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Jinnat v Ali [2012] FJMC 312; DVRO Case 144.2012 (2 November 2012)

IN THE MAGISTRATES COURT AT NASINU
DVRO Case No. 144/2012

JINNAT
[APPLICANT]

-v-

ZAID FAIYAZ ALI
[RESPONDENT]

The Applicant appeared in person
Mr. Sheik Shah for the Respondent

Ruling on Interim Domestic violence restraining orders

01] The Applicant, Mrs. Jinnat filed this domestic violence restraining case against one of his son Mr. Ziad. Upon ex parte hearing, being satisfied, the court ordered following ex-parte orders against the Respondent on the 02nd April 2012. The orders were as follows;

1. The respondent must harass the applicant mentally or physically( Standard non molestation order)
   
2. The Applicant to stay with the Respondents
   

100. The Parties to live peacefully and the respondents to provide foods for the applicant mother.
     

02] The orders were to be carried out thought Nakasi Police Station. The Applicant is an old lady, appeared in open court, stated that her son, the Respondent has chased her out and this has been doing for past 4 years. She said the Respondent does not allow her to cook foods in the house belongs to him. The Respondent married with one daughter and she stayed more than 30 years with him. He said her husband transferred the house property to the Respondent and the Respondent agreed to allow her to stay with them. But, now the Respondent son has chased her out from the said property.

03] On these facts the court granted above interim orders. The Respondent has filed affidavit in response. It says that applicant had initially obtained an Interim Domestic Violence Restraining Order against him and moved into his home. Due to applicant mother's behavior his wife had to leave his house and she is currently living in Rakiraki. Though this Court had ordered both parties to attend to family counseling, though the Respondent attended for counseling on 27th day of September, 2012 but the applicant failed to attend any session. The Respondent further stated that his wife with his 2 children are not living in the same house since the interim order is place and they are fear of living together . The Respondent further said that he is also not living in his own house due to unnecessary problems caused by the Applicant mother. The Respondent said that since the day the Applicant has moved in the house, the water bill has increased drastically. The water bill is now in arrears of $2370.27 with $157.64 for the month of June to August, 2012. The Respondent said he sincerely believe that the Applicant is purposely misusing the house facilities. The Respondent prayed;

(1) That he wants to move in his house with his wife and child who are now in Rakiraki.

(2) That the Applicant to vacate the said property.

(3) That all interim orders be discharged forthwith.

04] The full hearing was done on 18th October 2012. Initially she said that hearing date be vacated and she is to be represented by the legal aid counsel and she lodged an application to seek legal aid. The Respondent objected to this application stating the applicant has $15,000 in her bank account, No Legal Aid will be granted and she is not entitled to get legal Aid under the Legal Aid Decree. When this court peruse the acknowledge receipt of the Legal aid, it has been approved only for family case number 09/NAS/0157 and for not this case. The applicant tried to mislead the court and tried to vacate the hearing. The Respondents counsel said that the applicant evaded the counseling as well. Then court referred matter for counseling on the hearing day itself. The family counselor noted that many issues between parties and the applicant seems to be argumentative. The parties failed to agree any settlement and counselor referred matter back to this court without any outcome. The court took the hearing that day itself.

05] The applicant said that the Respondent son always assaults her and while she was in Ba he broke her wardrobe and stole $1040.40 foreign currency and her jewelleries. The applicant described how the Respondent assaulted her. She said when they were small she worked hard and raised them up. She had sacrificed her life for them, but now all are ill-treating her. She said that she wants to stay in her marital house. The applicant said there is a $100 water bill but she does not know how it goes up. The Respondent is also having showers.

06] The applicant was cross examined by the Respondent's counsel at length. In cross examination the applicant admitted that she stayed at 3A, Waila, Davuilevu house with her one of niece before the interim orders granted. She said she got 5 children, four boys and one girl, all are grown up adults now. Three of her children stay in Canada permanently and two boys are in Fiji. She is legally married to Mr. Nawaab Ali. The Applicant also admitted the property was sold by her husband to the Respondent son, at that time she did not know about this transaction. But, when documents presented to her in cross examination, she later in her evidence admitted she knew the transferring of the property and she was given $20,000 as her share. The Respondent marked three documents in relation to this transaction. Rex-1 is the Account balance of the applicant as at 04-02-2011 and it showed $20,141.89 credit balance. The house was sold at the value of $65,000 and the Applicant's mother's share, $20,000, was given to her. West Pac bank confirms this total by Rex-2. Rex-3 shows that the Respondent took Home loan from Colonial National Bank to purchase this property. The applicant did not dispute these facts in this court. But her only concern is to stay on the property with the Respondents. She said that Police officer filled the DVRO form and instructed her to file this application.

07] The Respondent called three witnesses at the inquiry. The Respondent himself gave evidence first. The Respondent said that his mother got the DVRO stating he was abusive and he punched her, which all are false. He said that he did not chase her mother out from the house. When DVRO was issued against him, the Applicant mother was not staying with them for past 4 years. He purchased this house in 2008 and mother's share was given to her and she vacated the premises went to Canada to stay with his siblings. Later she came back and stay with his cousin at Davuilevu housing. He said the DVRO was taken by misleading the court and which is unreasonable. Because of his mother's actions his family had fallen apart. His wife now stays in Rakiraki after the DVRO and he also moved out because the Applicant can fix him false allegation in breaching interim orders. He prayed all interim orders be vacated forthwith.

08] In cross examination the applicant suggested that the Respondent is lying to the court, but he denied it. Further the applicant said the house share has not been given to the other brothers, but the Respondent said youngest Imitiyaz Ali was given his share. The applicant said she did not know that the house was sold, but the Respondent said the applicant very well knew that it was sold to him.

09] Witness Number 2 is Nawaab Ali. He is the husband of the applicant. He said that he is legally married to the Applicant, but He is not staying with the applicant. He said that he had a property in Nakasi and her wife was asking share of the property. So he had to sell it to his son, the Respondent and he gave $20,000 as her share of the property settlement. The witness confirmed that the applicant was not living in said property when DVRO obtained. Because of DVROs, the Respondent wife and children left the place in afraid of staying with the Applicant.

10] In answering to the question the witness said he is not lying to the court. Since the Applicant forced him to give her share, he had to sell the property and give it to her.

11] Third witness for the Respondent is Sofina Farnaz Nisha. She is the Respondent's wife. She confirmed the Respondent's evidence and at the moment she left the property. She said because of mother in law's passing remarks and safety of her children she moved to Rakiraki.

12] In cross examination the applicant suggested that she made the house, but witness denied it. The Applicant said that house belongs to her and that suggestion was also denied by the witness.

13] Thereafter parties closed their respective cases. When I consider this matter the main object of Domestic Violence Decree is to stop violence. The Applicant said the Respondent assaulted her and chased her out. Considering on that ground the interim DVRO was issued. But it is seen that when she applied the DVRO the applicant was not living with the Respondent. Her application itself states she lives in 3A, Waila Davuilevu Housing. The Respondent's evidence shows that the Applicant was given $20,000 as her share. She left the place after that and after 3 to 4 years the Applicant reentered the house by misusing the provision of Domestic violence Decree. The Applicant is biological mother of the Respondent, but the Respondent dislike to stay with her. The Respondent is lawful owner of the property and his rights and enjoyment of the property have been denied by getting this DVRO. The Applicant has suppressed the facts that she was not living with the Respondent at material time. The applicant had not come with clean hands. She did not deny that she received $20,000 as her share of the property. She admitted still she has $15,000 with her. The applicant abused the process of law. On the other hand she was given her Share $20,000 and has no legitimate expectations to live in the property. The court cannot prevent the Respondent's right enjoy his property.

14] Considering all facts before me, I make following orders;

1. All interim DVROs are discharged forthwith.
2. The Applicant to vacate the premises forthwith.

100. The Applicant was ordered not to apply DVROs in this regard in any court.

4. Counter DVROs are placed against the Applicant. Therefore the Applicant must stay 100 meters away from the Respondent and his family members (Standard non contact order), The Applicant must not harass the Respondent or family members mentally or physically (Standard non molestation order).
5. The Applicant deserves to get cost against her of her actions in this matter, but parties to bear their own cost.
   

On the 02nd November 2012, at Nasinu, Fiji

Sumudu Premachandra [Mr.]
Resident Magistrate-Nasinu