the wife on

* 13/44 * the pretext of her pregnancy did not permit him to leave her. He had to subsequently go to Chennai to appear for the exam. When the daughter was born in the year 2000 the wife's mother created a scene in the hospital in the presence of the relatives and Doctors and insisted that the husband buys a separate house for the wife and the child. The husband then took a small house on rent. The wife, however, was not satisfied with that house. 18.

In order to resolve the marital differences in the month of October, 2001, a family meeting was held at the house of the wife's Mamaji, in which the Mamaji assured the husband that the mother of the wife would not interfere in the matrimonial life of the husband and advised the wife to settle outside Delhi for the sake of the child and the marriage. The wife however continued with her difficult behaviour. In August, 2002, she apologised to the husband for her behaviour and expressed her desire to join him on ship. The husband accordingly made arrangements and in October, 2002, she joined him on ship and sailed for a month. During that period, she insisted for purchase of a flat at Mumbai.

Accordingly the husband and his father booked a flat at Kharghar and almost 60% of the purchase value was paid by the father by way of cheques from his "old days securities". Even on shifting to Mumbai, the wife continued with her lavish late parties and socialising to the dislike of the husband.

* 14/44 * in the house by breaking household things and banging them. 19.

In December, 2005, the mother of the wife came to stay at Kharghar and started interfering with the matrimonial life of the husband and wife. When he could not take it any more asked his mother-in-law to stop interfering with his life. Since that time, life of the husband became miserable. He was left all alone in the house and even deprived of food. 20.

The parents of the husband came to Mumbai for the purpose of settling in Mumbai. The wife started ill-treating them to the extent of locking the mother-in-law in the toilet. On 6th February, 2006, she insisted that her parents-in-law leave the house and threatened to call Police if they refused. Then wife threw their clothes out of the wardrobe and hit her father-inlaw, broke his spectacles and pushed the mother-in-law. The parents-in-law then left the house and spent the night with the husband's friend until arrangements for their stay in a hotel was made by the husband. The continuous quarrels and screaming in the house took toll of husband's health and work. He went into depression and on 13th April, 2006 visited the doctor, who diagnosed him of mental stress and advised him to take complete bed rest. There are allegations made of removal of substantial money by the wife from the petitioner's drawer and also withdrawal of money from joint fixed deposit. On 23rd September, 2006, when the husband returned from his office, the wife did not allow him to enter the house, she threw his

* 15/44 * clothes on the floor and pushed him out of the house compelling him to shift to the guest house. She also did not permit the children to meet the husband. The husband was then constrained to reside in the premises taken on rent. In October, 2006, the wife started insisting that the house at Kharghar be transferred to the joint names to enable her to avail the property tax exemption. Since the flat was purchased with the assistance from the father, the husband refused the demand. This enraged the wife and she became violent. She started throwing around any and every item she could lay her hands on and pushed the husband out of the house.

21.

The wife often called up the office of the husband to make complaints against him as well as to make enquiries about his income. This became a matter for gossip in the office leading to humiliation and loss of self respect for the husband. When he could take humiliation no more, on 1st November, 2006, gave his resignation. He had to leave his services with China Shipping for the same reason. The husband had then joined services of Preeti Logistics Limited (New), a Container Freight Station as Chief General Manager. On account of the conduct of the wife, the harassment by her and the court proceedings initiated by her, the husband could not concentrate on the office work and had to remain absent often. This led to his employer issuing him warning for disciplinary action by the letter dated 8th December, 2008. The second warning letter was issued on 15th June, 2009.

* 16/44 * 22.

The Protection Officer filed Domestic Incident report under Sections 9(b) and 37(2)(c) of the Protection of Women from Domestic Violence Act, 2005 (43 of 2005) in Form-I on 9th August, 2007 referring to two specific incidents of violence on the part of the husband. They are dated 17th March, 2007 of "to vacate the house" and 10th February, 2006 of "Neglected at the time of delivery of child". He also refers to continuous "violence of mental and verbal abuse". In the types of violence, sexual violence and dowry violence was shown not applicable indicating no violence of that type. The specific allegations ticked in the column of verbal abuse were, (i)accusation/aspersion on your character or conduct, etc. (ii)Insult for not bringing dowry etc.

(iii)Demeaning, humiliating or undermining remarks/statement, (iv)ridicule, (v)name calling, (vi)preventing you from taking up a job, (vii)Preventing you from meeting any particular person, (viii)Any other verbal or emotional abuse. Next specific allegations of economic violence were, (i)Not providing money for maintaining, you or your children, (ii)Not providing food, clothes, medicine, etc., for you or your children, (iii)Forcing you out of the house you live in, (iv)Disposing your stridhan, (v)NonPayment of other bills such as electricity, etc. (v)Any other economic violence. There were two "other acts of domestic violence" reported i.e. "bringing other women at house. Twice" and "not taken any responsibility at the time of birth of both children".

* 17/44 * neither medico-legal certificate nor list of Streedhan. 23.

The wife examined herself (P.W.1), her mother (P.W.2), neighbour (P.W.3), the car cleaner (P.W.4), Bank Officer (P.W.5), Estate Officer of the Society at Kharghar (P.W.6) and the employer of the husband (P.W.7). The husband examined himself. The orders passed by the Courts below on appreciation of the evidence has already been reproduced above. 24.

Mrs. Thorat, the learned Advocate for the husband, submits that appreciation by the Courts below of the allegations in the complaint, the reply thereto and the evidence led by both the sides is so erroneous, as to deem it as perverse and hence requires interference at the hands of this Court. Mr. Deshpande, the learned Advocate for the wife submits on the other hand that, the concurrent findings of fact ought not to be disturbed. According to him, the allegations of domestic violence made by the wife are substantiated by the oral evidence led by her and the cross-examination of the witnesses has not shaken the evidence. It is his further argument that, the Domestic Violence Act is a a beneficial piece of legislation and its maximum benefit should be given to the wife.

25.

There are allegations of mental cruelty made by both the sides against each other. The peculiar circumstance of the dispute between the parties is that, the allegations of the wife have been held to be proved in the Domestic Violence

* 18/44 * proceedings and the allegations made by the husband have been held to have been proved in the petition for divorce on the ground of cruelty filed by him. By the order dated 17th February, 2011 the Court of Civil Judge Senior Division has allowed the petition of the husband filed under Section 13(1)(i-a) of the Hindu Marriage Act and the marriage between the parties is dissolved. In the circumstances, evidence led by the parties needs to be closely scrutinised. Each allegation and the incident stated would have an other side version which is required to be looked into.

26.

The trial Court before it embarked upon assessment of the evidence led by the parties, by way of preliminary statement, notes that "As per the case put forth by the applicant the respondent abused physically, mentally, economically, caused harm and injury, gave threats, and sexually abused her". This statement is not wholly correct. It is to be noted that the wife does not make allegation of sexual abuse in her complaint. That is not her evidence also. Further, the report of probation officer indicates that, there was no sexual violence. The violence actually alleged is essentially of mental. There are also allegations of physical and economical violence. Thus, the very premise of the trial court's judgment is seen to be erroneous. 27.

As regards the physical cruelty, the wife has alleged and deposed about two incidents. The first allegation is that, when she was 5-6 months pregnant the husband had hit her

* 19/44 * with legs on her ribs over some petty arguments and the second is that on 6th February, 2006, four days before delivery of the second child, he had slapped her 2-3 times on the face and pushed her. The husband has denied these allegations. In any case, the first allegation of hitting her on her ribs with the legs, apart from being bald and without particulars, is patently unbelievable.

28.

That takes us to the mental and economic harassment. The first allegation of cruelty by the wife in her deposition is that the husband had compelled her to leave her well established job. The wife claimed to have been working as Senior Accounts Executive with M/s Siemens Information Systems Limited at Delhi. She deposed that the husband forced her to accompany him on ship against her desire and as a consequence she had to leave the job. It is her evidence that later she had rejoined the service in February, 2002 but again for the same reason, forced to leave. This allegation and the oral evidence in support thereof is seen to be devoid of material particulars and hence vague.

In the complaint as well as in the deposition, the wife does not state the specific dates of her leaving, rejoining and re-leaving, the post at which she rejoined and the manner in which she had resigned, the reasons if any stated for resignation.

* 20/44 * ship would amount to an act of cruelty. The answer to the question must be no. This can only be one of the several adjustments that a married couple placed in such a situation has to undergo. It will fall in the category of usual wear and tear of marriage. In any case, the most crucial aspect of her employment, which was concealed by her in the pleadings and examination-in-chief, is that she was not on regular employment. She was working on contract basis. This fact has been brought on record in cross-examination. Further, the details of the contract of service are missing. 29.

The second allegation is that the husband used to drop the wife and the daughter at the place of her mother very often at the instigation of the parents-in-law. This again is an absolutely bald allegation, in the complaint as well as in evidence, with no details whatsoever disclosed. The third allegation, which is made for the first time in deposition, is that at the time of delivery of the first child, the parents-in-law demanded that they will take her to the hospital only if she handed over the locker keys and cash to them. Therefore, she had handed over everything to them. This allegation is also bald and devoid of particulars. She does not give the details of the locker, the articles kept in the locker and the amount of cash, the date of demand, date of handing over of the keys and the cash etc. The wife does not state that the contents in the locker and the cash is appropriated by the parents-in-law. When she was to be away in the hospital for some time, it would be a normal conduct to leave the keys with the elders in the house. The next

* 21/44 * bald allegation is that the husband and the parents-in-law had refused to take her back home from the hospital and having no option, her mother had to take her and the baby to her house. Apart from the absence of details of the allegation, it is completely normal for a daughter-in-law to go to her parent's house for some post-delivery days. The story of the other side is that, at that time, the mother of the wife insisted upon buying a separate house for the wife and new born baby. Upon the husband refusing to do so, she took the wife and the child to her house from the hospital.

30.

The wife deposed that on 5th September, 2000, the husband was leaving the country without informing her and she had received a call from I.G.I. Airport Police, Delhi enquiring whether she had filed any case under Section 498-A of Indian Penal Code against him. After her denial, he was allowed to leave the country. The husband has explained this incident in detail in his reply as well as deposition stating that it was the case of mistaken identity for the police. In any case, one fails to understand as to how this would constitute an act of cruelty. 31.

The wife complained that she was not allowed by the husband to attend the marriage of her younger sister on 19th April, 2003. The wife did not state any further details of the sister's marriage. The husband disclosed in his pleadings and evidence that marriage had in fact taken place at America and at the relevant time the husband and wife were on ship. So there was no question of the wife attending the marriage or she being

* 22/44 * prevented by the husband from attending it. These facts are not disputed by the wife.

32.

Next are the allegations as regards the purchase of the house at Kharghar. It was purchased in the month of June2004 in the joint names of the husband and his father. According to the husband, more than 50% of the consideration for the house was paid by the father by way of cheques. The wife in her complaint claimed that, she had sold her jewellery received by her at the time of marriage for purchase the house. In her deposition, however, she came out with a completely different story alleging that she was informed by her parents-inlaw that for paying the installment of the house they had to sell off her jewelry. Once again, a bald claim devoid of the description of the jewelry, the number of items of jewelry and the value of the jewellery. At no point of time, wife had claimed that, she had entrusted the jewellery to the parents-in-law.

In her cross-examination when her attention was drawn to the contradiction in her statement in the complaint and her statement in the deposition and she was asked as to which of the two statements was correct, she claimed that both the statements were correct. In the cross-examination, the wife states that, she does not know from where did husband get money for purchase of the house. She denied the knowledge, that because more than 50% of the amount of the loan taken for the flat was repaid by the father-in-law, the flat stands in the joint names of the husband and the father-in-law.

* 23/44 * 33.

It is the wife's allegation in her application, as well as, in the deposition that in the month of September-2005 the husband came home drunk at about 4 am. On reaching home he had told her that there was a girl in the vehicle on the rear seat of the car. He asked the wife to get the girl from the car. The wife went to the car and found that there was a girl lying fast asleep in rear seat of the car and the car was full of vomit smell. The wife woke the girl up and brought her home with the help of a car cleaner Sunder (PW-4). The girl woke up at about 2 pm. in the afternoon. The wife stated that on enquiry with the girl, she disclosed that her name was Rose Merry and she had met the husband at 7'up Disco in Bandra.

According to the husband the whole story about coming home drunk on that night with a girl accompanying him in the car is a false and concocted story. In the cross-examination when the wife was asked as to why she should bring an unknown lady who was in a drunk condition and who had vomited in the car, into her house, the wife answered that she wanted to give her medical aid and to see if she was alive and to save herself and the family from embarrassment from the society. In her deposition, however, the wife did not disclose whether she had got any medical aid for the girl and when and how the girl left her house. 34.

To support this allegation, the wife has examined the car cleaner (PW-4), by filing his affidavit of examination-inchief. This witness deposed that on one day in the month of

* 24/44 * September-2005 at about 4.30 am. when he was cleaning a car, he saw the wife coming towards the building from open parking area holding a girl. When they reached the building the girl fell down. At that moment the wife requested him to help her to lift the girl and bring her to the flat on the 12th floor of the building. It is not the evidence of this witness that, he had either seen the husband with the girl or seen the girl in the husband's car. The whole story narrated by the wife sounds fanciful and his difficult to believe. If the husband wanted to indulge into something, he could have done it outside the house and not brought any girl home. Even if the story is to be believed, one fails to understand as to how it would amount to cruelty inflicted upon the wife by the husband.

35.

The allegations made by the wife of mental harassment` include ill-treatment by the husband and his family members to herself and to her mother. The wife states in her evidence that, when her mother had come to Mumbai, she had counselled the husband to treat the wife properly. On this, the husband got annoyed. He alleged that, the mother had come to break his home and asked the mother to leave the house. The incident alleged is dated 10th December, 2005. Nonetheless, the mother stayed with the couple until 5th January, 2006. Then, the wife alleges that, at the time of delivery when her parents-in-law came to Mumbai, the husband started attending to them and stopped taking her care. All the three stopped taking to her and the husband even shifted to the bed-room of his parents.

* 25/44 * According to her on 21st January, 2006, when a family acquaintance, one Captain Tandon had visited from Kolhapur, the husband and the parents-in-law had insulted and humiliated her. All these allegations are absolute vague and without any particulars whatsoever. There are no incidents of insult and humiliation stated. The husband, on the other hand, in his deposition stated that, on noticing the behaviour of the wife the family friend Captain Tandon had, in fact, adviced her that it was not correct on her part to behave in such a way with her parents-in-law.

36.

With all the allegations of harassment, humiliation and ill-treatment made by wife, it is to be noted that, it is her own evidence that they had come to Mumbai and were present at the time of birth of the son also. On both the occasions, it was the in-laws who had taken her to the hospital. Later she had also visited Delhi along with husband. Then, there are allegations and counter-allegations as regards the husband' sister. They would not be relevant to establish the allegations of cruelty against the husband.

37.

There is an incident narrated by the wife that on 23rd May, 2006 while at Delhi, after she was insulted and humiliated by the sister of the husband, her parents-in-law had asked her to get out of the house. Then the husband had dropped her at her mother's house. On 5th June, 2006 both were to return to Mumbai. According to the wife, she had asked her husband to

* 26/44 * pick her up from her mother's house. The husband refused and asked her to reach the railway station directly at 7 am. in the morning. Then, her mother had to drop her and the children at the railway station. On reaching Mumbai he left for office and did not come home for three days. Thereafter, again they had gone to Delhi in the month of August-2006 and were supposed to return on 6th September, 2006. The husband, however, returned alone. Finally, the wife along with children came to Mumbai on 8th September, 2006. On reaching home, she found that the husband was not at the home and she has to break open the lock of the house. The version of the husband of both the incidents is completely different. He alleged that it was the wife who had insulted his sister and thereafter walked out of the house.

Finally, he had to take the wife to her mother's house. On 5th June, 2006 while returning to Mumbai she preferred to come directly to the station to board the train. On reaching Mumbai, she demanded the entire salary from the husband. When he refused to give, she created a scene in the public and pushed the husband out of the house. She asked him to return only if he agreed to give her the entire money. The husband then had to stay in the guest house at Chembur. He was allowed to enter the house only when he managed to send an amount of Rs.12,000/- with his friend, one Mr. Shaikh. On 20th July, 2006 wife insisted on attending her friend's marriage at Delhi and on reaching Delhi she preferred to go directly to her mother's house.

* 27/44 * he had to return alone. The husband, later told her over telephone that, if that was her attitude he would permanently shift to Delhi. On hearing this the wife rushed to Mumbai on 8th September, 2006 without any intimation to the husband. Consequently, he was not at home when she arrived. When he reached home in the evening he found that the main door lock was broken. As soon as he entered the house the wife started throwing utensils and other domestic items at him and later threw him out of the house. That night the husband had to spend with his friend. Next day, i.e. on 9th September, 2006 he complained to the police which complaint came to be registered as an N.C. complaint.

38.

The wife has made serious allegation against the husband of forging her signature for the purpose of premature withdrawal of amount form fixed deposit standing in her name. She deposed that on 3rd October, 2006 when she visited Bank of India, Kharghar, she was told that the balance in the account was only Rs.400/- and the husband had withdrawn joint fixed deposits and one fixed deposit in her sole name. At her request she was shown the documents and found that the signature appearing on the form was not her signature. The wife then demanded that the Bank authorities bring back the entire amount to her account. Therefore, the Bank Manager Shri. Jadeja requested the husband to deposit amount of Rs.22,000/- in her account. The wife had reported the incident to Kalamboli police station. According to the respondent on 3rd October, 2006

* 28/44 * he had prematurely withdrawn the amount of Rs.22,000/- from the fixed deposit. On the next date, he received the call from the Bank Manager that the wife had complained that the money was withdrawn without her signature though the documents were infact signed by her. When confronted with the documents, the wife said that her complaint to the Bank Manager was in retaliation of the complaint made by him to the police about her behaviour. As regards the fixed deposit in her own name, he was told by the Bank that, few months earlier the wife had herself withdrawn the amount of the fixed deposit. On 6th October, 2006 the wife confessed to the Manger that the papers for withdrawal of the amount from the fixed deposit in fact bears her signature and agreed to make the statement in writing.

Then husband and wife were to visit the Bank on 7th October, 2006 at 9.30 am. for recording of her statement. But the wife did not turn up and instead she told the manager that once the money is deposited in the account she will treat the matter as closed. Considering the attitude of the wife, the Manager advised the husband to deposit the amount. The husband then realised that the wife could go to any extent for extracting the money and decided to deposit amount of Rs.22,000/- in her account. The version of the husband is infact supported by the wife's own witness, P.W.5, the Bank Manager. He deposed that, the receipt of the fixed-deposit from which the amount was withdrawn on 3rd October, 2006 carried signatures of both, the husband and the wife. The amount of fixed-deposit was credited to the Saving Account No.1939.

* 29/44 * admitted that the bank has subsequently noted on the documents that the wife had withdrawn the complaint made by her as regards the fixed-deposit on her own accord. 39.

The wife alleged that on 28th October, 2006 the husband came home late in the night, disconnected the T.V. cable and asked her to leave the house. On the next morning, at about 9.00 a.m. he threatened her with a hammer but left the house himself. He withdrew the landline telephone connection in his name on 31st October, 2006. The wife then had to get an independent telephone connection from MTNL. The husband, on the other hand, alleges that on 28th October, 2006 the wife picked up a quarrel demanding that she should be made the joint owner of the house so that she could avail the property tax exemption. Sensing her intentions, the husband refused to comply with the demand. She then became violent and started hurling any and every item in the house at him and finally threw him out of the house.

The husband reported the incident to Kalamboli Police Station, which was again recorded as an N.C. Complaint. On 30th October, 2006 she called up the husband's boss and also some junior staff and made several allegations against the husband which became a topic of gossip in the office. The husband could not take the loss of face in the office and humiliation and resigned from job on 1st November, 2006. The telephone connection being sponsored by the office and used extensively for the office work, he was asked to withdraw the same.

* 30/44 * 40.

There are two more subsequent incidents alleged by the wife. They are dated 18th February, 2007 and 17th March, 2007 when the husband had allegedly come home to take away his belongings. The wife alleges that on 18th February, 2007 when he came, he seemed very angry and was carrying a hammer and screwdriver. On seeing him through the safety door, she felt scared and locked herself alongwith the children in the master bedroom. She had also locked the children's bedroom and called the police at the emergency number. The husband managed to break the safety door, main door and also the door of the bedroom. He broke the telephone set, the T.V. remote, threw the music system on the floor and removed the household items. The wife does not specify the household goods removed. There was one unknown girl accompanying him.

When the wife demanded to know her identity, the girl replied that she was a family friend of the husband . Then the husband put the screwdriver to wife's neck and threatened to kill her, if she did not agree to leave the house. But he himself left the house immediately. When the police constable from the Kharghar Police Station came at about 7.00 - 7.15 p.m., the husband was already gone. The wife informed the incident to the Secretary and Chairman of the Housing Society i.e. Jalvayu Defence Enclave and requested their help for her safety and security. As regards the other incident dated 17th March, 2007 the husband is alleged to have come home with his parents, five drunken labourers , one Mr.

* 31/44 * accompanied him on 18th February, 2007. He had also brought a truck. The husband was carrying a spanner, a screwdriver and a hammer. He had come to take the utensils, furniture and other household items from the house. The neighbouring women gathered and prevented the husband from taking away any article. The husband denies the first incident and alleges that at the relevant time, he had infact complained to various authorities i.e. the Commissioner of Police of Navi Mumbai, Human Rights Commission, the Home Minister and the Women Cell of Police seeking help for entry in his own house and also to meet the Children. The wife did not respond to the repeated calls from the Women Cell of Police.

On 13th March, 2007 the husband has made a written request to AirForce Naval Society Board for collecting his personal effects from the house. On the same day, he had also intimated the wife about his visit. But when on 17th March, 2007 he went to the house, the wife started howling and screaming. She simply laid down on the floor outside the main door alongwith the children and despite advice from the neighbours, did not permit him to collect his personal belongings. The husband alongwith his parents again visited the house on 1st March, 2007 and sought help of society members for his entry into the house. The wife, however, did not open the door.

41.

As regards the economic harassment, the allegations of the wife is that, the husband had left her and the children to fend for themselves. He made no arrangements for the household expenses. She has been sustaining herself and the

* 32/44 * children on the financial help of her mother and her sister but the details of such help have not been disclosed. As against this, it is the case and the evidence of the husband that, whenever he was thrown out of the house, there were funds reserved sufficient for the expenses of several months. There was also some amount kept in the joint locker and wife alone used to operate the joint locker. In addition, there was chit fund money of Rs.36,000/-, fixed-deposit of Rs.22,000/- available to the wife. He alleges that, infact the availability of money was to such an extent that, the wife purchased a Maruti Alto Car (DL-9-CR1540) in the name of her mother. She has been regularly using the car. The wife claims that the car has been a gift to her from her mother. But again the details of purchase of the car by the mother are missing.

42.

The husband has his own allegations of harassment to make against the wife. Apart from denying the allegations of the wife and explaining the incidents narrated by her, he has alleged and deposed of the incidents of harassment to him. His deposition has sustained cross-examination by the wife. He deposed that the vicious conduct on the part of the wife has cost him his career. He was earlier serving in CMA CGM India Limited. As mentioned hereinabove, the wife had called up his boss Mr. Wapiwala and some junior staff. The discussion of personal matters by the wife with the office staff became a topic for gossip and the husband, not being able to take the humiliation, resigned from service on 1st November, 2006.

* 33/44 * Thereafter he took up employment with China Shipping. On repetition of the conduct by the wife he had to resign from that service also. Thereafter, the husband could not get a job with a decent salary in any shipping line. He was forced to serve in the Vendor based container freight station at Preeti Logistics Ltd. This resulted into substantial loss of income for him. The behavior of the wife also took toll of the husband's health. He went into severe depression. He was diagnosed with high blood pressure and mental stress with symptoms of headache, vomiting and uneasiness. The doctors had recommended him complete rest. The details of the doctor's advice have been stated in evidence.

43.

Ordinarily, it is difficult to assess veracity of the allegations and counter allegations of incidents in the personal and matrimonial life of the parties. The veracity would be determined on the basis of reliability of the party as a witness and proof of the surrounding circumstances and the evidence of the supporting witnesses. Mrs. Thorat, submits that, as can be seen from the entire evidence of the wife, she is not a trustworthy witness. She has resorted to quibbling, half truths and falsehood over the material details in her evidence. As already observed earlier, the material details of several allegations made by the wife are not disclosed e.g. the allegations of physical violence, the employment of the wife, concealment of the fact that, she was not on regular employment but was working on contract basis, the fact that she is practicing as an

* 34/44 * Advocate etc. She has also resorted to making serious allegations for the first time in the deposition. When she was confronted with the contradictory statements in the complaint and in the deposition, she merely stated that both the contradictory statements were correct. The other instances of quibbling pointed out by Mrs. Thorat, are the answers given by the wife at paras-3, 4, 5, and 6 of the cross-examination. At para-3, the wife admitted that, she was not in regular employment but was serving on contract at the time of marriage. When asked about her family background, she avoided to answer inconvenient questions by stating that, at the relevant time she was minor.

She admitted that she is a Law Graduate and enrolled with Bar Council of Delhi but claimed that she does not remember that her certificate of enrollment with the Bar Council of Delhi is not surrendered. It is obvious from the deposition of the wife and her demeanor reflected from her depositions that, she is not a trust-worthy witness. Therefore, when two different versions of any incident is to be appreciated, her evidence cannot be accepted as true reflection of the incident.

44.

The evidence of the witnesses examined by the wife is also seen to be of no assistance to her. The evidence of her mother (P.W.2) is nothing but mere cryptic repetition of the allegations made by her. It is the mother's own statement in the examination-in-chief that, she has mentioned the facts in "nutshell". Also a substantial portion of her deposition needs to

* 35/44 * be discarded as hear-say evidence. P.W. 3 Mrs. Poonam Srivastava is the neighbor, a person residing in the same Society. She has admitted in terms, in her cross-examination, that she has no personal knowledge of any incident. The admission renders her evidence useless. The evidence of P.W.4 the car cleaner and P.W.5 the Bank Manager had already been discussed above. It is seen that the evidence of PW 4 does not throw any light on the allegations of cruelty made by the wife and that the evidence of PW 5 in fact supports the husband. PW 6 is the Estate Manager of Jalvayu Defence Enclave Society, Kharghar wherein the residence of the parties is situate. He was examined by the wife to support her evidence of the two incidents alleged in which the husband had visited the house to remove his belongings.

His evidence in fact supports the version of the husband as regards the attempts made by him to remove his personal belongings from the house. The husband had sought permission of the society to shift the household articles along with the father. The permission had to be sought because as per the rules of the society nobody can take household articles out of the society. On the basis of his application he was issued a gate pass for the purpose. However he could not shift the household articles from his flat because the wife filed complaint with the society. The witness referred to a quarrel between the wife and the husband when the husband had visited the house for removal of household articles.

But in the cross-examination the witness had admitted that the Chairman of the society had briefed him on the facts that he had to state in the Court.

* 36/44 * admission in the cross-examination renders his entire evidence hear-say.

45.

The last witness examined by the wife was Mr. Nemichand Jaywantraj Mehta - Executive Director of M/s. Preeti Logistics Ltd. (P.W.7) This witness was obviously called to bring on record material as regards the employment and salary of the husband. He deposed that the husband being the managing staff no authority was given to him for expenditure purposes. He was not given a credit card, house rent allowance, medical allowance or leave travel allowance. He was not given any independent vehicle but was afforded "a drop and pick-up" facility. Apparently this witness was not immediately available for the purpose of the evidence after service of witness summons upon him. The wife had then applied for a warrant against him . The witness filed his reply dated 28th October, 2009 to the application for the warrant in which he explained that he had not received witness summons because he was travelling on business tours. He then, extensively referred to the conduct of the wife and narrated the nuisance caused to him by it in following terms.

"I like to bring this, to the notice of the court that Mrs. Neha Khurana is also calling & pressurizing my office staff to give confidential information's. She has also reached to an extent by telling office staff the personal family stories. All this will not only jeopardize the reputation but will also ruin Mr. Rohit Khurana's entire career since shipping fraternity is small and very competitive field wherein she has got no right to spread nuisance in

* 37/44 * my office especially when the family matter is going on in the court."

"She thinks that being a lawyer she can get summon issued to anybody as per her whims and fancies. As an Executive Director of the company I personally request this Honorable court to please order Mrs. Neha Khurana to refrain from spreading nuisance in my organization and to maintain the privacy of the family matters and not to make this a public affair." In the letter he further stated that while employing the husband he had checked the references with the husband's previous employer and was told about the family dispute and irregular attendance by the husband on account of the family dispute. But the husband had pleaded for employment and had assured of his dedication and regular attendance. When the attendance of the husband became irregular on account of the legal proceedings he has been issued two warnings in writing that if his attendance does not improve, his services will be terminated. 46.

None of the above aspects of the evidence are seen to have been considered by the Trial Court in its judgment and order dated 11th February, 2010. Paras-1 to 22 of the judgment consist of the pleadings of the parties, the points for determination and the definitions under the Domestic Violence Act. Then a couple of paras reflect upon the retrospective applicability of the Domestic Violence Act. At paras 27 and 28 the learned Judge very briefly narrates the deposition of the wife and in one small para consisting of four sentences i.e. para 29

* 38/44 * deals with and rejects the defence argument. Para 29 reads as under :

"29. The respondent's side tried to brush aside the testimony of the applicant by cross-examining her and tried to put the defence of respondent about the behaviour of the applicant at the time of event given above. The respondent himself also categorically deposed the events put in defence by him. There is oath against oath. Thus, corroboration is required to rely upon the version of parties to the application." This is virtually no appreciation of evidence by the learned Trial Court Judge. When it is word against word of the witnesses the first aspect that is required to be looked into by the Court is the creditworthiness of the witnesses. This exercise has been completely ignored by the learned Trial Court Judge. 47.

The next six paras i.e. paras 30 to 35 are devoted to the evidence of the witnesses. Appreciation of evidence of P.W.2, the mother of the wife, by the learned Judge, at para 30 of the impugned judgment, is in a single sentence that P.W.2 has fully corroborated the testimony of the wife about the violence used by the husband against her. The defence argument on the evidence of this witness is discarded with the following comment :

"She may have affection with the applicant but the fact of instigation is not digestable, because no prudent mother will instigate to her daughter to spoil her matrimonial life without any unbearable and strong reason."

* 39/44 * There cannot be such generalised assessment of evidence recorded in a Court of law. The Court must first test the evidence against the pleadings, then consider the reliability of the witness on the basis of intrinsic value of the evidence and thereafter only by way of an additional support make a generalised comment. As regards the evidence of P.W.3, Purnima Joshi, her admission in cross-examination that she had no personal knowledge of the incidents narrated by her has been glossed over with an observation that "The witness Dr. Purnima Joshi digested the fact of the incident from the ladies of the society and she herself got confirmed the fact from the mouth of the applicant squarely supports the case of the applicant." The learned Judge failed to appreciate that confirmation from the wife, of the information of the incident, by the witness would not alter the nature of the evidence as hearsay evidence.

48.

The learned Judge has accepted the evidence of P.W.4 Jayram Sunder stating that it corroborates the event deposed by the wife of, a lady in drunken condition, accompanying the husband. The learned Judge apparently overlooked the fact that this witness did not state that he had seen the husband being accompanied by the woman. The specific evidence of this witness is that at the time he was called by the wife to help her she was already near the building alongwith the other woman. This would only mean that he had not seen the woman with the husband. He had seen her only with the wife. The evidence of the next witness i.e. the Estate

* 40/44 * Officer of the Society has similarly been dealt with a bald comment that no justifiable reason has come on record to discard his evidence and to disbelieve him. The worst treatment given is to the evidence of the next witness i.e. P.W.6, the employer of the husband. His evidence is completely ignored in the impugned judgment. Then shockingly at the end of appreciation of the evidence led by the parties, the learned Judge has recorded his "prima facie" satisfaction that the domestic violence has taken place to the wife and answered the point for determination in the affirmative. Based on the very evidence, the next two points for determination relating to an order of residence and monitory reliefs to the wife, have also been answered in the affirmative.

49.

Being aggrieved by the judgment and order of the trial Court, both the sides preferred appeals to the Sessions Court, Raigad at Alibag. The wife felt aggrieved by the quantum of maintenance awarded to her and the husband felt aggrieved by the entire order against him. The appeals came to be disposed off by the common judgment and order dated 8th December, 2010. The appellate Court framed the same points for determination as those by the trial Court. It considered all the three points for determination together at paras 11 to 36 out of which paras 11 to 17 record (i) the provisions of law, (ii) the admitted facts of the case and (iii) the order of the trial Court. The discussion of evidence by way of reappreciation is at paras 18 to 25. On perusal of these paras, reappreciation of the

* 41/44 * evidence by the Sessions Court is seen to be as cryptic as the appreciation by the trial Court. The acceptance of evidence of P.W.1, P.W.2, P.W.3 P.W.4 and P.W.6 is with the identical reasoning. There is no consideration whatsoever of the evidence of the husband. The Appellate Court however denied maintenance to the wife with a reasoning that having good qualifications and sufficient experience, she cannot sit idle and ask for maintenance for herself. It however increased the maintenance payable to the children.

50.

As discussed above, appreciation of the evidence by both the Courts below is patently defective and on correct appreciation it cannot be said that the wife has been subjected to any domestic violence by the husband. The entire evidence infact reflects mental harassment and physical inconvenience to the husband, the degree of which was such that he suffered in his career, health and house. As pointed out by Mrs. Thorat, he is not even being given access to the children. The evidence on record establishes that the house at Kharghar is purchased jointly by the husband and his father. Both have, however, been out of the house since the year 2009. There was harassment of the husband by the wife at his workplace on account of which he had to leave his employment twice. In the circumstances, the wife is not entitled to any relief under the Domestic Violence Act and hence her complaint deserves to be dismissed.

* 42/44 * The consequence of dismissal of the complaint would be vacating of all the orders passed under the Domestic Violence Act. This will include the order for maintenance for the children. They would also be affected indirectly if the order as regards the house at Kharghar is vacated. In my opinion, irrespective of the outcome of the dispute between the husband and wife, the rights of the children need to be protected, particularly when there is already order passed for maintenance for them. Mrs. Thorat submits that the husband also does not want to shirk from his responsibilities towards children, though he is being denied access to them. Considering the status of the husband, in my opinion, the enhancement of the maintenance by the District Court to the children and direction to pay them Rs.5,000/- per month per child should be maintained.

This brings us to the direction as regards the residential premises at Kharghar. Though the husband has already obtained divorce from the wife and is not liable to pay maintenance to her, it would be in the fitness of things that he makes provision for residence of the children. Mrs. Thorat submits that though the husband does not desire to shirk from his responsibility towards the children, the fact of refusal by the wife to give access to the children needs consideration. Any complaint by the husband as regards the access to the children would be beyond the scope of the present litigation. Therefore I am not inclined to consider the same and leave it to the wiser counsel of the parties. In any case, the husband can always resort appropriate proceedings for the access.

* 43/44 * The cross-examination of the wife shows that though alternative provisions for residence in the same area and at the same distance from school of the children was offered to her, she has refused to even consider the same contending that she finds safety and security in the present house. The wife today has no right whatsoever to the house at Kharghar. Her claim of limited right to it as "shared household" under the Domestic Violence Act is also not available to her in view of dismissal of her complaint. However solely for the sake of children, the husband can be directed to provide a suitable residential house to the wife and children until such time as the children attain majority and thereafter until such time as the husband desires. Hence, the following order is passed.

O R D E R

Writ Petition No. 917 of 2011 is dismissed.

Writ Petition No. 235 of 2011 is allowed in following terms: (i) Criminal Appeal No.23 of 2010 is partly allowed. (ii) The Regular Criminal Case No. 309 of 2007 is dismissed.

(iii) The petitioner shall pay maintenance to each child @ Rs.5,000/- per month from the year of the appeal i.e. from the year 2010.

* 44/44 * (iv) The petitioner shall make provision for suitable residence of the wife and children, preferably within a period of six months from today. The provision shall continue until the children attain the age of majority or until such time as the petitioner desires. On such provision being made, the wife and the children shall vacate the premises in their occupation at Kharghar within a period of one month.

The parties shall bear their own costs.

[Smt. R. P. SondurBaldota, J.]