Order 1

Order Details: Copy of Interim Maintenance Order
Pdf Text: C. C. NO. 137/DV/2022
Farhat & Ors. V/s. Hamid and Ors.
ORDER BELOW EXH.-2
The applicant has filed the present application under section
23 of the Protection of Woman from the Domestic Violence Act, 2005
(here-in-after referred as, 'the PWDV Act') for protection, residence and for
monetary relief against respondents. According to the applicant No.1 she
is legally wedded wife of the respondent No.1 and their marriage has been
taken place on 25/11/2018 and out of said wedlock they have one female
child by name Mahenoor, who borne on 27/12/2019. Respondent No.2
and No.3 are in-laws of applicant No.1. At the time of marriage parents of
applicant No.1 had given jewelries and articles. List of the said articles is
mentioned in the application. After marriage applicant No.1 had been to
her matrimonial home, at Goregaon (W), Mumbai. Her husband and in-
laws started torturing and fighting with her for dowry and petty issues.
Respondents used to beat the applicant No.1, as she refused to fulfill their
demand. Respondent No.1 has not provided medicine to applicant No.1. It
is contended that, due to physical and mental instability and torture done
by respondents she had miscarriage with first child. She suffered mental
and emotional trauma and humiliation. The applicant No.1 has delivered a
baby girl on 27/12/2019 and now she is residing with her.
2. It is further contended that, respondents frequently used to
torture physically and mentally for dowry. Respondents also used to ask
applicant No.1 for I10,00,000/- from her parents. On 21/10/2020 the
applicant No.1and her minor daughter are residing with her parents but
respondent No.1 does not supports to the applicant. It is contended that,
due to unbearable pressure from respondent on 19/10/2021 she left her
matrimonial home. However, respondents made baseless and false
allegations, as she left with gold jewelries of I5,00,000/- from the
cupboard. Respondents tried to falsely implicated the applicant in the false
-- 1 of 7 --
~2~
C. C. NO. 137/DV/2022 ORDER BELOW EXH.- 2
offence. Applicant has registered Non Cognizable offence in B.K.C. police
station and also filed complaint under section 498 (A) of I.P.C. etc. against
respondents.
3. Further, it is contended that, applicant No.1 has been
subjected the domestic violence at the hands of respondents. Therefore,
she constrained to file the present proceeding. It is contended that, she has
no means of maintenance. Her daughter is school going baby. However,
respondent No.1 do not provide any means of maintenance. Lastly, the
applicant prayed that, application be allowed and respondents be
restrained from causing any kind of domestic violence, they also sought
relief of alternate accommodation and in lieu of that claiming I25,000/-
p.m. as rent. The applicant also sought relief of maintenance of I30,000/-
p.m. from the respondent No1.
4. Respondents have resisted the application by filing their say at
(Exh.-3). Respondents denied all the contention of applicant in toto except
relationship. Respondents denied that, they demanded dowry from the
applicant, as alleged. They denied that, they have been caused domestic
violence to applicant No.1, as alleged. It is contended that, respondent
No.1 is doing labour work such as housekeeping, but applicant No.1 was
not happy with respondent No.1 regarding his earning. It is contended
that, respondent No.1 is having responsibility of his old aged parents i.e.
respondent No.2 and No.3. The applicant No.1 never treated respondent
No.2 and No.3 in human manner and also abused, humiliated for small
mistakes and also raised quarrels with them. Therefore, the respondent
have filed N.C. offence against applicant No.1.
5. It is further contended that, on 08/10/2020, applicant No.1
alongwith her daughter left the matrimonial home and on 09/10/2020
respondent came across that all gold from cupboard were missing and said
gold ornaments have been taken away by the applicant. Therefore, they
-- 2 of 7 --
~3~
C. C. NO. 137/DV/2022 ORDER BELOW EXH.- 2
have registered C. R. No.470/2022 against applicant No.1. Lastly,
respondents prayed that, application is false one, therefore, it be rejected.
6. The applicant have filed on record school fee receipt medical
bills, copies of various complaints along with application. Whereas,
respondents have filed on record copies of report of N.C. offence, copies of
complaint, copy of F.I.R. bearing No. 470/2022 registered with Goregaon
police station. The applicant and the respondent No.1 have filed on record
their affidavits of assets and liabilities.
7. I have heard elaborated argument of Ld. Advocate Shri Akram
Kapoor for the applicant and Ld. Advocate Shri Aditya Salve for
respondents.
8. Considering the rival pleading of applicant and respondents
following points are arises for determination. I have recorded my findings
thereon for the reasons, as under :-
Sr.
No. Points Findings
1. Does the applicant proved that, she
has been subjected domestic
violence at the hands of
respondents? Yes.
2. Is applicant entitled for protection
order, as she prayed? Yes.
3 Is applicant entitled for residence
order, as she prayed?
No.
4. Is applicant entitled for monetary
relief, as she prayed? Partly Yes.
-- 3 of 7 --
~4~
C. C. NO. 137/DV/2022 ORDER BELOW EXH.- 2
5. What order? Application is
rejected.
REASONS
As to point No.1 :-
9. This issue in respect of whether respondents caused domestic
violence to applicant No.1. Before proceed further I would like to state
here that relationship in between applicant No.1 and respondent No.1 is
admitted. The record shows that N.C. offences have also registered against
each other by both parties. The applicant No.1 also registered offence
under section 498 (A) etc. of Indian Penal Code against respondents.
Likewise, respondents also have filed F.I.R. regarding taking away gold
ornaments against applicant No.1.
10. In order to prove prima-faciely domestic violence at the hands
of respondents, the applicant is relied on copies of complaints made by her
against respondents. On 27/10/2010 the applicant No.1 has given
information regarding N.C. offence against respondents in B.K.C. police
station, wherein it has been alleged that, the respondent always asked her
I10,00,000/- and also demanding house at Goregaon and motor bike to
respondent No.1. Respondents denied all the allegations made against
them and according to respondents the applicant No.1 was not happy with
respondent No.1. She has never given proper honour to her in-laws and on
08/10/2020 the applicant No.1 without consent of respondents taken
away the gold ornaments.
11. It is contended that, they have not been caused any domestic
violence to the applicant. It is to be noted that, whether applicant No.1 has
taken away the gold ornaments from the cupboard of respondents or
whether respondents caused cruelty or harassment for not fulfilling dowry
demand as a matter of evidence, which will be decided on the evidence
adduced by both parties. Now question before me is that, whether
-- 4 of 7 --
~5~
C. C. NO. 137/DV/2022 ORDER BELOW EXH.- 2
applicant is subjected to domestic violence at the hands of respondent or
not. It is admitted that, applicant No.2 is school going baby and residing
with the applicant No.1 and respondents have not placed any record to
show that, while applicant residing at her parents home respondent No.1
has provided any means of maintenance to them. Offences registered
against each other shows that, relations between parties are strained.
12. However, being husband and father, respondent No.1 cannot
absolve from providing maintenance to his wife and his daughter. The
allegations made by applicant shows that, she has been verbally abused by
respondents, which is also domestic violence. Even not providing
maintenance is also domestic violence by the respondents and on going
through the record it shows that since separation respondent No.1 has not
provided any means of maintenance to applicant. Therefore, I am of
opinion that, applicant has prima-faciely proved that, she has been
subjected to domestic violence at the hands of respondents. Hence, I
record my findings for point No.1 in affirmative.
As to point No.2.:-
13. The applicant has sought protection order against respondent,
that, they shall not cause any kind of domestic violence to the applicant.
Now the record shows that, relations between parties are strained. The
respondent No.1 not providing the maintenance and while answering point
No.1 I held that, applicant No.1 has subjected domestic violence at the
hands of respondents. Therefore, in order to protect right, interest, limb
and life of the applicants, I am of opinion that, the protection order can be
passed against respondents. Hence, I record my finding for point No.2 in
the affirmative.
As to point No.3. :-
14. The applicant has sought the relief of residence order. It is to
be noted that, the applicant in her application stating that, she alongwith
-- 5 of 7 --
~6~
C. C. NO. 137/DV/2022 ORDER BELOW EXH.- 2
her daughter used to reside at her parental home. Therefore, at this stage
it can not be said that, she is shelterless. Hence, prayer regarding alternate
accommodation in lieu of rent cannot be granted. Hence, I recorded my
finding for point No.3 in the negative.
As to point No.4. :-
15. This point is in respect of monetary relief. It is to be noted
that, the applicant and respondents filed their respective affidavits of
assets and liabilities. Respondent came with case that, he is doing job of
helper or housekeeping and he is earing I7,000/- p.m. However, in the
evidence of applicant nowhere mentioned the occupation of the
respondent No.1. Even the applicant has not placed any document on
record regarding earning of the respondent No.1. However, respondent
No.1 is able body person to earn. I would like to rely on the affidavit of
assets and liabilities filed by respondent No.1. It is to be noted that, the
respondent is also has responsibility of his old aged parents. Likewise, it is
also legal and moral responsibility to maintain his wife and daughter, who
is school going child.
16. Therefore, considering basic needs of both applicants and
earning of the respondent No.1, I am of in opinion that, amount of
I3,000/- to applicant No.1 and amount of I 2,000/- for applicant No.2 is
sufficient, as a maintenance. Hence, I record my findings to issue No.4 in
the partly affirmative. Considering all above aspects I proceed to pass
following order.
ORDER
1 The application is partly allowed.
2 The respondent No.1 shall pay R.3,000/- p.m. to the
applicant No.1 and R.2,000/- p.m. to daughter Mahenoor,
-- 6 of 7 --
~7~
C. C. NO. 137/DV/2022 ORDER BELOW EXH.- 2
as interim maintenance from date of filing of present
application.
3 The prayer regarding residence order is hereby rejected.
4 The respondent No.1 shall pay the cost of R.5,000/- of the
present application to the applicant.
5 Copy of order be supplied free of cost to both the parties.
Mumbai.
Date : 02/02/2024.
SRD.
Sd/-
Metropolitan Magistrate,
71st Court, Bandra, Mumbai.
Dictated on :- 02/02/2024.
Transcribed on :- 03/02/2024.
Checked on :- 13/02/2024.
Signed on :- 13/02/2024.
SRD
-- 7 of 7 --