Order 1

Order Details: Copy of Interim Maintenance Order
Pdf Text: 1 C.C.NO.158/DV/2021
IN THE COURT OF ADDL. CHIEF METROPOLITAN MAGISTRATE,
09TH COURT, BANDRA, MUMBAI
C.C.NO.158/DV/2021
Shonali Nagrani ...... Applicant
Vs.
Shiraz Bhattacharya …... Respondent.
ORDER BELOW INTERIM APPLICATION (EXH.02 )
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. The case of applicant in brief is as under:
The applicant and the respondent married on 01/02/2013
at Kandivali. The applicant met with the respondent through mutual
friends. The applicant was working hard and making name for herself
in the film industry. Some time in October 2010 the applicant started
renovation work in her Bandra house, at Nectar CHS., Flat No.603,
Building No.1, Shirley Rajan Road, Bandra West, Mumbai. Since the
applicant and the respondent are good friends. The applicant shifted in
the house of respondent at respondent's insistence at Rama Apartment ,
Flat No.401, Shirley village temporarily. The respondent always
portrayed that he was loving and caring . The applicant and respondent
started liking each other. The applicant had bagged a role in Big Boss
and she left for her show. The respondent also visited her in the show
as family member. In December 2011 when the applicant evicted the
show the respondent proposed her. Both applicant and the respondent
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got engaged. In July/ August 2012 the brother of the respondent
Siiddharth Bhattacharya invited them for dinner, at that time he
warned the applicant that she is making mistake by marrying with the
respondent. On confronting with the respondent the applicant was
convinced by the respondent that his brother is jealous of him since
childhood and is marrying with celebrity like applicant. Around
October 2012 invitations were send out to the people. The applicant
was shocked that respondent's family members are accusing the
respondent for raping his own cousin sister currently a citizen of U.S..
The respondent and his mother convinced the applicant with the reason
that cousin of the respondent is suffering from psychological disorder
and cousin sisters want to sabotage wedding. The applicant was
perplexed and asked the respondent the reason for not attending the
marriage by most of the relatives of the respondent at Kerala, Delhi and
Mumbai. As the applicant was in deep love was convinced that most of
the relatives are jealous of him. The applicant and the respondent
decided to share marriage expenses equally. The applicant spend
Rs.15,00,000/. The respondent contributed only 2,50,000/. Till today
these expenses are not paid by the respondent. The respondent owns
total sum of Rs.6,60,725/ to the applicant.
3. After wedding the applicant got an assignment to host the
Indian Premier League and had to travel to England for the same. The
respondent later on joined her at Landon. The applicant noticed some
change in the behaviour of the respondent. The respondent started
speaking about her past. The respondent time and again fight with the
applicant after getting drunk at night and abuse her by calling a slut
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and pass derogatory remarks like “ You spread your legs for everyone,
you cunt”. On one such occasion the applicant was locked in a room by
the respondent as she retaliated. The respondent purposely not opened
the door. After completion of this assignment the applicant went to
Scotland for vacation on insistence of the respondent. After returning
from Scotland in the month of JuneJuly the respondent asked the
applicant to go at Laddakh for honeymoon. The intention of Laddakh
trip was that the respondent want to open a resort. Again the
respondent fooled and emotionally manipulated the applicant to invest
in the project. The applicant paid Rs.5,00,000/ to the friend of the
respondent Anwar Hussain and Rs.5,00,000/ to the respondent. This
project was not worked due to arrest of Anwar Hussain in Laddakh.
The friend of the respondent paid the amount but the respondent failed
to pay Rs.5,00,000/ to the applicant. After marriage the respondent
moved into her apartment and converted his apartment into his own
office. The respondent was not getting any assignment while the
applicant was at the peak of her carrier. The respondent use to take
doubt on the character of the applicant when applicant used to talk
with someone not known to the respondent. The respondent used to
say that,” Butterfly going from one person to another” The applicant
stopped attending social gathering due to fear of the respondent.
Around 2014 the respondent came with a business proposal of opening
Production House so both could work and live together. The applicant
was very pleased to see this drastic change in the behaviour of
respondent as she though it could bring difference in their relationship.
The applicant and the respondent opened partnership concern called
“House of Films”. The boutique was started in rented Flat of the
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respondent. The applicant put everything to start this project. The
applicant spend Rs.7,45,000/ for renovation. In March 2015 applicant
withdrew her fix deposit and paid Rs.10,00,000/ to open current
account for the said business. The business started getting assignment
due to the contacts of the applicant. The applicant invested total sum of
Rs.21,00,000/. The applicant confronted to the respondent and asked
him to retain some amount as he has not invested any amount. The
respondent started arguing and after much argument returned some
amount and promised to return balance when business start gathering
some income. The business “House of Films” started generating profits.
The respondent never shown accounts to the applicant. The rent of
apartment was paid from the current account of the House of Films.
The applicant was never paid any perks and profits of the firm. All the
profits and fruits are enjoyed by the respondent. The respondent not
only exploited financially but also emotionally. The respondent did not
offer any help or shown concern by making phone call when the
mother of the applicant lost her one eye and her brother was
hospitalized for a year in Australia in 2015. The respondent knowing
well that applicant was assaulted by her father and driver sitting in
police station was reluctant to come for help. The applicant was
devastated and traumatized due to this behaviour of the respondent.
The applicant become financially weak due to the harassment of the
respondent and went in depression. To overcome from depression the
applicant perused Buddhism. The respondent convinced the applicant
by obtaining false farmer certificate to invest Rs.5 Lakh to purchase
agricultural land at Pavnar. Around April 2015 the respondent
restrained the applicant from going to the office stating that the
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husband and wife cannot work together. The respondent made sure
that the applicant should not withdraw salary from the firm. The
applicant shocked when the respondent in reply refused to have baby.
The applicant has tried every effort to develop the relationship with the
respondent. To have child was last hope of the applicant. The
respondent started earning huge profit by doing different work. The
applicant was not having any work. The applicant got a job at corporate
show, she has to fly to different cities. The respondent used to call
repeatedly to know whereabouts, what the applicant is doing, why the
phone is not picked up. The respondent deliberately harassed the
applicant so that applicant should not able to concentrate on her work.
By the end of 2016 the respondent made sure that applicant should
speak only with friends with whom respondent was comfortable. The
respondent started keeping applicant from meeting and talking to other
persons who were not liked or acquainted to the respondent. In 2017
the respondent convince the applicant for shoot of short video for him.
The applicant paid all the expenses for the short film. The applicant
and the respondent decided to purchase Pool Vila at Goa for 2.4 Crores.
The applicant paid total amount of Rs.45 Lakhs. The applicant was
shocked that it was purchased in the name of respondent only. The
respondent returned only Rs.25 Lakh and Rs.20 Lakhs are yet to be
returned. The respondent had an affair with an intern to whom more
assignment and payment is given by the respondent thought have less
experience. In February 2019 the respondent told the applicant that he
cannot live as the applicant is not ideal wife and he wants to go to his
parent's house at Pune. The applicant followed the respondent at Pune,
tried to convince that they should work on their relations. The
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applicant came to know that respondent is on dating site and is moving
with an intern at Pune. The respondent never took any effort to make
marriage work. On 18th May 2019 the respondent came back to
Mumbai for work and started staying in his office. The respondent
refused to talk to the applicant. On one night the applicant decided to
have a face to face conversation with him regarding marriage
counseling session. The respondent started abusing and accusing the
applicant of having multiple affairs. The respondent question every job,
audition, roles of the applicant. The respondent came back, drunk,
forcefully slept with the applicant and committed unnatural sex, did
vulgar things by saying that, why she cannot do with him when she do
with other boys. The respondent exploited an intern also like applicant.
The intern tried to commit suicide due to the harassment of the
respondent. The applicant through email contacted the father of the
respondent. The applicant send notice of divorce by mutual consent to
which respondent agreed. There is no outcome due to adamant
attitude of not returning the applicant's money. Then applicant lodged
complaint with police station, Khar. On these grounds applicant prayed
for interim relief as prayed for. The applicant has filed and relied on
documents filed with application under Section 12 from Page No.53 to
134.
4. The respondent filed pursis at Exh.14 informing court that
reply to application (Exh.5) be considered as reply to the application
under Section 23. The respondent has admitted that he married with
the applicant on 01st February 2013. The respondent and the applicant
have been living separately since March/April 2019. The applicant
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threatened the respondent with false and fabricated action. The
respondent constrained to file complaint to the police on 05th June
2019. Since October 2019 to September 2020 the applicant and the
respondent are discussing terms for mutual consent divorce. The
applicant issued false and fabricated notice dated 24/09/2020 by
levelling concocted allegations. The respondent issued reply to the
notice dated 26/10/2020. A notice dated 19/01/2021 was received to
the applicant in response to the complaint filed by the applicant with
police. The respondent constrained to file complaint at Khar Police
Station on 17/02/2021 having realized malicious intentions of the
applicant to extort, harass and malinges the respondent. The
respondent has filed anticipatory bail application as FIR was lodged
against the respondent on the report of the applicant. In furtherance of
malicious agenda to harass and threaten the respondent this fabricated
application is filed. The applicant was in relationship with Siddharth
from Delhi. After applicant came to his flat she broke off her previous
relationship with said Siddharth. The respondent's brother has never
stated anything to the applicant when they went for dinner on his
invitation. The applicant has concocted a story about allegedly raping
his cousin is ridiculous and fictitious. The respondent's cousin Shreya
has moved to U.S. somewhere around 20/03/2004 ages before the
respondent got to know the applicant. It is the applicant who wanted
to invite less people to attend the marriage to curtail the expenses at
Kerala. As the Kerala marriage was only for friends and close relatives
while reception at Mumbai and Delhi were for friends and relatives
attended by all the relatives of respondent. Out of total expenses of
Rs.15,00,000/ for the marriage only Rs.5,03,204/ towards food was
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paid by the applicant directly to the resort. All other expenses including
admitted expenses of Rs.2,50,000/ were paid by the respondent. The
applicant has not shown any proof about the said expenses paid by her.
Mumbai reception was funded by the parents of respondent and Delhi
reception was funded by parents of the applicant. The applicant forced
the respondent to accompany to London for IPL. The applicant used to
get drunk and keeps shouting in the hotel on trivial matters. The
respondent was forced to keep the applicant calm and try to get the
applicant to maintain decorum while in public. The applicant and the
respondent by their joint decision enjoyed happy time in London as
well as in Scotland. The picture posted on social media falsifies the
allegations of the applicant. The trip at Laddakh was an impromptu
and joint decision as the applicant wanted Honeymoon trip. The
applicant took fancy idea of owing luxury tents for camping and
decision to invest was her own idea. The applicant in FIR stated that
total amount of Rs.7,50,000/ was invested out of which Rs.5,00,000/
was paid to a friend of respondent as claimed by the applicant. This
amount has been surprisingly changed to Rs.10,00,000/. Constant
change in contention and in absence of proof shows falsity of the
applicant to harass the respondent. The respondent has never caused
any intentional abuse or lied about the applicant or doubted her
character. The respondent never drove the car in high speed as alleged
and never controlled or even suggest the applicant what she should
wear.
5. Around October 2011 the applicant got chance in Big Boss
T.V. Show. The applicant's scandalous behaviour not only attracted
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publicity to show but many articles too were published having intimate
relationship with one Siddharth Bharadwaj. The respondent accepted
this behaviour as he was in deep love with the applicant. The applicant
has chosen roles which required her to be intimated with other men.
The respondent accommodated and accepted all these to have good
carrier for the applicant. Initially the applicant has put efforts and
monies into the partnership venture 'House of Films'. An amount of
Rs.10,00,000/ was transferred by the applicant in the Partnership Firm
part of which has been received by the applicant. Apart from this
single contribution no other contribution was made by the applicant.
The flat of the respondent was converted into work place. All the rent
is paid by the respondent to the landlord. The applicant though have
her own flat since 2010, the respondent has paid all monies towards its
maintenance, staff, salaries, electricity etc. The applicant has admitted
about receipt of Rs.10,00,000/ invested by her in the partnership
business. The applicant has enjoyed returns despite not having made
any other contribution. The respondent never used abusive or
derogatory remarks to the applicant.
6. The applicant slipped back into depression for want of
work, being her life partner the respondent stepped up immediately to
support the applicant. The respondent has at his own risk and expenses
produced T.V.Show titled 'Crazy & I Like It'. In 2018 the respondent
produced FIFA awarded short film 'Bloody Swine'. The respondent has
also professionally shoot the applicant for magazines. The respondent
has supported the applicant to become an Actor rather than being
model or Host. In 2015 the respondent accompanied the applicant to
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Delhi to resolve marriage troubles in between father and blind mother
of the applicant. The applicant lost her temper at her father and
assaulted him and banged applicant's father car thrice with her own car
out of rage and anger though her mother was sitting in the car. The
respondent told applicant that her behaviour is wrong. She got furious
and violent with the respondent. Thereafter, respondent decided not to
interfere in the family matter of the applicant. To overcome from
depression due to lack of work the applicant adopted buddhism
however, destroyed it by continuing drink, smoke and behaving
violently.
7. The applicant herself and her own wish without knowledge
of the respondent invested to purchase the land at Pawana. The
applicant has paid the amount to Mr. Kirti Dwarkadas for pursuing the
land at Pawana. The respondent has never objected the applicant to
work along side. The respondent never commented on whether or not
the applicant should or should not work. The respondent shoot a film
titled ' India Bulls', Woman day' in the office of partnership starring the
applicant as the respondent was caring and loving husband all the
time. The respondent called the applicant when she was away for work
out of care and concern. The respondent never taken doubt on
applicant for having an affair with Razneesh Ghai or brain washed her
brother. The house in Goa was respondent's first house. The
respondent asked applicant for friendly loan of Rs.20,00,000/for
purchase of said house. The applicant has paid Rs.20,00,000/ to Ryco
Hotels Pvt. Ltd. instead of paying to the respondent. The respondent on
04/10/2017 paid the amount of Rs.25,00,000/ to the applicant
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through cheques and later on paid all EMI personally. Therefore,
registration of Goa house stands in the name of respondent. As per
allegations if the applicant was aware about an affair with an intern
then the applicant being partner could have raised the objection. The
applicant has not taken any objection to continue intern in the firm.
Only to show harassment false allegations are levelled by the applicant.
Income from partnership firm is not even Rs.8 Lakh to Rs.10 Lakh per
month. The respondent asked the applicant to close down the
partnership firm, the applicant refused to do so. The applicant become
overzealous about her carrier and ignored the respondent. Since 2015
the relation between the applicant and the respondent is of flatmets
rather than husband and wife. Around in 2018 the applicant told the
respondent that she is done with the marriage and wanted out. On
various occasions the applicant was abusive and violent towards the
respondent. Around March 2009 owing to the constant fight and
differences home environment become severely acrimonious and
unbearable for the respondent. The respondent constrained to leave the
house where he was cohabiting with the applicant. When the
respondent was at Singapore to visit his brother the applicant packed all
the belongings of the respondent and send to his office. This proves
that respondent did not withdraw himself from his matrimonial
relationship. The respondent being abandoned and abused by the
applicant was depressed and alone. For sake of curiosity he created a
profile on an App. called Bumble, however the respondent never
contacted or exchange chat with anyone. The purported incidence of
sexual intercourse on 11/05/2019 took place in between applicant and
respondent with consent of the applicant though the applicant was
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aware about the profile on App. The statements of the applicant are
contrary which creates serious doubt on her credibility. On one hand
applicant levelled allegations of abuse by the respondent and on the
other hand she begged the respondent to come back home and even
consider counseling. The chat between the applicant and intern do not
show any kind of affair between the respondent and intern. The
applicant herself admitted to the respondent having affairs with other
men or being sexually involved with other men during marriage. The
applicant was aware of the relationship with an intern before 18th May
2019 and same was condoned by her and it will be seen by the conduct
of the applicant with the respondent thereafter. The respondent had
brake up with an intern and aware about emotional state of the intern.
Therefore, to warn the applicant he debonair shared with the applicant
exchanges he had with an intern. The emails with the father of the
respondent would show that when applicant told the respondent's
father about their differences. The respondents father informed the
respondent about the same. The applicant use to send whatsapp
messages to the respondent asking him to pay Rs.3 Crores as alimony
and Rs. 2 Lakh a monthly expenses/maintenance until applicant
remarries. The applicant constantly threaten the respondent to exploit,
harass or extort. The respondent constrained to lodge online
complaints to police station, Khar. Despite of ongoing mutual consent
divorce discussions the applicant lodged false frivolous and scandalous
complaints to harass and exploit the respondent. None of the incidence
mentioned in the entire application falls within the definition of
domestic violence. The applicant is not entitled to any relief as prayed
for. The income of the respondent is less than the applicant. The
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application is liable to be disposed of. The respondent relied on the
documents from Page 38 to 103
8. Heard Ld. Advocate for the applicant and Ld. Advocate for
the respondents. Perused the record and written notes of arguments.
9. Following points arose for determination. Findings are
recorded against each of them for reasons to follow:
Sr.
No. POINTS FINDINGS
1. Whether the application prima facie
discloses that domestic violence is caused
by the respondent to the applicant ? Yes.
2. Whether the applicant is entitled for relief
of restraining the respondent from
alienating, creating third party interest,
transferring or dealing with any manner
in the property as detail in the
application?
No.
3. Whether the applicant is entitled for
alternate accommodation, survival
expenses and other peripheral expenses
of Rs.2,50,000/ per month?
No
4. Whether the applicant is entitled to hand
over Stridhan, valuable securities and
expenses borne by the applicant as
prayed?
No.
5. Whether the applicant is entitled for
interim maintenance of Rs.2,50,000/ per
month from the respondent No.1 as
stated in the application?
Yes.
Rs. 1,00,000/ p.m.
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6. Whether the applicant is entitled for Rs.20
Lakhs for mental torture and emotional
distress?
No.
7. What order? As per Final order.
R E A S O N S
As to Point No.1:
10. Provision for grant of interim maintenance is provided
under Section 23 of the Act. It says that if the Magistrate is satisfied
with an application prima facie discloses that the respondent is
committing or has committed an act of domestic violence Magistrate
may pass such interim order as he deems just and proper. The
ingredients of Section 23 is that complaint should disclose prima facie
act of domestic violence by the respondent to the applicant. The
definition of 'domestic violence' is provided under Section 3 of the Act.
The ingredients of the 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 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
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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.
11. By applying and interpreting the definition with the facts of
the case court has to conclude whether prima facie domestic violence is
caused to the applicant by the respondent. Ld Advocate for the
applicant referred to the contentions made in the application by arguing
that the incidences narrated in the application proves that applicant is
the victim of domestic violence and is entitled to the relief as prayed
for. Ld. Advocate for the applicant relied on Juveria Abdul Majid
Patni Vs. Atif Iqbal Mansoori & Anr., 2014 SCC Online SC 796. In
this ruling the Hon'ble Supreme Court held that if Magistrate is
satisfied that the application prima faice discloses that the respondent is
committing or has committed an act of Domestic Violence or that there
is likelihood that the respondent may commit an act of domestic
violence reliefs under Section 23 of the Act can be granted. Kanupriya
Sharma Vs. State and Anr., 2019 SCC Online Del 8816; in this ruling
the Hon'ble Delhi High Court held that application under Section 23(1)
of the Domestic Violence Act is an application for fixing interim
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maintenance. Interim maintenance is fixed on taking prima facie view
of the matter. Serious disputed questions of facts raised at that stage
requiring evidence cannot be gone into. This argument is countered by
Ld. Advocate for the respondent on the ground that though application
is filed under Section 23 of the Act, the applicant has not specified
under which section relief is claimed. The contentions made in reply
and on own contentions of the applicant no incidence covers within the
definition of Domestic Violence.
12. In deciding application for interim maintenance the
Magistrate has to see prima facie disclosure of domestic violence. At
this stage strict proof of allegations is not required. The allegations
against the respondent that when he joined the applicant at London for
her assignment at IPL, the respondent by stating the speak about past
life and again fought, abused and made derogatory remark by getting
drunk and calling applicant “a Slut”, “ you spread your legs for every
one you cunt”. The respondent has admitted that he accompany the
applicant at London during assignment of IPL. The contention of the
respondent that he was forced to attend by leaving his assignment. The
respondent has relied on the photographs to show allegations are false
that they happily enjoyed trip of Scotland and London. The respondent
contended that he accompanied three consecutive years of the event of
IPL. As per the respondent the applicant use to get drunk and shout in
hotel on trivial matter, the respondent used to keep the applicant calm
and explanation given by the respondent can be Proved on the basis of
evidence. Admittedly, the respondent has accompanied the applicant at
London. Further respondent contended that he accompanied her for
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consecutive years. This prima facie proves that the respondent willingly
accompanied the applicant to London. The allegations prima facie
discloses and reveals the act of the respondent of causing physiological
and emotional abuse provided under Section 3 of the Act. The
photographs do not prove about conduct of either of the parties unless
strict proof is produced.
13. The allegations about paying Rs.5,00,000/ to the
respondent to purchase land at Laddakh are supported with the
contention that the respondent took the applicant to Laddakh to
accomplish his motive to purchase land for hotel business. The
applicant admitted that the amount of Rs.5,00,000/ paid to friend of
the respondent was returned. The applicant relied on payment of
Rs.5,00,000/ to Anwar by producing photocopies of extract of her
account. Thee is no document to show that an amount of Rs.5,00,000/
was paid to the respondent. The applicant may prove these allegations
during trial. The payment of an amount for purchase of land at Lddakh
to the respondent is specifically denied by the respondent. The
contention of the respondent that it was the applicant's wish to start
tent resort at Laddakh and he has nothing to do with the project. These
allegations are not sufficient without proof that applicant has paid
Rs.5,00,000/ to the respondent and it was not returned. Investment by
the applicant for the project at Laddakh as alleged do not prima facie
prove any act of domestic violence without strict proof at this juncture.
14. Admittedly, the applicant has invested an amount of
Rs.10,00,000/ in the partnership firm. According to the respondent he
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has returned the amount of Rs.10,00,000/ to the applicant. It is also
admitted fact that partnership venture “House of Films” still stands as
partnership firms of the applicant and the respondent. The contentions
and documents placed on record reveals that both the applicant and the
respondent put their efforts in the said partnership firm less or more
than each other. The amount earned out of partnership venture after
deducting expenses is not placed on record. The partnership venture is
the business jointly held by the applicant and the respondent. As per
applicant nothing was paid to her out of partnership firm. The
respondent contended that the applicant has received more fruits than
the respondent out of the said partnership venture. The respondent
contended that the business of firm is not getting any work and he
earns less than Rs.8 Lakh to Rs.10 Lakh per month. The respondent
failed to show that he has shared the profit of the partnership firm with
the applicant. The applicant being partner and wife is entitled to have
fruits of profits out of the joint venture. Nothing is placed on record or
contended what amount was paid or is paid to the applicant out of the
joint venture “ House of Films”. Any deprivation from economic or
financial resources out of the property jointly or singly held by the
aggrieved person and the respondent falls within the category of
economic abuses provided under Section 3 of the Act. The omission to
pay the profits/fruits of joint venture prima facie proves domestic
violence to the applicant by the respondent.
15. As per allegations the respondent has not supported her
when she was expecting emotional support from him for the incidence
narrated by her which happened at Delhi. The respondent's contention
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that he was asked the applicant not to interfere in her personal matter
therefore he was not actively involved in the said incidence. The
incidence at Delhi as contended requires strict proof, cannot be
considered at this prima facie stage to hold any act or omission
amounting to domestic violence. Likewise, purchase of property at
Pawana is the incidence contended to show economic explanation of
the applicant. The explanation and reply by the respondent about
payment of money to one Kirti was not within his knowledge. The
intention of economic exploitation in purchasing land at Pawna is
matter of proof during trial. The applicant has contended that she has
paid Rs.45,00,000/ to purchase property at Goa. The applicant has
prima facie placed on record photocopy of the extract of account entries
dated 29/09/2017 shows that the applicant has paid Rs.20 Lakhs and
Rs.25 Lakh to Ryco Hotels. The respondent has contended that the
applicant has paid Rs.20,00,000/ to the Ryco Hotels for purchase of
property at Goa out of which the respondent has paid Rs.25,00,000/ to
the applicant. Admittedly the property at Goa has been purchased in
the name of respondent and the agreement for sale was executed with
applicant. The respondent's contention that he paid all EMI. Though
amount of Rs.25,00,000/ returned to the applicant the respondent has
not given any explanation or shown any document that he repaid total
Rs.45 Lakhs and why the said property was purchased in his own
name. If the property is the house of the respondent and he wants to
purchase in his own name then respondent should have return all the
amount paid by the applicant. Promise to pay and purchasing the
property in own name though initial agreement was with the applicant
amounts to economic and emotional abuse in absence of any proof or
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explanation. The applicant has contended that the respondent was
having an affair with intern. The applicant has contended various
incidences where she came to know about the affair of the respondent
with the intern. The respondent contended that the applicant too was
having affairs with so many men. The applicant started taking
intimate roles. The respondent has not come with the case of any
specific incidence which he noticed about the applicant having an affair
with any particular person or persons. The respondent has admitted
relationship and break up with the intern. These contentions if weighed
on a scale it till in favour of the applicant. On the basis of prima facie
evidence it is proved that the respondent was having an affair with the
intern. This act of the respondent of having extra marital affair will
affect emotionally and physiologically to any married woman. It
squarely covers within the definition of domestic violence under
Section 3 of the Act.
16. All other allegations and counter allegations made by the
parties can be decided on merits on the basis of evidence during trial
instead of considering on proof of prima facie disclosure. The
incidences narrated and held above proves that the applicant is the
victim of domestic violence. Finding to Point No.1 is recorded in the
affirmative.
As to Point No.2:
17. The applicant prayed in clause(b) of prayer clause that the
respondent be restrained from alienating or creating, transferring or
dealing with any manner in respect of the property belonging to the
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applicant as well as the respondent. There is no specific description
about the property jointly owned except partnership firm “House of
Films”. The applicant is having flat at Bandra. The respondent has
started joint venture by converting his rented flat in the office. Though
applicant paid money to purchase property at Goa, is in the name of the
respondent. The applicant is residing separately from the respondent.
The applicant prima facie should support her contention that the
respondent is alienating or creating third party interest over the
property jointly owned by them. The partnership firm is the joint
property. The respondent being partner has equal right to deal with the
daily affairs of the partnership business. Without any justification or
any reasonable ground the respondent cannot be restrained from
dealing with the partnership business. For these reasons finding to
Point No.2 is recorded in the negative.
As to Point No.3:
18. Admittedly the applicant was having her flat and the
respondent was residing with the applicant. The applicant shifted to
the flat of the respondent prior to the marriage as her flat was under
renovation. After marriage the respondent and the applicant started
residing in the flat owned by the applicant. The shared household is
owned by the applicant. The wife or the husband cannot claim rent if
they reside in the same house. The applicant herself has her own house
in which the respondent was residing granting rent for alternate
accommodation at interim stage will not be justified. In the facts and
circumstances of the case finding to Point No.3 is recorded in the
negative.
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As to Point No.4:
19. The applicant has not stated nature of Stridhan and
valuable securities are with the respondent. The expenses allegedly
incurred for renovation and investment in partnership firm are denied
by the respondent. The respondent alleged that he has returned the
initial amount invested by the applicant . The amount paid for
purchase of Goa property by the applicant. This allegation is supported
by the contention of the respondent that he returned the amount to the
applicant. The amount which found to be balance amount if any is
alleged as friendly loan. This amount cannot be considered as expenses
or valuable security. The expenses and its quantum and contribution of
both the parties can only be decided on the basis of evidence during
trial. At this juncture there cannot be accurate or complete account
about the correct expenses for which applicant is entitled. Finding to
Point No.4 is recorded in the negative.
As to Point No.5:
20. The applicant prayed for interim maintenance of
Rs.2,50,000/ per month. Finding to Point No.1 is recorded in the
affirmative. On the basis of prima facie evidence that act and omission
of the respondent amounts to domestic violence. Ld. Advocate for the
applicant argued that applicant is entitled to maintenance as prayed.
Earning capacity of the wife should not affect the maintenance
including quantum of maintenance. In support of the contention Ld.
Advocate for the applicant relied on Partha Sarthi Banerjee Vs.
Kasturi Basu, 2023 SCC Online Cal.1427. There cannot be straight
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jacket formula in deciding quantum of maintenance. Each case has to
be decided on its own facts to arrive at a proper conclusion.
Particularly the quantum of maintenance is depend of various factors.
It is further argued by Ld. Advocate for the applicant that as per
Ahsanullah Vs. Shahana Parvin, 2023 SCC Online Bom 1150 wife is
entitled to 25% of the husband's income as maintenance. In reply and
the arguments it is pointed out that the respondent has not filed his
account details, so adverse inference be drawn against him in view of
judgment in Rajnish Vs. Neha and Anr. (2021) 2 Supreme Court
Cases 324. Per contra, Ld. Advocate for the respondent referred to the
affidavit of assets and liabilities of the applicant. The applicant
contended that she is actress, media person, shown her monthly
expenses of paying salary to House Chef and other is Rs.47,000/ per
month and showing income of Rs.50,000/ per month is not possible
looking to the status of the applicant. The applicant has shown income
from other source is more than two crores and saying income is
Rs.50,000/. The applicant's mother is getting alimony of Rs.55,000/
per month. The applicant has no other responsibility and having flat in
Bandra. The affidavit clearly shows that applicant is lying. Ld.
Advocate for the respondent further argued that the income of the
applicant is three time more than the respondent.
21. The applicant and the respondent both have not come with
true income and the reason is affidavit of the applicant as pointed is self
explanatory. The respondent who is contending that the applicant's
income is three times more than the income of the respondent has
failed to file extract of bank account and business account to show
bonafide.
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22. The status of the parties is both are engaged in
entertainment industry of producing film and acting in film, T.V.shows
and short films. The nature of work is not permanent and constant but
regular during the year. Therefore, the status of the parties is celebrity
and well know figure in public. The standard of living of the parties
must be according to their status and required for their lifestyle. The
requirement of amount of maintenance should not be exorbitant so that
it could be a proper order of maintenance. The amount of maintenance
should always be reasonable and easily executable. Taking in to
consideration the status of the parties. The standard of living and
expenses required for meeting day to day expenses and sharing of
economic resources. An amount of Rs.1,00,000/( Rupees One Lakh
only) per month will be just and reasonable. The applicant being wife
though earning the obligations of the respondent is more than husband
being partner in the partnership firm. Though wife is earning her status,
expenses and standard of living is to be considered with the
contribution and responsibility of the husband towards marital relation
for which wife is entitled . Income of wife and the wife is earning is not
the ground to deprive the wife from lawful contribution of the husband
towards matrimonial duties and obligations. The aggrieved person who
is in domestic relation is entitled to the maintenance though have
independent source of income. reasonable. As per the law laid down
in Rajnish Vs. Neha and Anr. (2021) 2 Supreme Court Cases 324 the
maintenance is to be granted from the date of application.
As to Point No.06
23. Under Section 22 of the Act compensation order can be
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passed against respondent towards damages for injury, including
mental torture and emotional distress caused by the act of domestic
violence committed by the respondent. Though as per reasons recorded
to Point No.1 the applicant is victim of domestic violence has not stated
the reason for immediate relief of damages. The damages which could
be awarded to the witness can be considered at the final hearing of the
case. At this juncture the relief of interim compensation cannot be
granted without evidence. For these reasons finding to Point No.06 is
recorded in the negative. In this background following order is passed.
O R D E R
1. Application is partly allowed.
2. The Respondent is directed to pay interim maintenance of
Rs.1,00,000/(Rupees One Lakh 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 : 10.08.2023 9th Court, Bandra, Mumbai
vnh
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