How does the High Court deal with Non-Molestation Appeals? Yunus Manjra v Rehma Shaikh
Introduction to the Case
The case of Yunus Manjra v Rehma Shaikh is one of the more prominent cases of obtaining a non-molestation order and occupation order.
First of all, it is necessary to know what a non-molestation order is, who can apply for one, and what are the reasons under which a non-molestation order can be obtained.
According to English Law, a non-molestation order is an injunction order that can be obtained against a domestic abuser by a domestic abuse victim. Under Part IV of the Family Law Act 1996, the aforesaid injunction can be of two types, one of which is non-molestation order and the other occupation order.
In the case of Yunus Manjra v Rehma Shaikh; the Wife (Ms. Shaikh) obtained a non-molestation order against her then-husband Mr. Manjra in 2016, and her then-husband appealed against the said order.
In this case summary/ case study, we will analyze the facts, the judgment and the impact of this case on future non-molestation orders. Let's discuss the case in an elaborative manner.
What is the Case Yunus Manjra v Rehma Shaikh?
On 7 January 2020, there was an appeal at the Central Family Court against an order of Honor Judge Hughes. This order was challenged concerning the refusal of the Judge to discharge a non-molestation order which was granted in 2016 under Section 42 of the Family Law Act, 1966. It was also challenged based on the Judge's substitution of the order that was said to have continued for an indefinite period. Therefore, On 19 May 2020, Gwyneth Knowles J granted permission to Appeal.
Brief Facts and Timeline of the Case
Some of the relevant facts of the case are mentioned below;
The marriage was broken
After many years, Mr. Manjra and Ms. Shaikh’s marriage broke down in 2016.
The Wife Applied for the Orders
In November 2016, the respondent Ms. Shaikh at the Central Family Court under the provisions of the Family Law Act, 1996 applied for the following;
A non-molestation order against the plaintiff Mr. Manjra
An occupation order to live in the same matrimonial home as co-occupants, excluding the rights of Mr. Shaikh to enter the master bedroom.
On 18 November 2016, the aforesaid orders were made ex parte (without the presence of the defendant/alleged abuser to defend himself) by the Central Family Court Judge.
Subsequently, the orders were meant to start from the date on which the respondent was aware of the terms of the said order. It is to be noted that no provisions were made about the expiration of the order.
The husband (Mr. Manjra) did get an opportunity to revoke these orders, but he chose not to take this opportunity.
The Decision of the Parties for Residence
The parties to this case continued to stay in the matrimonial home together after the appeal.
Settlement of Financial Remedy
In May 2018, the parties to this case decided to settle their financial remedy proceeding by an agreement. Under the terms of the agreement, the matrimonial house was transferred to Mr. Manjra, the husband.
Later, Ms. Shaikh, the wife left the house in August 2019. At that time, the parties were already divorced.
Application made by the Husband
The husband, Mr. Manjra applied to the court on 6 November 2019 to discharge the occupation and non-molestation orders .
On 7 January 2020, his application was marked as ‘listed for further direction.’
The First Hearing
At the hearing the Judge discharged the occupation order, but decided that the non-molestation order would continue.
In this case, the Judge accepted the fact that the parties had not had any further problems with each other after the orders were made and that the court did not have the jurisdiction to extend or make a new order in this regard.
However, the Judge also observed that there was no reason that the non-molestation order had to be interfered with and thus, the Judge ordered that the non-molestation order should continue indefinitely.
The Husband Appealed
On hearing the appeal by the husband Mr. Manjra, Justice Cobb observed the following two significant issues about the previous Judge's approach towards the case;
Firstly, the wife's approach was wrong regarding the question of whether the order should be continued or to be discharged by not referencing whether it was necessary for the court to continue the order to protect the wife's legal right from "conduct which harasses and affects the applicant to such a degree that the intervention of the court is called for".
However, considering these aspects, it was yet to be considered whether there has been any prejudice in its continuation against Mr. Manjra, the husband.
Secondly, about the time duration of the order had been in place and as per the facts of the case, the wife had not made any material complaints regarding the husband's conduct during the intervening period. Thus, it can be said that the decision of the Judge by continuing the non-molestation order is "manifestly wrong". More specifically, with the extension of the order for an indefinite period.
Judge Cobb stated that the wife failed to make anything approachable with adequate analysis of whether it is justified to make an open-ended order in this case. He further added that, the Wife (Ms. Shaikh) has done this with the facts and that the proper outcome of this case may have been the discharge of the order.
Based on these two facts, the appeal was ultimately allowed. However, the respondent Ms. Shaikh told to the Court that she was intimidated by the behavior of her then-husband Mr. Manjra. Also, she illustrated the alleged recent behavior of her husband. Considering this, Justice Cobb refused the application of the Husband (Mr. Manjra) for a re-hearing regarding the discharge for the non-molestation order made against him in 2016.
Meanwhile, Judge Cobb substituted for the continuation of the non-molestation order until further notice on 7 January 2020.
What is the Court Notice on the Hearing?
In the Court Order in November 2016, this case did not provide a time limit on the order or make a date of return. Generally, having both of these was considered a good practice in Court. From the date the orders were made, it was clear that there had been no further issues between the parties and the court did not have jurisdiction to make a new order or extend the existing order.
The court also observed that there was no reason for interfering with the non-molestation order. Additionally, the Judge accepted that there was no sufficient reason which could justify the further order or hearing.
The Judge also stated that she does not see it to be an inconvenience for the husband by any means to continue the order as it serves as a protection of the respondent, the wife.
The Judge stated that the parties had gone their separate ways and that the Husband had no good reason as to why the non-molestation order should have been discharged at that point in time.
The court also stated that the order has been in operation for the last 3 years and due to this order neither the Husband (Mr. Manjra) or the Wife (Ms Shakh) had not faced any harm to date.
In the concluding statement, the Judge provided the judgment stating that the order remains as it was made and that there seemed to be no good reason to change it.
Following the hearing on 7 January 2020, the order contains the below-mentioned points;
The matter is being listed for a direct appointment.
The parties agreed to the fact that the occupation order issued on dated 16 November 2016 was discharged as the wife does not reside at the matrimonial home anymore.
The wife informed the court that there have been incidences that results in intimidation or threats by the Husband as on after 16 November 2016
The husband opposing the application to discharge the non-molestation order dated 16 November 2016, has not filed any witness statement.
The occupation order dated 16 November 2016 was discharged.
The Non-Molestation Order dated 16 November 2016 will continue for an indefinite period.
Critical Analysis/ Bottom Line
In this case, the wife applied and was granted a non-molestation order and occupation order. Afterwards, the husband appealed against these orders and the occupational order was discharged. However, the non-molestation order was still continuous for an indefinite period.
The court did not discharge the non-molestation order stating that neither of the parties faced any issues as a result of this order and it provided safety for the wife even though the wife had already left the house in November 2016.
Here, the court must have considered that the husband and wife were divorced and also had been living separately since the end of 2016. It had been 4 years since the parties separated and the non-molestation order was essentially not required .
Some of the main points that must be noted in this case are as follows;
There must be a time limit for a non-molestation order as these orders have the power to arrest the respondent/alleged abuser at any time.
The court in this case identifies that the victim, the wife, needs protection. However, the question still arises of whether the non-molestation order is legally justified or if it should continue forever.
There had been no signs of abuse incidents recently. The parties were divorced and were also living separately. Considering the same, was it justified to extend the non-molestation order further for an indefinite period without a good reason to do so? And can all non-molestation orders be extended for an indefinite period or forever?.
However, the judge did not say that the non-molestation order will continue forever. But it also could not be denied that a few years had passed since the non-molestation order was obtained and no recent signs of abuse had been recorded.
It is simply unfair for the husband who was not given a chance to share his defence. An order can only be extended in case there is a need to do so. But, in the concluding statement, the court stated that there was no need for the order to be discharged but it would still be extended, which seems very unusual.
Thus, it can be important to have an ambiguous timeline for such non-molestation orders. The accused can serve imprisonment if he/she breaches the time limit. However, it must not be made a common aspect.
Considering the judgment of this case, it can be said that the issuing of non-molestation orders without proper and adequate evidence could also be a problem as the statements made by the applicants to get a non-molestation order may be false. Also, there may be cases where non-molestation orders are only on papers and where there were no hearings for such orders obtained.
It was observed that around 25 non-molestation orders out of 100 are obtained without proper evidence. Some of the non-molestation orders are also obtained to get free legal aid.
Thus, issuing a non-molestation order without considering the facts of the matter can affect the accused respondent both emotionally and psychologically. Also, the non-molestation order can make a way for financial gain from the alleged abuser also known as the defendant or respondent.
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Note: This article is not legal advice and should not be treated as legal advice.