Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 C.C. No.16/DV/2012
Presented on : 09032012
Registered on : 09032012
Decided on : 29012016
Duration : 03Y 10M 20D
IN THE COURT OF METROPOLITAN MAGISTRATE,
71st COURT, BANDRA, MUMBAI.
( Presided over by Vishwas S. Mane )
C.C.NO.16/DV/2012
(old C.C.No.9/DV/2012)
Exh. 29.
Smt. Suman Ajay Shah
Age : 53 years, Occ. Houswife
R/o.302, Morning Glory, Thakkar
Park, Vakola, Santacruz (E), Mumbai. …. Applicant
Vs.
1. Mr. Ajay Shivcharan Shah
Age : 58 years, Occu.: Business,
R/o.301, Morning Glory, Thakkar
Park, Vakola, Santacruz (E), Mumbai.
2. Smt. Urmila Suresh Tibrewala
Age : 60 years, occ. Housewife.
R/o. Bhanu Villa 9th Road,
J.V.P.D., Vile Parle, Mumbai. …. Respondents
For the Applicant : Adv. Prabhusalgaonkar
For the Respondent : Adv.Y.R.Dube
J U D G M E N T
( Delivered on 29012016 )
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 the respondent Ajay Shah (husband) and Urmila
Tibrewala (sisterinlaw) with prayer for relief U/s 18, 19, 20 & 22 of
the Act.
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2. It is the contention of the applicant that, she was residing
at Flat No.302, Morning Glory, Thakkar Park, Vakola, Santacruz(E),
Mumbai. Further contended that, after marriage she resided with
respondents alongwith other family members and out of wedlock she
begotten two issues one son and one daughter and they are well settled.
Further it is contention of the petitioner that, respondent No.2 is
already married, used to visit her house frequently and used to interfere
into affairs of her family. Further contended that, respondent No.2 is
trying to dominate, insult and harass her. The fatherinlaw died on
02.06.1997 leaving behind will dated 29.12.1994, which probated on
21.10.2002 and as per said will respondent No.1 got property including
immovable property which he got after demise of motherinlaw, who
expires on 10.06.2007. It is further contended that, after the death of
fatherinlaw, respondent No.2 compelled her motherinlaw to open
joint account for locker and the gold ornaments were kept in the said
locker. After death of her motherinlaw and fatherinlaw she is the
only daughterinlaw and entitled to get the gold ornaments belonging
to her motherinlaw. Further contented that, respondent No.2
promised to get locker open and to return the gold ornaments to the
petitioner, but failed to do so. Further contended that respondent No.1,
borrowed her gold ornaments also, but not returned to the applicant till
date. It is further contention of the petitioner that, cause of action
arose on 07.02.2012 when respondent No.1 intended to sell Dhanraj
Restaurant and also on 08.02.2012 respondent Nos.1 & 2 failed to
return the gold ornaments, and prayed that, application be allowed.
3. Respondents resisted the application by filing say.
Respondent No.1 admitted relationship and also children begotten out
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of wedlock. It is the contention of respondents that, respondent No.2
is residing at her matrimonial home and she is well settled and
applicant purposely made her party in this case. Further contended
that, in the year 2005 family bunglow sold with the consent of other co
owner and he received sum of Rs.85 lacks by way of share in the said
bunglow. Thereafter, immediately he purchased two flats one in his
name and another in the name of applicant, at that time value of the
flat of the petitioner was of Rs.36 lacs and respondent No.1 provided
good shelter to the applicant. Further contended that, as fatherinlaw
gave two stalls and one premises in which he is running restaurant and
he is contractor of railway stall and running business. Further
contended that the son is doctor and he is well settled, daughter is
working as counselor in school and she depends upon him for other
expenses and he is looking after the expenses of the house and it is
around Rs.15,000/per month. Further contended that, the Dhanraj
Restaurant is a partnership business and the premises where said
business is running stands in the name of deceased brother Anil Shah
and he is one of the partner and there is court proceeding pending in
respect of the Dhanraj Restaurant and he has not got share in it.
Further contended that, applicant is totally secure and she has been
provided shelter and also provided other amenities and there was no
domestic violence caused to her and false petition is filed against
respondents. Further contended that, the allegations made in this case
filed by the applicant are false one and prayed that, the petition be
dismissed with exemplary cost.
4. The points for determination framed at Exh.18, as per
directions of Hon'ble High Court in Criminal Revision Application
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No.453 of 2013 are reproduced below along with my findings thereon :
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 No. 1 & 2 :
5. 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 Section2(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.
ii. She was subjected to domestic violence by respondent during
subsistence of such domestic relationship.
6. Section 2 (a) of Protection of Woman from Domestic
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Violence Act, 2005 defines “aggrieved person” as
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
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
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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,
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
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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.
7. The applicant deposes that respondent No.2 always trying
to dominate, insult and harass her and used to tell all lies against her to
the respondent No.1 and her motherinlaw. This evidence of applicant
was not challenged by respondent No.2 and not denied by respondent
No.1. Moreover, respondent No.1 in his cross examination, at Exh.12,
on page No.9, stated that initially there were good relation between him
and the applicant, and presently the applicant not behaving properly
with him, as such there are no talking between us. He also stated that
he do not know the cause of quarrel between the applicant and his
sister. Considering the definition of domestic violence U/s 3 of the Act
and the oral evidence of applicant and respondent No.1, it clearly
appears that the conduct of respondent constitutes domestic violence
under the said section. Therefore, it is clear that applicant is aggrieved
person, who has been subjected to act of domestic violence by the
respondents. Hence, point Nos.1 and 2 are answered in the affirmative.
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As to point No. 3 :
8. The applicant sought monetary relief of Rs.50,000/ per
month in her favour U/s 20 of the Act, for maintenance, food, shelter,
clothing, medical expenses and other general expenses to remain alive.
She also sought compensation of Rs.5 lacs, U/s 22 of the Act, for the
damages, injuries including mental torture and emotional distressed
caused by the acts of domestic violence committed by the respondents,
such as sale of accommodation of joint family for Rs.2,50,00,000/
without paying anything to her, out of the sale proceeds. There is no
documentary evidence on record to show the actual damages, injuries
caused to the applicant by the acts of domestic violence committed by
the respondents, except the bare words of the applicant. Also there is
no documentary evidence produced by the applicant on record to show
that actual income of respondent No.1. Respondent No.1 in his
examinationinchief stated that his over all income from three
businesses is around Rs.40,000/ to 45,000/ per month after deducting
all the expenses towards the salary, rent, electricity etc. The respondent
also deposes in examinationinchief that he is paying all the household
expenses towards the salary of maid, food, flat's maintenance charges,
electricity charges etc. The applicant did not challenge these facts.
Considering all these facts, it appears that the respondent No.1 is
having capacity to pay Rs.20,000/ per month to the applicant towards
monetary relief. However, the applicant is not entitled for
compensation order U/s 22 of the Act for the damages, injuries
including mental torture and emotional distress caused by the acts of
domestic violence committed by the respondents.
9. The applicant sought relief to direct respondent No.1 to
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return the gold ornaments of 748.8 grms. which were handed over to
him in or around year 2002, by the applicant and to direct respondent
No.2 to return the gold ornaments 1096.6 grms. belonging to the late
motherinlaw to the applicant. She also sought relief to restrain
respondent No.1 from selling Dhanaraj Restaurant. The applicant
produced on record statement of gold jewellery which was disclosed in
Wealth Tax Returns. But, it was not proved by examining the
competent witnesses. There is no evidence on record, to show that the
applicant is only entitled to receive the gold ornaments of her mother
inlaw. The late motherinlaw of the applicant has other hairs than the
husband of applicant. Therefore, the applicant has to approach before
proper forum for the share, if any, in the ornaments of motherinlaw.
As per the evidence of respondent No.1, he is not exclusive owner of
Dhanaraj Restaurant. Also the applicant has not produced evidence on
record to show that the said restaurant is exclusively owned by the
respondent No.1. Therefore, the applicant is not entitled for injunction
order in respect of said restaurant in this proceeding. Considering all
these facts and circumstances, it appears that the applicant is entitled
for partly reliefs claimed in this application. Hence, point No.3 is
answered accordingly.
As to point No.4 :
10. The applicant is an aggrieved party under the Act. She is
entitled for partly reliefs claimed in this application against the
respondent No.1 under the Act. 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. Also, it is
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proper to impose cost of this proceeding on respondent No.1. 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. Respondent No.1 do pay maintenance of Rs. 20,000/ (Rs.Twenty
Thousand only) p.m. to the applicant, from date of application
i.e.09032012. The amount paid by respondent No.1 by way of
interim maintenance be adjusted against the total due amounts.
3. The other reliefs claimed in this application are rejected.
4. Respondent No.1 do pay Rs.5,000/ (Rs. Five Thousand only) to
the applicant towards cost of the application.
5. The copy of this order be provided to the concern as per section
24 of the Protection of Women from Domestic Violence Act,
2005.
sd/
( Vishwas S. Mane )
Bandra, Mumbai. Metropolitan Magistrate,
Date : 29012016 71st Court, Bandra, Mumbai.
ard/
Dictated on : 29012016
Transcribed on : 09022016
Signed on : 09022016
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