Final Order 1

Order Details: Copy of Judgment
Pdf Text: … 1 ... C.C.NO.13/DV/2014
Presented on : 05022014
Registered on : 05022014
Decided on : 01032016
Duration : 02Y 00M 26D
IN THE COURT OF METROPOLITAN MAGISTRATE,
71st COURT, BANDRA, MUMBAI.
( Presided over by Vishwas S. Mane )
C.C.NO.13/DV/2014
Exh._____.
Smt. Shabana Mistry, Age : 33 years,
R/o.Mohd. Mistry Chawl, Masjid Rd., Golibar,
Santacruz(E), Mumbai. … Applicant.
Vs.
1) Nadeem Abdul Rashid Mistry, Age :35 years,
2)Mehrunissa Abdul Rashid Mistry, Age:60 years
both R/o.1st floor, Hoor Manzil,
Flat No.105/106, Samuel Streat, Cross Lane,
Khadak, Mumbai … Respondents.
For the Applicant : Adv. Afrin Khan
For the Respondents : Adv.Noorseema M U Baig
J U D G M E N T
( Delivered on 10032016 )
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 Nadim Abdul (husband) and
Meharunissa Abdul (motherinlaw) with prayer for relief u/s 18, 19,
20, 21 & 22 of the Act.
2. It is the case of applicant, in short, that the parents of
applicant gave her 8 tolas of gold and other expensive gifts. She gave
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her gold and silver jewelery to motherinlaw, which was later sold by
the respondents. She came to know that respondent No.1 got married
before and also had divorced his previous wife from the previous
marriage. The applicant feels cheated as she was not informed before
the marriage about the previous marriage. Respondent No.2, taunting
her for bringing less jewelery. She came to know that respondent No.1
is a ruffian by nature. When she asked him about it, he started abusing
and beating her. Respondent No.1 would get earnings and rents from
his houses, agricultural land. Currently, he earns Rs.1 to 1.5 lac per
month and rent of Rs.15,000/ per month of each house and two shops.
Respondent No.2 was always instigating respondent No.1 about her,
which resulted abusing and hating her. In the month of Oct. 2005,
respondent No.1 told her that he did not like her and married with her
because of parental pressure in anticipation of good jewelery. She
delivered baby girl on 16.06.2006, and the medical expenses of the
delivery were born by her family. On 26.11.2006, respondent No.1 and
his relatives came to her natal home and demanded money.
Respondent No.1 occasionally visited to her natal home and harassed
her and her family members. Respondent No.1 tried to snatch her
minor daughter. He threatened to kill her and ran away with minor
daughter with sole intention to harass her. Respondent No.1 has
neglected to her and her minor daughter. He being able bodied person
and a husband is duty bound to maintain her and her minor daughter.
She claimed protection order u/s 18 of the Act prohibiting the
respondents from committing any act of domestic violence and
contacting her minor daughter, order u/s 19 of the Act to give her a
lump sum amount of Rs.50 lacs to purchase an accommodation or to
pay an amount of Rs.1 lacs. for deposit and Rs.10,000/ per month as
monthly rent, order u/s 20 of the Act to pay Rs.25,000/ per month as a
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maintenance to her and her minor daughter, order u/s 19 of the Act to
return of her belongings, order u/s 21 of the Act restraining the
respondent from taking away the daughter from her custody and order
u/s 22 of the Act, to pay compensation of Rs.20 lacs.
3. The respondents resisted the application by filing reply at
Exh.4. They stated that father of respondent No.1 is a carpenter. They
admitted the relations with the applicant, they stated that the applicant
wants to live a free and a life without responsibility. She filed this
application to extract moneys for herself to enjoy carefree life. They
stated that in collusion with the members of her family, applicant filed
the case to teach a lesson to respondents. They stated that they never
demanded dowry, the applicant left the matrimonial home at the time
delivery and not returned. She has taken the ornaments, cloths etc. at
the time of leaving for delivery. They denied the allegations made
against them about harassment and demand of money. The applicant
has heard stories from somewhere pertaining to the properties of the
respondents and since then demanding things which have been beyond
the capacity of the respondents. The applicant is M.Com. and having
independent source of income. She is presently employed and earning
sufficiently to support herself and her child. The gifts given at the time
of marriage are still packed and untouched by them. They have no
objection to returning the same to the applicant. They pray to dismiss
the application.
4. The applicant adduced her evidence on affidavit at Exh.5.
Respondents remained absent and failed to adduce their evidence.
5. Final argument was heard on behalf of the applicant and
perused the record.
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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 Nos. 1 & 2 :
7. 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.
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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
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.
8. The applicant deposes that when she asked about the
previous marriage of respondent No.1, the respondents abused her in
filthy and asked her to keep quiet. Respondent No.2, started taunting
her for bringing less jewelery from her maternal home. She abused her
by saying that she was nothing less than garbage. When she asked
respondent No.1, about the complainants filed against him in Pydhonie
and Dongari Police station, he started abusing and beating her. The
oral evidence of the applicant remained unchallanged. There is no
reason to disbelieve the oral evidence of affidavit. 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 :
9. The applicant claimed protection order u/s 18 of the Act,
directing the respondents from committing any act of domestic violence
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on her and on her minor daughter and restraining them from
communicating or any way contacting her and minor daughter. 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 restraining the respondents from committing any act of
domestic violence. Also it is necessary to restrain the respondents from
communicating or in any way, contacting her. However, the respondent
No.1 being father of minor daughter, has right to meet his daughter by
taking order from proper court. The applicant is not entitled for order
restraining the respondent No.1 from contacting his minor daughter.
10. The applicant further sought a lumpsum amount of Rs.50
lacs to procure accommodation for herself and till the time an amount
of Rs.1 lac, as a deposit and an amount of Rs.10,000/ as monthly rent.
There is no evidence on record except the affidavit of the applicant to
show that the living standard of the applicant and respondent No.1.
The standard of accommodation shared by the applicant with
respondent No.1 can not be ascertained on the basis of only affidavit of
the applicant. The applicant has not adduced any documentary
evidence about the shared house and other properties of the
respondents. Therefore, the applicant is not entitled for lumpsum
amount of Rs.50 lacs to procure accommodation for herself. The
applicant claimed rent of Rs.10,000/ per month. The applicant also
not adduced any reliable evidence regarding the house taken by her on
rent or the probable rent of the house in which, she wants to reside.
Therefore, an amount of Rs.10,000/ can not be granted for monthly
rent on the basis of only affidavit of the applicant. The applicant is not
residing in the said household or in the house provided by the
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respondents. Considering the prevailing conditions and living standard
of the parties, it is proper to award Rs.3,000/ as a monthly rent to the
applicant from the date of the application.
11. The applicant claimed maintenance of Rs.25,000/ per
month for herself and her minor daughter for their daily expenses and
household expenses. She deposed that respondent No.1 had business of
carpentry and plastic, which he gave to run to some other person and
out of the same earns Rs.5060 thousand. He currently earns Rs.1 lacs
to 1.5 lacs. He has four houses out of which two are given on rent @
Rs.15,000/ per month for each house and two shops out of which one
is given on the rent of Rs.18,000/. In support of her oral evidence
regarding the income of respondent No.1 and his property and business,
the applicant has not adduced any reliable documents on the record.
The income of respondent No.1 can not be held Rs.1 – 1.5 lacs and
Rs.33,000/ from the rent of houses and shops, on the basis of only
affidavit of the applicant. It the income of respondent No.1 is really as
per the contention of the applicant, then she can definitely obtained the
documentary evidence i.e. income tax returned filed by the respondent
to show his income. But, no such evidence is brought on record.
Though the respondents failed to adduce their evidence, they denied
the income as mentioned in the application by their reply vide Exh.4.
The best evidence about the income of respondent No.1 is with him.
But he failed to adduce it before the court and concealed his real
income. Respondent No.1 is able bodied person and can easily earn in
Mumbai City, the sum of more than Rs.30,000/. It is the legal duty of
respondent No.1, being the husband to maintain the applicant and her
minor daughter. Considering the present prevailing condition, the
applicant is entitled for maintenance of Rs. 7,000/ p.m. for herself and
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Rs.3,000/ for her minor daughter from the date of application i.e.
05.02.2014. Considering all these facts, it is clear that the applicant is
entitled for partly reliefs claimed in the application.
12. The applicant also sought order u/s 19(8) of the Act,
directing the respondents to return her belongings that to her as per the
list. The respondents in their reply stated that the gifts given at the
time of marriage are still packed and untouched by them. They have no
objection for returning the same to the applicant. The applicant in her
evidence deposed that she crave leave to produce the list of belongings
which she received at the time of her marriage. Exh.'A' is a list of the
said belongings. There is photo copy of list alogwith Exh.6 containing
20 articles. Considering the reply of the respondents, it is proper to
direct the respondents to return the belongings back to the applicant,
which are admitted by them.
13. The applicant further sought order u/s 21 of the Act,
restraining respondents from taking away daughter from her custody.
The applicant is entitled to the custody of her minor daughter being the
natural mother. Though, respondent No.1 is father of minor daughter,
he has not right to take away minor daughter from the custody of the
mother i.e. the applicant, without due process of law. Therefore, the
applicant is entitled for order u/s 21 of the Act, restraining respondents
from taking away, minor daughter from the custody of the applicant,
without due process of law.
14. The applicant claimed compensation of Rs.20 lacs u/s 22 of
the Act. She deposed that the respondent's act of domestic violence
caused her sever physical damage, mental trauma and emotional
distress and stated that she is liable to be compensated for the same.
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The oral evidence of the applicant though not challenged by the
respondents, the burden is on the applicant to prove her case. There is
no documentary evidence regarding physical damage caused to the
applicant. Considering the facts of the case, it appears that the
aggrieved person has faced emotional distress and mental trauma, due
to the acts of respondent No.1. Hence, he is directed to pay sum of
Rs.10,000/ as one time compensation to the applicant u/s 22 of the
Act. 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 :
15. 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. It is necessary to impose the cost of this litigation to the
tune of Rs.1,000/, 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. The respondents are hereby restrained from committing
any act of domestic violence and from communicating or in
any way, contacting her.
3. The respondents are hereby restrained from taking away,
minor daughter from the custody of the applicant, without
due process of law.
4. Respondent No. 1 do pay maintenance of Rs. 7,000/
(Rs.Seven Thousand only) per month to the applicant and
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Rs.3,000/ (Rs. Three Thousand only) per month to the
minor daughter, total Rs.10,000/(Rs.Ten Thousand only)
per month, from date of application i.e.05022014.
5. Respondent No.1 do pay of Rs.3,000/ (Rs.Three Thousand
only) as monthly rent, from date of application
i.e.05022014 to the applicant.
6. Respondent No. 1 do pay sum of Rs.10,000/(Rs.Ten
Thousand only) as one time compensation to the applicant.
7. The respondents directed to return the belongings of the
applicant to her which are admitted by them.
8. The other reliefs claimed in this application are rejected.
9. Respondent No.1 do pay Rs.1,000/ (Rs.One Thousand
only) to the applicant, towards the cost of this application.
10. 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 : 10032016 71st Court, Bandra, Mumbai.
ard/
Dictated on : 10032016
Transcribed on : 10032016
Signed on : 10032016
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