Order 6

Order Details: Copy of Interim Maintenance Order
Pdf Text: C. C. No. 1200191 DV 2021 Sabina Vs Feroz & Ors.
CNR-MHMM18-005654-2021
FURTHER ORDER BELOW EXH.3
1. Perused record, heard Ld. Advocate Shri. Mathew Nedumpara, for
the applicant. Heard Ld. Advocate Mr. Mazgaowala, for the Respondent
Nos.1, 2, 4, 5, 7 and 8. Other respondents yet to be served and as such
majority of them are absent. So also the interim relief is claimed only
against Respondent Nos.1 and 2.
2. The facts and circumstances occurred in the present matter are
already discussed in previous order leading to rejection of this application
by this court on 06.12.2021, for the reasons mentioned in that order.
Feeling aggrieved by the said order applicant approached High Court and
filed writ petition, bearing Writ Petition (L) No.990 of 2012. The said writ
petition came before concerned bench of High Court on 21.01.2022, and
Hon'ble Judges, though can direct this court to decide the application
within particular time frame, rather gracefully requested this court to
dispose off this application on merits with a reasoned order on or before
28.02.2022, by passing following order -
“5. Resultantly, although the orders of 6th December 2021 and 14th
December 2021 are quashed and set aside, certain directions are necessary.
The application by the Writ Petitioner, numbered as Exhibit “3”, is restored
to file. The Presiding Officer will list the matter before him on 27th January
2022, on production of an authenticated copy of this order. He will then issue
directions including filing of Affidavits of Disclosure of Assets and Liabilities
as contemplated in Rajnesh (supra), filing of replies by all Respondents, a
rejoinder, if any, and scheduling a final disposal of the application strictly on
merits and, if requested by the both sides, allowing sufficient time to file brief
concise Written Submissions not exceeding 10 pages each. These Written
Submissions may be permitted to be filed in advance (i.e., not after the
arguments).
6. Neither party is permitted to seek an adjournment before the Presiding
Officer once the schedule is fixed.
7. We request the Presiding Officer to dispose of the application on merits
with a reasoned order on or before 28th February 2022. The learned Judge
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is required to render a decision on merits entirely uninfluenced by the
impugned orders.”
3. In view of request made by Hon'ble Judges the following time
schedule was fixed for disposal of the application for interim reliefs, on or
before 28.02.2022 -
Sr. No. Date Compliance to be done Name of parties
1. 31.01.2022 Filing of reply By Respondents,
(Except Respo. No.1)
2. 03.02.2022 Filing of affidavit of Assets and
Liabilities
By the applicant
3. 05.02.2022 Filing of affidavit of Assets and
Liabilities
By the respondents
4. 09.02.2022 Filing of rejoinders, if any. By any of the parties
willing to do so.
5. 11.02.2022 Written submissions on
application for interim reliefs (not
exceeding 10 pages)
By both the parties
7. 15.02.2022 Argument on application for
interim reliefs
By the applicant
8. 17.02.2022 Argument on application for
interim reliefs
By the respondents
4. In response to the above time schedule fixed respondents filed their
say, Exhs.20 to 23. The applicant filed her Affidavit of Assets and
Liabilities, Exh.19. None of the respondents filed such affidavit of Assets
and Liabilities. They requested for additional time to file such affidavit
repeatedly but their prayer for such time is rejected in view of above
schedule fixed.
5. Heard both the sides at length. The Ld. Advocate for the applicant
made submissions at length. The summary of his submissions is that
applicant is a wife of late Yusuf Lakadawala. During his life time she was
looking after all his business. He also relied upon and drawn attention
towards various documents where late Mr. Lakadawala, appointed her to
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look after his business delegating the applicant such power. After his
death in pursuance of conspiracy falls offence was registered and
applicant was removed from the shared household. He further drawn
attention towards the First Information Report and subsequent
proceedings leading to filing of proceedings under Section 482 of Code of
Criminal Procedure before High Court and directions issued therein. Ld.
Advocate during arguments also relied provisions of D.V. Act and its
purpose. He submitted that the applicant is entitled to every remedy
including right of residence in shared household, maintenance and other
monetary reliefs.
6. Ld. Advocate for the Respondent Nos.1, 2, 4, 5, 7 and 8, also made
submissions at length. Relying on their say and documents filed on record
he submitted that there committed no acts of domestic violence. Applicant
is having all means of income. She is residing separately in another house
therefore, no case of domestic violence in a shared household made out.
She is not connected with the house mentioned in her address clause. As
such applicant is not entitled to any relief. He filed on record a bunch of
documents and submitted that the income of the respondents is not
enough to award maintenance.
7. On considering rival pleadings and these submissions following
points arrived for my determination. I recorded my findings on each of
them, as follows, for the reasons discussed below -
POINTS FINDINGS
1. Does from the material on record applicant succeeded
in making out prima facie case of commission of
domestic violence against her by the respondent ? ..In the affirmative.
2. Whether applicant is entitled for the interim reliefs, as
prayed for ? ..Partly entitled.
3. What order ? ..Appln. is partly allowed
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R E A S O N S
8. The adverse contentions made by the parties reflect that respondent
denied that applicant is residing in a house situated at Flat No.14/15,
Sunflower Building, 27-B, Carter Road, Bandra (W), Mumbai – 400 050
and there caused any domestic violence in it against the applicant as
alleged by her.
9. For this purpose if we considered the various documents filed on
record particularly the copy of First Information Report lodged at the
instance of the respondents it clearly reflects that applicant was residing at
the said house, though certain other documents produced on record
showing otherwise. But the copy of First Information Report and other
documents came to be existence at the instance of respondent themselves
on the basis of their allegations supports the version of applicant about
her place of residence which is Flat No.14/15, Sunflower Building, 27-B,
Carter Road, Bandra (W), Mumbai – 400 050.
10. The respondents tried to show that applicant is residing at some
other place with her mother and sister. In support of it they filed on record
certain documents, particularly gift deed of late Mr. Yusuf Lakadawala,
executed in favour of applicant, wherein it is mentioned that Flat No.402,
at Grace Heritage Building, standing in the name of Prathamesh
Developers is given to her. The respondents, in this regard, in their reply
submitted that it is altogether different aspect based on different
transaction on the basis of which the said property is in possession of
applicant's sister and mother. Applicant has no concern with it. If we
considered this documentary evidence produced by respondents against
the fact of admission on their part in the First Information Report and
other documents stating that applicant is residing at Sunflower Building,
it can be said that applicant is sharing house with the respondents there,
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though the said flat at Grace Heritage, is given to her it is not now in her
possession.
11. About the acts of domestic violence also both the parties averred
adverse contentions. These adverse contentions however reflect that there
were disputes going on amongst both the parties. On account of such
dispute the offence against the applicant was registered. It resulted in
leaving of or removal of the applicant from Flat No.14/15, Sunflower
Building, 27-B, Carter Road, Bandra (W), Mumbai – 400 050. The
respondents not allowing her to enter into said house. Further the fact that
no arrangement for her survival is made by them, is also almost admitted.
In such a situation it can be said that respondents caused acts of emotional
and economic violence and to certain extent physical violence as well, for
the limited purpose of this application. Therefore, I recorded my finding
on Point No.1, in the affirmative.
12. The relief clause reflects that applicant claimed same reliefs as
mentioned in the main application i.e. all the remedies provided in
Section 17 to 23 of the D.V. Act. She also prayed for interim
compensation of Rs.50 lacs.
13. The reply of the respondents, particularly reply of Respondent
Nos.1 and 2, shows that they are enjoying the resources from their
husband, late Mr. Yusuf Lakadawala, who is also husband of applicant. It
is also not in dispute that those resources are huge and applicant is totally
dependent on them for her survival. But, as observed above now she was
ousted from the common house and have no means either to live or earn
livelihood by meeting day to day expenses.
14. Now the question arises what reliefs can be granted to the
applicant? Her affidavit of Assets and Liabilities reflects that she is in
need of various expenses, at presently she has no income. Though
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applicant is income tax payer she is not in a position to say anything
about it as all the documents are in custody of Chartered Accountant Mr.
Aktar Peerbhoy, who is also arrayed as respondent, in the present petition.
She was receiving various amounts in the form of rent and interest, but
after the arrest of her husband said income was stopped. Now she receives
very meager amount in the form of interest. She mentioned the list of
various valuable articles and contended that those were kept in the house
at Flat No.14/15, Sunflower Building, Bandra, Mumbai, but now in
custody of the respondents. She owns certain shares in the companies
owned by her husband. She also submitted that she can file further details
if documents are furnished by Respondent No.8, Mr. Aktar Peerbhoy,
Chartered Accountant.
15. The respondents, particularly Respondent Nos.1 and 2, Mr. Feroze
Y. Lakadawala and Noorie Feroze Lakadawala, respectively, not filed
affidavit of Assets and Liabilities. They filed on record a bunch of
documents running in 1000 pages containing income tax returns, bank
account details and other documents. They also filed on record addressed
by them to a third person about a payment of rent of a property. These
documents clearly reflect that they are having various sources of income
and earning it continuously. The income generated from these resources is
also very high. Further ample opportunities also granted to them to file
their affidavit of Assets and Liabilities but they avoided to do so. This fact
goes against them and it can be inferred that they are having ample
resources and earning good income from them.
16. The leaving of house by applicant, her non-earning and the facts
came on record relating to income of the respondents leads to inference
that applicant is entitled to the interim relief of residence and
maintenance.
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17. So far as other reliefs claimed by her are concerned, those can not
be awarded at this juncture as those are mainly in the form of final reliefs
which requires additional evidence and can not be granted at this stage
without scrutinizing the matter on merit. Ld. Advocate in this regard
relied on Section 26 of Protection of Women from Domestic Violence
Act, wherein it is provided that relief available under the provisions of
this Act, can be claimed in addition to and along with any other relief
available in other suits and legal proceedings. Such availability of reliefs
is not bar to grant reliefs under D.V. Act. But this provision needs to be
construed as final relief decided on merits and not interim relief, at least
in this particular matter considering its peculiarity involving huge stakes
and various properties. Therefore, other reliefs can not be granted except
relief of shared household and interim maintenance.
18. Regarding shared household also admittedly dispute is going on
there. Parties are at cross swords. The record shows certain untoward
incidences already occurred causing danger to the safety of both the
parties. Applicant repeatedly mentioned before this court also that there is
danger to her life. In such a situation if she is ordered to enter in to the
disputed house situated at Flat No.14/15, Sunflower Building, Bandra
(W), Mumbai, there is every possibility of danger to her life or limb.
Certain alternative arrangement is necessary. The section 19(f) of the D.V.
Act provides that in the application under Section 12(1) of it the
respondents can be directed by the court to provide same level of alternate
accommodation for the aggrieved person as enjoyed by her in a shared
household. This provision is in aid of the applicant and can be utilized to
meet this peculiar situation.
19. It is necessary to bear in mind that the applicant claimed that
certain valuables were kept in the said household by her before leaving it.
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Respondents grabbed them. It is submitted that her entry to secure those
articles is also necessary. The respondents denied this fact. They drawn
attention towards variation about those articles, mentioned in the main
application and the affidavit of Assets and Liabilities. Thus, there is doubt
about the exact value of those articles and it can be ascertained only after
full fledged trial. In this regard the apprehension of the applicant can be
addressed by obtaining certain security from the respondents in the form
of bank guarantee, till the disposal of main application.
20. About the quantum of interim maintenance also it is necessary to
bear in mind the status of both the parties. The parties belonged to elite
class leading a costly lifestyle. The interim maintenance must be in tune
with it. While granting it the resources of applicant can also be
considered.
21. Accordingly, in view of above observations I recorded my finding
on Point No.2, as partly proved and I am of the opinion that following
order will serve the cause of justice. Hence, order -
ORDER
a. The application is partly allowed.
b. The Respondent No.1, Mr. Feroze Y. Lakadawala and Respondent
No.2, Noorie Feroze Lakadawala, are directed to pay the amount of
Rs.1,25,000/- (Rupees One Lac Twenty Five Thousand Only) per month
towards the interim maintenance and amount of Rs.75,000/- (Rupees
Seventy Five Thousand Only) per month towards house rent, i.e. total
amount of Rs.2,00,000/- (Rupees Two Lacs only) per month to Applicant
Sabina Yusuf Lakadawala, from the month of filing of this application i.e.
October 2021, as an interim maintenance till the disposal of the main
application.
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c. The Respondent No.1, Mr. Feroze Y. Lakadawala and Respondent
No.2, Noorie Feroze Lakadawala, shall also furnish security of
Rs.10,00,000/- (Rupees Ten Lacs only) in the form of bank guarantee
towards the valuable of the applicant to this court, till the disposal of main
application within two months from today. If allegations in respect of
valuables proved after trial the bank guarantee is ordered to be encashed
in favour of applicant.
d. The prayer for other interim reliefs is rejected.
e. The copy of this order shall be given free of costs to both the
parties.
f. If Respondent No.1, Mr. Feroze Y. Lakadawala and Respondent
No.2, Noorie Feroze Lakadawala, failed to comply the above order the
applicant is directed to file separate application bearing separate number
for its enforcement.
MUMBAI (KOMALSING RAJPUT)
DATE – 23.02.2022 M.M., 12TH COURT, BANDRA, MUMBAI
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