Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 C.C. No. 46/DV/2012
Presented on : 16122011
Registered on : 16122011
Decided on : 23112015
Duration : 03Y 11M 07D
Exh. .
IN THE COURT OF METROPOLITAN MAGISTRATE,
71st COURT, BANDRA, MUMBAI.
( Presided over by Vishwas S. Mane )
Mrs.Kusum Rakesh Dube
Age : 43 yrs., Occ. Housewife
R/o.Narvadeshwar Upadhayay Chawl,
Vivekanand Nagar Vakola Bridge,
D'mellow Compound, Dutta Mandir Road,
Santacruz (E), Mumbai – 400 055.
At presently Residing at 107, Building No.43,
1st floor, MHADA, New Link Road,
Kandivali(W), Mumbai – 400 067. …. Applicant
Vs.
1. Mr. Prem Shankar Gangaprasad Mishra
Age : 29 years, Occu. Service
2. Mr. Jaishankar Mishra @ Mintu
Age : 25 years, Occ. Not known
Both R/o.Vivekanand Nagar, Narvadeshwar,
Upadhaya Chawl, Dhobighat, Vakola
Bridge, Dutta Mandir Road, Santacruz(E),
Mumbai – 400 055. …. Respondents
For the Applicant : Adv. Vasant Prabhu
For the Respondent : Adv. Mungekar
J U D G M E N T
( Delivered on 23112015 )
The applicant filed this application under section 12 of the
Protection of Women from Domestic Violence Act, 2005 (hereinafter in
short 'the Act').
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2. It is the case of applicant, in short, that the respondents are
cousins in relations. She has been residing in a room at Narvadeshwar
Upadhayay Chawl, Vivekanand Nagar Vakola Bridge, D'mellow
Compound, Dutta Mandir Road, Santacruz (E), Mumbai – 400 055,
alongwith her children, late father Ram Upadhyay, late brother
Surender, his wife Ranju and cousin sister Meena for last several years.
Her brother Surender had expired on 11.02.2008, leaving behind his
widow Ranju who is residing presently at village Kusaha, Post Dupgarh,
Dist. Gorakhapur. Her father Ramrekha Ramlakhan Upadhyay was
expired on 26.09.2011 at Mumbai. After the death of her father she
started residing at N.R.Upadhaya Chawl, D'mellow Compound, Dutta
Mandir Road, Santacruz (E), Mumbai – 400 055. The respondents
forcibly dispossessed her and her children from said room. They have
abused her in filthy language and seriously attacked her and her
children. They were obstruction them and not giving access in the said
room. They threatened to kill her if she and her children visit the said
room. When, on 5.12.2011 she went to meet her relatives named Algoo
Prasad's wife, the respondent's mother Vimla Prasad Mishra abused and
threatened her. She further states that respondents are claiming the
said room by making false, fabricated and shame documents and trying
to get transfer the said room in the name of respondent No.1, in the
records of Encroachment Department Suburban Collector office,
Mumbai. She had lodged the complaint against the respondents at
Vakola Police station, but no action was taken against them. She has no
other efficacious alternative and speedy remedy than filling the present
application. She prayed the reliefs under section 18, 19, 20 and 21 of
the Act.
3. Respondent No.1 resisted the application by filing affidavit
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of counter reply at Exh.4. He denied the contents of application and
affidavit in reply in toto. He stated that the provisions of domestic
Violence Act, 2005 does not applied on him. The matter relating to the
rights of the parties is pending before the Hon'ble City Civil Court in
S.C.No.2372/2011. The applicant is presently residing with her
husband at their owned house at 107, Building No.43 MHADA, New
Link Road, Kandivali (W), Mumbai. The applicant or any member of
her family never resided in the disputed room premises. The applicant
filed this application with the intention to grab the property and by
using illegal tactics. The application is not maintainable and likely to be
rejected with compensatory costs. Respondent No.2 failed to file his say.
4. The points for determination along with my findings
thereon as under :
Sr.
No.
POINTS FINDINGS
1 Whether the applicant is an aggrieved
party ?
No.
2 Whether she was subjected to domestic
violence ?
No.
3 Whether she was entitled to monetary or
other reliefs as provided under the Act ?
No.
4 What order ? The
application is
rejected.
R E A S O N S
As to point No. 1 & 2 :
5. The applicant deposes that the respondents are cousins in
relation. In cross examination she stated that after marriage she went
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to reside at Vile Parle prior to 20 to 25 years. Presently she is residing
with her husband at Link Road, Malad. The oral evidence of applicant
clearly shows that she is residing with her husband, at her matrimonial
home. The respondents are sons of her paternal sister.
6. Section 2 (a) of 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 2 (f) of Protection of woman from Domestic Violence Act, 2005
defines “domestic relationship”.
Section 2(a) “domestic relationship” means a relationship between
two persons who live or have at any point of time lived together in a
shared household when they are related by consanguinity, marriage or
through a relationship in the nature of marriage, adoption or are family
members living together as a joint family.
7. In the present case in hands, the applicant is/was not living
together as joint family member with the respondents. The contents of
the application and the oral evidence of the applicant clearly shows that
the applicant is not an aggrieved person as per the definition given in
the Act. She was not resided alongwith the respondents in the shared
household, at any point of time. Therefore, she can not become an
aggrieved party under the Act. Considering the case of applicant, the
question of subjecting her to domestic violence does not arise. Hence,
point Nos.1 & 2 are answered in the negative.
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As to point No. 3 :
8. As discussed above the applicant is not aggrieved party
under the Act. Therefore, she is not entitled for the relief under the Act.
If the respondents are in possession of disputed suit premises without
any title, then she has remedy to approach Civil Court for getting the
possession of the suit premises. She can not take the possession of suit
premises by invoking the provisions of the Act. She is not entitled to
claim reliefs available under the Act against the respondents. Hence,
point No.3 is answered in the negative.
As to point No.4 :
9. The applicant is not an aggrieved party under the Act. She
is not entitled any relief claimed in this application against the
respondents under the Act. Therefore, her application is liable to be
rejected. In the result, in answer to point No.4 following order is
passed.
O R D E R
1. The application is rejected.
2. The parties to bear their own costs.
Sd/
( Vishwas S. Mane )
Bandra, Mumbai. Metropolitan Magistrate,
Date : 23112015 71st Court, Bandra, Mumbai.
ard/
Dictated on : 23112015
Transcribed on : 08122015
Signed on : 08122015
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