Final Order 1

Order Details: Copy of Interim Maintenance Order
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IN THE COURT OF METROPOLITAN MAGISTRATE,
32ND COURT, BANDRA, MUMBAI.
C.C. No. 358/N/2018
CNR No.MHMM180054882018
IN CC NO. 46/DV/2014
ORDER BELOW EXH1
1. Perused application, say of the respondent. Heard
advocate for the applicant at length. The respondent and advocate
were found absent. Thus, they could not be heard. Accordingly,
application taken for order on merit.
2. The applicant had preferred an application under section
12 of the Protection of Women from Domestic Violence Act, 2005 (in
short 'the Act') bearing C.C. No. 46/DV/2014. Wherein, an interim
relief was granted in the form of a residence order vide section 19 of
the Act. Thereby, the respondents therein were restrained from
removing and dispossessing the applicant from the shared household
i.e. the matrimonial house. It is not in dispute that the said
matrimonial house /shared household is owned and lying in the
name of mother of the respondent No.1 i.e. present respondent. The
applicant was also awarded interim maintenance @ 6,000/ per
month from the date of application.
3. In this background, the applicant alleged that the
respondent has not paid maintenance and the outstanding at about
Rs.2,46,000/. Even the respondent was send in custody for breach of
said order of maintenance. The appeal of respondent against said
interim order was also dismissed. Even after the interim order, the
respondent committed acts of domestic violence. For which,
prosecution under section 31 of the Act, is also filed. It is also alleged
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that the respondent attempt to kill her and caused grievous injury.
Accordingly, an FIR is also registered bearing No.40/2018 for offence
punishable under section 307, etc. of IPC. The applicant apprehends
danger to her life and the life of her daughters. She has nobody in the
Mumbai. She is under constant fear. Therefore, it is necessary to
allow applicant to reside separately away from the shared household
taking any room on rent by allowing her to give the shared household
on heavy deposit of rupees more than 15 Lacs. Thus, this application.
4. The respondent vide say Exh2 strongly opposed the
application inter ali on the grounds that the application is false,
bogus, bad in law and not tenable. The respondent contended that
the demand of the applicant is illegal. The said property is not
belongs to the respondent, but belongs to his mother. The applicant
has not approached the court with clean hands, but also has the
audacity to mislead the court and to manipulate the definition of
shared household. The interim residence order does not enable the
applicant to give the shared household on heavy deposit. There is no
provision under law to allow such act, which would be bad in law
and would stands arbitrary. The respondent denied the contents of
application and contended that at the most the applicant could have
initiate the proper proceedings for execution of order showing breach
thereof. Thus, the prayer is liable for dismissal. The applicant is only
intended to delay the original proceeding to gain the sympathy of
court with the help of NGO with whom she is working and earning
sufficient livelihood. The FIR lodged by her is also false and thus
Sessions Court has granted immediate bail. The other respondents
are not liable for the order of maintenance. Thus, seeking such relief
against the property of motherinlaw exposes the ulterior motive and
malicious intention of the applicant. The residence order cannot be
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interpreted to use the property for personal monitory gains. This
would be a gross abuse of process of law. Thus, the respondent
sought to dismiss the application.
5. I have heard Adv. Mr. Anand for the applicant.
According to Mr. Anand though the relief claimed by the applicant is
not expressly provided under law, the Act provides sufficient powers
to this court to device its own procedure vide section 28 of the Act.
He thus argued that in the peculiar facts and circumstances of the
case, the applicant may be permitted to give the shared household on
heavy deposit, which is a recent trend in the Mumbai. According to
him, such order would provide sufficient protection and would take
care of the execution of maintenance order at the same time. He thus
prayed to allow the application with any modifications and
conditions as the court deems fit.
6. The following points arises for determinations. The
findings and the reasons quoted below :
i) Whether the application is tenable ? No.
ii) Whether applicant entitled for the relief
claimed ?
No.
iii) What order ? As per final order.
R E A S O N S
7. Section 19 of the Act empowered the court to pass
residence order while disposing of the application under section 12 of
the Act. Such order could be passed interim or exparte vide section
23 of the Act. The order of residence in the form of injunction against
the respondents were passed under section 19 (1)(a). As such, while
passing such order the recourse of Section 19 (1)(b) was not
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considered, being not sought for. Whereby, even the respondents
could have been directed to remove from the said shared household.
Similar or same relief could be granted vide section 19 (1)(c) against
the relatives of respondent. Similar relief could be granted restraining
respondents from alienation or renouncing their rights in the shared
household vide section 19 (d) & (e). Even the respondent could be
directed to secure same level of alternate accommodation for the
aggrieved person vide section 19 (1)(f). Vide section 19 (2) the court
is empowered to impose additional condition or pass any other
directions which may reasonably necessary to protect or to provide
for the safety of the aggrieved person or any child of such aggrieved
person. Even the bonds with surety can be executed vide section
19(3). Such order could be executed through police vide section
19(5). At any time the aggrieved person can approach and took
assistance of the officer incharge of the police station in the
implementation of the protection order vide section 19(7).
8. As such, section 19 of the Act provides full mechanism to
implement and to enforce the residence order in any of the ways. The
applicant could even sought modification in the residence order vide
section 25 of the Act to brought into action this mechanism. Thus, the
applicant instead of seeking modification as provided under section
19 of the Act come with the application to give the shared household
on heavy deposit for the best reasons know to her.
9. Section 28 of the Act devised for expeditious and
summary disposal of the application under section 12 of the Act. This
section empowered court to devise its own procedure to see that the
technicality of procedure in hearing and disposal of the application
could not be a fetter. Such jurisdiction is provided as an exception
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and not a general rule. The general rule to hear and decide the
application is by following procedure as laid down in the Code Of
Criminal Procedure. Thus, the section 28(1) of the Act has provided
the general rule that all the proceedings under the Act shall be
governed by the provisions of the Code of Criminal Procedures.
10. Thus, the said provision could not be understood to
grant or to pass any order which could disturb the substantive rights
of the parties. Said provision is fully procedural and does not deal to
create any substantive rights.
11. The section 36 of the Act has made it clear that the
provisions of this Act shall be in addition to, and not in derogation of
the provisions of any other law, for time being in force. Thus, the Act
does not permit to pass any order which would derogate the
substantive right of the parties, which they have otherwise under the
laws in existence.
12. The relief sought by the applicant, though seems
attractive qua protection of the applicant, but it has inherent
capability to create many substantive right with consequential effects.
Same is prone to misuse. If the applicant is permitted to enter into
any transaction, it involves third party. The principles of laws of
contract and other civil rights would come in picture to execute and
enforce such orders. Its breach would again resulted in other civil and
criminal proceedings. The court cannot devise and monitor such kind
of transactions and cannot enter into the arena to implement and
execute such orders, which is not the intention of the proceedings of
the Domestic Violence Act.
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13. As already observed above, the relief sought is perfectly
not tenable, when already the mechanism is provided to implement
and enforce the residence order vide section 19 of the Act. Thus, the
applicant could very well resort to seek modification, if required.
Despite making aware of said mechanism, the learned counsel for
applicant press on to pass specific reliefs sought. But, the reasons
mentioned above does not permeate this court to devise such order.
Therefore, the applicant is not entitled for the same and thus, I
recorded my findings and pass following order :
ORDER
The application stands rejected.
Sd/
Date: 13.03.2019 (Sudhir N. Shinde),
Ssl. Metropolitan Magistrate, 32nd Court,
Bandra, Mumbai.
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