Order 3

Order Details: Copy of Interim Maintenance Order
Pdf Text: CNR No. MHMM18-000279-2022 C. C. NO. 10/DV/2022
Saira V/s. Mohd. Akram & Ors.
COMMON ORDER BELOW APPLICATIONS EXH-3 & EXH.9
The applicant has filed the present applications under section
23 of the Protection of The Woman from the Domestic Violence Act, 2005
(here-in-after referred as, 'the PWDV Act').
2. According to the applicant, the respondent No.1 is her
husband and their marriage took place on 19/02/2021, as per Muslim
Rites and Rituals. After marriage applicant started to reside with
respondents at Banglore. The applicant was sexually and mentally
tortured by respondent No.1. The respondents forced to leave the
applicant matrimonial home. The applicant has no shelter and has taken
rescue at her brothers and parents home. The respondent No.1 had
treated the applicant with utmost physical and mental cruelty. The
respondent No.1 is not able to consummate the marriage due to his
inability.
3. It is further contended that, the respondent No.2 always
illtreated the applicant and picked the fights with her on daily basis. The
respondent No.2 on 09th July 2021 started to taunt the applicant about her
mother and started the quarrel with the applicant. The respondent No.2
trying to drag the applicant from her room by catching hold physically.
The respondent No.2 wanted to throw the applicant out of the house.
Thus, according to the applicant she has been subjected the domestic
violence at the hands of respondents. The applicant by way of present
applications sought interim relief of maintenance, relief of residential
order, protection order against the respondents.
4. The respondents by filing common reply dated 27/08/2023
resisted both the applications of applicant. The respondents denied all the
contention of applicant in toto. They denied that they cause any kind of
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domestic violence to the applicant. According to the respondents applicant
has no
locus standi to claim any relief from respondents as the relationship
of husband and wife does not exist between them. It is contended that,
when a demand for Khula was made from applicant’s side, the respondent
agreed to put an end to the marriage and give Khula to the applicant. The
applicant insisted the respondent the terms of Khula be documented to
which the respondent agreed. There were exchange of several e-mails
regarding execution of Khula. It is contended that, the present applications
has been filed by applicant only with intention to harass the respondents.
Lastly, respondents prayed that application be rejected.
5. The applicant in support of applications filed on record the
Copy of Nikhanama, Copy of Photographs, Copy of Aadhar Card etc. The
applicant also filed on record her affidavit of Asset and Liabilities, at
(Exh.-16).
6. The respondent has filed on record the his affidavit of Assets
and Liabilities, alongwith (Exh.-15).
7. I have heard elaborated arguments of Ld. Advocate Smt. Uma
Wagle for applicant and Ld. Advocate Shri Zaimuddin for respondents.
8. Considering the rival pleadings of both parties following
points are arises for my determination. I have recorded my findings
thereon for the reasons, as under :-
Sr. No. Points Findings
1. Does the applicant proved
prima-
faciely that, she has been subjected
the domestic violence at the hands
of the respondents ? Yes.
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C. C. NO.10/DV/2022 COMMON ORDER BELOW APPLICATIONS EXH-3 & EXH.9
2. Is applicant entitled for relief of
protection order, as prayed? Partly Yes.
3. Is applicant entitled for relief of
maintenance, as prayed? Yes.
4. Is applicant entitled for relief of
rent in lieu of alternate
accommodation, as prayed?
No.
5. What order? Application is
partly allowed.
REASONS
As to point No.1 :-
9. In order to get relief under section 23 of Domestic Violence
Act the applicant has to prove that, she has been subjected domestic
violence at the hands of respondents. It is to be noted that, the marriage
of applicant is admitted to the respondents. The respondent came with
defence that, the applicant has given Khula and their relationship as
husband and wife is not at all in existence and therefore, there is no
domestic relations between them and the applicant.
10. Ld. Advocate Smt. Uma Wagle for applicant submits that, the
applicant in her pleading contended that, she has been subjected domestic
violence at the hands of respondents. The respondent has not proved that,
there was a Khula and the husband wife relationship does not exist. She
further submits that, the said issue is subjudice before the Family Court in
the proceeding initiated by the respondent No.1. in the reply the
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respondent has not specifically denied the allegations made by the
applicant in respect of domestic violence caused by respondents.
11. Per contra, Ld. Advocate Shri Zainuddin submits that, due to
the Khula given by the applicant and accepted by respondent No.1 the
marriage between them does not exist therefore, there is no domestic
relations exist between them. He further submits that, no specific incident
has been mentioned by the applicant in her applicant regarding the
domestic violence. As per the Muslim law the divorce to woman entitled
to maintenance after separation till her iddat period. In support of his
argument he relied on the case of Noushad Flourish V.s. Akhila reported in
2023 SCC On Line Kerla 9059, wherein it has been observed that, Muslim
divorced wife can claim maintenance under section 125 of Cr. P. C. till she
remarry, unless a reasonable and fair provision extending beyond the
iddat period must be made by husband within the iddat period or
thereafter in terms of section 3 (1)(a) of Muslim Woman (Protection of
Right on Divorce Act, 1986).
12. It further observed that, when the wife refuses to live with her
husband she could not claim maintenance from her husband. When the
wife effects divorce by Khula by getting her relief from the husband the
same in fact akin to refusal of the wife to live with her husband, as
provided under section 125 (4) of Cr. P. C. If the wife who effected
divorce by Khula at her volition and thereby refuses to live with her
husband voluntarily, is not entitled to get maintenance from the date of
Khula.
13. On the same point Ld. Advocate further relied on the case of
Ali Abbas Daruwala V/s. Shehnaz Daruwala report in 2018 (6) MhH.L.J.
596.
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14. I have gone through the entire pleading of the parties. It has
come on the record that, the respondent has filed the suit for declaration
against the applicant in the Family Court and sought relief of declaration
that, the applicant is no longer wife of the respondent in view of the Khula
dated 14/09/2021. Now the said suit bearing OS No.303/2022 is
transferred from the Family Court, Bangalore to Family Court, Bandra at
Mumbai as per the order of the Hon’ble Apex Cour in transfer petition
Civil No. 2229/2022 dated 11/01/2023. It appears that, the said suit is
pending before the Family Court.
15. ‘
Khula’ is practice within Islamic Law that empowers Muslim
women to unilaterally seek separation from their husbands.
16. It is to be noted that, whether on 14/09/2021 the applicant
has given Khula and same has been accepted by the respondent No.1 is
matter of evidence. At this stage merely relying on the contention of
respondent it can not be held that, the divorce has been effected by way of
Khula by the applicant. Further, the said dispute is still pending before the
Hon’ble Family Court. Therefore, the citations cited by the respondents are
of no use to the respondents.
17. It is to be noted that, it is the contention of the applicant that,
she has been subjected the domestic violence at the hands of respondents.
She has given instances of verbal as well as physical abuse caused by the
respondents. It is to be noted that, those instances have not been
specifically denied by the respondent in his common reply dated
27/08/2023. The record shows that, since July 2021 the applicant
residing separately from the respondent. Therefore, I hold that,
prima-
faciely proved that, she has been subjected domestic violence at the hands
of respondents. Hence, I record my answer to the point No.1 as in the
affirmative.
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As to point No.2 :-
18. This issue is in respect of the protection order. The applicant
has sought relief restraining the respondents from committing the
domestic violence against the respondent. It is to be noted that, while
answering to point No.1, I have concluded that, applicant has been
subjected the domestic violence at the hands of respondents. The
applicant is having apprehension in her mind that, the respondent will
cause her domestic violence in future also. Considering the allegations and
counter allegations, I am of in opinion that, in order to protect the interest
of applicant order for restraining the respondent No.1 from committing
any domestic violence in future can be passed. Hence, I record my answer
to point No.2 as in the partly affirmative.
As to point No.3 :-
19. This issue is in respect of the monetary relief in the nature of
maintenance. While concluding point No.1 I hold that, applicant is
subjected domestic violence at the hands of respondents. Now the
applicant is staying with her parents, at Mumbai. The respondents are
inhabitant of Banglore. According to applicant she is not sufficient having
source of income to lead her life equivalent to the status of the respondent
No.1. She is visiting faculty and getting income to the tune of I.6,000/-
to I.08,000/- p.m. Per contra, the respondent No.1 is Transition
Programme Manager and his income is more than I.1,00,000/- p.m. I
have gone through the respective affidavits of Assets and Liabilities and
Income Tax documents filed on record by both party.
20. In affidavit of Assets and Liabilities filed by the respondent he
categorically mentioned his income to the tune of I.1,27,000/-. It further
discloses that the applicant is lecturer/Assistant Professor in Rizvi College,
Mumbai and partner in Gold Filed Developers and Le Jardian Resort and
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Spa. But no documents to that effects have been filed by the respondent
on record. From the affidavits of Assets and Liabilities of parties it reveals
that, the income of applicant is very meager than the income of
respondent No.1. the applicant being wife of respondent is having every
right to live as per the status and standard of living of the respondent.
Therefore, by taking into the consideration the said fact being aggrieved
person applicant is entitled to monetary relief in the nature of
maintenance from the respondent No.1.
21. Considering living standard of both the parties, their basic
needs and the responsibilities of the respondents I am of opinion that, the
amount of I.25,000/- p.m. is sufficient as a interim maintenance from the
respondent No.1 to the applicant. Hence, I record my answer to the point
No.3 as in partly affirmative
As to point No.4 :-
22. The applicant has sought relief of rent in lieu of alternate
accommodation. It is to be noted that, now the applicant used to reside at
the address given in the application at her brother’s and parent home.
Therefore, at this stage it cannot be said that, she is totally shelterless.
Hence, I am of opinion that, the order regarding alternate accommodation
or rent in lieu of the same cannot be passed in favour of the applicant. In
the result I record my answer to the point No.4 as in the negative and
proceed to pass following order.
ORDER
1 The application
s are partly allowed.
2 The respondent No.1 shall not cause any kind of domestic
violence to applicant till final decision of the proceeding.
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3 The respondent No.1 shall pay R.25,000/- p.m. to
applicant, as a interim maintenance, since the date of
filing of the present application.
4 The respondent shall pay R.20,000/- as the cost of the
present application to the applicant.
5 Copy of this order be given free of cost to both the
parties.
Mumbai.
Date : 20/12/2024.
SRD.
Sd/-
Metropolitan/Judicial Magistrate,
(First Class) 71st Court, Bandra, Mumbai.
Dictated on :- 20/12/2024.
Transcribed on :- 20/12/2024.
Checked on :- 20/12/2024.
Signed on :- 20/12/2024.
SRD
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