Interim Order 1

Pdf Text: 1 C. C. NO.23/DV/2018
Rakhi Jagdish Ahir .... The petitioner
Vs
Bharti Prakash Kotia .... The respondent
ORDER BELOW INTERIM APPLICATION U/SEC 23 OF THE PROTECTION
OF WOMEN FROM THE DOMESTIC VIOLANCE ACT, 2005
1. By way of interim application dated 25.01.2018 the petitioner
claimed interim relief/s. Heard Ld counsels appearing on behalf of both
the parties. Perused written notes of arguments submitted by both the
parties.
2. Petitioner Rakhi is a widow of deceased brother of respondent
Bharti. It is contended and argued that petitioner was married with
Jagdish and they stayed in the shared household with mother and sister
of Jagdish. It is contended and argued that respondent is also a widow
having two daughters, out of that one daughter is serving in Bank but
another younger daughter of her is physically challenged and has to
remain on the wheel chair.
3. According to petitioner lady, she is doing job as a promoter in
Reliance company and getting salary between Rs.18,000/ to 20,000/
per month. She is having no issues.
4. By filing this application, she alleged that respondent lady, her
mother (means motherinlaw of petitioner) as well as daughters of
respondent are subjecting her to various types of domestic violence.
The application is supported by affidavit of the petitioner which is dated
23.01.2018, therefore, I have no any option than to accept her
allegations to be true and correct, at this primary stage.
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5. According to petitioner lady, she is staying in the shared
household presently with respondent and her relatives. According to
her, she pays Rs.1000/ per month to her motherinlaw towards her
medicine and daily basic needs. Considering present inflation and life
and standard of living in Mumbai, I doubt whether Rs.1000/ given by
petitioner to her motherinlaw towards monthly expenses etc are really
sufficient. However, motherinlaw of petitioner has not filed any
proceeding against petitioner(daughter in law), therefore, I have no
reason to discuss said point in detail.
6. The core issue revolving around the entire controversies between
the parties is the “shared household”. During the course of arguments,
it is specifically admitted by both the parties that initially said house
was standing on the name of the husband of the mother in law of
petitioner. Thereafter, said house came on the name of motherinlaw
of the petitioner. Therefore, it is clear that deceased husband of
petitioner lady being class I heir of his father is having his
share/right/interest in said property. It is true that due to death of
Jagdish Ahir now petitioner being his widow is standing in his shoes.
Therefore, at this interim stage, I am unable to accept the submissions
of the respondent that petitioner lady is not entitled to stay in the said
shared household.
7. On behalf of respondent it is argued that when shared household
came on the name of motherinlaw of the petitioner, she gifted the
same in favour of her daughter i.e. respondent Bharati by effecting a
registered gift deed. I have gone through said gift deed. However, at
this primary stage, I am of the opinion that motherinlaw of petitioner
was not full/complete or exclusive owner of said house, therefore at this
juncture, said gift deed cannot be given much weightage.
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8. On behalf respondent, reliance is placed on the case of S.R. Batra
Vs. Taruna Batra indiankanoon.org/doc/594 (SC) However, in that
case, motherinlaw had borrowed loan and purchased house on her
name, therefore she was held to be exclusive owner of that house.
However, in the present matter, it is clear that the shared household is
joint family property in which petitioner lady is residing since long. In
the present matter, petitioner lady is a widow. Therefore, in my humble
view, due to different facts and circumstances the above guidelines are
not in favour of respondent lady. On behalf of respondent, further
reliance is placed on the case of Savitri Vs Manoj CS (OS)910 2011
(appears Internet copy). However said judgment is pertaining to civil
suit/decree. Present case is domestic violence petition. Therefore, due
to different facts and circumstances, in my humble view, those
guidelines are not applicable to this interim application.
On behalf of respondent, the Ld counsel argued that petitioner
lady is not entitled to file DV petition against another lady i.e.
respondent. However, the Ld counsel on behalf of petitioner lady
opposed said argument. However in this regard, guidance can be taken
from Hiral Harsora Vs. Kusum Harsora Civil Appeal No.10084 of
2016 (Arising out of SLP (CIVIL) NO. 9132 OF 2015) dated
06.10.2016 wherein the Hon'ble Apex Court pleased to struck down
words 'adult male' before the word 'person' in Sec.2(q) of D.V.Act
holding that said words discriminate between persons similarly situated
and contrary to the object sought to be achieved by the act. Thus in
view of said guidelines complaint of DV can be made against any person
who is or who has been in a domestic relationship with aggrieved
person. Thus, present complaint filed by petitioner lady is found
tenable against the respondent lady.
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9. It is true that petitioner lady(widow) is having a job and
financially strong to some extent. However when she has lost her
husband in that event, it would be not justifiable to throw her out of the
shared household during pendency of this litigation.
10. It is true that petitioner Rakhi is a widow. Respondent Bharti is
also a widow. Mother of respondent namely Sadhana Ahir aged 75
years is also a deserted lady. It means all three ladies are facing similar
situation, but those are not knowing ways of life. They are not
understanding the problems/difficulties/sufferings of each others and
unnecessarily quarreling with each others.
11. For the purpose of this interim application, it is to be seen that,
both the parties have levelled serious allegations/counter allegations
against each others, those will have to be decided after recording
evidence in the main matter.
So considering peculiar facts, circumstances, alongwith
liabilities & evidence etc of the parties, I proceed to pass following order
in the interest of justice :
O R D E R
1. This interim petition is allowed, partly.
2. Respondent shall not cause any sort of domestic violence to
petitioner.
3. Respondent lady shall not dispossess petitioner lady from
said shared household, till final disposal of the main matter.
4. Respondent lady shall permit petitioner lady to use kitchen,
toilet etc.
5. Both parties shall not create third party interest in any
manner regarding shared household till final judgment of this court.
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6. Petitioner lady shall not bring alleged male (third person)
in the shared household.
7. Vide Sec. 165 of the Evidence Act, petitioner shall produce
her salary slips/certificates of last three months in the main petition.
8. Parties are at liberty to file application for mediation.
9. Copy of this order be given to the parties, free of cost vide
Sec.24 of the D.V. Act.
10. Petitioner is at liberty to produce copy of this order before
the concern Protection Officer/PSO, as and when required.
11. Above observations are preliminary in nature, the same
may vary during the final judgment, subject to proposed evidence.
Sd/
Dt : 30.01.2019 ( S.C. Pathare),
Metropolitan Magistrate,
65th Court, Andheri, Mumbai.
ask
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