Interim Order 4

Order Details: copy of Order
Pdf Text: C. C. NO.7/DV/2020
ORDER BELOW EXH-3
By this application, the applicant / wife has prayed for
interim reliefs under section 23 of the Protection of Women From
Domestic Violence Act, 2005 (for short 'DV Act').
2] The matter has protracted history of litigation. Initially, this
court has allowed the present application by order dated 05/12/2020.
The interim maintenance of Rs.20,000/- per month was granted in
favour of the wife. Being aggrieved by the said order, the wife and
respondent no.1 /husband, both filed two different appeals before the
Hon'ble Sessions Court. In Criminal appeal bearing no.003/2021, the
Hon'ble Sessions Court pleased to enhance the amount of monthly
maintenance to Rs.35,000/- per month. Besides it, the Hon'ble Sessions
Court by corrected order dated 11/09/2023 in Cri Appeal No.193/2021
pleased to direct husband to deposit the amount of Rs.1,15,518/- in the
court and liberty was granted to the wife to withdraw the said amount.
3] Both parties challenged the said order before the Hon'ble
High Court. The Hon'ble High Court by order dated 03/10/2023,
passed in two different Revision Applications, pleased to direct this
court to reconsider the earlier orders of interim maintenance by giving
opportunity to both the parties to place their income and assets
affidavits on record and after hearing both the parties. Besides it, the
Hon'ble High court further pleased to technically set aside both the
orders i.e. order of this court granting interim maintenance of
Rs.20,000/- per month to the wife and enhancement thereof by the
Hon'ble Sessions Court.
4] In order to decide the matter, as directed by the Hon'ble
High Court, the parties were asked to file their fresh affidavits of Assets
and Liabilities. The wife was further directed to furnish her affidavit in
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respect of her expenditure towards medical expenses as has been
observed in Para 8 of the said order of the Hon'ble High Court.
5] Both parties, accordingly filed their fresh affidavits of
income and assets. Wife also filed the affidavit regarding her
expenditure towards medical treatment as directed by the Hon'ble High
Court.
6] The parties have also filed enormous documents in support
of their respective contentions. Both have filed their written notes of
arguments supported by case laws. I have carefully gone through all
the said documents which was, indeed a straits situations as I have to
dedicate almost a full day to go through all those documents and for
that purpose I have to adjourn today's entire board.
7] As far as the fact that the wife is victim of domestic violence
is concerned, I need not to dilute into this aspect. It has been already
adjudicated that the respondents have committed acts of domestic
violence against her. The said observations of this court are neither
interfered by the Hon'ble Sessions Court nor by the Hon'ble High Court.
8] The observations made by the Hon'ble High Court in Para
Nos.7 and 8 are important. It can be seen from the record that the
order in question was passed by this court by taking into consideration
the aspect of illness of the wife and medical treatment of such ailment.
The affidavit of assets and liability is filed by the wife vide Exh-63. She
also filed another affidavit relating to medical expenditure vide Exh-64.
Per contra, the husband has filed his affidavit of assets and liabilities
vide Exh-65. There is no dispute that the husband is practicing doctor
whereas the wife is practicing advocate.
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9] According to the Advocate for the husband the claim of wife
has to be rejected on two grounds. Firstly, she intentionally withheld
certain information regarding her bank details. Thus, she does not
approach the court with clean hands. It is also submitted that she has
filed some misinformation and also tried to intentionally withheld her
real income. On all these grounds, the application is prayed to be
rejected. The reliance is placed upon
Hari Narain Vs Badri Das 1963,
SCC Online, SC 135 in which it has been observed that a party to
litigation is duty bound to make correct statements in respect of any
right or liability which is in dispute. I think this case law is in respect of
making inaccurate, untrue or misleading statement before filing the
Special Leave Petition before the Hon'ble Apex Court. Merely because
the wife has purportedly withheld details of her PAN Card, in my
opinion can not be equated with the fact that she made misleading or
false statement.
10] Unless, of course, it is shown to the court that withholding of
such fact actually resulted into substantial prejudice to the opposite
party, it can not be said that such small non disclosure of the fact would
lead to out rightly reject the claim of wife. It is not the case of husband
that the wife is having source of income apart from her profession as an
advocate and therefore those documents were withheld. She may or
may not be having PAN Card or Bank Accounts. It does not change the
fact that she is in need of interim relief. Accordingly, the ratio laid
down in
Hari Narain Vs Badri Das (mentioned supra) is of no use to the
cause of husband.
11] Similar is the situation in respect of another case laws filed
by the husband i.e. 1)
S. P. Chengalvarya Naidu Vs Jagannath and Ors
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(1994) 1 SCC; 2)
Khushi V/s. Ankit, Judgment of Hon'ble Punjab and
Haryana High Court; 3)
Sujata V/s. Rajesh, 2013 SCC Online, J & K
297; 4)
Ram Yadav V/s. U. P. Board of High School, 2004 (2) SCC, 105
and
5) Rajshri Dixit V/s. Rajesh Dixit AIR 2005, BOM 352. In all the
above stated case laws the well known principle that fraud vitiates
everything is laid down and highlighted. I have already mentioned that
at present this court can not form an opinion that the wife is guilty of
providing false information to mislead the court. Another aspect is the
said aspect is already subjudice before this Court itself. The husband
has filed proceedings under section 340 of the Code of Criminal
Procedure against the wife. It will be decided in due course of time.
12] As far as the income source of the husband is concerned,
according to him, his income at present is not more than Rs.39,000/-
per month. It is however, undisputed that he is Doctor by profession
and at least having two properties mentioned in Para No.10 of his
affidavit of assets and liabilities. His contention that he is residing in
rented premises can not be accepted. More particularly, it is most
improbable that any person having at least 3 to 4 properties would
reside in rented premises and is not able to file any document in that
regard. Per contra, there is substantial truth in respect of contentions
raised by the wife regarding source of income of the husband. Her
contentions are supported by voluminous documents. For the purpose
of preciseness, I restrict myself only to the extent of discussing the
income tax returns and bank account statements filed by the husband
himself. It is to be noted that the bank account statements of the
husband filed by him shows clearly that he is having six bank accounts
in various banks like ICICI, Abhudaya Bank, SBI, HDFC, Axis and
Federal. The Bank Account statements of all the said banks from
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01/10/2020 to 31/10/2023 clearly show that the husband is having
considerable wealth. As I mentioned earlier, for the sake of preciseness,
it is not possible to mention all his transactions. However, those are
enough to observe that his monthly income is much more than
Rs.39,000/- per month.
13] There is not much dispute that the wife is Junior Advocate.
The voluminous documents filed vide serial no.1 to 340 clearly show
that she is suffering from illness though it may not be termed or treated
as life threatening. It does not mean that she is not entitled to claim
that expenditure from the husband. The documents relating to hip
replacement surgeries are filed on record. Even if, it is observed that
bulk of the amount of both the said two surgeries was being paid from
the insurance policy, it can not be overlooked that any person after
such surgeries requires considerable follow ups with medical persons.
the husband being medical professional is expected to know all these
aspects but he intentionally refusing them.
14] I am completely agree with the case laws relied upon by the
wife. In
Rajnesh Vs Neha, the Hon'ble Apex Court categorically
observed that if the husband does not disclose his exact income, the
court may draw adverse inference. Similar is the ratio of
Smt. Jasbir
Vs. District Judge Dehradun, AIR, 1997, SC 337,
Rupal Doshi V/s.
Mayur Doshi in Civil Application No.280 of 2015 decided by Hon'ble
Bombay High Court. I am also agree with the contention of the wife
that at the stage of deciding interim maintenance application only
prima facie views have to be taken. Merely because she is practicing
advocate does not mean that she is capable of earning sufficient
amount to live a dignified life. The Ld. Advocate for the husband filed
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certain documents showing the wealth of brother of wife. In that
regard, it is settled that financial position of wife's parents is
immaterial while deciding the interim maintenance application.
15] I do agree with the argument of Ld. Advocate for the
husband to some extent that the wife is claiming unreasonable amount
in certain cases. Such as expenses incurred for travel through Uber or
expenses incurred for printing photocopies (xerox). That does not
mean that her right to live dignified and proper life which she could
have lived had she been resided with the husband, can be curtailed or
restricted. I have already mentioned that the income the husband is
much more than as stated by him. The basic needs of wife has to be
taken care of while passing the order of interim maintenance.
Considering the socio economic background of both the parties, basic
needs of the wife , financial background of the husband, in my opinion
the interim maintenance of Rs. 35,000/- is just and proper. It is not
because it was already in existence, but due to the reasons mentioned
herein-above. As far as already paid amount of Rs.1,15,518/- in Cri.
Appeal No.193/2021, it was payable by husband to wife and it will not
be effected in any manner by this order. Hence, I pass the following
order:-
ORDER
1. The application is partly allowed.
2. All the respondents are restrained from committing any act
of domestic violence of any nature against the wife till decision of the
main application.
3. The husband shall continue to pay monthly interim
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maintenance of Rs.35,000/- (Rs. Thirty Five Thousand Only) to the
wife towards her maintenance of all nature till decision of the main
petition. The amount already paid shall be adjusted accordingly and the
amount due shall be paid by the the husband treating that the said
amount is payable from the date of main application.
4. Copy of order be given free of cost to both the parties.
Date :-13/03/2024
Place:-Vikhroli.
Sd/-
(S. M. Kale)
Addl. Chief Metropolitan Magistrate,
31st Court, Vikhroli, Mumbai.
ORDER
All the corrections carried out vide bold letters in this order
and red ink in original order, hereinabove are as per the order passed
in Misc Criminal Application No.915/M/2024 dated 04/04/2024.
Sd/-
(S. M. Kale)
Addl. Chief Metropolitan Magistrate,
31st Court, Vikhroli, Mumbai.
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