Interim Order 1

Order Details: Copy of Interim Maintenance Order
Pdf Text: C. C. NO. 151/DV/2022
Bharti V/s. Rohit and Ors.
ORDER BELOW EXH.-3 and Exh.-4
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 of maintenance,
residence order and for returning her stridhan against the respondents.
According to the applicant, she got married with the respondent No.1 on
22/02/2016 and they have one son by name Saksham, who born on
21/07/2019. The respondent No.2 is mother-in-law, respondent No.3 is
sister-in-laws and respondent No.4 is brother-in-law of the applicant. After
marriage she went alongwith respondent No.1 at his home. However, since
beginning the respondent No.1 used to cause verbal, as well as emotional
abuses on the count of domestic work. It is also case of the applicant that,
the respondent No.1 is having extra marital affair with one lady.
2. It is further contended that, the respondent No.1 used the
Credit Card of the applicant for booking hotels, tours etc. but did not repay
the said amount within time. Therefore, the applicant suffered the loss.
Further, it is contended that, she has been subjected domestic violence at
the hands of the respondent No.1. The respondent No.1did not support the
applicant when she talk about the ill treatment at the hands of respondent
No.2. to the respondent No.1. It is contended that, the applicant has filed
F.I.R. under section 498 (A) of I.P.C. against the respondent.
3. The respondent No.1 is having garment business by name
Swastic Clothing. Even in the year 2021 he has started shop by name
Rudra at Link Apartment, 7th Road, Khar (W), Mumbai. He is having smart
income to the tune of I2,00,000/- p.m. Though the applicant is having
temporary job she is entitled to maintenance, as respondent No.1 failed to
maintain and neglected her and her son Saksham. It is contended that, the
respondent No.1 had deprived her marital bliss also deprived her rights of
maintenance.
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C. C. NO. 151/DV/2022 ORDER BELOW EXH.-3 & 4
4. It is contended that, the applicant is subjected to domestic
violence at the hands of respondents, therefore, she prayed that, the
respondent No.1 be directed to pay an amount of I25,000/- p.m. for
regular and educational expenses of son Saksham. Further, the applicant
sought relief to direct respondents to hand over her stridhan. She also
sought relief of separate accommodation in the vicinity of Santacruz (E) or
in lieu of that provide I35,000/- p.m. Further, the applicant has sought
relief that, respondent No. 1 shall pay I1,00,000/- p.m. maintenance for
her and her son also sought relief that, respondent shall not alienate in any
manner the flat No.14/B Nilamber building, Kirol Road, Kama Lane,
Ghatkopar (W), Mumbai.
5. Respondents have resisted application by filing their say at
(Ex.-10). Respondents admitted the relationship with the applicant but
they have denied all the allegations of the applicant. It is contended that,
the applicant has never wanted to take care of her husband and family
members and only enjoying free life and deserted the respondent. It is
contended that, the applicant has never given proper honour to
respondents. It is contended that, the applicant has fabricated the false
case under section 498 (A) of I.P.C. against respondents. Respondents
have got anticipatory bail as per the order of Hon’ble Sessions Court,
Mumbai. It is contended that, the respondent No.2 is Senior Citizen and
knees of her both legs have been replaced, therefore, she cannot able to
work and seat. The respondent No.1 is having responsibility of taking care
of his old mother.
6. It is further contended that, the respondent No.1 is running
business Swastic Clothing for earning. He is residing on rental flat with his
family and paying approximately I30,000/- p.m. rent including light bill
etc. in respect of said flat. It is contended that, initial 5 years of marriage
went smoothly. Thereafter, the applicant started making complaints and
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insisted the respondent No.1 for separate residence. Whenever respondent
No.1 denied for separation from his old aged mother the applicant used to
started fighting and abusing his mother in filthy language. The applicant is
suspicious nature. She always doubted the respondent No.1. There is no
any residence in the name of respondent No.1. Therefore, there is no
question arise for alienate the same.
7. The applicant is working woman and she is earning good
money. She is able to maintain herself. The respondent No.1 contended
that, he is always happy to maintain his child and also willing to pay his
educational expenses and never denied for the same. The applicant on
08/01/2023 taken away her stridhan, therefore, she is not entitled to relief
of stridhan, as prayed. Lastly, respondents prayed that application be
rejected.
8. Considering the rival pleadings of both parties 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 is subjected domestic violence
at the hands of respondents? Yes.
2. Is applicant entitled for relief of
maintenance, as they prayed? Partly Yes.
3. Is applicant entitled for relief of
educational expenses of son
Saksham from the respondent
No.1?
Partly Yes.
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4. Is applicant entitled for relief of
direction to return stridhan? No.
5. Is applicant entitled for relief of
residence, as prayed? No.
6. What order? Application is
partly allowed.
REASONS
9. Applicant in support of her application relied on the
documents i.e. marriage invitation card, marriage photograph, copy of
written complaint, copy of F.I.R., copy of list of stridhan. Further, the
applicant also relied on the various bank statements filed alongwith (Exh.-
9) on record. The applicant has filed her affidavit of Assets and liabilities
at (Exh.-8).
10. Respondent No.1 in support of his defence relied on the
documents like Income Tax Return, which are alongwith (Exh.-14). The
respondent No.1 has filed affidavit of Assets and liabilities at (Exh.-13) and
also filed copies of account of statements of M/s. Swatic Clothing.
11. I have heard elaborated arguments of Ld. Advocate Smt.
Bhavana Jadhav for applicant and Ld. Advocate Shri Pandey for
respondents. I have also considered written notes of arguments filed on
behalf of applicant, which is at (Exh.-15).
Answer as to point No.1 :-
12. This point is in respect of whether the applicant has subjected
domestic violence at the hands of respondents. The main petition shows
that, the applicant has alleged that, the respondent No.2 is mother-in-law
has caused emotional as well as verbal abuses. The main allegations
against respondent No.1 is that, he is having extra marital affair with one
lady and he by keeping secrete of the said affair from applicant living his
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luxurious life. It is alleged that, the respondent No.1 used Credit Card of
the applicant and did not repay amount used by him to applicant within
time. Per contra, all the allegations have been denied by the respondent.
13. It is to be noted that in order to grant relief in favour of the
applicant the court has to consider that, whether she has been subjected
the domestic violence at the hands of respondents. For that purpose the
applicant relied on the copy of F.I.R. which shows that, on 28/07/2022 the
applicant had lodged F.I.R. under section 498 (A) of I.P.C. against
respondents with Vakola police station and same has been registered as
C.R. No.768/2022. The F.I.R. itself shows that, the respondent used to
beat her without any reason. Even the respondent No.2 used to raise
quarrel with the applicant on count of domestic work. Even it is contended
that, no favorite gifts have been received in the marriage and due to which
the applicant has suffered mental as well as physical cruelty at the hands
of respondent No.1 and 2. Even the fact of extra marital affair of
respondent No.1 is also reflected from the said F.I.R. It is to be noted that,
respondents have got Anticipatory Bail in the said offence. Even so far as
the allegations in respect of extra marital affair, emotional and verbal
abuses by respondent No.2 is not at all explained or even denied in the
present reply specifically by the respondents. The registration of F.I.R.
under section 498 (A) of I.P.C. is itself sufficient to held that, the applicant
is subjected domestic violence at the hands of respondent No.1 and 2.
14. It is further to be noted that since separation i.e. since
December 2020 the respondent No.1 has not provided any means of
maintenance to applicant and son Saksham. It is also nothing but
domestic violence at the hands of respondent No.1. Therefore, I hold that
the applicant is prima-faciely proved that, she has been subjected domestic
violence at the hands of respondent No.1 and 2. Therefore, I record my
findings for point No.1 in affirmative.
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Answer as to points No.2 and No.3.:-
15. These points are in respect of monetary relief and educational
expenses of son Saksham. The applicant has sought relief of maintenance
from the respondent No.1. It is contended by applicant that, she is doing
job and getting income to the tune of I35,708/-. Per Contra, the
respondent is having his own business by name and style Swastic Clothing
and earning income to the tune of I2,00,000/- p.m. Even he has income
from the rent.
16. I have gone through the affidavit of assets and liabilities of the
respondent. The respondent in his affidavit of assets and liabilities stated
that, he is having business and earning income I41,500/- p.m. He has
given the details of his income and expenses. Likewise, the applicant has
given her income and their monthly expenditure in the affidavit of assets
and liabilities. Now it is crystal clear that, she is having smart income from
her salary to the tune of I35,708/-. Therefore, I am in opinion that, she is
having smart income from her salary. Therefore, at this stage she is not
entitled to relief of maintenance from the respondent No.1.
17. So far as, maintenance and educational expenses of son
Saksham is concerned he is school going and growing boy. According to
applicant for proper maintenance and proper education the respondent
has to provide the maintenance and educational fees upto I25,000/- p.m.
Being father respondent No.1 has to provide maintenance and educational
expenses to son Saksham. So far as, quantum of maintenance is concerned
the respondent has placed on record his copy of Income Tax Return which
shows that, his income is around I7,00,000/- per annum. Further, he has
filed on record the statements of bank account of Swastik Clothing, which
shows that, from the said business he is earning smart income. No doubt
the respondent No.1 is also having responsibility of his old aged mother
but being father and husband he is also having responsibility to maintain
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the applicant and son Saksham. Therefore, considering income of
respondent No.1 the responsibility and basic needs of son Saksham and his
educational expenses I am in opinion that, the amount of I25,000/- p.m. is
sufficient as a maintenance to son Saksham, which also includes
educational expenses. Hence, I record my findings to points No.2 and No.3
in the partly affirmative.
Answer as to point No.4.:-
18. This point is in respect of relief of direction to return stridhan
to the applicant. The applicant alongwith petition has filed list of stridhan,
which alleged to be in the custody of respondents. However, in the reply
the respondent denied that they are having custody of the said stridhan.
On the contrary it is contended that, the applicant had taken away her
stridhan. Now the question is whether the stridhan is in the custody of the
respondent is matter of evidence. Therefore, merely relied on the
allegations and list provided by the applicant at this stage it cannot be said
that the said stridhan is with the respondents. Hence, the relief to that
effect cannot granted. Hence, I record my findings to issue No.4 in the
negative.
Answer as to point No.5 .:-
19 This point is in respect of alternate accommodation in the
vicinity of Santacruz (E) would be provided by respondent. The applicant
contended that, the respondent has to provide separate accommodation in
the vicinity of Santacruz (E), if it is not possible then respondent No.1
shall pay I35,000/- p.m. as a rent in lieu of the alternate accommodation.
Even the applicant has sought relief that the respondents restrain from
alienating her shared household i.e. her matrimonial home. However,
since December, 2020 the applicant is used to reside at her parental home.
The main petition itself discloses that, in the December, 2020 she had been
to mother’s home and never returned to the matrimonial home. Now she
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alongwith her child by son Saksham used to reside at her parental home
and she is not at all shelterless. In such circumstances I am in opinion that,
the relief regarding residence order, the relief in respect of order regarding
restraining respondents from alienating her shared household cannot be
granted. Even it is not come on record and not pleaded by applicant that,
respondents are trying to alienate or transfer the matrimonial home. In
such circumstances, she is not entitled to relief, as sought. Hence, I record
my findings to issue No.5 in the partly affirmative. In the result, I proceed
to pass following order.
ORDER
1 The application is partly allowed.
2 The respondent No.1 shall pay R.25,000/- p.m. to the
applicant for maintenance and educational expenses of
son Saksham, from date of filing of the present
application.
3 The respondent No.1 shall pay the cost of R.10,000/- of
the present application to the applicant.
4 Copy of order be provided free of cost to both the parties.
Mumbai.
Date : 14/02/2024.
SRD.
Sd/-
Metropolitan Magistrate,
71st Court, Bandra, Mumbai.
Dictated on :- 14/02/2024.
Transcribed on :- 15/02/2024.
Checked on :- 13/03/2024.
Signed on :- 13/03/2024.
SRD
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