Final Order 1

Order Details: Copy of Judgment
Pdf Text: … 1 ... C.C.NO.48/DV/2012
Presented on : 08102010
Registered on : 08102010
Decided on : 21112016
Duration : 06Y 01M 13D
IN THE COURT OF METROPOLITAN MAGISTRATE,
71st COURT, BANDRA, MUMBAI.
( Presided over by Vishwas S. Mane )
C.C.NO.48/DV/2012
(Old C.C.No.42/DV/2010)
Exh.15.
Smt. Smita Janardan Tambe
Age : 34 years, Occ. Housewife,
R/o. At Room No.211, Green Park Hsg.Soc.
Opp. Pakija Hotel, Daulat Nagar,
Santacruz(W), Mumbai. … Applicant.
Vs.
1) Janardan Laxman Tambe
Age : 36 years, Occ. Service,
2) Anita Laxman Tambe,
Age : Adult, Occ. Nil
3) Vishal Laxman Tambe,
Age : Adult, Occ. Nil
4) Nirmala Ravi Chakre
Age : Adult, Occ. Nil
All R/o. Room No.43, Nav Jivan Society,
Shastri Nagar, Dattatraya Nagar,
Santacruz (E), Mumbai. … Respondents.
For the Applicant : Adv. M. V. Pawar.
For the Respondent No.1,
2 and 4 : Adv. Anita Sachadev.
For the Respondent No.3 : Absent.
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J U D G M E N T
( Delivered on 21112016 )
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 Janardan Laxman Tambe
(husband) with prayer for relief u/s. 18, 19, 20 & 22 of the Act.
2. It is the case of applicant, in short, that her marriage was
performed with respondent No.1 on 11.12.2005 and one male child was
begotten to her on 05.09.2007. The child is in her custody. The
respondents started metal and physical torture, assault, insult and
humiliation to her without any reason. He avoided matrimonial
relationship and also avoided to take care of minor child. He started
demanding of dowry as per the directions of family members. She filed
N.C. complaints against the respondents. Several steps were taken to
reconcile, but respondent No.1 was not ready for it. He was working at
Honda Company and earning an amount of Rs.10,000/ per month. He
is having immovable property. The applicant claimed reliefs u/sec.18,
19, 20 and 22 of the Act.
3. Respondent No.1 resisted the application by filing written
statement at Exh.7 and respondent No.2 and 4 resisted the application
by filing written statement at Exh.8. Respondent No.1 admitted
relationship of the applicant. He stated that the applicant very oftenly
visit her parent's home. She started non cooperation by refusing to do
domestic work. She started picking up daily quarrels. At that time, he
was working in Sawant Tyres Service and getting Rs.3,000/ per month.
The applicant refused to stay in matrimonial home and her mother took
her to parental home in the second week of June, 2005. Respondent
No.1 started residing with the applicant with her parental home. The
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brothers of the applicant started harassing him and often used to abuse
and picked up quarrel with him. They assaulted him and directed to
leave the room and threatened to dire consequences. He stated that he
got new job of Motor Mechanic with M/s. Car Nation Auto Pvt. Ltd. and
getting salary of Rs.4,000/ p.m. The applicant was also working with
Pvt. Concern and getting Rs.3,000/ per month. The allegations made
by the applicant are false, baseless and concocted. Respondent No.2
and 4 denied the allegations against them. They stated that in order to
harass them and tried to pressurize her husband to extract money, they
are unnecessarily involved in this case. They stated that whatever
property has been mentioned in her application is respondent No.2's self
occupied property and nobody have any right, title and claim on it.
Respondent No.3 failed to appear and file say.
4. The applicant adduced her evidence on affidavit on
26.03.2012. Both the parties adduced documentary evidence as per
records. Respondent No.1, 2 and 4 failed to adduce their evidence.
5. Final argument was heard on behalf of the applicant and
record perused. The respondents remained absent, at the time of
argument.
6. 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.
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4 What order ? The application
is partly
allowed.
R E A S O N S
As to point No. 1 & 2 :
7. The applicant in her affidavit of examinationinchief
narrated the contents of the application regarding the harassment at the
hands of the respondents. The respondent has not challenged the
evidence of applicant adduced on affidavit. There is no reason to
disbelieve the evidence of the applicant about harassment on affidavit.
It is not disputed that the applicant is legally wedded wife of
respondent No.1. The contents of pleadings of both parties show that
the applicant is aggrieved person as per provisions of section 2(a) and 3
of the Protection of Women from Domestic Violence Act, 2005. Hence,
point Nos.1 & 2 are answered in the affirmative.
As to point No. 3 :
8. The applicant prays for reliefs u/sec.18, 19, 20 and 22 of
the Act, in her application and affidavit. This matter was remanded by
the Hon'ble Addl. Sessions Judge, Greater Mumbai, to afford an
opportunity to respondent No.1 to cross examine the applicant and to
lead his own evidence, as per the judgment dated 02.04.2015, in
Criminal Appeal No.344/2013. However, respondent No.1 failed to
cross examine the applicant and to adduce his own evidence, though
the sufficient opportunity is given to him. He was present before the
Court, but declined to crossexamine the applicant, after restoration of
the proceeding. His attitude shows that though he has filed appeal for
getting an opportunity to cross examine the applicant and adduced
evidence, intentionally avoided it. The directions are given by Hon'ble
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Addl. Sessions Judge to decide that matter as expeditiously as possible
and preferably within six months. Therefore, considering the
circumstances, the evidence of respondent No.1, is closed on
05.08.2016, by giving him sufficient opportunity.
9. The evidence of the applicant on affidavit remained
unchallanged. The applicant stated that respondent No.1 is working at
reputed Honda Company and getting amount of Rs.10,000/. However,
she has not produced the documentary evidence about the service of
respondent No.1 at so called Company and his salary. It is not proper
to hold that respondent No.1 is getting an amount of Rs.10,000/ from
a job at reputed Honda company, in absence of documentary evidence,
on relying the affidavit of the applicant. Respondent No.1 in his written
statement stated that he is getting Rs.4,000/ p.m. from a new job of
Motor Mechanic with M/s.Car Nation Auto Pvt. Ltd. However, he also
failed to produce documentary evidence about it. So it is difficult to
ascertained the real income of respondent No.1. Respondent No.1 can
get job of Motor Mechanic as per his say. This means he is possessing a
special skill of Motor Mechanic and he can easily get income of rupees
more than Rs.8,000/ in Mumbai City. The minor son is with the
applicant. It is the duty of respondent No.1 to maintain his wife and
son. Considering, the income of respondent No.1 and the basic needs of
the applicant and her son, it is proper and just to direct respondent
No.1 to pay an amount of Rs.5,000/ per month to them towards
monetary relief.
10. The applicant claimed other reliefs in the application, but,
she failed to adduce the reliable evidence, so that those reliefs can be
granted. It is not proper to award compensation amount on the basis of
vague evidence. Therefore, the applicant is not entitled for reliefs U/s
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18, 19 and 22 of the Act, in this proceeding.
11. Considering all these facts, it is clear that the applicant is
entitled for partly reliefs claimed in the application. Hence, the point
No.3 is answered accordingly.
As to point No.4 :
12. The applicant is an aggrieved party under the Act. She is
entitled for partly reliefs claimed in this application against the
respondents under the Act. Therefore, her application is liable to be
partly allowed. 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 sum of Rs. 5,000/ (Rs.Five Thousand
only) p.m. to the applicant towards the payment of maintenance
to herself and her minor son from the date of application
i.e.08102010. The maintenance amount paid by respondent
No.1 in view of interim order be adjusted against the due
amount.
3. The other reliefs claimed in this application are rejected.
4. 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 : 21112016 71st Court, Bandra, Mumbai.
ard/ Dictated on : 21112016
Transcribed on : 21112016
Signed on : 21112016
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