Interim Order 2

Order Details: Order Below EX 1
Pdf Text: CNR No. MHMM18-003088-2020 C. C. NO. 94/DV/2020
Bhakti V/s. Vivek
ORDER BELOW APPLICATION EXH. 22
The respondent has filed the present application under section
25 (2) of the Protection of The Woman from the Domestic Violence Act,
2005 (here-in-after referred as, 'the PWDV Act') for modification of order
dated 02/09/2023 passed below interim application (Exh.-4). According
to the respondent in the impugned order the name of Advocate on the
behalf of applicant has been wrongly mentioned. It is contended that, all
allegations regarding physical, sexual and emotional abuse are false. If the
respondent caused physical, sexual and emotional abuse then how
applicant has filed report to Naupada police station. Said fact is not
clarified by the applicant and the complaint dated 03/12/2014 is false
one. Even the applicant nor the Naupada police have called the
respondent for any clarification in respect of the said complaint. The
applicant left the home of respondent, on 26/03/2015. The applicant
alleged that, respondent assaulted her but no medical certificate placed on
record to that effect.
2. It is further contention of respondent that, the affidavit of
assets and liabilities filed by applicant is incomplete and have many
contradictory statements made by applicant in the said affidavit. Further,
in the said affidavit of applicant has shown her father and mother are also
dependent upon her. Even applicant has made contradictory statement in
respect of the income of respondent in the said affidavit.
3. It is further contended that, there was consent agreement
between applicant and respondent, but while deciding application (Exh.-
4) the Court has not considered the copy of said consent agreement. Thus,
according to the respondent, while passing the order below (Exh.-4) has
overlooked the consent agreement, even relied on the affidavit of assets
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and liabilities, which are incomplete in all respect, therefore, order dated
02/09/2023 needs to be modified. Lastly, respondent prayed that,
application be allowed and pass appropriate order on the basis of merit.
4. The applicant has not filed her say.
5. I have heard elaborated argument of Ld. Advocate Smt.
Prabhusalgaonkar for respondents.
6. Perused the record. The applicant has filed the present
petition under the provision of Domestic Violence Act against the
respondent, on 21/01/2021. The respondents appeared in the matter and
filed their say and written statement at (Exh.-5) and (Exh.-6) respectively.
After giving opportunity of being heard on 02/09/2023 order came to be
passed below (Exh.-4) and interim application came to be allowed partly.
The respondents are directed not to cause any kind of domestic violence
to applicant and also directed the respondent No.1 to pay interim
maintenance of I.5,000/- p.m. to the applicant and I.3,000/- p.m. to
daughter Shamika. In the said order the respondents is also directed to
pay cost of I.5,000/- to the applicant.
7. Ld. Advocate Smt. Prabhusalgonkar submits that, while
passing the order dated 02/09/2023, the Court has not applied his mind.
The Court relied on the affidavit of assets and liabilities of applicant,
which is incomplete in all respect. Further, the Court has also not
considered the consent agreement between the parties. She further
submits that, there is no medical evidence adduced by the applicant in
support of her allegation regarding physical assault. Further, the applicant
has wrongly mentioned that, her parents and brothers are dependent
upon her, therefore, in view of the above discrepancies the order dated
02/09/2023 needs to be modified.
8. Section 25(2) of the Domestic Violence Act provides that,
if
the Magistrate on receipt of an application from aggrieved person or the
respondent, is satisfied that, there is change in the circumstances requiring
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alteration, modification or revocation of any order made under this Act, he
may, for reason to be recorded in writing, pass such order as he deem
appropriate.
9. By keeping in my mind the above provision, I would like to
state here that, after coming to the notice of the Court in respect of change
in circumstances, the Court can modify or alter or revoke any order passed
under the Domestic Violence Act. It is to be noted that, the respondent by
filing his reply to the interim maintenance application, at (Exh.-6) resisted
the application. The respondent has except the relations with applicant
denied all other allegations. I have gone through the order dated
02/09/2023 passed below (Exh.-4). It is to be noted that, merely
mentioned wrong name of the Advocate in the order it does not mean
that, the entire order vitiate.
10. So far as, the objection regarding incomplete in affidavit of
assets and liabilities is concerned, the very purpose of the said affidavits is
to came on record the actual financial position of the parties to the
proceeding, which facilitate the Court to decide the quantum of
maintenance. I have considered the affidavits of assets and liabilities filed
by both the parties, while passing order below (Exh.-4) dated
02/09/2023. Therefore, whether any contradictory statements made by
the applicant in her affidavit of assets and liabilities or not, can be decided
after the evidence adduced by the parties in the matter.
11. So far as, the objection regarding non taking into the
consideration the consent agreement (Exh.-12) is concerned, I would like
to state here that, the reference of the said consent agreement (Exh.-12)
does not reflect in the reply and written statement of the respondent. Even
assuming that, the said agreement would certainly affect the
maintainability of the proceeding, but the said agreement alleged to have
been executed in the month of August 2011 and the allegations made
about the domestic violence against the respondents are since 2010 and
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after the execution of the alleged consent agreement. In 2014 the
applicant has also lodged the report to Naupada police station regarding
assault by the respondent. Therefore, merely non referring the concent
agreement in the order dated 02/09/2023 would not make any effect on
the merit of the order.
12. No change in circumstances shown by the respondent, which
requires alteration or modification or revocation of order dated
02/09/2023. Even no subsequent fact brought on record by the
respondent on record, which requires the modification of the order dated
02/09/2023. I further would like to state here that, for deciding the
interim application under section 23 of the Domestic Violence Act the
Court has to considered, whether
prima-facie case made out by the
applicant or not for getting interim order in her favour and in the present
case the applicant has proved the
prima-facie case and by taking into
consideration the said facts the Court has passed order, which does not
require any modification. Hence, application deserved to be rejected.
Considering all above aspects, I proceed to pass following order.
ORDER
1 The application is rejected.
Mumbai.
Date : 24/04/2025.
SRD.
Sd/-
(A. B. Jadhav)
Judicial Magistrate, (First Class),
71st Court, Bandra, Mumbai.
Dictated on :- 24/04/2025.
Transcribed on :- 24/04/2025.
Checked on :- 24/04/2025.
Signed on :- 24/04/2025.
SRD
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