Order 1

Order Details: Copy of Interim Maintenance Order
Pdf Text: CNR No.MHMM18-007464-2021 C. C. NO. 226/DV/2021
Bhagyashree V/s. Yogesh & Ors.
ORDER BELOW INTERIM APPLICATION (Exh.- 3)
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 interim relief like monetary
relief, protection and residence order.
2. According to the applicant, she got married with respondent
No.1 on 08/04/2014, as per Hindu Vedic Rites and customs. After
marriage she went at her matrimonial home with respondent. She further
contended that, she gave birth to daughter Krishnavi, on 15/06/2020 and
now she is in her custody. It is further contended that, she is working
woman with the limited source of income and have no any fixed
accommodation to reside with her child. She deprive of all her basic needs
of food, clothing and medical amusement etc. It is further contended that,
respondents are very cruel giddy and wild by nature. Respondent No.1
caused her physically and verbally. He harassed and tortured her. The
applicant is having minor child. The income of applicant is not sufficient.
Therefore, she is entitled for maintenance of I.20,000/- for herself and
I.10,000/- p.m. for minor daughter.
3. She further contended that, she is residing at her parental
home at the mercy of her parents. Therefore, she is entitled to alternate
accommodation or in lieu of that the rent from the respondent No.1 to the
tune of I.15,000/- p.m. It is contended that, the respondent Yogesh
earning smart income to the tune of I.60,000/- p.m. Therefore, he is able
to pay maintenance, as prayed. Lastly, she prayed that, application be
allowed and respondents be restrained from committing any domestic
violence to her. She also sought relief of residence and maintenance to the
tune of I.20,000/- p.m. for herself and I.10,000/- for her daughter from
the respondent No.1.
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4. The respondents by filing their say at (Exh.-4) resisted the
application and denied all the contentions of the applicant in toto. The
respondents admitted the domestic relationship in between applicant and
them. It is denied that, they have not been ever caused any domestic
violence to the applicant, as alleged. It is contended that, the applicant
wants free herself from moral obligations. Respondent is ready to co-habit
together with the applicant and for that purpose he filed petition for
restitution conjugal rights against applicant in Family Court.
5. It is further contended that, applicant left the company of
respondent without any reason. Therefore, she is not entitled to any relief
as sought. Lastly, the respondent pray that, application be rejected. It is
further contended that, applicant is working as a teacher and getting salary
to the tune of I.18,000/-. Therefore, she is able to maintain herself and
her daughter, whereas the respondent No.1 is jobless and living his life on
the mercy of his father. He has left his job in the month of January 2020.
Therefore, he is not in a position to maintain the applicant and daughter,
as prayed. Lastly, respondents prayed that, application is false one
therefore, application be rejected.
6. Considering the rival pleadings of both parties following
points are arises for my determination. I have recorded my findings
thereon for the reasons, as under :-
Sr. No. Points Findings
1. Does the applicant proved
prima-
faciely that, she has been subjected
the domestic violence at the hands
of the respondents ? Yes.
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2. Is applicant entitled for relief of
protection order, as prayed? Partly Yes.
3. Is applicant entitled for relief of
alternate accommodation, as
prayed?
No.
4. Is applicant entitled for relief of
maintenance, as prayed? Yes.
5. What order? Application is
partly allowed.
REASONS
7. The applicant in support of her application filed on record
Copy of her Aadhar Card, Copy of Marriage Invitation Card, Copy of Birth
Certificate of Daughter namely Krishnavi, Copy of WhatsApp Chat, Copy of
complaint made to woman and children department, Copy of Medical
report etc. The applicant also filed on record her affidavit of Asset and
Liabilities,(Exh.-6) alongwith Bank Statement.
8. The respondent No.1 in support of defence filed on record
Copy in respect of premises and Bank Statement. The respondent No.1
also filed on record his affidavit of Asset and Liabilities (Exh.-5).
9. I have heard elaborated arguments of Ld. Advocate Shri.
Chaudhary for applicant and Ld. Advocate Shri. Ganesh Shinde for
respondents.
As to point No.1 :-
10. This issue is in respect of whether the applicant is subjected
the domestic violence at the hands of respondents, in order to get interim
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relief as per section 23 of the Domestic Violence Act. The applicant has to
prove that, she
prima-faciely has been subjected domestic violence at the
hands of respondents. According to her the respondents physically,
verbally tortured her. She has made an allegation in main petition, which
are denied by the respondents.
11. It is to be noted that, in order to prove domestic violence the
applicant is relied on the N.C., which has been registered at her instance
against respondent No.1. Copy of same is filed on record, which shows
that, on 20/10/2021, at around 10.00 p.m., the respondent has raised
quarrel with her, on petty issue and assaulted, abused her. Even the
applicant is relied on the various complaints made to Women and
Children Development Project Officer against respondents, which are in
respect of harassment and cruelty at the hands of respondent No.1. The
WhatsApp chat are filed on record in order to show that, there was no
cordial relations in between them,
12. The respondents relied only on his contention that, the
applicant has left his company without any reason and she wants to live
her life freely.
13. It is to be noted that, the N.C. report shows that, the accused
assaulted the applicant and also abused her. Thus, it shows that, the
applicant is subjected physical as well as verbal abuse at the hands of
respondent No.1. Therefore, I hold that, applicant has proved the
prima-
faciely case that, she has been subjected the domestic violence at the
hands of respondent No.1. Hence, I record my findings to the point No.1,
as in the affirmative.
As to point No.2 :-
14. This issue is in respect of the protection order. The applicant
has sought relief restraining the respondents from committing the
domestic violence against the respondent. It is to be noted that, while
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answering to point No.1, I have concluded that, applicant has been
subjected the domestic violence at the hands of respondents. The
applicant is having apprehension in her mind that, the respondent will
cause her domestic violence in future also. Considering the allegations and
counter allegations, I am of in opinion that, in order to protect the interest
of applicant order for restraining the respondent No.1 from committing
any domestic violence can be passed. Therefore, I am of opinion that, she
has not entitled to relief, as sought. Hence, I record my findings to point
No.2 as in the partly affirmative.
As to point No.3 :-
15. This point is in respect of claim of applicant that, she is staying
alongwith her daughter at the mercy of her parents at her parental home
and being husband and father of daughter Krishnavi he is under obligation
to provide the shelter. But in application itself the applicant contended
that, she is now residing in her parental home. Therefore, at this stage it
cannot be said that, she is totally shelterless. In this circumstances, at this
stage order regarding shelter or rent in view of alternate accommodation
cannot be passed. Hence, I record my findings to the point No.3, as in the
negative.
As to point No.4 :-
16. This issue is in respect of the monetary relief in the nature of
maintenance to applicant and daughter Krishnavi by respondent No.1. Ld.
Advocate Shri Chaudhary for applicant submitted that, though applicant is
having job, it does not mean that, the respondent is absolved from his
duty to maintain his wife and daughter. The respondent was in service
and getting smart income to the tune of I.60,000/-. The respondent No.1
is able bodied person and therefore, applicants are entitled to
maintenance, as prayed.
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17. Per contra, Ld. Advocate Shri Shinde for respondent submitted
that, the applicant without any sufficient reason left the company of
respondent. Therefore, as per section 125 (4) of Code of Criminal
Procedure she is not entitled to maintain, as prayed. He further submitted
that, the applicant is teacher and getting salary to the tune of I.18,000/-
p.m. Therefore, she is having definite income and she is able to maintain
herself as well as her daughter Krishnavi.
18. Per contra, the respondent No.1 is jobless and living life on
the mercy of his parents. Hence, applicants are not entitled for
maintenance. In support to his arguments he relief on the Shiv Kumar
Yadav S/o. Videsi Yadav V/s. Santoshii Yadav W/o. Shiv Kumar Yadav
Criminal Revision No.544/2003 decided on 15/02/2004, wherein Hon’ble
Chattisgarh High Court discuss the scope of section 125 of Code of
Criminal Procedure particularly clause 4 of the section 125 of Code of
Criminal Procedure, which states that,
no wife shall be entitled to receive
an allowance from her husband under this section if she is living in
adultery or if, without any sufficient reason, she refuses to live with her
husband, or if they are living separately by mutual consent.
19. Ld. Advocate Shri Kale for the respondents on the point of that
the applicant is having source of income and therefore, not entitled to
maintenance relied on the case of Sanjay Bhardwaj and Ors. V/s. State
and Anr. Cri. M. C. No. 491/2009 decided by Hon’ble Delhi High Court,
dated 27/10/2010.
20. First of all, I would like to state here that, what is necessary to
required into consideration for the relief under section 23 of Domestic
Violence Act that the applicant has to prove
prima-faciely that she has
been subjected the domestic violence. While concluding the point No.1, I
hold that, the applicant is subjected the domestic violence in the nature of
physical and verbal abuse at the hands of respondent No.1. Even N. C.
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complaints made to the police station supports to the version of the
applicant. Therefore, at this stage, it cannot be concluded that, the
applicant left the company of respondent without sufficient reason.
Therefore, facts of the cited cases and present case at hand are altogether
different. Therefore, citation relied by respondent are not applicable.
21. Admittedly, the applicant is teacher and getting income to the
tune of I.18,000/-. Further, daughter Krishnavi was two years old at the
time of filing of application is with her. Now in order to entitlement of the
maintenance or monetary relief, I would like to discuss the affidavit of
Assets and Liabilities of the parties. The applicant Bhagyashree has filed
her affidavit of Assets and Liabilities (Exh.-6), where in she clearly
mentioned that, she is doing job of teacher and getting income of
I.18,000/- p.m.
22. Whereas, the respondent in his affidavit of Assets and
Liabilities (Exh.-5) contended that, he has resigned from his job due to
serious accident and later on due to Pandemic. Said affidavit further
shows that, he is paying installments to the tune of I.30,000/- p.m. in
respect of house loan I.38,00,000/- taken from PNG Housing Finance in
the year 2017. It is to be noted that, respondent No.1 has raised loan of
I.38,00,000/- and he is paying the EMI of I.30,000/- and further he
contended that, he is jobless since 2020, which is not at all digestible. It
reveals that, the respondent No.1 though at present is jobless but he is
able bodied person and can maintain his wife and daughter by doing job.
23. It is to be noted that, as the applicant has no option to do the
job, as she has no income source, therefore, it does not mean that, the
respondent is absolved from maintaining the applicant. Even in the
affidavit of Assets and Liabilities it is contended by the respondent that
since he has been refused to access daughter Krishnavi he is not paying
any maintenance to daughter. The daughter is with applicant if he is not
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provided maintenance to the daughter then financial burden lies on the
applicant and it is also nothing but financial abuse, which amounts to
domestic violence at the hands of respondent No.1.
24. Therefore, being able bodied person and husband of applicant
and father of daughter Krishnavi it is the duty and obligation on the part
of respondent No.1 to maintain them, but there is nothing on record to
show that, he is maintaining applicant and her daughter.
25. So far as, the quantum of maintenance is concerned I would
like to state here that, the applicant is having income to the tune of
I.18,000/- from her job but it appears that, the respondent is failed to
comply his obligations towards his daughter Krishnavi, she is growing
child. Therefore, I am of opinion that, the daughter Krishnavi is entitled to
get maintenance from the respondent No.1. Further, it is to be noted that,
the respondent is paying monthly installment to the tune of I.30,000/- to
his loan and claiming to be jobless. This fact is not digestible.
26. Per contra, respondent is able to maintain his wife and his
daughter. Further, father of respondent No.1 is having pension, burden of
maintaining parents is also not on the respondents. Considering the basic
needs, living status of applicant and respondent, I am of the opinion that,
monthly maintenance of I.3000/- p.m. to the applicant is sufficient and
monthly maintenance of I.5,000/- p.m. to the daughter Krishnavi is
sufficient. Therefore, I record my findings to the point No.4, as in partly
affirmative and in the result I proceed to pass following order.
ORDER
1 The application is partly allowed.
2 The respondent No.1 shall not cause any kind of domestic
violence to applicant till final decision of the proceeding.
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3 The respondent No.1 shall pay R.3,000/- p.m. to
applicant and I.5,000/- p.m. to daughter Krishnavi, as a
interim maintenance since the date of filing of the
present application.
4 The respondent shall pay R.10,000/-, as the cost of the
present application to the applicant.
5 Copy of this order be given free of cost to both the
parties.
Mumbai.
Date : 23/08/2024.
SRD.
Sd/-
Metropolitan/Judicial Magistrate,
(First Class) 71st Court, Bandra, Mumbai.
Dictated on :- 23/08/2024.
Transcribed on :- 28/08/2024.
Checked on :- 31/08/2024.
Signed on :- 31/08/2024.
SRD
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