Final Order 1

Order Details: Copy of Judgment
Pdf Text: … 1 … C.C.NO.5/DV/2014
Presented on : 22012014
Registered on : 22012014
Decided on : 02052016
Duration : 02Y 03M 12D
IN THE COURT OF METROPOLITAN MAGISTRATE,
71st COURT, BANDRA, MUMBAI.
( Presided over by Vishwas S. Mane )
C.C.NO.5/DV/2014
Exh._____.
Smt.Fatima Aslam Shaikh
Age : 36 years,
R/o. Nijam Mistri Chawl, Juhu Galli,
Wireless Road, Andheri(W), Mumbai. …
Applicant.
Vs.
1) Aslam Yusuf Shaikh
2) Yusuf Munir Shaikh
3) Kadira Yusuf Shaikh
4) Shabana Naushad Shaikh
All R/o. Koyalos Compound,
in front of Sangita Apartment, Juhu Koliwada,
Santacruz(E), Mumbai. …
Respondents.
For the Applicant : Adv. Razia Jahagirdar
For the Respondents : Adv. Shanbag
J U D G M E N T
( Delivered on 02052016 )
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 Aslam Yusuf Shaikh(husband),
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Yusuf Munir Shaikh(fatherinlaw), Kadira Yusuf Shaikh(motherinlaw)
and Shabana Naushad Shaikh (sisterinlaw) with prayer for relief U/s
18, 19, 20 and 22 of the Act.
2. It is the case of applicant, in short, that on 12.01.2011,
10.07.2012 and 13.01.2014, respondent No.1 caused muffled injury to
the applicant. He abused and insulted her. He had kept relations by
force with her and used obscene words, suspected her character and
beating and abusing her by drinking liquor. He is not giving amount for
her maintenance. The respondents were taunting her for not giving the
articles in the dowry of good quality. The respondents had beaten her
and her sister. She claimed protection order U/s 18 of the Act, order
U/s 19 of the Act, monetary reliefs U/s 20 and 22 of the Act.
3. Respondent No.1 though appeared in this proceeding vide
Exh.2, failed to file his reply. Respondent Nos.2 to 4 resisted the
application by giving reply at Exh.5. They stated that the averments
made in the application are in respect of respondent No.1 and they
were not concerned with the same. The application is filed with ulterior
motives to suit the convenience of the applicant. The allegations are
vague and baseless. The application may dismissed with punitive costs.
4. The applicant adduced her evidence on affidavit at Exh.4.
The applicant closed her evidence by filing pursis at Exh.9. The
respondents have not adduced their evidence. The applicant, filed notes
of written argument at Exh.10.
6. Final argument was heard on behalf of the applicant and
record perused.
7. The points for determination along with my findings
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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.
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”.
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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
force;
(ii) “sexual abuse” includes any conduct of a sexual nature that
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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
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
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(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. In the present case the applicant stated on oath that the
respondents assaulted her physically on 12.01.2011, 10.07.2012 and
13.01.2014. She also states that respondent No.1 every time abusing
her in filthy language and he was assaulted her by saying defamatory
words. He never gave any amount for day to day expenses. The oral
evidence of the applicant remained unchallanged as she was not cross
examined by respondent No.1. She was cross examined by respondent
Nos.2 to 4. But, her testimony was not destroyed. There is no reason to
disbelieve her evidence about assault and harassment by respondent
No.1. The oral evidence of the applicant, 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 establishing contact with her and
harassing her. 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
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establishing contact with her.
11. The applicant further sought order U/s 19 of the Act,
directing the respondents to secure alternate accommodation or pay
rent for the same. The applicant adduced evidence on affidavit at
Exh.4. But, she stated nothing about the standard of her shared
household or the rent of the alternative accommodation. 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.
Therefore, it is proper and just to direct respondent No.1 to pay an
amount of Rs.1,000/ per month to the applicant towards the rent, from
the date of application.
12. The applicant sought further relief of maintenance of
Rs.10,000/ p.m. for food, clothes, medicines, Rs.15000/ per month
towards house expenses and Rs.5,000/ for other expenses. The oral
evidence of the applicant is not showing the income of respondent No.1.
Respondent No.1 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 of Rs.3,000/ per month to the
applicant is sufficient for her.
13. The applicant claimed Rs.10,000/ towards loss of earning,
Rs.25,000/ towards medical expenses, Rs.25,000/ towards the loss of
property due to destruction and Rs.13,000/ towards loss of physical
and mental injury from respondent No.1. The applicant has adduced
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only oral evidence of herself on affidavit and nothing stated about the
loss caused to her. 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 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.1,000/ per
month and maintenance of Rs.3,000/ per month, 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 :
14. 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 restrained from establishing contact
with the applicant and they are directed to keep away themselves
from her relatives.
3. Respondent No.1 do pay rent of Rs.1,000/ (Rs.One Thousand
only) per month to the applicant, from date of application
i.e.22012014.
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4. Respondent No.1 do pay maintenance of Rs.3,000/ (Rs.Three
Thousand only) per month to the applicant, from date of
application i.e.22012014.
5. The other reliefs claimed in this application are rejected.
6. Respondent No.1 do pay cost of this application, Rs.500/
(Rs.Five Hundred only), to the applicant.
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 : 02052016 71st Court, Bandra, Mumbai.
ard/
Dictated on : 02052016
Transcribed on : 05052016
Signed on : 05052016
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