Final Order 1

Order Details: Copy of Judgment
Pdf Text: … 1 … C.C.NO.11/DV/2013
Presented on : 01042013
Registered on : 01042013
Decided on : 05052016
Duration : 03Y 01M 04D
IN THE COURT OF METROPOLITAN MAGISTRATE,
71st COURT, BANDRA, MUMBAI.
( Presided over by Vishwas S. Mane )
C.C.NO.11/DV/2013
Exh.15.
Smt.Sulochana Bhoja Kulal
Age : 42 years,
R/o. 114/B.A. Room4, Robert Compound,
Kalina, Kolivari Village, Santacruz(E),
Mumbai. … Applicant.
Vs.
Bhoja Narasu Kulal
Age : Adult, R/A, Pusparaj Hotel,
Kalina Market, Church Road, Santacruz(E),
Mumbai. … Respondent.
For the Applicant : Adv. C.V. Shetty
For the Respondent : Adv. Shanbag
J U D G M E N T
( Delivered on 05052016 )
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 the respondent Bhoja Narsu Kulal (husband)
with prayer for relief U/s. 18, 19 and 20 of the Act.
2. It is the case of applicant, in short, that on 23.02.2009, at
Kalina the respondent caused muffled injury to the applicant and her
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daughter and torn the cloths. He abused and insulted her. The
respondent is not giving the school expenses of her daughter and not
accepting his liability. She claimed protection order U/s 18 of the Act,
order U/s 19 of the Act, monetary reliefs of Rs.10,000/ per month,
U/s 20 of the Act.
3. The respondent resisted the application by filing reply at
Exh.2. He stated that there is no cause of action to file this application
against him as there is no domestic relations or matrimonial relations
since last 4 years, because of cruelties, extra matrimonial relations of
the applicant. The applicant has totally occupied the room premises
standing in his name and he was driven out after brutal assault by the
applicant and her goons. He suffered great mental agony and
harassment from the applicant in the form of adultery. The applicant
has destroyed the matrimonial relation by her own act of adultery since
more than five years. He has submitted written complaint to Vakola
police station on 30.11.2008. He was debarred entry in the rental room
premises presently occupied by the applicant. He is ready with terms
and conditions not to harass and assault him and there should be no
concern with other person by the applicant. He is ready and willing to
live matrimonial life with her with peace and love. He states that he is
having income of Rs.4,000/ per month and has to maintain himself, to
pay rental charges, to pay food and clothes and to pay medical charges
of medical treatment and medicines for his bad health, as he suffering
from various types of physical problems. The applicant is working at
Ramdas Kamat Jwellers at Ghatkopar and getting salary of Rs.10,000/.
He denied all the allegations made against him. He states to dismiss the
application.
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4. The applicant adduced her evidence on affidavit at Exh.6.
She examined (AW2) Apeksha at Exh.9. The respondent had adduced
his evidence vide Exh.11. Both the parties adduced documentary
evidence as per record and filed notes of written argument at Exh.13
and 14.
5. Final arguments were heard on behalf of parties and record
perused.
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:
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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.
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
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(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
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
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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
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. In the present case in hand it is the case of respondent that
the applicant started to live in adultery with one Ravi Naik in August,
2008 and she eloped with him for three times. The applicant had
thrown him out of his own house in the year 2008 and filed present
application in the year 2013, after a gap of more than four years. Her
application is not maintainable. The learned advocate for the
respondent relied on Sejal Ved Vs. The State of Maharashtra, 2014
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ALL MR(Cri.)636 , in which it is held that, “A wife who has returned
from USA and consequently from the domestic relationship and lived in
India for one year can not file an application with regard to that
relationship after such time. Such wife can not be taken to be in any
domestic relationship”.
9. The respondent produced documentary evidence about the
applications given the police in the year 2008 as his wife was run away
from him home. The documentary evidence adduced by the respondent
is not sufficient to establish that, the applicant is living in adultery.
The daughters of respondent are living with the applicant. There is
nothing on record to show that the respondent had taken care of them
and maintained them. The act of making allegations of adultery by the
respondent against the applicant is the evidence of domestic violence on
his part as per section 3 of the Act. The oral evidence of the applicant
and her daughter, 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 :
10. The applicant claimed protection order U/s 18 of the Act,
prohibiting the respondent from entering in the school premises of her
daughter. The oral and documentary evidence adduced by the
applicant clearly shows that she was subjected to the domestic violence
by the respondent. Therefore, it is necessary to provide protection
order in favour of the applicant and prohibiting the respondent from
entering in the school premises of her daughter.
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11. The applicant further sought order U/s 19 of the Act,
restraining the respondent from alienating the shared household and
throwing her out from it. But the evidence on record shows that the
respondent is not living with the applicant in the shared household.
Therefore, there is no question of throwing out to the applicant from it.
Also it is admitted fact that the shared household is not owned by the
respondent. Therefore, there is no question of alienating it by the
respondent. Hence, the applicant is not entitled for the relief u/sec.19
of the Act.
12. The applicant sought further relief of maintenance of
Rs.10,000/ per month towards food, clothes, medicines. The applicant
states that the respondent is running a pan bidi shop near Pusparaj
Hotel, Kalina, Santacruz (E) and earns about Rs.20,000/ per month.
The respondent denied that he earns Rs.20,000/ per month. He states
in his affidavit of evidence that he could not run his pan bidi shop
because of varicose disease. At the time of crossexamination of
Apeksha (AW2), it was suggested on behalf of the respondent that
whenever, she went to college she used to see her father at the bidi
shop. This suggestion on behalf of the respondent clearly shows that
the respondent is running the pan bidi shop. There is no reliable
evidence about the income of respondent from said shop. However, in
the city like Mumbai, a proprietor of pan bidi shop can definitely get
income of more than Rs.10,000/. As per the case of the applicant, the
two daughters are with her. At the time of filing the application, the
elder daughter Apeksha was 18 years old. As per sec. 20(1)(d) of the
Act, the aggrieved person is entitled for relief of maintenance for her
children. As per section 2(b) of the Act, “Child” means any person
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below the age of 18 years. In view of these provisions of the Act, the
applicant is only entitled for maintenance of her minor daughter Apurva
and for herself. Considering the income of respondent and day to day
daily needs of the applicant and her minor daughter, it is proper to
direct the respondent to pay maintenance of Rs.5,000/ per month to
them. The interim maintenance amount paid by the respondent, if any,
be adjusted against the total due amount. Considering all these facts,
the applicant is only entitled for order restraining the respondent from
entering in the school premises of her daughter and maintenance of
Rs.5,000/ per month from the date of the application. She is not
entitled for any other relief claimed in this application. Hence, the
point No.3 is answered accordingly.
As to point No.4 :
13. The applicant is an aggrieved party under the Act. She is
entitled for partly reliefs claimed in this application against the
respondents.. Therefore, her application is liable to be partly allowed. It
is necessary to adjust the maintenance amount paid, if any, by the
respondent by virtue of interim maintenance order. 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 respondent is hereby restrained from entering in the school
premises of the daughter of the applicant.
3. The respondent do pay maintenance of Rs.5,000/ (Rs. Five
Thousand only) per month to the applicant, from date of
application i.e. 01042013. The maintenance amount paid by the
respondent towards the interim maintenance be adjusted against
the due amount.
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4. The other reliefs claimed in this application are rejected.
5. The respondent do pay cost of this application, Rs.500/ (Rs.Five
Hundred only), to the applicant.
6. The copy of this order be provided to the concern as per section
24 of the Protection of Women from Domestic Violence Act,
2005.
( Judgment is pronounced in open court )
sd/
( Vishwas S. Mane )
Bandra, Mumbai. Metropolitan Magistrate,
Date : 05052016 71st Court, Bandra, Mumbai.
ard/
Dictated on : 05052016
Transcribed on : 07052016
Signed on : 07052016
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IN THE COURT OF METROPOLITAN MAGISTRATE,
71ST COURT, BANDRA, MUMBAI
C.C.NO.11/DV/2013
Smt.Sulochana Bhoja Kulal … Applicant.
Vs.
Bhoja Narasu Kulal … Respondent.
: O P E R A T I V E O R D E R :
7. The application is partly allowed.
8. The respondent is hereby restrained from entering in the school
premises of the daughter of the applicant.
9. The respondent do pay maintenance of Rs.5,000/ (Rs. Five
Thousand only) per month to the applicant, from date of
application i.e. 01042013. The maintenance amount paid by the
respondent towards the interim maintenance be adjusted against
the due amount.
10. The other reliefs claimed in this application are rejected.
11. The respondent do pay cost of this application, Rs.500/
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(Rs.Five Hundred only), to the applicant.
12. The copy of this order be provided to the concern as per
section 24 of the Protection of Women from Domestic Violence
Act, 2005.
( Judgment is pronounced in open court )
( Vishwas S. Mane )
Bandra, Mumbai. Metropolitan Magistrate,
Date : 05052016 71st Court, Bandra,
Mumbai.
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