Interim Order 1

Order Details: Copy of Interim Maintenance Order
Pdf Text: 1 C.C.NO.48/DV/2023
IN THE COURT OF ADDL. CHIEF METROPOLITAN MAGISTRATE,
09TH COURT, BANDRA, MUMBAI
C.C.NO.48/DV/2023
Smt. Nisha Mithun Rele
Nee Nisha Motilal Gupta …... Applicant
Vs.
Shri.Mithun Avinash Rele & Others. …... Respondents.
ORDER BELOW APPLICATION(EXH.03) FOR INTERIM PRAYERS
This application is filed under Section 23 of The Protection
of Woman from The Domestic Violence Act, 2005 ( for short 'Act') for
grant of interim reliefs as prayed in the prayer clause.
2. Perused the application (Exh.03) and the reply(Exh.06)
filed by the respondent. Referred the documents filed by the applicant
and the respondent. Heard Ld. Advocate for the applicant and the
respondent. Following points arose for determination. Findings are
recorded against each of them for reasons to follow:
Sr.
No. POINTS FINDINGS
1. Whether the applicant has prima
facie proved that she is victim of
domestic violence ?
Yes
2. Whether the applicant is entitled
for interim relief of protection
under Section 18 of the Act
restraining the respondents from
committing, aiding or abetting any
act of domestic violence?
No
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3. Whether the applicant proved
that she is entitled for
accommodation of matrimonial
house or Rs.25,000/ per month
and Rs.2,00,000/ as security
deposit towards expenses of
alternate accommodation ?
No
4. Whether the applicant is entitled
for return of her Stridhan ?
No
5. Whether the applicant is entitled
for monthly maintenance of
Rs.35,000/ per month and
Rs.5,000/ per month towards
medical expenses?
Yes.
Rs.10,000/ per month
6. What order? Application is partly
allowed.
R E A S O N S
As To Point No.1:
3. Admittedly the applicant and the respondent No.1 married
on 21/02/2019. The applicant and the respondent No.1 are husband
and wife. The applicant and the respondent has got one child born out
of the wedlock. The child was born on 29/12/2019. Admittedly, the
applicant is residing at her matrimonial house since 29/12/2019. To
prove the domestic violence it is necessary to reproduce below the
definition provided under Section 3 of the Act. The ingredients of
Domestic Violence Act are
“ Any Act, omission or commission or conduct which constitutes
domestic violence are
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(1) It harms or injures or endangers the health,
safety, life, limp or wellbeing, whether mental or
physical, of the aggrieved person or tends to do so
and includes causing physical abuse, sexual abuse,
verbal and emotional abuse and economic abuse.
(2) It harassed, harms, injures or endangers the
aggrieved person with a view to coerce her or any
other person related to her to meet any unlawful
demand for any dowry or other property or valuable
security.
(3) It the effect of threatening the aggrieved
person or any person related to her by any conduct
mentioned in clause (a) or clause (b).
(4) It otherwise injures or causes harm, whether
physical or mental to the aggrieved person.
3. Expression “Economic abuse” Expression “ Economic abuse”
includes
(1) Deprivation of all or any economic or financial
resources.
(2) Disposal of household effects.
(3) Prohibition or restriction to continued access to
resources or facilities.
4. Applying the facts of the case to the above definition, as per
applicant she was forced to give her child in adoption by the respondent
No.1 and 2 to the relatives of respondent No.1 as they do not have any
child. The respondents abused the applicant, degrading her on her
caste and hurled abuses by mentioning her caste. The applicant was
thrown out of the house in December 2021. The respondent has not
taken any care to take back the applicant after birth of child from her
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parental house. The respondent No.1 has also not taken care of the
child who was newly born. The respondent No.1 has issued notice of
divorce on 10/10/2021. This notice was also replied by the applicant.
The applicant has filed N.C.'s in respect of the assault and abuses given
by the respondents to her and her brother.
5. These allegations are countered by the respondents by
contending that no prima facie allegations are made out to make out
the case of domestic violence. The applicant has wrongly mentioned
the age of the child in application though she is mother. On
29/12/2021 the applicant picked up quarrel with the respondents and
his mother and after taking all her belongings the applicant filed N.C.
and left the house of the respondents. The applicant and the
respondents are residing separately since then. The respondents tried
to settle the dispute and to cohabit with the applicant. The applicant
has not agreed and residing separately at her own wishes. The
respondent has filed petition of divorce due to the cruel behaviour of
the applicant. After filing of divorce petition only with a view to harass
the respondents this application is filed.
6. It is submitted by Ld. Advocate for the applicant that
respondent No.1 has not provided any economic or financial help to the
applicant or to the newly born child. In support he relied on –
i) Bhuwan Mohan Singh Vs. Meena, 2014 AIR SCW 4201
ii) Manju Sharma Vs. Vipin, Crl.Rev.P.103/2015, dtd.01st July 2019
iii) Kanupriya Sharma Vs. State & Anr. Crl.Rev. Pet.849/2018 &
Crl.M.A. 33234/2018 dtd.31st May,2019
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iv) Gananath Vishwanathan Shenoy Vs. State of Maharashtra & Other;
Criminal Writ Petition No.1027 of 2018 date 13th February
2019(Bombay High Court)
7. In all the above judgments ratio laid down is common that
the husband is under obligation to maintain the wife and children by
providing financial support or help to them. The wife and children
should not be destitute or they should not be deprived of meeting from
their livelihood.
8. As defined under Section 3 of the Act, the definition of
'economic abuse' is provided. According to this definition deprivation
of any financial resources or sharing a financial resource with the
aggrieved person or not providing financial help to the aggrieved
person is covered under the “economic abuse”. The respondent has not
filed any document on record or any material to establish that he has
actually provided the financial support and help to the applicant or to
the child. The act and omission of the respondent No.1 certainly falls
within the purview of Section 3 of the Act.
9. As far as the allegations about other illtreatment is concern
those are countered by the respondent No.1 also. At this juncture no
finding can be given in respect of the allegations and the defence taken
by the applicant and the respondent respectively. For these reason it is
held that applicant is the victim of domestic violence. Finding to Point
No.1 is recorded in the affirmative.
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As to Point No.2:
10. Admittedly the applicant is residing separately at her
parental house since 29/12/2021. There is no contention or allegation
in respect of causing any domestic violence to the applicant for which
applicant is required protection. As both the parties are residing
separately, at this juncture no case is made out to grant protection
under Section 18 as prayed for. For this reason finding to Point No.2 is
recorded in the negative.
As to Point No.3:
11. This application is filed after exchange of notices between
the parties. There are other allegations pending between the parties.
The applicant is residing at her parental house. It is a question of fact
which could be decided during the trial whether the applicant has left
her matrimonial house on her own or she was driven out of the house
by the respondents. This controversy can be decided during the trial on
the basis of the evidence. At this juncture no finding can be given on
the basis of bare allegations and counter reply. For this reason finding
to Point No.3 is recorded in the negative.
As to Point No.4:
12. The applicant has claimed return of Stridhan. The
applicant has mentioned in the prayer clause that her jewellery ,
ornaments and other articles are lying with the respondents. Whether
these ornaments are taken by the applicant with her or her Stridhan is
lying with the respondents is also a question of fact, can be decided
during the trial and on the basis of evidence. There is no prima facie
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evidence except their statements that the ornaments are lying with the
respondents. For these reason it is held that the applicant is not
entitled for the relief of return of Stridhan at interim stage. Finding to
Point No.4 is recorded in the negative.
As to Point No.5:
13. The applicant has prayed for interim maintenance of
Rs.35,000/ per month in addition the medical expenses of Rs.5,000/.
As held by giving reasons to Point No.1, the applicant is the victim of
domestic violence. The applicant is entitled for mandatory relief as
provided under Section 20 of the Act. In granting maintenance the
amount should not be exorbitant or it should not be meager. If the
amount of maintenance is meager it does not satisfy the object of the
Act. The amount of maintenance is to be considered on the basis of
standard of living of the parties, income of the parties, dependency of
the parties and status of the parties in the society.
14. As per applicant the respondent is earning Rs.50,000/ to
Rs.60,000/ per month by taking tuitions classes at a posh area of Vile
Parle. In addition to that the respondent No.1 is selling eatables. In the
affidavit of assets and liabilities the applicant contended that her
expenses are around Rs.25,000/ per month as her general expenses.
As per the respondent the applicant is working as beautician earning to
Rs.20,000/ per month. The applicant has her own source of income
and is not in need of maintenance from the respondent.
15. The applicant admittedly residing at her parental house
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alongwith a son. It is the obligation of the respondent No.1 to provide
financial support and help to the applicant and the child for their
livelihood and other expenses. The applicant though not supported any
other material to establish that the respondent No.1 earning 50,000/ to
Rs.60,000/ per month but the respondent No.1 is liable to pay
maintenance to the applicant. The applicant and the respondents
appears from the middle class family. The responsibility on the
respondent No.1 is of his mother and responsibility of the applicant and
his son. The standard of living of the parties and income of the
respondent No.1 and expenses required to meet for livelihood of the
applicant and her son an amount of Rs.10,000/(Rupees Ten Thousand
only) per month will be reasonable at this interim stage. Accordingly
finding to Point No.5 is recorded with the following order.
O R D E R
1. Application is partly allowed.
2. The respondent is directed to pay interim maintenance of
Rs.10,000/(Rupees Ten Thousand only) per month to the applicant
from the date of application till decision of main application.
3. The copy of the order be given to both the parties free of
cost and the compliance be made under Section 24 of the Act.
4. Dictated and pronounced in the open Court.
Sd/
( K.H.Thombre )
Addl. Chief Metropolitan Magistrate,
Date : 28.02.2024 9th Court, Bandra, Mumbai
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