Final Order 1

Order Details: Copy of Judgment
Pdf Text: JudgmentC.C. No. 50/DV/2018 ..1.. Dated : 22.01.2019
Filed on : 26.03.2018
Registered on : 26.03.2018
Decided on : 22.01.2019
Duration : 0 Y., 9 M., 26 D.
Exh. : 19
IN THE COURT OF THE METROPOLITAN MAGISTRATE,
32ND COURT, BANDRA, MUMBAI.
(PRESIDED OVER BY MR SUDHIR N. SHINDE)
C. C. No. 50/DV/2018
CNR No.MHMM180043632018
Mrs. Abida Mahboob Khan,
Age : 38 Yrs; Occ Housewife,
R/o. Room No. 19 and 20 (old room No. 12),
situated at Haji Jamal Building No. C21,
Naupada, Bandra (E), Mumbai
…... Applicant
V/s
1. Naeem Ahmed Sheikh s/o. Naushad
Sheikh
Age : 60 Yrs; Occ Business,
2. Mrs. Hafiza Naeem Sheikh
Age : 55 Yrs; Occ Housewife,
Both are residing at Terrace, Bwing, Sukh
Sagar Cooperative Housing Society, Deen
Dayal Nagar, Vasai (W), Dist. Palghar,
401202
3. Mrs. Hamida Abdul Ansari,
Age : 55 Yrs; Occ Housewife,
R/o. Tata Colony Bandra Plot, Mumtaj
Bangri Wali Gali, Bharat Nagar,
Bandra (E), Mumbai
4. Smt. Kauser Nazir Ahmed Sheikh
Age : 70 Yrs; Occ Housewife,
R/o. Latif Patrewali Chawl, Jhande Wali Gali,
Behrampada, Bandra (E), Mumbai
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5. Nadeem Nazir Ahmed Sheikh
Age : 30 Yrs; Occ Business,
R/o. Latif Patrewali Chawl, Jhande Wali Gali,
Behrampada, Bandra (E), Mumbai
6. Mr. Javed Salim Sheikh @ Javed Cable
Age : 35 Yrs;
R/o. Shashtri Nagar, Plot No.2, near bus
depot, Bandra (W), Mumbai …... Respondents
Appearance: Advocate A.K. Singh for the Applicant.
Respondent Exparte.
Application under section 12 of the Protection of Women
from the Domestic Violence Act, 2005
JUDGMENT
(Delivered on 22.01.2019 )
1. By this application, the applicant is seeking grant of various
reliefs comprising maintenance, protection, residence, monetary expenses
vide section 12 r/w Sec. 18, 19, 22 of Protection of Womens from
Domestic Violence Act, 2005 (in short 'the Act').
2. Brief facts illustrated in the application can be stated as
under :
The case of applicant is that the respondent No.1 & 2 are
brother and sisterinlaw. Respondent No.3, is her sister. Respondent No.4
& 5 are sisterinlaw and nephew respectively. Respondent No.6, is also
nephew. It is contended that the deceased father and mother of applicant
were residing at Room No.19 and 20 (old Room No.12), situated at Haji
Jamal Building C21, Naupada, Bandra (E), Mumbai, on tenancy basis.
Father of applicant died on 03.08.1989 and mother died on 15.06.2017.
According to applicant, she and one of her sisters viz. Rashida are residing
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in the above tenanted house continuously after the death of father and
mother. It is alleged that before death of mother, she executed a will and
gift deed in favour of applicant and her sister Rashida. It is also alleged
that after death of her father, the respondents abandoned their mother
and settled their separate residence from the mother. The applicant and
her sister Rashida have taken care of her mother and maintained her till
death. The applicant in above background alleged that all the respondents
have failed to compel the mother in their evil desire to sell the above said
tenament and divide the sale proceed as the said tenament premises has
been gifted to applicant and her sisters. The respondents are continuously
committed violence physically and mentally by giving threats and abuses
which resulted in filing NC complaints. Thus, it is alleged that the
respondents regularly causing violence to meet their unlawful demands
and thus this application is filed seeking relief under section 18, 19 and
22 of the Act.
3. Respondents have been served with the notice. They choose
not to appear. Thus, matter is directed to be heard exparte.
4. Applicant filed an affidavit of examinationinchief Exh5 in
support of the application and closed evidence. She relied upon various
documents below Exh7 to Exh18.
5. I have heard advocate for the applicant. Having considered
the facts, submissions, documents on record following points emerges for
determination.
Sr. No. Points Findings
1 Whether applicant suffered domestic violence as
alleged ?
No
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2 Whether the applicant is entitled for the reliefs
claimed ?
No
3 What order ? As per final
order.
R E A S O N S
As to point 1 and 2 :
6. Section 2 (f) of the Act defines domestic relationship, section
2(s) of the Act defines shared household and section 2 (a) of the act
defines aggrieved person, as follows :
2 (f) “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;
2(s) “shared household” means a household where the
person aggrieved lives or at any stage has lived in a
domestic relationship either singly or along with the
respondent and includes such a household whether
owned or tenanted either jointly by the aggrieved
person and the respondent, or owned or tenanted by
either of them in respect of which either the
aggrieved person or the respondent or both jointly or
singly have any right, title, interest or equity and
includes such a household which may belong to the
joint family of which the respondent is a member,
irrespective of whether the respondent or the
aggrieved person has any right, title or interest in the
shared household.
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.
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7. The applicant claimed to be an aggrieved persons. In order to
claim that applicant is aggrieved persons, she should prove that she were
in domestic relationship with the respondents and should have been
subjected to any act of domestic violence by the respondents. The
domestic relationship means when the two persons who live or have, at
any point of time, lived together in a shared household. The shared
household includes where the person aggrieved lives or at any stage has
lived in a domestic relationship with the respondents. The household may
include owned or tenanted premises.
8. If the facts alleged in the application, accepted as it is, it
discerns the facts that the father of applicant have been died on
03.08.1989 and the respondents since the death of father started residing
separately and settled their residence abandoning mother. As such, since
the death of their father, there exists no domestic relationship in between
the applicant and respondents in the alleged shared household. It is an
allegation that after the death of father only in the year 2009, the
respondents started quarreling and committed so called act of domestic
violence till filing of application.
9. In these circumstances, the gift deed or the will deed of
deceased mother of applicant appears to have no relevance. There exists
no domestic relationship since 1989. No act of domestic violence alleged
at any point of time before the death of father. In these circumstances,
there appears no shared household after 1989. Thus, there is no question
of any domestic violence, as the applicant were never lived in domestic
relationship with the respondents. The dispute is purely pertinent to the
property i.e. tenanted premises. The alleged acts of respondents at the
most could be said to be the disturbance to possession of applicant.
Therefore, the appropriate remedy for the applicant is to file civil suit.
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Thus, the application under the provisions of the Act is absolutely not
maintainable for want of domestic violence qua domestic relationship.
Consequently, there is no domestic violence as alleged. Thus, I recorded
findings and pass following order :
ORDER
The application stands dismissed.
Date : 22.01.2019
Place : Mumbai
Sd/
(Sudhir N. Shinde)
Metropolitan Magistrate, 32nd Court,
Bandra, Mumbai.
Dictated on : 22.01.2019
Typed on : 22.01.2019
Signed on : 22.01.2019
ssl.
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