Order 1

Order Details: Copy of Interim Maintenance Order
Pdf Text: IN THE COURT OF METROPOLITAN MAGISTRATE,
71ST COURT, BANDRA, MUMBAI
C. C. NO. 94/DV/2020
Bhakti Vivek Mirgal
V/S. Vivek Gajanan Mirgal and Ors.
ORDER BELOW INTERIM APPLICATION EXH.4
The applicant has filed application under section 12 of the
Protection of Woman from Domestic Violence Act, 2005 (in short D. V.
Act), wherein the present application under section 23 has been filed for
interim relief regarding maintenance and protection order etc. According
to the applicant she is legally wedded wife of respondent No.1 and their
marriage took placed on 22/05/2010, at-Velas, Tal.-Srivardhan, Dist.-
Raigad. Out of said wed lock they have one issue i.e. daughter by name
Shamika, who was 9 years old at the time of filing application and she was
studying in 4th standard.
2. It is contended that, after few days of the marriage
respondents started intentionally verbally abusing the applicant.
Respondents used to demand money and on that count they humilated the
applicant. The respondent No.1 used to forced the applicant to unnatual
sex and if the applicant denied, the respondent No.1 used to beat her.
Respondents treated her like servant. The respondent No.2 instigated the
respondent No.1 by saying negative things about the applicant. The
respondent No.1 has forcibly evicted the applicant several times. Thus,
according to the applicant she has been subjected to domestic violence at
the hands of respondents.
3. It is further contended that, the respondent No.1 is earning
I.25,000/- to I.30,000/- p.m. and he is agent or property dealer. The
applicant was not having alterntive, therefore, she had joined service to
maintain herself and her daughter but not getting good salary. Therefore,
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she is in serch of new job and they are totally depend on her parents. It is
further contended that the respondent No.1 has threathened her of dire
consequences of life. Lastly, the applicant prayed that, interim application
be allowed and the respondent No.1 be directed to pay I17,000/- p.m. by
way of interim maintenance to applicant and her daughter. The applicant
also sought relief that respondents shall not alinate any assets including
her stridhan or any property. The applicant also sought relief that
respondent No.1 to secure alternate accommodation to applicant and to
pay rent and also sought relief that respondents be restrained from
committing any act of domestic violence to her.
4. Respondents have resisted the application by filing their say at
Exh.6. Respondents denied all the contention of the applicant in toto. It is
contended by respondents that, the entire application is vague and does
not show any kind of domestic violence at the hands of respondents to the
applicant. Respondent denied that, they had demanded any amount with
the applicant and humilated her on that count. It is contended that, the
application of the applicant is vague and without any specific period or
incident. The respondent denied that he has forced the applicant to go for
the job. Thus, it is contention of respondents that, there no prima-facie
case made out against respondents regarding domestic violence. Therefore,
the applicant is not entitled to any relief as sought and lastly prayed that,
application be rejected with cost.
5. The applicant in support of her application filed on record
copy of marriage invitation card, certificate of registraion of marriage,
photographs marriage, Aadhar card, birth certificate of daughter viz.
Shamika, copy of NC, Identity Card of daughter viz. Shamika. The
applicant has filed on record her affidavit of assets and libilties at Exh.7.
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6. The respondent has filed his affidavit of assets and liabilities at
Exh.8. Copy of consent terms at Exh.12.
7. I have heard elloborated arguments of Ld. Advocate Parase for
the applicant and Ld. Advocate Smt. Prabhusalgaonkar for respondents.
8. Considering the rival contention of both parties following
points do arise for my determination. My findings thereon along with my
reasons are, as follows.
SR. NO. POINTS FINDINGS
1 Does the applicant prima-facie prove
that, she has been subjected to
domestic violence at the hands of
respondents?
In the
Affirmative.
2 Is applicant entitled for interim relief,
as sought?
Partly
Affirmative.
3 What order ? As per final
order.
R e a s o n s
As to Point Nos.-1 to 3 : -
9. Ld. Advocate Parase for the applicant submits that, the
applicant is legally wedded wife of the respondent No.1 and they have one
female child by name Shamika from said wedlock. After few days of
marriage respondents caused physical, sexual and emotional abuse to the
applicant. She further submits that, the applicant has filed report to
Naupada police station regarding physical abuses, at the hands of the
respondent No.1.
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10. Respondents have denied all the contention of the applicant.
But do not putforth their defence. Therefore, contention of the applicant
cannot be considered. She further submits that, the applicant is having no
source of income. She is now residing with her daughter in her parental
home. Her daughter viz. Shamika is school going child. She is unable to
maintain herself and her daughter. The respondent No.1 is property dealer
and getting smart income of I.30,000 p.m. Therefore, he is liable to pay
maintenance. She further submits that, respondents be restrained from
doing any act of domestic violence to applicant and they be restrained
from alienating her stridhan and other joint property.
11. Per contra, respondents filed written notes of arguments at
Exh.11. Ld. Advocate Smt. Prabhusalgaonkar for respondents submits that,
entire application is vague which does not show any specific incident about
domestic violence. It is contention that, to allow any releif, applicant shall
be subjected the domestic violence, but the application itself is vague, no
specific incident, or period or date has been mentioned by the applicant in
the application. She further drawn my attention to Exh.12 and submits
that the applicant has executed the consent terms wherein, she has
admitted her conduct towards respondents therefore, entire contentions
putforth by the applicant is false. Ld. Advocate Smt. Prabhusalgaonkar for
respondents submits that, since 2015 the applicant used to reside
separately from respondents and in the year 2020 filed the present
application, which is not tenable. Therefore, application be rejected with
cost.
12. In order to get relief under section 23 of domestic violence Act
the aggrived person has to prove that, she has been subjected domestic
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violence at the hands of respondents. In present case in hand domestic
relations between the applicant and respondent are admitted.
13. So far as, the domestic violence, as alledged by the applicant is
concerned, according to her she has been physically abused by
respondents. The respondent No.2. used to instigate the respondent No.1.
Respondents caused verbal as well as emotional abuses and demanded
money. The copy of NC is filed on record which shows that, on
03/12/2014 the respondent told the applicant that she shall went to
village and upon dening by the applicant, for the same he has beaten the
applicant and abused her.
14. So far as, respondents say is concerned nothing has been
mentioned in respect of NC report filed by the applicant. Therefore, merely
not mentioning the specific incident or date of incident does not mean
that, the applicant subjected to domestic violence at the hands of
respondents. Even during stay of the applicant at her residential home of
parents, respondent has not paid any amount for maintenance to applicant
and her daughter, which certainly amount to economic abuse, as
contemplated in clause 2 of section 3 of Domestic Violence Act.
15. So far as, concent terms are concerned there is no whisper
about said concent terms in the say of respondents. The concent terms
Exh.12 cannot be relied upon unless fair opportunies of cross examination
on the point of said consent terms is given to the applicant. Therefore, I
hold that, the respondents prima-faciely proved that, she has been
subjected domestic violence at the hands of respondents.
16. The applicant is sought relief of maintenance from the
respondent. The applicant has filed her affidavit of asset and liabilities at
Exh.7. Likewise, the respondent has filed his affidavit of asset and
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liabilities at Exh.8. It is the contention of respondents that, the applicant is
doing the job but he has not given any address about her employer and
place of her job. On the contrary, the applicant in her affidavit of asset and
liabilities at Exh.7 stated that, she is not having source of income. Being
husband of the applicant and father of daughter viz. Shamika it is duty of
the respondent No.1 to maintain them but since the applicant and
daughter statying at her parental home the respondent No.1 has not paid
any amount as a maintenance to the applicant or their daughter. The
applicant is unable to maintain herself and her daughter. In such
circumstances, I am of opinion that, the applicant is entitled to interim
relief regarding maintenance amount from the respondent No.1.
17. So far as, the quantum of interim maintenance are concerned
the applicant sought relief of I.17,000/- p.m. as a interim maintenance
from the respondent No.1. The respondent No.1 in his affidavit of asset
and liabilities shows his income. Even he has shown his liability to pay
installments of loan of various bank. The balancesheet submitted to
income tax department shows that, he is getting rent from his rental home.
Even the income tax return shows his total inocme of I.4,89,230/- for the
assessement year 2020-2021. Therefore, it is prima-facie appears that, the
respondent No.1 has sufficient means of income. Therefore, considering
the prices of essential commodities, basic needs of applicant, school
expenses of daughter viz. Shamika, I am of opinon that, the amount of
I.5,000/- p.m. to the applicant and I.3,000/- p.m. to daughter viz.
Shamika is sufficient, as a interim maintenance from the respondent No.1.
18. The applicant is having apprehension that, respondents will
cause domestic violence in future. Already report of NC has been
registered against the respondent No.1. The applicant has been subjected
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to domestic violence at the hands of respondents. Therefore, I am of
opinion that the respondent No.1 can be restarined from causing domestic
violence to the applicant by way of passing interim protection order.
19. So far as, other relief i.e. alination of stridhan, property are
concerned the applicant has not been given any particulars about her
stridhan not she has given any particulars of immovable property.
Therefore, no relief can be granted, as prayed by the applicant to that
effect.
20. Further, applicant sought relief of alternate accommodation in
the nature of rent. Now the applicant is residing with her parents.
Therefore, I am of opinion that, at this stage it is not necessary to pass any
order regarding accommodation or that of rent amount claimed by the
applicant. In the result, I record my findings to point No.1 and No. 2,
accordingly and for point No.3, I proceed to pass following order.
ORDER
1 The application is partly allowed.
2 Both respondents shall not cause any kind of domestic
violence to applicant.
3 The respondent No.1 shall pay R.5,000/- p.m. to the
applicant and shall pay R.3,000/- p.m. to daughter viz.
Shamika, as a interim maintenance from date of filing of
present application.
4 The respondent No.1 shall pay cost of R.5,000/- of this
application to the applicant.
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5 Copy of order be given free of cost to both the parties.
Mumbai.
Date : 02/09/2023.
SRD.
Sd/-
(A. B. Jadhav)
Metropolitan Magistrate,
71st Court, Bandra, Mumbai.
Dictated on :- 02/09/2023.
Transcribed on :- 02/09/2023.
Checked on :- 05/09/2023.
Signed on :- 05/09/2023.
SRD
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