Final Order 1

Order Details: Copy of Judgment
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Presented on : 22042010
Registered on : 22042010
Decided on : 29022016
Duration : 05Y 10M 07D
IN THE COURT OF METROPOLITAN MAGISTRATE,
71st COURT, BANDRA, MUMBAI.
( Presided over by Vishwas S. Mane )
C.C.NO.55/DV/2012
(Old No.C.C.No.21/DV/2010)
Exh._____.
Smt.Nasreen Banu Sheikh
Age : Adult,
R/o. Green Park Cooperative
housing Society, Daulat Nagar Road,
A/II/Room No.210, Santacruz(W),
Mumbai400 054. … Applicant.
Vs.
1) Sayeed Ali Rrafique Shaikh
Age : 30 years,
2) Mohd. Rafique Shaikh
Age : 53 years,
3) Sabira Rafique Shaikh
Age : 49 years,
4) Zubeda Rafique Sheikh
Age : 24 years,
All R/o. R/A,BPT Chawl, R.No.822,
Gate No.4, Char Road, Antop Hill,
Wadala(E), Mumbai.
5) Sabina Rafique Shaikh
Age : 27 years,
R/o. Lal Mitti Kiasmat Nagar,
Near Rawli Camp, Railway Zopadpatti,
Antop Hill, Mumbai.
6) Dilsad Yusuf Ali Sheikh
Age : 23 years,
R/o. BPT Chawl, R.No.822, Gate No.4,
Char Road, Antop Hill, Wadala(E), Mumbai.… Respondents.
For the Applicant : Adv. Sachin Pande
For the Respondents : Adv. S.A. Vasid
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J U D G M E N T
( Delivered on 29022016 )
This is an application U/s 12 of Protection of Women from
Domestic Violence Act, 2005 ( hereinafter 'the Act' ) preferred by the
petitioner wife against respondent No.1 Sayeed Ali Rafique Shaikh
(husband) and respondent Nos.2 to 6 (inlaws) with prayer for relief
U/s 18, 19, 20 and 22 of the Act.
2. It is the case of applicant, in short, in the marriage her
brother was pressurized by respondent Nos.1 and 2 to give jwellery
and other gift articles. Her parents has given her jwellery and articles
as per the list annexed as 'A'. Respondent No.1 and 2 received gifts
and cash from her relatives. Her stridhan is laying with the respondents
in their residence. The respondents harassed her physically and
mentally. She and respondent No.1 started residing at the rented house
for which her brother was paying monthly rent of Rs.1,500/ and
deposited the amount of Rs.15,000/ towards the owner of it. On
enumerable occasion respondent No.1 used to have forcible sex on her
and due to that her health started deteriorating, due to which she was
hospitalized on many occasions. Respondent No.1 used to assault her
at the instance of respondent Nos.2 and 3 and forced her to give
divorce. A female child was born on 18.05.2008 out of the wedlock due
to which the respondent got annoyed and started harassing her. In
July, 2008, respondent drew her out of matrimonial home and said her
to come back only when she have money to purchase separate
accommodation. She filed maintenance petition U/s.125 of the Cr.P.C.
and lodged FIR against all the respondents U/s.498A, 406, 34 of the
IPC. She claimed protection order U/s 18 of the Act, order U/s 19 of
the Act, monetary reliefs U/s 20 of the Act and compensation order
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U/s 22 of the Act.
3. Respondent Nos.1 to 3 resisted the application by filing
reply at Exh.2 & 3. They denied the allegations made against them in
toto. They stated that after the next of the marriage applicant started
insisting that respondent No.1 should take separate house on live and
licence basis. She was residing hardly for three months after the
marriage with the parents of respondent No.1. Thereafter, she shifted
to rental house arranged by her brother as per her wish, will and desire.
Respondent no.1 had studied upto 6th standard. The applicant is a
graduate and fashion designer, jwellery designer, Mehandi Artist.
Respondent No.1 is working as a labour in a Gazi Scrap shop and
getting Rs.2,000/ to Rs.3,000/ per month. His parents had given gold
bangles, Mangalsutra and ear rings and other valuable articles to the
applicant. Those are laying with the applicant. Respondent No.1, is
residing with parents at BPT Chawl, Room No.82, Antop Hill, Wadala.
The applicant used to leave the house without informing respondent
No.1 and used to remain out whole night. She picked up quarrel with
him and abused in filthy language. He had pronounced three times
'Talaq' to the applicant in presence of her brother and sister on
24.10.2010. The applicant had taken all the gold ornaments, which
were given to her by the respondents at the time of marriage. He has
no income source and unemployed. The application may be dismissed.
4. The proceeding is closed vide pursis at Exh.10 filed by the
applicant against respondent Nos.2 and 3.
5. The applicant adduced her evidence on affidavit at Exh.4.
She examined P.W.No.2 Jaffar Ali Shaikh at Exh.5. Respondent No.1
has not adduced his evidence. Both the parties adduced documentary
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evidence as per record. Respondent No.1, filed notes of written
argument at Exh.12.
6. Final arguments were heard on behalf of parties and record
perused.
7. The points for determination along with my findings
thereon as under :
Sr.
No.
POINTS FINDINGS
1 Whether the applicant is an aggrieved
party ?
Yes.
2 Whether she was subjected to domestic
violence ?
Yes.
3 Whether she was entitled to monetary or
other reliefs as provided under the Act ?
Yes, partly.
4 What order ? The
application is
partly allowed.
R E A S O N S
As to point Nos. 1 & 2 :
8. Under the provision of Protection of Women from Domestic
Violence Act, 2005 woman has to establish that she is an "aggrieved
person" as defined in Section 2(a) of Protection of Women from
Domestic Violence Act, 2005. In order to establish that she is an
"aggrieved person as envisaged under Act, petitioner must establish
that:
i) She lives or has lived in "domestic relationship" with respondent in
shared household, within reasonable period of time before filing this
petition.
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ii) She was subjected to domestic violence by respondent during
subsistence of such domestic relationship.
Section 2 (a) of the Protection of Woman from Domestic Violence
Act, 2005 defines “aggrieved person”.
Section 2(a) “aggrieved person” means any woman who is, or has
been, in a domestic relationship with the respondent and who alleges to
have been subjected to any act of Domestic Violence by the respondent.
Section 3. Definition of Domestic Violence For the purposes of this
Act, any act, omission or commission or conduct of the respondent shall
constitute Domestic Violence in case it
(a) harms or injures or endangers the health, safety, life, limb 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; or
(b) harasses, 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; or
(c) has the effect of threatening the aggrieved person or any person
related to her by any conduct mentioned in Clause(a) or Clause(b); or
(d) otherwise injures or cause harm, whether physical or mental, to
the aggrieved person.
Explanation I. For the purpose of this section,
(i) “physical abuse” means any act or conduct which is of such a
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nature as to cause bodily pain, harm or danger to life, limb, or
health or impair the health or development of the aggrieved
person and includes assault, criminal intimidation and criminal
force;
(ii) “sexual abuse” includes any conduct of a sexual nature that
abuses, humiliates degrades or otherwise violated the dignity of
woman;
(iii) “verbal and emotional abuse” includes
(a) insults, ridicule, humiliation, name calling and insults
or ridicule specially with regard to not having a child or a
male child; and
(b) repeated threats to cause physical pain to any person in
whom the aggrieved person is interested.
(iv) “economic abuse” includes
(a) deprivation of all or any economic or financial
resources to which the aggrieved person is entitled under
any law or custom whether payable under an order of a
Court or otherwise or which the aggrieved person requires
out of necessity including, but not limited to, household
necessities for the aggrieved person and her children, if
any, stridhan, property, jointly or separately owned by the
aggrieved person, payment of rental related to the shared
household and maintenance;
(b) disposal of household effects, any alienation of assets
whether movable or immovable, valuables, shares,
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securities, bonds and the like or other property in which the
aggrieved person has an interest or is entitled to use by
virtue of the domestic relationship or which may be
reasonably required by the aggrieved person or her
children or her stridhan or any other property jointly or
separately held by the aggrieved person; and
(c) prohibition or restriction to continued access to
resources or facilities which aggrieved person is entitled to
use or enjoy by virtue of the domestic relationship
including access to the shared household.
Explanation II. For the purpose of determining whether any act,
omission, commission or conduct of the respondent constitutes
“Domestic Violence” under this section, the overall facts and
circumstances of the case shall be taken into consideration.
9. The learned advocate for the applicant relied on Ann
Menezes w/o.Shahajahan Mohammad Vs. Shahajan Mohamad,
2010 ALL MR(Cri.)1794 , “in which it is held that in matters under the
Act, there can not be any clinching evidence, conclusion would have to
be drawn on the basis of whatever, is on record and the circumstances
prevailing”. He also relied on Pratibha w/o. Bapusaheb Andhare Vs.
Bapusaheb s/o.Bhimrao Andhare & Anr., 2012 ALL MR (Cri.)3950.,
“in which it is held that section 2(a), 3 and 12 of the Act, show that for
getting the reliefs the person like the petitioner is required to prove that
she had lived together with the respondent in a shared household”. In
the present case, the applicant deposes that the respondents harassed
her physically and mentally by demanding dowry. In her affidavit of
evidence, the applicant reiterate the facts mentioned in the application
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about the harassment, lodging of the FIR and filing of maintenance
petition. The respondent has taken defence that no complaint was
lodged, by the applicant, for pressurized to the brother to give articles
at the time of marriage as it was not happened. He also taken defence
that the applicant used to visit her parent's house and was holding him
responsible for spoiling her carrier. The fact of lodging FIR by the
applicant for the offence u/s.498A, 406, 34 of The IPC, clearly shows
that the domestic violence was committed on the applicant. Moreover,
the respondent No.1 did not step into the witness box and did not deny
allegations made against him. There is no reason to disbelieve the
evidence of the applicant and her brother about the domestic violence
committed on her. The oral evidence of the applicant and her brother,
clearly shows that she is aggrieved person and subjected to domestic
violence. Hence, point Nos.1 & 2 are answered in the affirmative.
As to point No. 3 :
10. The applicant claimed protection order U/s 18 of the Act,
prohibiting the respondents from committing any act of domestic
violence. The oral and documentary evidence adduced by the applicant
clearly shows that she was subjected to the domestic violence by the
respondents. Therefore, it is necessary to provide protection order in
favour of the applicant and prohibiting the respondents from
committing any act of domestic violence, from entering the work place
of the applicant from stopping the applicant from going to her place of
employment, from entering any other place where the applicant is likely
to go, from stopping the applicant from going to parent's house and to
stay away from the other persons of the aggrieved persons.
11. The applicant further sought order U/s 19 of the Act,
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restraining the respondents from renouncing their right in the shared
household and an order directing the respondent to secure alternate
accommodation or pay rent for the same. The applicant in her
application stated that she and respondent No.1 were residing in a
rented house and her brother was paying monthly maintenance of
Rs.1,500/. She deposed in her affidavit in examinationinchief,
presently she is residing at Green Park CHS, Daulat Nagar. The
respondents are residing in BPT Chawl at Antop Hill, Wadala. There is
no evidence on record about the income source of respondent No.1.
The applicant had not adduced reliable evidence for ascertaining the
standard and level of the accommodation to be provided to her or the
rent of same. Also she has not stated in which area she wants the
alternate accommodation. In such circumstances, it is not proper to
direct the respondent No.1 to secure alternative accommodation. The
applicant was previously residing in a room for which rent of Rs.1,500/
per month was paid by her brother. Therefore, it is proper and just to
direct respondent No.1 to pay an amount of Rs.1,500/ per month to
the applicant towards the rent, from the date of application.
12. The applicant has not adduced the evidence about the title
of shared household. Therefore, it can not be ascertained in whose
name the shared household is standing in the record of rights. The
effective order restraining the respondents from renouncing their rights
can not be passed unless and until the rights of the respondents in the
shared household are specifically established. But, the applicant failed
to established the rights of respondents in the shared household. In
such circumstances, it is very difficult to direct the respondents from
renouncing their right in the shared household. Therefore, the
applicant is not entitled for an order restraining the respondents from
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renouncing their rights from the shared household.
13. The applicant sought further relief of maintenance of
Rs.5,000/ per month, for food, clothes, medicine, Rs.5000/ per month
to maintain social status and Rs.5,000/ to visit her parents and
relatives. It is admitted by both the parties that the applicant filed
petition No.E82/2010 before 6 th Family Court, Bandra, Mumbai
u/sec.125 of Cr.P.C. and in the said petition maintenance of Rs.3500/
for the applicant and Rs.1,500/ for her daughter Hayat, was granted by
order dated 30.12.2013. The applicant is already getting maintenance
of Rs.5,000/ per month for herself and her daughter as per the said
order. There is no reliable evidence on record the respondent is having
scrap business and earning Rs.50,000/ to Rs.60,000/ per month. The
oral evidence of the applicant and her brother is not sufficient to hold
that respondent No.1 is earning Rs.50,000/ to Rs.60,000/ per month.
The hon'ble Family Court held that respondent is unskilled and capable
to earn Rs.10,000/ to Rs.12,000/ per month by doing odd works.
Considering the income of respondent No.1 the maintenance granted to
the applicant and her daughter in petition No.82/2010, is sufficient for
them. There is no necessity to grant additional maintenance to them in
this proceeding. The interim maintenance to be awarded in this
proceeding by the order dated 21.02.2011. The learned advocate for
the applicant relied on Sunil Hujband Vs. Smita Hujband, 2010 ALL
MR (Cri.) 1221, in which, it is held that “even though maintenance
amount is awarded u/sec.125 of The Cr.P.C., still proceedings U/s 12 of
the Act, are not bared on the ground that there is again prayer for
maintenance”. In this case, it is necessary to consider the earning
capacity of the respondent No.1 for awarding the maintenance to the
applicant and her daughter. Therefore, the proceeding U/s 12 of the
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Act is maintainable, is not the ground to award additional maintenance
to the applicant in this proceeding. However, the applicant is entitled
to recover the arrears of interim maintenance till date, by filing separate
recovery application.
14. The applicant claimed Rs.5 lacs towards loss of earning
from respondent No.1. She stated that due to the cruelty caused upon
her, she could not opt for better opportunity which came her way and
continued the same job in which there are no opportunities. She also
claimed medical expenses of Rs.5 lacs. Due to the cruelty caused upon
her by respondent No.1 and Rs.5 lacs as a loss for physical or mental
injury. She also claimed sum of Rs.10 lacs for causing mental agony, ill
treatment, assaulting and depriving her of perusing further studies. The
applicant has adduced only oral evidence of herself and her brother on
affidavit. There is no documentary reliable evidence on record to show
that what type of cruelty was caused upon her and what type of
opportunity was lost by her. Also there is no reliable evidence on record
about the medical expenses and loss for physical and mental injury. The
photo copies of medical prescriptions and reports are not admissible in
the evidence, though produced on record by the applicant. The
applicant must produced the original papers and prove those papers as
per the Indian Evidence Act. The applicant failed to prove the
documentary evidence as per the Indian Evidence Act. Therefore, the
photo copies of medical prescriptions and reports can not be considered.
The amount of loss of earnings, medical expenses and loss for physical
and mental injury can not be ascertained only on the basis of oral
evidence. Therefore, the applicant is not entitled for such monetary
reliefs claimed in this application. Considering all these facts, the
applicant is only entitled for the rent amount @ Rs.1,500/ per month
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from the date of the application. She is not entitled for any other relief
claimed in this application. Hence, the point No.3 is answered
accordingly.
As to point No.4 :
15. The applicant is an aggrieved party under the Act. She is
entitled for partly reliefs claimed in this application against the
respondents.. Therefore, her application is liable to be partly allowed. It
is necessary to adjust the maintenance amount paid by respondent No.1
by virtue of interim maintenance order. In the result, in answer to point
No.4 following order is passed.
O R D E R
1. The application is partly allowed.
2. The respondents are hereby prohibited from committing any act
of domestic violence, from entering the work place of the
applicant from stopping the applicant from going to her place of
employment, from entering any other place where the applicant
is likely to go, from stopping the applicant from going to parent's
house and to stay away from the other persons of the aggrieved
persons.
3. Respondent No.1 do pay rent of Rs.1,500/ (Rs.One Thousand
Five Hundred only) p.m. to the applicant, from date of
application i.e.22042010.
4. The other reliefs claimed in this application are rejected.
5. Respondent No.1 do pay cost of the application, Rs.500/ (Rs.Five
Hundred only), to the applicant.
6. The applicant is entitled to recover the arrears of interim
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maintenance granted in this proceeding by filing separate
recovery proceeding.
7. The copy of this order be provided to the concern as per section
24 of the Protection of Women from Domestic Violence Act,
2005.
( Judgment is pronounced in open court )
sd/
( Vishwas S. Mane )
Bandra, Mumbai. Metropolitan Magistrate,
Date : 29022016 71st Court, Bandra, Mumbai.
ard/
Dictated on : 29022016
Transcribed on : 08032016
Signed on : 08032016
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IN THE COURT OF METROPOLITAN MAGISTRATE,
71ST COURT, BANDRA, MUMBAI
C.C.NO.55/DV/2012
(Old No.C.C.No.21/DV/2010)
Smt.Nasreen Banu Sheikh … Applicant.
Vs.
Sayyed Ali Rrafique Shaikh and 5 another … Respondents.
: O P E R A T I V E O R D E R :
1. The application is partly allowed.
2. The respondents are hereby prohibited from committing any act of
domestic violence, from entering the work place of the applicant from
stopping the applicant from going to her place of employment, from
entering any other place where the applicant is likely to go, from
stopping the applicant from going to parent's house and to stay away
from the other persons of the aggrieved persons.
3. Respondent No.1 do pay rent of Rs.1,500/ (Rs.One Thousand Five
Hundred only) p.m. to the applicant, from date of application
i.e.22042010.
4. The other reliefs claimed in this application are rejected.
5. Respondent No.1 do pay cost of the application, Rs.500/ (Rs.Five
Hundred only), to the applicant.
6. The applicant is entitled to recover the arrears of interim maintenance
granted in this proceeding by filing separate recovery proceeding.
7. The copy of this order be provided to the concern as per section 24 of
the Protection of Women from Domestic Violence Act, 2005.
( Judgment is pronounced in open court )
sd/
( Vishwas S. Mane )
Bandra, Mumbai. Metropolitan Magistrate,
Date : 29022016 71st Court, Bandra, Mumbai.
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