Interim Order 1

Order Details: Copy of Interim Maintenance Order
Pdf Text: 1 C.C.NO.200/DV/2021
IN THE COURT OF ADDL. CHIEF METROPOLITAN MAGISTRATE,
09TH COURT, BANDRA, MUMBAI
C.C.NO.200/DV/2021
Mrs.Pinky Rakesh Kumar Gangwar …... Applicant
Vs.
Mr.Rakeshkumar Gangwar & Ors. …... Respondents.
ORDER ON INTERIM PRAYER
This application is filed under Section 23 of The Protection
of Woman from The Domestic Violence Act, 2005 ( for short 'Act') for
grant of interim reliefs as prayed in the prayer clause.
2. The case of applicant in brief is as under:
The applicant got married with the respondent No.1 on
10/05/2018 at Margapur Margiya, Bhauwa Bazar, Bareilly, Nawabganj,
Uttar Pradesh. The marriage in between the applicant and the
respondent No.1 was an arrange marriage. The family of the
respondent demanded cash of Rs.3 Lakh, motorcycle of Hero Honda
Brand, cupboard, furniture, utensils and other articles as dowry. The
parents of the applicant had given golden ornaments at the time of
marriage to the respondent and his relatives. The respondent No.1 was
working with Mahindra Company at Uttar Pradesh before the marriage.
The respondent No.1 was getting Rs.10,000/ per month as a salary. It
was agreed between the applicant and the respondent and their family
members that after the marriage the applicant and the respondent No.1
will reside at Mumbai. After 3 to 4 days of the marriage the motherin
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law and fatherinlaw threatened the applicant for giving all gold
ornaments to be kept in a safe custody. The applicant had handed over
all her ornaments and other articles to the respondent for keeping it in a
safe custody due to the threat of desertion and divorce given by
respondent No.1. The respondents started demanding dowry from the
applicant and started humiliating and taunting the applicant. After 20
to 25 days the applicant and the respondent No.1 came to Mumbai as
per understanding before the marriage. The applicant and the
respondent No.1 started residing at the house of parents of the
applicant. After 10 to 15 days respondent No.1 refused to take a
separate house and started demanding another house from the father of
the applicant. The respondent No.1 failed to get a job and demanded
cash in last week of June 2018. The brother of applicant purchased a
car on loan. The said car is used by the respondent No.1 for his
business. The installments were paid by the brother of the applicant in
respect of the car loan used by the respondent No.1. The parents of the
respondent No.1 started demanding money to him when the respondent
No.1 started his own business of taxi. The respondent No.1 used to
demand money and on refusal to pay he used to abuse and assault the
applicant regularly. The respondent No.1 demanded Rs.50,000/ from
the applicant to go to his native place at Uttar Pradesh and to meet his
family members. For demand of the money the applicant was mentally
and physically tortured. At last applicant paid Rs.25,000/ to the
respondent No.1. The respondent No.1 started demanding house at
Mumbai to the parents of the applicant. The applicant become
pregnant so she left her job which was not liked by the respondent No.1
and on that count the respondent No.1 always used to quarrel with the
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applicant. The applicant gave birth to a baby boy on 14/03/2020. In
November 2020 the applicant and the respondent No.1 alongwith the
child went to the matrimonial home at Uttar Pradesh. At that time
respondents demanded clothes, monies and other articles for their
relatives from the applicant. At matrimonial house the applicant was
harassed by taunting for not cooking within time and do not know
cooking. In November and December 2020 one relative by name Pooja
was called there. The applicant and the respondent No.1 went at
Pooja's house and stayed there for night. The applicant shocked to see
the respondent No.1 and said Pooja sleeping together in a very odd
position. The applicant came to know that the respondent No.1 had an
extra marital affair. The applicant informed the respondent No.2 about
the behaviour of the respondent No.1 with Pooja. At that time the
respondent No.1 beaten the applicant mercilessly and also burned
applicant's hand by burning wood. The applicant came to know that the
respondent No.1 went for holidays with Pooja at Nainital. In January
2021 the applicant and the respondent alongwith the child came back
to Mumbai. The respondent No.1 again wanted to go to Uttar Pradesh
and started demanding money from the applicant. The respondent
No.1 tortured, quarreled and threatened the applicant. To save the
marriage the applicant paid Rs.50,000/ to the respondent No.1. The
respondent No.1 went at Uttar Pradesh and did not return to Mumbai.
The respondent No. 1 has changed his mobile number to avoid
conversation with the applicant. On 09/09/2021 the applicant and son
were admitted in a hospital. The applicant contacted to respondent
No.2 as she wanted to contact with respondent No.1. On 14/09/2021
respondent No.1 called applicant and refused to come to Mumbai to
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take care of the applicant and her child. The applicant lodged N.C.
report on 17/09/2021 for the threat given by the respondent to the
applicant. Again on 11/10/2021 the applicant lodged N.C. against one
Mr.Guddu Gangwar and the entire family members of the respondent
for mental torture and threats. The applicant issued notice dated
27/09/2021 and 12/10/2021 to the respondent. The respondent No.1
is not ready to cohabit with the applicant. The respondent No.1
deserted the applicant and her child from 1st April 2021. The
respondent No.1 never came back. The respondent No.1 has not
maintained the applicant and her child. The applicant is ready to
cohabit with the respondent if, he undertake to reside at Mumbai and
break the relationship with the girl by name Pooja. The respondent
No.1 is doing business of travelling by driving car at Pilibhit, Uttar
Pradesh. The respondent No.1 is earning Rs.25,000/ per month or
more. The respondent No.1 is also having income from the agricultural
land. The applicant and her son are the only dependents on the
respondent No.1. The applicant is residing at her parent's house and at
the mercy of her parents. On these grounds the applicant prayed for
interim maintenance of Rs.15,000/ per month from 01/04/2021. The
applicant further prayed for return of Stridhan and Rs.35,000/ towards
the cost of this application.
The applicant has filed on record xerox copies of
photographs of marriage, loan documents of car, birth certificate and
copies of N.C.s.
3. The respondent denied all the allegations made in the
application. The respondent has admitted the marriage with the
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applicant and birth of a boy out of the wedlock. It is the contention of
the respondent that there was no agreement or any communication
before the marriage to settle down in Mumbai. The applicant
pressurized the respondent No.1 to settle in Mumbai. The respondent
No.1 has no source of income to settle at Mumbai. As per wish and
desire of the applicant the respondent No.1 came to Mumbai alongwith
the applicant and started living with the family members of the
applicant. The respondent No.1 started to do driving business of Ola
Uber. The income of the respondent No.1 was used by the family
members of the applicant. The applicant forced the respondent to take
burden of maintaining the family members of the applicant. The
respondent has paid the E.M.I. of the car loan. The applicant being a
elder daughter of her parents most of the time she is residing with her
parents and barely coming to cohabit with the respondent No.1. The
applicant has cookedup false stories in order to satisfy her greeds.
There was no N.C.'s for two years after the marriage. The notices were
issued by the applicant and were replied by the respondent. The
applicant is having her income. Applicant has not produced her income
proof and document. The applicant is using the debit cards of the
respondent for shopping and for other household expenses. On these
grounds the respondent prayed for rejection of the application.
4 . Heard Ld. Advocate for the applicant and respondent.
Perused the record.
5. Following points arose for determination. Findings are
recorded against each of them for reasons to follow:
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Sr.
No. POINTS FINDINGS
1. Whether the application prima facie
discloses that domestic violence is caused
by the respondents to the applicant ? In the affirmative
2. Whether the applicant is entitled to
monthly interim maintenance of
Rs.15,000/ per month from the
respondent ?
Rs.10,000/ per month
Whether the applicant is entitled for
return of her Stridhan as claimed?
In the negative
Whether the applicant is entitled for cost
of litigation?
In the negative
5. What order? As per Final order.
R E A S O N S
As to Point No.1:
6. Provision for grant of interim maintenance is provided
under Section 23 of the Act. It says that if the Magistrate is satisfied
with an application prima facie discloses that the respondent is
committing or has committed an act of domestic violence Magistrate
may pass such interim order as he deems just and proper. The
ingredients of Section 23 is that complaint should disclose prima facie
act of domestic violence by the respondent to the applicant. The
definition of 'domestic violence' is provided under Section 3 of the Act.
The ingredients of the Domestic Violence Act are
“ Any Act, omission or commission or conduct which constitutes
domestic violence are
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(1) It harms or injures or endangers the health,
safety, life, limp or wellbeing, 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.
(2) It harassed, 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.
(3) It the effect of threatening the aggrieved
person or any person related to her by any conduct
mentioned in clause (a) or clause (b).
(4) It otherwise injures or causes harm, whether
physical or mental to the aggrieved person.
3. Expression “Economic abuse” Expression “ Economic abuse”
includes
(1) Deprivation of all or any economic or financial
resources.
(2) Disposal of household effects.
(3) Prohibition or restriction to continued access to
resources or facilities.
7. The relation in between the applicant and respondent No.1
is admitted. It is seen from the contention of the applicant that the
respondent came to Mumbai and started driving taxi. It is the
contention of the respondent that he came to Mumbai as per wish of the
applicant. The contention made in the reply that the respondent came
to Mumbai due to wish of the applicant prima facie cannot be relied on.
It is for the reason that the respondent came to Mumbai, taken a taxi,
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paid the E.M.I. for the loan of the taxi and all income. This shows the
intention of the respondent No.1 to settle down at Mumbai alongwith
the applicant.
8. The allegations and the reply if taken as it is then in the
application as set out the ingredients of mental, physical and
economical harassment of the applicant as per Section 3 of the Act. The
application is supported by the N.C.'s and other relevant documents as
contended by the applicant in her application. The respondent No.1
contended that the applicant is using his debit care for shopping and
other household purpose. The respondent has not filed any document
to establish that the applicant is using his debit card to meet the
expenses of home. It is the duty of the husband to provide financial
help to the wife and child. If, any husband is depriving the economic
help to the legally wedded wife and the minor child it certainly falls
within the economic abuse. The respondent No.1 failed to establish
prima facie that he has paid certain amount and provided financial help
to the applicant to maintain her livelihood and to meet needs of the
child. The application prima facie disclosing that the act, omission and
commission of the respondents caused domestic violence to the
applicant. For these reasons it is held that the applicant is the victim of
the domestic violence act as defined under Section 3 as the victim of
domestic violence as define under Section 3 of the Act. Finding to Point
No.1 is recorded in the affirmative.
As to Point No.2:
9. The applicant has prayed for monthly maintenance of
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Rs.15,000/. The applicant contended that the income of the
respondent is Rs.25,000/ per month by driving car and other income
from agricultural land. In affidavit of assets and liabilities the applicant
stated that the income of the respondent No.1 is Rs.50,000/ per
month. The applicant stated expenses of herself and of the child is
Rs.15,000/. The respondent No.1 has not disclosed his income in the
reply submitted by him. In affidavit of assets and liabilities the
respondent No.1 contended that his monthly income is approximately
Rs.10,000/ and income of the applicant is Rs.10,000/ per month. The
respondent has not filed any evidence or document to establish that the
applicant is fetching monthly income of Rs.10,000/ per month. The
respondent has not contended that his parents are depend on him. It
reveals that except the applicant and her child there is no one depend
on the respondent No.1. The applicant is residing in Mumbai. The
amount of maintenance is to be granted as per the status and income of
the parties. The amount of maintenance should not be exorbitant, at
the same time it should not be meager. The amount of maintenance
should be just and reasonable looking to the needs and the standard of
living of the parties. The respondent has not disclosed his income in
reply though stated Rs.5,000/ per month in his affidavit. The parties
never came with the true income when a financial liability is at stake
in matrimonial proceeding. Taking into consideration the standard of
living, expenses required to meet the livelihood, needs of the child and
the income of the respondent No.1 an amount of Rs.10,000/ per month
to the applicant will be just and reasonable. For these reasons finding
to Point No.2 is recorded accordingly.
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As to Point No.3:
10. As per applicant she handed over her ornaments to the
respondent for keeping it in the safe custody. The said ornaments are
in the custody of the respondent. The applicant has prayed for return
of her Stridhan. The respondent No.1 has specifically denied about
possession of these articles with them. The evidence about handing
over of the ornaments by the applicant to the respondent can be
considered during trial. It will be proper and legal to decide about
valid custody of the ornaments and articles on the basis of evidence
during trial. For these reasons finding to Point No.4 is recorded in the
negative.
As to Point No.4:
11. The applicant has claimed litigation charges of
Rs.35,000/. Both the parties have to incur litigation charges if
they are coming before the Court. The amount of litigation
charges cannot be considered at this juncture. Under Section 23
of the Act the Magistrate is empowered to pass such interim order
as he deems just and proper. The cost of litigation can be granted
at the conclusion of the trial if applicant succeeds in establishing
that she has incurred litigation charges in contesting petition. At
interim stage there is no parameter which can be considered
towards litigation charges. For these reasons Point No.4 is
answered in the negative. For the above reasons following order
is passed.
O R D E R
1. Application is partly allowed.
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2. The Respondent No.1 is directed to pay interim
maintenance of Rs.10,000/(Rupees Ten Thousand only) per month to
the applicant from the date of application till decision of main
application.
3. The copy of the order be given to both the parties free of
cost and the compliance be made under Section 24 of the Act.
4. Dictated and pronounced in the open Court.
Sd/
( K.H.Thombre )
Addl. Chief Metropolitan Magistrate,
Date : 01.07.2023 9th Court, Bandra, Mumbai
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