Order 1

Order Details: Copy of Interim Maintenance Order
Pdf Text: CNR No. MHMM18-002427-2021 C. C. NO.94/DV/2021
Farida V/s. Mohd. Kausar & Ors.
ORDER BELOW INTERIM APPLICATION (EXH.-2)
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') for maintenance order,
protection order and residence order. According to the applicant, she
married with respondent No.1 on 10/05/2014, at Ghausiya Jama Masjid,
Bandra, Mumbai, as per Muslim Rites and Customs. Other respondents are
relatives of respondent No.1. They have one child by name Mohd. Ali
Idrisi, who born on 18/04/2015.
2. It is contended that, she was ill treated, harassed, tortured and
assaulted by respondents, while she was living with them at her
matrimonial home. Thus according to her, she has been subjected the
domestic violence at the hands of respondents, therefore, she constrained
to file the proceeding under Domestic Violence Act. It is contended that,
the respondent No.1 never performed his duty, as a husband. Therefore,
due to said behaviour she became mentally disturbed. Lastly, applicant
prayed that, application be allowed and respondent be restrained from
causing any kind of domestic violence by passing protection order.
Further, she sought relief of alternate accommodation and for direction to
return her articles and also sought relief of maintenance of I.25,000/-
p.m. from respondent No.1.
3. The respondents have resisted the application by filing their
say at (Exh.-6). The respondents denied all the contentions of applicant in
toto. The respondents denied that, they caused any kind of domestic
violence to the applicant, as alleged. They denied that, they made demand
of dowry from applicant and upon non-fulfilling the said demand they
have tortured the applicant. It is contended that, the applicant voluntarily
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C. C. NO. 94/DV/2021 ORDER BELOW APPLICATION (Exh.-2)
left the home of the respondent. It is further contended that, the
respondent No.1 has given Talaq to applicant longback, therefore, there
no exist domestic relations between them. Therefore, application is not
tenable. It is contended that, the respondent No.1 always provided proper
maintenance and also provided the medical aid to the applicant. The
respondent No.1 is having no source of income, therefore he is not in
position to provide maintenance to the applicant. He is contended that, he
had tried to make arrangement to have admission of his child in school.
Lastly, it is prayed that, application be rejected.
4. I have heard elaborated arguments of Ld. Advocate Smt.
Vipula Naik for the applicant and Ld. Advocate Smt. Nasrin Baig for the
respondents. The applicant and respondents have filed their respective
affidavit of assets and liability at (Exh.-8) and (Exh.-11) respectively. The
applicant and respondents have filed various document on record in
respect of their claim and defence as the case may be and I have
considered all these documents. I have also considered the written notes
of argument which is (Exh.-22) filed by respondents and the written notes
of arguments of applicant dated 22/04/2024.
5. Considering the rival pleadings of both party 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 that, she
has been subjected the domestic
violence at the hands of the
respondent ? Yes.
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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
alternate accommodation as,
prayed or rent in lieu of alternate
accommodation ? No.
5 Is applicant entitled for relief
regarding her articles ? No.
6. What order? Application is
partly allowed.
REASONS
As to point No.1
6. In order to get relief under section 23 of the Domestic
Violence Act the applicant has to prove prima-faciely that, she has been
subjected the domestic violence at the hands of respondents. The
respondent denied all the allegations made by the applicant. It is to be
noted that, the relationship between parties are admitted to each other.
But it is the defence of respondent No.1 he has given valid Talaq to
applicant and he also delivered Talaq Nama to applicant. Therefore, there
is no domestic relations exists between him and the applicant. Therefore,
now it is necessary to see that, whether the domestic relations in the
nature of marriage are exists between applicant and the respondent No.1.
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C. C. NO. 94/DV/2021 ORDER BELOW APPLICATION (Exh.-2)
7. Ld. Advocate Smt. Naik submits that, the Talaq Nama given by
the respondent No.1 is not at all valid and the Talaq is also not at all valid.
She further submits that, assuming that, the said Talaq is valid one, but
still applicant is entitled to sought relief under the Domestic Violence Act
for the past domestic violence suffered by her at the hands of the
respondents. The applicant is not having source of income. The
respondent No.1 is having business and immovable properties. He also
having income from the premises, which have been let out by him on rent.
Child Mohd. Ali is growing and school going child, therefore, the
respondent is under obligation to provide maintenance to the applicant.
The respondents caused ill treatment, which are the domestic violence,
therefore, applicant is entitled to protection order against respondents,
lastly she prayed that, application be allowed, as prayed.
8. In support of her claim she relied on the case of Ahsanullah @
Javed Khan V/s. Shahana Parvin @Briji reported in 2023 AIR ALL MR
(Cri) 2576, wherein it has been held that, wife entitled to seek relief
under Domestic Violence Act after divorce in respect of past domestic
violence.
9. Per contra, Ld. Advocate Smt. Baig for respondents drawn my
attention to the copies of Talaq Nama and submits that, the respondent
No.1 has given the valid Talaq to applicant, therefore, there is no domestic
relations exists between them. She further submits that, all the allegations
are false one and the present proceeding has been prepared after giving
Talaq to applicant by respondent No.1. The applicant only wants to harass
the respondents, therefore, the application is not tenable. She further
submits that, the respondent No.1 has provided every medical aid to
applicant and in this regard she drawn my attention to the medical papers
filed by respondent on record. It is further contended that, no domestic
violence is proved by the applicant against the respondents, therefore, the
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proceeding is not tenable and in support of her argument she relied on the
order of Hon’ble The High Court of Judicature at Bombay Bench at
Aurangabad dated 16/03/2023 passed in Criminal Revision Application
No.233/2018. She further relied on the case of Shayara Bano & Ors. V/s.
Union of India & Ors. Writ Petition No.118/2016, order dated
23/07/2017, wherein the Hon’ble Apex Court discussed the scope of
various modes of Talaq under the Muslim Law.
10. It is to be noted that, whether Talaq given by the respondent
No.1 to applicant is valid or not it can be decided on the evidence adduced
by both party. Therefore, at this stage it cannot be concluded that, the
Talaq given by the respondent No.1 is valid. Further, it appears that, the
respondent No.1 has given three times Talaq, to applicant and sent the
copy of the same to the applicant. In case of Ahsanulla (Supra) the Hon’ble
Bombay High Court held that, even if husband has given divorce to wife
she cannot be denied maintenance in proceeding under section 12 of the
Domestic Violence Act. Therefore, I am of opinion that, applicant is
entitled to sought relief against the respondent No.1.
11. Now it is necessary to see that, whether applicant prim-faciely
proved that, she is subjected the domestic violence at the hands of
respondents, for that purpose she relied on the copy of F.I.R., which is
registered at Santacruz police station bearing No.175/2021. The said
F.I.R. has been registered under section 498 (A), 509 etc. of I.P.C. as the
allegations in the said F.I.R. are in consonance with the allegations made
in the present proceeding, which would certainly amounts to the Domestic
Violence Act. Therefore, I hold that, the applicant prima-faciely proved
that, she has been subjected the domestic violence at the hands of the
respondents. Hence, I record my findings to the point No.1 as in the
affirmative.
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As to point No.2
12. 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. The F.I.R. registered at the instance
of applicant shows that, she has been subjected the domestic violence at
the hands of respondents, on the count of dowry demand. Therefore, in
order to protect the interest of applicant, I am of opinion that, the
protection order against respondent No.1 can be passed. Hence, I record
my findings to point No.2, as in the partly affirmative.
As to point No.3
13. This issue is in respect of relief of maintenance. It is to be
noted that, applicant claimed to be having no source of income and the
respondent is having smart income from his business. The applicant and
respondent have filed their respective affidavits of Assets and Liability.
The applicant in her affidavit (Exh.-8) contended that, she is not having
source of income and she is depend upon her parents and also she is
having responsibility of child Mohd. Ali, the respondent trying to say that,
the applicant is having income from her tailoring business, but how much
amount is getting by her is not came on record.
14. The respondent in his affidavit of Asset and Liability has not
specifically shown his income, but he is shown to be having agriculture
land at Uttar Pradesh, where he is having share. Even upon going through
details of liabilities of respondent it appears that, he borrowed amount of
I.17,00000/- from his three friends. Therefore, I am opinion that, if a
person is having credit to borrow huge money from friends, he would
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have certain source of income. After all the respondent is able bodied
person. Therefore, it is his responsibilities to maintain his wife and child.
Considering the hiking prices of essential commodities, facts of growing
and school going child, is needs to be taken into the consideration, while
deciding the quantum of maintenance. Therefore, I am of opinion that, the
amount of I.12,000/- p.m. is sufficient for maintenance of applicant and
her son Mohd. Ali. Hence, I record my findings to the point No.3 as in
affirmative.
As to point No.4
15. The applicant has sought relief of alternate accommodation.
The affidavit of Asset and Liabilities of applicant shows that, the applicant
at present staying with her parents. Therefore, at this stage she cannot be
said that she is shelterless. Hence, I am of opinion that, at present it is not
necessary to pass order regarding rent or alternate accommodation against
the respondent. Hence, I record my findings to the point No.4, as in
negative.
As to point No.5
16. The applicant has sought relief regarding her articles against
the respondents that they shall not dispose of the same and be given to
her custody. It is to be noted that, what kind of Stridhan/articles of
applicant with respondent is not at all specifically disclosed, nor the list
regarding the same is placed on record. Therefore, without evidence at
this stage it cannot be said that, the Stridhan/articles of applicant are with
respondents. Hence, I am of opinion that, no order can be passed in
respect of said Stridhan/articles. Hence, I record my findings to the point
No.5, as in negative and proceed to pass following order.
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C. C. NO. 94/DV/2021 ORDER BELOW APPLICATION (Exh.-2)
ORDER
1 The application is partly allowed.
2 The respondent No.1 shall pay R.12,000/- p.m. to
applicant, as a interim maintenance to the applicant and
her son Mohd. Ali Mohd. Kausar Idrisi from date of filing
of the present application.
3 The respondent No.1 shall not cause any kind of domestic
violence to applicant till final decision of the proceeding.
4 The respondent shall pay the cost of R.7,000/- of the
present application to the applicant.
5 Copy of this order be supplied free of cost to both the
parties.
Mumbai.
Date : 04/07/2024.
SRD.
Sd/-
Metropolitan/Judicial Magistrate,
(First Class) 71st Court, Bandra, Mumbai.
Dictated on :- 04/07/2024.
Transcribed on :- 04/07/2024.
Checked on :- 05/07/2024.
Signed on :- 05/07/2024.
SRD
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