Final Order 1

Order Details: Copy of Judgment
Pdf Text: … 1 ... C.C.NO.42/DV/2012
Presented on : 05092011
Registered on : 05092011
Decided on : 08062016
Duration : 04Y 09M 03D
IN THE COURT OF METROPOLITAN MAGISTRATE,
71st COURT, BANDRA, MUMBAI.
( Presided over by Vishwas S. Mane )
C.C.NO.42/DV/2012
Exh. .
Mumtaz Begum Sirajuddin
Age : 43 years,
R/o. C/o. Farooque Honestic,
Opp. Asha Parekh Hospital, S.V.R. Hospital,
Santacruz(W), Mumbai. … Applicant.
Vs.
Mehboob Shaikh Abdul Mannan
Age : 43 years,
R/o. Kadri Building, 2nd floor, Room No.17,
Near New Police Line, Mahim, Mumbai. … Respondent.
For the Applicant : Adv. Nausheen Yousuf
For the Respondent : Adv. Pranita Pednekar
J U D G M E N T
( Delivered on 08062016 )
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 Prashant Gurav (husband) with
prayer for relief u/s 18, 19, 20, 21 & 22 of the Act.
2. It is the case of applicant, in short, that her son Ishaq is in
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her custody. The respondent thrown her out of the house after
pronouncing 'Talaq'. He kept her three children i.e. Ibrahim, Taniyat
and Sania. He treated her with immense cruelty. The interim
maintenance was allowed to her in a case of restitution of conjugal
rights filed by the respondent. The interim maintenance granted in said
case was ceased on the date of dismissal of the case. He denied the
applicant and her child of their claims of maintenance. Hence, she filed
this application. She claimed protection order u/s 18, residence order
u/s 19, monitory relief u/s 20, custody order u/s 21 and compensation
order u/s 22 of the Act.
3. The respondent resisted the application by filing his say at
Exh.3. He admitted that applicant is his wife. The applicant is not
entitled for any relief under the Act as she had left the matrimonial
home on her own accord. She is highly educated and working as a
teacher in a Urdu School at Jogeshwari and earns salary of Rs.8,000/
per month. She also earns Rs.6,000/ per month by giving private
tuitions. There is no need of maintenance to her. The applicant has
failed to show any instances of domestic violence. She had taken away
her belongings. He stated that he is capable of maintaining his
children. He is willing to allow the applicant, to meet the children once
in the month. There is no need to grant custody of the children to the
applicant. He further stated that he is working as a police constable and
his home salary is Rs.12,422/, as per the salary slip dated 05.12.2011.
He is ready to maintain his son Ishaq. He prays to dismiss the
application.
4. The applicant adduced her evidence on affidavit at Exh.9.
Both the parties adduced documentary evidence as per records. The
respondent failed to adduce his evidence.
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5. Final argument was heard on behalf of the applicant and
record perused. Neither respondent nor his advocate appeared, 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.
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 respondent. 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 the
respondent. 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 is silent in her affidavit of evidence about the
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reliefs claimed u/s 18 and 19 of the Act. Therefore, she is not entitled
for protection order u/s.18 and residence order u/s.19 of the Act.
9. The applicant claimed maintenance of Rs.8,000/ per
month towards expenses for herself and her son Ishaq. She stated that
her son is now in 4th class and has Rs.5,000/ expenses. The respondent
is duty bound to maintain her and her son. It is admitted fact that other
three children of the applicant are residing with the respondent. The
respondent was taking home salary of more than Rs.12,000/ in the
month of December, 2011. At present, his salary is definitely more than
it. The respondent failed to adduce evidence about his present salary.
This shows that he suppressed his income from the court. The
respondent stated that the applicant is highly educated and earns salary
of Rs.8,000/ per month as a Urdu teacher and earns Rs.6,000/ per
month from private tuitions. However, he failed to adduce the
documentary evidence about the income of the applicant. The applicant
is highly educated is not the ground to reject her claim for maintenance.
Considering, the income of respondent, his responsibility to maintain
other three children and the day to day essential necessity of the
applicant and her son Ishaq, it is proper to award maintenance of
Rs.6,000/ per month to them, from the date of the application.
10. The applicant claimed compensation of Rs.5 lacs from the
respondent. However, she has not adduced any reliable evidence
regarding the injuries, including mental torture and emotional distress,
caused by the acts of the domestic violence committed by the
respondent. It is not proper to award compensation amount on the
basis of vague evidence. Therefore, the applicant is not entitled for
compensation order U/s 22 of the Act, in this proceeding.
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11. The applicant claimed her all belongings, in possession of
the respondent. There is no corroborating evidence on record to show
that the belongings of the applicant as per the list are in possession of
the respondent. It is necessary for the applicant to examine witness and
adduce evidence for establishing the things mentioned in the list were
given to the respondent and those are presently in his possession. Her
oral evidence is not reliable to hold that the things mentioned in the list
are with the respondent. Therefore, the applicant is not entitled for the
relief u/s 19 of the Act to direct the respondent to return those
belongings to her.
12. The applicant claimed relief u/s 21 of the Act for order
directing the respondent to hand over the custody of her children ie.
Ibrahim, Tahniyat and Sania or in the alternative to allow her to meet
them every Saturday and Sunday and also have over night access to
them for half of the vacation period. The applicant being the mother of
Ibrahim, Tahniyat and Sania, is entitled for access of her children. The
applicant is residing temporarily at the house of her parents. In such
circumstances, it is not proper to grant custody of Ibrahim, Tahniyat and
Sania. However, she may be entitled the relief claimed in the
alternative or access. It is proper and just to allow her to meet her
children on every Saturday and Sunday during 6.00 am. To 8.00 pm. at
the house of respondent. 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 :
13. The applicant is an aggrieved party under the Act. She is
entitled for partly reliefs claimed in this application against the
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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. The respondent do pay sum of Rs. 6,000/ (Rs.Six Thousand
only) p.m. to the applicant towards the payment of maintenance
of herself and her son Ishaq from the date of application
i.e.05092011. The maintenance amount paid by the respondent
in view of interim order be adjusted against the due amount.
3. The applicant is at liberty to have an access with her children
Ibrahim, Tahniyat and Sania, on every Saturday and Sunday
during 6.00 am to 8.00 pm at the house of respondent.
4. The other reliefs claimed in this application are rejected.
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 : 08062016 71st Court, Bandra, Mumbai.
ard/
Dictated on : 08062016
Transcribed on : 08062016
Signed on : 08062016
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