Order 1

Order Details: Copy of Interim Maintenance Order
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IN THE COURT OF ADDL. CHIEF METROPOLITAN MAGISTRATE,
09TH COURT, BANDRA, MUMBAI
C.C.NO.95/DV/2021
Hemali Israni …... Applicant
Vs.
Luv Israni & Ors. …... Respondents
ORDER ON INTERIM APPLICATION DATED 26.02.2021
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 and the reply(Exh.03) filed by the
respondent No.1 and reply (Exh.09) filed by respondent No.2 and 3.
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, No
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aiding or abetting any act of
domestic violence?
3. Whether the applicant proved that
respondent are liable to pay
compensation of Rs.35,000/- per
month in respect of one BHK flat to
the landlord ?
No
4. Whether the applicant has proved
that she is entitled for alternate
accommodation of one BHK Flat at
Ghatkopar ? No
5. Whether the applicant is entitled for
injunction restraining the
respondent from creating third party
interest in respect of Flat as
mentioned in prayer clause?
No
6. Whether the applicant is entitled for
monthly maintenance of Rs.75,000/-
per month ?
Yes.
Rs.35,000/- per month
7. 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 01/08/2015. The applicant and the respondent No.1 are husband
and wife. The respondent No.2 is father-in-law, respondent No.3 is
mother-in-law and respondent No.4 is sister-in-law of the applicant.
4. Admittedly, the applicant is residing at her sister's house
since the time of separate residence. To prove the domestic violence it
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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 ---
(1) It harms or injures or endangers the health,
safety, life, limp or well-being, 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.
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5. Applying the facts of the case to the above definition, as per
applicant rosy picture was created by the respondent before the
marriage. The applicant was hesitant to accept the marriage proposal
for two reason. First the respondent No.1 was from different caste and
business structure of the respondent No.1 was different. The marriage
was dominated by respondent No.4. The applicant was insulted,
taunted and degraded for not bringing dowry matching to the standard
of the respondents. The applicant found chats of the respondent No.1
flirting with four different girls. The respondent No.1 has also
downloaded dating apps. to create relationship out of the marriage.
From honeymoon and since beginning of starting of relationship there
was interference of respondent No.2, 3 and 4 in the married life of the
applicant and the respondent No.1. After having separate residence
with the respondent No.1 the respondent No.2, 3 and 4 instigated and
brain washed the respondent No.1 to leave the company of the
applicant. It is further contended by the applicant that due to insistence
of respondent No.3 to perform Pooja on the wedding anniversary the
applicant has to cancel her pre-decided celebration of wedding
anniversary with the respondent No.1.
6. The respondent No.1 thereafter left the house on 16th
August 2018 without informing applicant. The respondent No.1
messaged the applicant that he will never return to home and joined the
company of the respondent No.2 to 4 at Oshiwara. The respondent
No.1 has not taken any care though the applicant was ill and continued
to enjoy parties. The respondent No.1 then again downloaded one
dating app. and admitted before the Councilor about flirting with the
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girls by saying that applicant can also flirt with the boys. This caused
tremendous stress to the applicant. The applicant came to know that
the respondent No.1 flirts with the models in the office and calls
prostitute when on outdoor shoots. The respondents shifted to a posh
four BHK house at Oshiwara. The applicant is deprived from residence
at her matrimonial house. The applicant alleged about extra marital
affairs, flirting with girls, having affair with his Personal Assistance
caused her mental, emotional and physical stress.
7. The respondents opposed the allegations and given detailed
Para-wise reply with explanation that how the allegations made by the
applicant are false. As per reply of respondent the applicant is
alcoholic, short tamper, abusive. At the same time respondent admitted
that the marriage of applicant and respondent was solemnized on 1st
August 2015. It is contended by the respondents that all the
arrangements of the marriage were managed as per wish of the
applicant and there is no role of respondent No.4. Since beginning the
applicant has shown herself as a good wife with ill intention to grab and
extract money from the respondents considering their financial
condition. The applicant has left the job after marriage only to have
comfortable life, lavish parties and vacations at the expenses of
respondent No.1. The applicant never entered in a kitchen to cook by
saying that non veg food is cooked in a kitchen of the respondent. There
was disagreement by the applicant on keeping non veg food in the
marriage menu, however the applicant was comfortable with serving
alcohol in the marriage party. The applicant was always jealous and
insecure towards family bond amongst the respondents. The applicant
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has taken disadvantage of nave and innocent nature of respondent No.1
and induced him to invest in her business project. The applicant has
separated the respondent No.1 from his aged parents and forced him to
live separately with the applicant. The respondents came to know that
the applicant was on pills for anti-depression and anti-anxiety even
before the marriage. This fact was brought forward by the sister of the
applicant. The applicant used to behave rudely and was always talking
in a hallucinative manner. The applicant always used to become
aggressive when she used to forget to take pills. Applicant voluntarily
left the house in March 2016 and went to her parents house without
solving issue by talking with the respondent No..1. The respondent
No.1 pleaded to the applicant to return back however applicant flatly
refused. The applicant was in the habit of leaving matrimonial house
now and then even from the first day of marriage. The applicant never
cared about the respondent No.1 and his parents.
8. Ld. Advocate of the applicant referred to the incidences
mentioned in the application and argued that the applicant is subjected
to domestic violence by the respondents. The applicant was not
provided any maintenance or financial help though the respondent
No.1 is earning more than Rs.11 Lakh to Rs12 Lakh per month. This
argument is countered by the Ld. Advocate for the respondents on the
ground that the application is filed after one year of the incidence and
almost after three years of separation. The applicant has made
contradictory allegations in application and complaint before police in
respect of respondent No.3 and about the treatment given by the
respondents by welcoming her. The whatsapp chat are clear that the
behaviour of the applicant was abusive and manipulating in nature as
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she called herself a whore. The applicant always hated and does not
like the strong bond in between respondent No.1 and 4. The applicant
has herself admitted that she does not like respondent No.4 around the
respondent No.1. It is further argued by Ld. Advocate for the
respondents that the burden to prove the domestic violence lies on
aggrieved person and in case of absence of domestic violence the wife is
not entitled to any relief under the Act. In support respondent relied on
Criminal Revision Application No.233 of 2018of the Hon'ble Bombay
High Court. in Sunil Gangadhar Kadam Vs. Jayashree Sunil Kadam
9. At the time of considering relief under Section 23 of the Act
the standard of proof which is to be applied is less than preponderance
of probabilities and has to be decided on prima facie evidence. As the
object of the act is for the benefit of woman suffering from domestic
violence the relationship between applicant and the respondent is
important. Admittedly, applicant and the respondents are in a domestic
relationship. The applicant has shared residence with the respondents
in the shared household after the marriage. The respondent No.1 being
husband has legal and moral obligation to provide economic and
financial resources to the applicant being entitled as a wife and in a
domestic relationship. The argument that the applicant is having
sufficient source of income cannot form the basis that she is not
subjected to economic abuse as contemplated under Section 3(iv) of the
Act. After going through the written notes of the argument and the
documents placed on record prima facie it reveals that the applicant is
victim of domestic violence within the definition of Section 3 of the
Domestic Violence Act. The reason is allegations and the documents
and the reply considered prima facie it reveals that the respondents
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committed act and conduct of the respondents constitutes domestic
violence. For this reason finding to Point No.1 is recorded in the
affirmative.
As to Point No.2:-
10. Admittedly the applicant is residing separately at her
sister's house since more than three years. There is no contention or
allegation in respect of causing any domestic violence to the applicant
for which applicant is required protection under Section 18 of the Act. It
is not specifically mentioned or prayed by the applicant that from which
type of domestic violence protection is required under Section 18 of the
Act. A vague prayer is made that protection be given under Section 18
of the Act. As per pleadings 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 and 4:-
11. The applicant has prayed for compensation of Rs.35,000/- per
month in respect of one BHK flat at Ghatkopar and in alternative prayed
for alternate accommodation of one BHK flat at Ghatkopar within the
vicinity of her father's flat. It is a matter of record that the applicant is
residing separately without any objection from her parents and sister.
The period of separate residence is more than about three to four years.
According to the applicant the respondent No.1 left her in a house
without informing her. According to the respondents applicant
voluntarily left the house in March 2016 and went to her parents
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without solving issue. The contention of the applicant is that she was
not called by the respondent No.1 to live together. On the contrary the
contention of the respondent No.1 is that the applicant voluntarily left
the house. The controversy is that whether the applicant has left the
house voluntarily or she was compelled under circumstances to live
separately by the respondents can be decided on the basis of the
evidence during trial. The another issue that whether the respondent
called the applicant to live together or the applicant called the
respondents to accommodate her in a shared house or there was refusal
to live together either on the part of the applicant or the respondent is
also a matter of evidence which can be decided during the trial. At this
juncture it will not be justified to give finding on this issue at a
premature stage of the application. For this reason finding to Point
No.3 and 4 are recorded in the negative.
As to Point No.5:-
12. The applicant has prayed for interim injunction restraining
respondents from creating third party rights in respect of Flat No.1/5,
Shere-Punjab Colony, next to Gurudwara Off. Mahakali Cave Road,
Andheri(E), Mumbai( For short 'Flat'). The applicant has not uttered
single word in respect of the said flat in her entire pleadings either in
application under Section 12 or in the interim application under Section
23. The applicant has nowhere pleaded why injunction has to be
granted in respect of the said flat as prayed. Even in the written notes
of arguments dated 16/01/2023 and 04/09/2023 nothing is mentioned
as to why the applicant's right is getting affected if, injunction is not
granted. On the contrary the respondent No.1 has specifically
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contended that this flat is not belong to him. In absence of any pleading
and prima facie proof that the right of the applicant is getting affected if
injunction is not granted, prayer of injunction is not sustainable in law.
Finding to Point No.5 is recorded in the negative.
As to Point No.6 :-
13. The applicant has prayed for interim maintenance of
Rs.75,000/- per month. As held by giving reasons to Point No.1, the
applicant is the victim of domestic violence. The applicant is entitled
for monetary 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.11 Lakh to
Rs.12 Lakh per month from his business of photography. It is argued
on behalf of the applicant that the respondent No.1 is celebrity
photographer, partner and director in Israni India Entertainment Pvt.
Ltd., Capturing Wow LLP, Capturing Factory LLP, Luv Israni Photography,
Israni Photography India, Signature Films, Pacomeri India Private
Limited, Huvi Digi Life Private Limited and Wedding Secrets LLP.. The
respondent has not filed Income Tax Returns of all these companies,
credit card details about spending lavishly, details of his three fancy
cars. The respondent has concealed his real income by manipulating
figures and filing false salary certificate of his own entity showing
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himself salaried employee of Rs.39,800/- per month. In support the
applicant has filed various documents on record. Most of the documents
are in respect of the printouts taken from the internet mentioning name
of the respondent No.1 in a photographs published on different
websites. The applicant has filed a copy of bank statement alongwith
list of documents (Exh.31) to show that from April 2018 till March 2020
amount of Rs.41 Lakh has been credited in the bank account of the
respondent No.1 and after filing of this application his income dropped
to Rs.4.5 Lakhs. The documents filed on record list of document
(Exh.31) shows that the respondent No.1 is director in companies and
photographs of the celebrities are taken by the respondent. All these
documents are photocopies and has no authentication to rely on them.
If these documents are considered one can conclude that the respondent
No.1 is not coming with his true income.
15. Per contra, Ld. Advocate for the respondents argued that
the respondent No.1 is employee and drawing salary of Rs.35,000/- per
month. The respondent No.1 has no concern with other companies as
alleged by the applicant. The respondent No.1 is not withdrawing
salary from Israni Company. The respondent No.1 has filed his Income
Tax Returns for the year 2015-2016, 2018-2019 and 2020-2021.
Highest income in these ITR's filed at Exh.11 is Rs. 6,73,505/- in the
year 2018-2019. Likewise Income Tax Returns of Israni Entertainment
showing highest income of 18,73,208/- in the year 2021. It is further
argued by Ld. Advocate for the respondent that the applicant has
miserably failed to put on record loss of earnings suffered by her. After
separation the applicant had money to holiday at Thailand from 20th
August 2019 to 03rd September 2019. The applicant is earning
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handsome income from her business venture named “Jyppzer” under
“Sksyat Enterprises LP”. The account extract showing that per month
applicant paid Rs.30,000/- to Jonelly Joseph and there are several
transaction of Rs.5,000/- as professional fees to various people. There
are other entries in the account of the applicant which shows that she is
getting sufficient income to maintain herself and is in no need of
maintenance from respondent No.1. It is further argued by Ld. Advocate
of the respondent that the applicant was doing job prior to the marriage
and capable of working to earn livelihood for herself cannot seek entire
maintenance from her husband as she is legally bound to put some
effort to meet her livelihood. In support the respondent relied on
Shilpashree J.M. Vs. Gurumanjunatha A.S., 2023 SCC OnLine Kar 36,
High Court of Karnataka . It is clear from this ratio that when the wife
is capable of earning she cannot sit idle and has to make some efforts to
meet her livelihood. In the case on hand the applicant is coming with a
clean hands that she is earning being self employed. In Damanreet
Kaur Vs. Indermeet Juneja & Anr. 2012 SCC OnLine Del 2811. In this
ruling the Hon'ble Delhi High Court upheld the order of appellate Court
granting interim maintenance of Rs.10,000/- per month. The facts and
the applicability of the law is different in this ruling than the facts and
law applicable in the present case.
16. It is necessary that the parties should plead their own
income, nature of work and source of income as well as income, nature
of work and source of income of opponent. The applicant and
respondent though filed various documents to substantiate their claim
in respect of income of the opponent, however failed to plead either in
application of the applicant or reply of the respondents. The documents
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which are placed on record in respect of the income of the parties is not
part of the pleading in the present case. The respondent No.1 has stated
in his reply that his income is Rs.35,000/- per month however failed to
explain the income of the applicant.
17. As per the judgment of the Hon'ble Supreme Court
delivered in Rajnish Vs. Neha(2021)2 SCC,324 the parties has to file
affidavit of assets and liabilities explaining their income and expenses
with other details as directed in the said judgment. In affidavit of assets
and liabilities applicant stated that she is a teacher and partner in SYAT
Enterprise LPP deals in education field. The applicant stated her
monthly expenses of Rs.75,000/- plus house rent. The income stated by
the applicant from her business entity is as per Income Tax Returns.
The Income Tax Returns for the year 2020-2021 shows gross income of
the applicant Rs.3,10,390/-. In affidavit of assets and liabilities
applicant failed to explain the income of respondent No.1. The
respondent No.1 in his affidavit of assets and liabilities stated that he is
having 9% share holding in Israni Entertainment India Ltd. and
expenses of Rs.21,000/- per month. The respondent stated that his
salary is Rs.35,000/- per month and borrowed Rs.1 Crores.
18. It is clear from the record that the applicant failed to
explain the income of the respondent in her application and also in the
affidavit of assets and liabilities. On the other hand the respondent
failed to explain the income of the applicant either in the reply or in
affidavit of assets and liabilities filed by him.
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19. In this background though the voluminous document filed
on record cannot be considered as part of pleadings or part of affidavit
of assets and liabilities of the parties. It reveals from the pleadings,
affidavit of assets and liabilities of the parties that they are not coming
before the Court with their true income. Income Tax Returns cannot
form basis of real income of the parties as it can be managed to pay less
tax to the government by showing less income. This can be possible
when the parties are engaged in the business activities.
20. The applicant and the respondents are from well to do
families. As per pleadings applicant and the respondents and their
family members visited foreign countries. The applicant and the
respondents are engaged in the business activities. The status of the
parties is of upper middle class families. It is for the respondent No.1 to
share his financial resources with the applicant so that the applicant will
not be deprived from meeting her household necessities. Taking into
consideration the status of the parties, income of the applicant and the
respondent and way of life both the parties live and the requirements of
the necessities to meet livelihood of the applicant maintenance of
Rs.35,000/- per month will be reasonable and sufficient as an interim
monetary relief. Accordingly finding to Point No.6 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.35,000/- (Rupees Thirty Five Thousand only) per month to the
applicant from the date of application till decision of main application.
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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/-
Date :-15.05.2024
( K.H.Thombre )
Addl. Chief Metropolitan Magistrate,
9th Court, Bandra, Mumbai
vnh
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