Order 1

Order Details: Copy of Interim Maintenance Order
Pdf Text: C. C. NO.154/DV/2022
Riddhima V/s. Boniface
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 maintenance order,
protection order, residence order against the respondent. According to the
applicant, she married with respondent No.1 on 26/12/2005 and from the
said wedlock they have two children Master Bryan age about 14 years and
Brad age about 8 years and at present children are staying with the
applicant. It is contended that, after marriage she started with reside with
the respondent in matrimonial home. She had taken care of old age
mother of the respondent. It is contended that, in the month of February,
2007 her sister-in-laws harassed and tortured her, therefore, she left
matrimonial home and started to reside in her parental home. The
respondent also resides with her in her parental home until December
2021.
2. Father-in-law of applicant purchased the flat in Nehru Nagar
in the year 2001 for applicant and respondent. As per demand of
respondent the applicant had given I2,00,000/- to respondent. Latter on
the respondent sold out the said flat and purchased new flat in his name
in Safron Residency. It is contended that, for purchasing the said flat the
respondent has used the amount of applicant. It is contended that,
respondent never took the applicant on any picnic by saying that she has
to take care of children. He used to humiliate the applicant that, she is of
old fashioned lady and narrow minded.
3. Since November 2021 the respondent totally changed his
behaviour. After returning from Goa on 10/12/2021 the respondent
pressurized her for separation. Applicant came across that the respondent
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is having extra marital relationship with one lady. It is contended that, the
respondent left the company of applicant and started to reside with the
said lady. The respondent has not given the proper maintenance to
applicant and her children. The applicant was forced to leave her parental
home and respondent is also not taking any care of applicant and
children. Thus, the respondent left them. On 18/04/2022 the respondent
raised quarrel in his office and forced her to remove the bag out of the
office, when she went to reside at office of respondent. It is contended
that, due to cruelty and harassment the applicant has filed the complaint
in Vakola police station and upon the said information Vakola police
registered C. R.193/2022 under section 498 (a) of I.P.C.
4. Respondent is businessman and carrying business in the name
and style B. F. Design and earning of I.2,50,000/- p.m. He is also engaged
in the business of organizing events like birthday, etc. and getting income
of I.25,000/- p.m. The applicant is Assistant Teacher and getting income
of I.40,000/- p.m. but she is having responsibility of her growing children
and responsibility to pay EMI of the flat loan to the tune of I.20,000/-
p.m. Therefore, she claimed maintenance of I.1,00,000/- p.m. from
respondent. She also claimed that, the respondent be restrained from
committing any domestic violence and also sought relief of residence
order.
5. The respondent by filing reply at (Exh.-5) denied all
allegations made by applicant. The respondent admits the relationship
with the applicant. According to him he is engaged in business of
industrial designing and getting income to the tune of I.20,000/- p.m. He
also engaged in the organizing events and getting income to the tune of
I.12,000/- p.m. He is not having stable income. It is contended that, the
applicant is Teacher by professing and drawing monthly salary of
I.45,000/- p.m. Therefore, she is not entitled for any maintenance
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C. C. NO. 154/DV/2022 ORDER BELOW APPLICATION (Exh.-3)
amount. It is contended that, the applicant at present residing at Safron
Residency, Kurla (E). The respondent denied all the allegations regarding
his extra marital affairs. He denied that, he caused any kind of domestic
violence to the applicant, as alleged. Lastly, it is contended that, the
application is false one and prayed that the applicant be rejected.
6. I have heard elaborated arguments of Ld. Advocate Shri M. A.
Khan for the applicant and Ld. Advocate Shri A. S. Patel for the
respondent. I have also considered the written notes of arguments which
is at (Exh.-14). The applicant and respondent have filed their affidavits of
Assets and Liabilities at (Exh.-10) and (Exh.-13) respectively. The
applicant also filed on record Marriage Certificate, Photo, Birth Certificate
of Children, Copy of complaint, Copy of F.I.R. and Copies of WhatApp and
Instagram images. The respondent has also placed on record copies of
Service Certificate alongwith affidavit of Assets and Liabilities.
7. 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 that, she
has been subjected the domestic
violence at the hands of the
respondent ?
Yes.
2. Is applicant entitled for relief of
protection order, as prayed ? Partly Yes.
3. Is applicant entitled for relief of
maintenance, as prayed? Yes.
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C. C. NO. 154/DV/2022 ORDER BELOW APPLICATION (Exh.-3)
4. Is applicant entitled for relief of
alternate accommodation as,
prayed or rent in lieu of alternate
accommodation ? No.
5. What order? Application is
partly allowed.
REASONS
As to point No.1
8. In order to get relief under section 23 of the Domestic
Violence Act the applicant has to prove prima-faciely that, she has been
subjected the domestic violence at the hands of the respondent. The
respondent denied all the allegations made by the applicant. It is to be
noted that, the relationship between parties are admitted to each other.
The applicant in order to prove the domestic violence at the hands of
respondent relied on the complaint made to police dated 08/06/2022 and
the F.I.R. registered by Vakola police station at C. R. No.193/2022 under
section 497 (a) of I.P.C. etc.
9. It is the main allegation against the respondent is that, he
fallen in the love of one lady and he demanded divorce from the applicant.
Thus, in short respondent did not allow the company of applicant and he
left her and his children. The respondent denied all the allegations made
against him but not filed any documents in support of his defence. The
complaint and F.I.R. disclosed that, after marriage particularly after
December 2021 the respondent changed his behaviour and used to say
that the applicant is not giving sufficient time to him. Therefore, he fallen
in love with lady by name Suzan. The respondent left the company of the
applicant and started to reside with said Suzan. He also used to give threat
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on the ground that, she shall handover the documents of newly purchased
flats and gold ornaments. He has neglected to maintain applicant and
children. The contention of F.I.R. and the complaint are corroborative to
the contention of present petition.
10. Per contra, no positive defence has been putforth by the
respondent. It appears that, the respondent is denying the marital status of
applicant with him and causing harassment to applicant for separation,
which certainly would fall under the definition of domestic violence.
Further, non providing sufficient means of maintenance to applicant is
also nothing but the instances of the domestic violence at the hands of the
respondent. Therefore, I hold that, the has proved prima-faciely that, she
has been subjected the domestic violence at the hands of respondent.
Hence, I record my findings to the point No.1 as in the affirmative.
As to point No.2
11. This issue is in respect of the protection order. The applicant
has sought relief restraining the respondent from committing any kind of
the domestic violence. It is to be noted that, while answering to point No.1
I have concluded that, applicant has been subjected the domestic violence
at the hands of respondent. The applicant is having apprehension in her
mind that, the respondent will cause her domestic violence in future. The
F.I.R. registered at the instance of applicant shows that, she has been
subjected the domestic violence at the hands of respondent, on the count
of demand of divorce. Therefore, in order to protect the interest of
applicant, I am of opinion that, the protection order against respondent
can be passed. Hence, I record my findings to point No.2, as in the partly
affirmative.
As to point No.3
12. This issue is in respect of relief of maintenance. It is to be
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noted that, applicant claimed to be having no sufficient source of income
and the respondent is having smart income to the tune of I.2,50,000/-
p.m. I have gone through the respective affidavits of Assets and Liabilities
of the applicant and respondent. It is crystal clear that, applicant is
working as Assistant Teacher and getting salary to the tune of I.40,000/-
p.m. But respondent in his Assets and Liabilities contended that, he is
having job and getting income of I.20,000/- p.m. and in the reply he
admitted that, from organizing events he is getting income to the tune of
I.12,000/- p.m. Though applicant contended that, the respondent by his
business getting income to the tune of I.2,50,000/- p.m. but in support of
her contention she has not filed any documents on record. Therefore, in
order to ascertain actual income source of both the parties I have to rely
upon the affidavits of Assets and Liabilities of the parties. It is seen from
the affidavits that, applicant is having more income than the respondent as
mentioned in the affidavit of the respondent. It is to be noted that, the
growing children are with the applicant. Therefore, merely on the ground
that, the applicant has more income than the respondent, the respondent
cannot escape from maintaining his children.
13. In such circumstances, I am of opinion that, the applicant and
the respondent have equal responsibility to maintain and brought up their
children. From the affidavit of respondent it is seen that, at present he is
getting income from his job and business of event organizing to the tune
of I.35,000/- p.m. After deducting his expenses, for the maintenance of
his children, maintenance order can be order in favour of applicant.
Considering the basic needs of applicant and children and financial
position of both the parties I am of opinion that, the applicant is entitled
I.12,000/- p.m. from respondent for maintenance of children. Hence, I
record my findings to the point No.3, as in affirmative.
As to point No.4
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C. C. NO. 154/DV/2022 ORDER BELOW APPLICATION (Exh.-3)
14. The applicant has sought relief that, the respondent be
restraining or disposing flat No.4 at Safron Residency, as it is her shared
household and also sought relief of alternate accommodation at the same
level from the respondent. It is to be noted that, in the application itself
the applicant contended that, due to harassment caused by the sister-in-
laws she and respondent started to reside in her parental home and after
2021 the respondent left the company of applicant and his children. The
complaint itself shows that, at present the applicant is residing with her
children at Kapadiya Nagar, CST Road, Kurla. Therefore, at present it
cannot be said that, she is shelterless. Even there is no contention by
applicant that, the respondent is trying to dispose of the flat situated at
Safron Residency. Therefore, no residence order as sought can be passed
in favour of applicant. Hence, I record my findings to the point No.4, as in
negative and proceed to pass following order.
ORDER
1 The application is partly allowed.
2 The respondent shall pay R.12,000/- p.m. to applicant
as a interim maintenance amount of children from date
of filing of the present application.
3 The respondent shall not cause any kind of domestic
violence to applicant till final decision of the proceeding.
4 The respondent shall pay the cost of R.7,000/- of the
present application to the applicant.
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C. C. NO. 154/DV/2022 ORDER BELOW APPLICATION (Exh.-3)
5 Copy of this order be supplied free of cost to both the
parties.
Mumbai.
Date : 12/06/2024.
SRD.
Sd/-
Metropolitan Magistrate,
71st Court, Bandra, Mumbai.
Dictated on :- 12/06/2024.
Transcribed on :- 12/06/2024.
Checked on :- 12/06/2024.
Signed on :- 12/06/2024.
SRD
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