Interim Order 1

Order Details: Copy of Interim Maintenance Order
Pdf Text: CNR No. MHMM18-002402-2021 C. C. NO.70/DV/2021
Noorshana V/s. Kaleem & Ors.
ORDER BELOW APPLICATION DATED 19/03/2021
The applicant has filed the present application under section
23 of the Protection of 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 11/10/2014, as per Muslim
Rites and Rituals. Out of said wedlock they have one daughter by name
Shifa Siddiqui, who is now in the custody of the respondent No.1. are
respondent No.2 and No.3 are in-laws of the applicant. It is contended
that, her parents has given gold jewellery to the tune of 5 tolas and articles
like TV, Fridge, Furniture in the marriage and said articles and ornaments
are in the custody of respondent. After marriage the applicant started to
stay with the respondents. However, the respondents started fighting and
assaulting on the ground that, there was no sufficient Dahej/Dowry in the
marriage. It is further contended that, the respondent used to demand
money from the applicant and if the applicant unable to give money them
they would assault her.
3. The respondent No.1 is habitual drunker. He never gave
money to run the home to the applicant. Respondent No.3 would assault
and beat and taunt the applicant on regular basis for the work. It is
contended that, one day she found out affair of respondent No.1 and
when she objected then she was beaten mercilessly. Respondent No.1
broke teeth of applicant and kept the applicant in confinement for 25
days.
4. It is contended that, on 07/11/2015 she gave birth daughter
Shifa. It is contended that, the respondents used to say that, they did not
want a girl child and started blame that, girl child was not respondent
-- 1 of 8 --
~2~
C. C. NO.70/DV/2021 ORDER BELOW APPLICATION DATED 19/03/2021
No.1. It is further contended that, she was forcefully took to Kazi name
Mohammad Ahsanuz Zama Qureshi by respondent and forced to sign the
divorce papers. It is contended that, she is neglected by the respondent
and subjected domestic violence at the hands of respondent. It is further
contended that, she is not having source of income. However, the
respondent No.1 is onion trader having monthly income to the tune of
I.50,000/- p.m. Therefore, the applicant claimed I.30,000/- p.m. as a
maintenance from respondent No.1. Lastly, the applicant prayed that,
application be allowed and respondent be prohibited from committing any
domestic violence against her. She also sought relief that, respondent No.1
be directed to give custody of daughter Shifa and also sought relief that,
respondent No.1 shall pay amount of I.30,000/- p.m. as a maintenance.
5. The respondents have resisted the application by filing their
say at (Exh.-8). Respondents accepted the marriage with the applicant, but
denied all other contention of applicant. It is contended that, the applicant
has already got Khula Talaq as per Muslim Act through Kazi. Therefore,
since 26/02/2021 there is no domestic relations between them and
applicant. It is further contended that, applicant has extra marital affairs
for years, where she had been caught with all messages and photographs,
where she given in writing that, she would not continue, but she
continued and same will not regret. The respondents denied that, they
have caused any domestic violence, as alleged. It is denied by respondents
that, they demanded any money with the applicant.
6. Thus, according to the respondents as there is no domestic
relations exists between them and proceeding is not tenable. Therefore,
applicant is not entitled to any relief, as sought. Lastly, respondent prayed
that application be rejected.
7. The applicant in support of application filed on record Copy of
Nikhanama, Copy of Medical Prescription, Photographs, Copy of complaint
-- 2 of 8 --
~3~
C. C. NO.70/DV/2021 ORDER BELOW APPLICATION DATED 19/03/2021
etc. The applicant also filed on record her affidavit of Asset and Liabilities,
(Exh.-4).
8. The respondent in support of defence filed on record photo
copy of WhatsApp Chat, Statement of account, Copy of acceptance of
Khulanama, Copy of divorce certificate. The respondent is not filed his
affidavit of Assets and Liabilities.
9. I have heard elaborated arguments of Ld. Advocate Smt.
Raziya Shaikh for applicant and Ld. Advocate Smt. Pareira for
respondents.
10. 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.
2. Is applicant entitled for relief of
protection order, as prayed? Partly Yes.
3. Is applicant entitled for custody of
daughter Shifa, as prayed? In redundant
.
4. Is applicant entitled for relief of
maintenance, as prayed? Yes.
-- 3 of 8 --
~4~
C. C. NO.70/DV/2021 ORDER BELOW APPLICATION DATED 19/03/2021
5. What order? Application is
partly allowed.
REASONS
As to point No.1 :-
11. 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 and relation with daughter Shifa are admitted to the
respondents. The respondent came with defence that, the applicant is
having extra marital affairs and she has given Khulanama to respondent
No.1, which has been accepted by him. Therefore, there is no domestic
relations between them and the applicant.
12. Ld. Advocate Smt. Shaikh for applicant submits that, the
applicant in her pleading contended that, she has been forced to sign
divorce papers by the respondents. Said Khulanama is not at all legal and
therefore, Khulanama Certificate issued by Kazi is not at all maintainable.
She further submits that, the respondent caused domestic violence in the
nature of verbal abuse, as well as physical abuse to the applicant for non
giving sufficient Dahej/Dowry and for demand of Dowry. Even
respondents has doubted chastity of applicant. Therefore, applicant is
subjected domestic violence at the hands of respondents.
13. Per contra, Ld. Advocate Smt. Pareira for respondent submits
that, the applicant has extra marital affairs. She drawn my attention to
WhatsApp chats and submits that, the said WhatsApp chats are proved
behaviour of the applicant. Therefore, she is not entitled for any relief. She
further submits that, the applicant has given in writing that, she would not
continue her extra marital affairs. Further, she has given divorce in the
form of Khulanama and which is accepted by the respondent No.1.
-- 4 of 8 --
~5~
C. C. NO.70/DV/2021 ORDER BELOW APPLICATION DATED 19/03/2021
Therefore, domestic relations does not exist between respondents and
applicant, hence, application liable to be rejected.
14. ‘
Khula’ is practice within Islamic Law that empowers Muslim
women to unilaterally seek separation from their husbands.
15. The respondent has filed on record the copy of Khulanama by
the applicant. The respondent also filed on record acceptance of
Khulanama. Now it is to be noted that, whether in order to decide
domestic relationship it is necessary to see that whether said Khulanama is
valid and whether it is acted upon. I would like to state here that, the
applicant contended that, she was forced to sign the Khulanama and
challenged the legality of the Khulanama. Therefore, I am of opinion that,
unless there is evidence of both parties on record and specifically when
said Khulanama not accepted by the applicant herself. Therefore, the copy
of Khulanama and the confirming certificate of Kazi is not at all useful.
16. It is contended that, respondent used to cause domestic
violence in the nature of verbal and physical abuses on the count of dowry
demand. The respondent No.1 did not provide sufficient money to run
home and respondent No.3 taunted her on the ground of various domestic
work. Even in the reply itself respondent No.1 contended that, she is
having extra marital affairs and relied on WhatsApp chat. I would like to
state here that, whether said WahtsApp chat constitute extra marital
affairs can be decided on evidence adduced by the both parties. Therefore,
those WhatsApp chat and stamp paper, wherein applicant alleged to has
given in writing that, she would not continue with extra marital affairs,
cannot be taken into consideration.
17. The applicant subjected domestic violence in the nature of
verbal abuse and physical abuse which reflected in the pleading of main
application, which constitute that the applicant subjected domestic
-- 5 of 8 --
~6~
C. C. NO.70/DV/2021 ORDER BELOW APPLICATION DATED 19/03/2021
violence at the hands of respondents. Hence, I record my findings to the
point No.1 as in the affirmative.
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 can be passed. Hence, I record my findings to point
No.2 as in the partly affirmative.
As to point No.3 :-
19. This issue is in respect of custody of daughter Shifa. It is to be
noted that, my Ld. Predecessor by order dated 26/11/2021 directed the
respondent No.1 to hand over the custody of daughter Shifa to applicant.
Therefore, I record my finding to the point No.3 as in the redundant.
As to point No.4 :-
20. 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 Hydrabad. According to applicant she is not having source of
income and maintenance and respondents is having business of onion and
potato and having smart income to the tune of I.50,000/- p.m. The
applicant in her affidavit of Assets and Liabilities (Exh.-4) categorically
contended the same.
-- 6 of 8 --
~7~
C. C. NO.70/DV/2021 ORDER BELOW APPLICATION DATED 19/03/2021
21. The respondent has filed on record copy of statement of
account, which shows that income of respondent No.1 is certain. It is to be
noted that, since 26/02/2021 the applicant used to reside separately from
the respondents. It further to be noted that, since separation respondent
has not provided any means of maintenance to applicant. Being husband
of applicant it is duty of respondent No.1 to provide maintenance and
applicant is entitled for the same, as per provision of section 23 r/w
section 20 of Domestic Violence Act. Considering the basic needs of
applicant and considering the income and responsibilities of respondent
No.1, I am of opinion that the amount of I.7,000/- is sufficient as a
maintenance to applicant. Hence, I record my findings to the point No.4 as
in partly affirmative and proceed to pass following order.
ORDER
1 The application is partly allowed.
2 The respondent No.1 shall not cause any kind of domestic
violence to applicant till final decision of the proceeding.
3 The respondent No.1 shall pay R.07,000/- p.m. to
applicant, as a interim maintenance, since the date of
filing of the present application.
4 The respondent shall pay R.10,000/- 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 : 13/08/2024.
SRD.
Sd/-
Metropolitan/Judicial Magistrate,
(First Class) 71st Court, Bandra, Mumbai.
-- 7 of 8 --
~8~
C. C. NO.70/DV/2021 ORDER BELOW APPLICATION DATED 19/03/2021
Dictated on :- 13/08/2024.
Transcribed on :- 13/08/2024.
Checked on :- 16/08/2024.
Signed on :- 16/08/2024.
SRD
-- 8 of 8 --