Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C.C.No.53/DV/2018
Received on : 17.02.2018
Registered on : 17.02.2018
Decided on : 01.10.2025
Duration : 07 Y. 07 M. 14 D.
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS,
44TH COURT, ANDHERI, MUMBAI.
(Presided over by Dr. Sujitkumar C. Tayde)
C. C. No. 53/DV/2018
C.N.R.No.MHMM19-002322-2018
Exh. No.
Mrs. Sadaf Zahiruddin Kazi,
Age – 46 yrs., Occu. - Service,
R/o. Flat No.5-1-A, Royal Courts CHS. Ltd.,
Near Millar Nursing Home,
S.V. Road, Jogeshwari (West),
Mumbai – 400 102.
:
....Applicant
V/s.
Mr. Zahiruddin Sadruddin Kazi
Age – 53 Yrs., Occu.- Service,
R/o. Room No.133, 3rd Floor,
BIT Chawl No.1, Near J. J. Hospital,
Mumbai – 400 003.
:
...Respondent
------------------------------------------------------------------------------------------------
Application under Section 12, 18, 19, 20, 21 and 22 of the Protection of
Women From Domestic Violence Act, 2005.
--------------------------------------------------------------------------------------------------
Learned advocate for the applicant/petitioner: Adv. Shri A. R. Mourya
Learned advocate for the respondent : Adv. Smt. Martha Butala
------------------------------------------------------------------------------------------------
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 1 of 22 --
2 C.C.No.53/DV/2018
J U D G M E N T
(Passed on 01/10/2025.)
Being over powered by the atrocities and the domestic
violence committed by the respondent, the applicant/petitioner filed
this petition under Section 12 of the Domestic Violence Act and thereby
sought relief of maintenance and protection order.
The facts of the case are abridged as under :-
2. The petitioner got married with the respondent as per the
customs and rites prevailed in Muslim community on 07/01/2008. Her
parents incurred the expenses of her marriage and gifted her golden
and silver ornaments in the marriage.
3. After getting married with the respondent, the applicant
started to reside at her matrimonial place situated at Room No.133, 3rd
Floor, BIT Chawl No.1, Near J. J. Hospital, Mumbai – 400 003. Out of
this wedlock, she gave birth to male child namely Abrar on
11/09/2008. Thereafter, another male child namely Shuaib was also
born on 03/11/2012 out of the said wedlock. Her parents incurred the
delivery and medical expenditures in this regard.
4. According to the applicant, the respondent treated her well
initially. But thereafter, he started to forcing hard her to convince her
father to arrange house for him. He started demanding Rs.50,00,000/-
for purchasing flat in his own name. On getting refusal to fulfill this
demand, the respondent and his mother got annoyed and they started
causing her harassment. The respondent did not provide her proper
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 2 of 22 --
3 C.C.No.53/DV/2018
food and other necessary things.
5. According the applicant, when she was pregnant, the
respondent started facing hard her to stay at her parental place situated
at Flat No.407, Lily View, Jogeshwari (W),Mumbai. Then the
respondent accompanied her in her father’s flat. However, he used to
reside with his mother in BIT Chawl. Thus, according to the applicant,
the respondent used to stay with her only with a view to consummate
her sexually.
6. The applicant further alleges that when she was having
pregnancy of three months, the respondent consummated her sexually
in violent manner which caused bleeding. Then she was taken to
gynecologist, who advised her to take bed rest. However, the
respondent used to cause her harassment by satisfying his lust. The
respondent is alleged to have neglected to maintain her and their
children.
7. It is further submitted by the applicant that the respondent
started pressing her father to purchase the flat. To avoid further
disputes, her father purchased a flat at A-501, Royal Court CHS Ltd.,
Opp. Millat School, S.V.Road, Jogeshwari, Mumbai. According to the
applicant, the ownership of this flat is with her and the respondent has
no right in the said flat. However, the respondent used to visit her
every Saturday night and thereafter, he used to reside in BIT Chawl for
most of the time.
8. The applicant alleges that her two sons are school going
children and they are residing with her. But the respondent did not take
care of them. Even the respondent failed to maintain her and her
children. Thus, the respondent is alleged to have refused and neglected
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 3 of 22 --
4 C.C.No.53/DV/2018
the applicant and her children. Thus, according to the applicant, the
respondent failed to discharge his obligation as husband and father.
9. It is further alleged that in the month of April, 2016, the
respondent insisted the applicant to sign on blank paper under the
pretext that he wanted to close her account in BMC Bank. Then he
deserted her. He demanded money from the applicant. Thereafter, he
abused and assaulted her.
10. In the month of August, 2016, the respondent came to her
house with his brother Kamaluddin Kazi and they abused and assaulted
her. At that time, her parents were out of station. The respondent
threatened her to kill. Then the respondent threatened to kidnap the
two children. However, to protect the marital relations, the applicant
did not initiate any legal proceeding at that time against the
respondent.
11. The applicant further alleges that the respondent had filed
the false proceeding against her for getting the custody of her two
children. On 15/12/2017, when she left the Family Court, Bandra the
respondent started abusing her and pressurized her to sell the flat at
Royal Court Building. It is contended by the applicant that the
respondent has no right over the said flat. It is alleged by the applicant
that the respondent not only assaulted her by means of blows, but also
he kicked her. Some how she rescued herself and then rushed to BKC
Police Station to lodge report against the respondent. Thus, according
to the applicant, the respondent not only committed domestic violence
but also deserted her since the month of April, 2016. It is alleged by
the applicant that the respondent treated her in a violent manner and
there is threat to her life and the life of her children at the hands of the
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 4 of 22 --
5 C.C.No.53/DV/2018
respondent.
12. According to the applicant, she is working with Tata
Memorial Center and she gets meager income out of which she has to
maintain herself and her two children. As per her submission, the
respondent works with MCGM and earns handsome salary. Thus,
according to the applicant, in spite of having sufficient means, the
respondent refused and neglected to keep and maintain the applicant
and her children. She further states that she was subjected to domestic
violence at the hands of the respondent and therefore, she knocked the
door of this Court by way of filing the present petition on hand wherein
she sought the protection order and the monetary relief.
13. The respondent resisted the claim of the applicant by way
of filing his written statement at Exh.No.06. Though the respondent
admitted the domestic relationship with the applicant, yet he denied all
the adverse allegations leveled against him in toto.
14. According to the respondent, this case is nothing but a
counter blast to the petition filed by him before the Family Court for
getting the access to his two sons. He alleged that the applicant has
created grounds to deprive him from getting the access of his two sons.
He further alleges that the respondent suppressed the material facts.
According to him, he did not commit the domestic violence as alleged
by the applicant.
15. It is his stand that the applicant treated him with cruelty.
He further submits that the applicant never respected him and picked
up quarrels on petty natters. He submits that the applicant visited his
house hardly for 4 to 5 times and she continued to stay at her parents
house from the period of her first pregnancy. According to him, the
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 5 of 22 --
6 C.C.No.53/DV/2018
applicant is residing with her parents at Sagar Tower, B-302, Opp. FDC,
Aqsa, Masjid Road, Jogeshwari, Mumbai and she used Flat No.501/A,
5th Floor, Royal Court Co-operative Housing Society in cause titled
address to mislead this Court.
16. According to the respondent, he and the applicant jointly
invested money and purchased the said flat in Royal Court Co-operative
Housing Society Building in the year of 2010 and therefore, he has right
in the said property. He alleged that the applicant did not allow him to
enter into the said flat. He further submitted that in the month of
February, 2016 the applicant left the said flat without informing him
and it is locked. According to him, when he visited the applicant at her
parents house, she shut the door and did not welcome him. It is further
submitted by him that he had to look after his old aged mother and
therefore, he used to go BIT Chawl.
17. It is further alleged by the respondent that the applicant
did not take care of his mother and denied the access to his children.
According to him, the applicant has created false grounds in this
application. He denied the allegations that he consummated her
sexually. According to him, the applicant never handed over any
medical folder to him. It is his stand that he always looked after and
showered love and affection to the applicant and their children.
According to him, it is the applicant who is at fault. He further submits
that he earns salary of Rs.45,000/- per month. On the other hand, the
applicant has source of income and therefore, she has no locus-standi to
seek any relief as prayed for. Thus, the respondent opposed the
application filed by the applicant.
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 6 of 22 --
7 C.C.No.53/DV/2018
18. In view of the rival submissions made by both the parties
and the documents placed on record, following points arise for my
determination and I record my findings thereon in the light of the
evidence placed on record as under:
SR.
NO.
POINTS FINDINGS
1 Whether the applicant proves that she was
subjected to domestic violence at the hands
of the respondent?
Proved
2 Is the applicant entitled for monetary relief
and maintenance?
Proved
3 Is the applicant entitled for protection
order?
Proved
4 What order? The application is
allowed as per final
order.
REASONS
19. In order to substantiate the claim, the applicant filed her
affidavit of evidence vide Exh.No24. In addition to the oral evidence,
she placed reliance on the following documentary evidence:-
i Her marriage certificate.
ii Birth certificates of her two sons.
iii Copy of agreement for sale regarding Flat No.501/A, Royal
Court Co-operative Housing Society, Jogeshwari (W), Mumbai.
iv Her affidavit of assets and liabilities.
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 7 of 22 --
8 C.C.No.53/DV/2018
20. To rebut the claim of the applicant, the respondent filed his
affidavit of examination-in-chief vide Exh.No.25. He placed reliance on
the following documents:-
i Copy of the judgment delivered by the Hon’ble Family Court.
ii Copy of salary certificate of the applicant and the copy of her bank
passbook.
iii His bank account statement.
iv Copies of his income tax return.
v His affidavit of assets and liabilities.
21. Having heard the learned advocates for both the sides, I
perused the record. The learned advocate for the respondent Smt.
Martha Butala filed her written notes of argument.
AS TO POINT NO.1:
(Whether the applicant proves that she was subjected to domestic
violence at the hands of the respondent?)
22. In the present case on hand, the applicant alleged that the
respondent harassed her and caused physical abuses, sexual abuses and
economic abuses. Thus, according to her, she was subjected to domestic
violence. In such circumstances, before making the appreciation of the
evidence, let us have a glance at the definition of domestic violence.
23. In view of section 3 of the Protection of Women from
Domestic Violence Act, 2005, any act, omission, commission or conduct
of the respondent shall constitute domestic violence in case it harms or
injures or endangers the health, safety, life or well being and includes
causing physical abuses, sexual abuses, verbal and emotional abuses
and economic abuses. It is pertinent to note here that ‘sexual abuses’
includes any conduct of sexual nature that abuses, humiliates, degrades
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 8 of 22 --
9 C.C.No.53/DV/2018
or otherwise violets the dignity of women. ‘Verbal and emotional’
abuses includes insult, ridicules, humiliation, name calling and insult
and repeated threats to cause physical pain to any person in whom the
aggrieved person is interested. ‘Economic abuses’ includes deprivation
of all or any economic or financial resources to which the aggrieved
person is entitled under any law or custom whether payable under an
order of Court or otherwise or which the aggrieved person requires out
of necessity including not limited to, household necessities for aggrieved
person and her children, if any, stridhan, property jointly or separately
owned by the aggrieved person, payment of rental related to the shared
household and maintenance. It also includes prohibition or restriction
to continue access to resources or facilities with the aggrieved person is
entitled to use or enjoy by vertu of the domestic relationship including
access to the shared household. Keeping in mind the definition of
domestic violence, I proceed to scan whether the applicant was
subjected to domestic violence.
24. Before embarking upon the conclusion, it is necessary to
mention here the admitted facts which are reflected from the pleadings
and documents placed on record. These undisputed facts are as under:-
i The applicant got married with the respondent on 07/01/2008
as per the rites and customs prevailed in Muslim Community.
ii After getting married, both the applicant and respondent
resided in Room No.133, 3rd Floor, BIT Chawl No.1, Near J. J.
Hospital, Mumbai – 400 003.
iii The applicant and the respondent have two issues namely
Abrar (10 years old) and Shuaib (6 years old) out of their
wedlock.
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 9 of 22 --
10 C.C.No.53/DV/2018
iv The respondent filed the petition before the Hon’ble Family
Court at Bandra, Mumbai against the applicant on 03/10/2017
for getting the access to their minor sons.
v The applicant is residing separate from the respondent along
with her said two children in her parents’ house situated at B-
302, Sagar Tower, Opp. FDC, Aqsa Masjid Road, Jogeshwari
(W), Mumbai.
vi Both the applicant and the respondent
are doing their
respective jobs and they are earning monthly income.
Keeping in mind the admitted facts as noted above, I turn to
make the scrutiny of the evidence placed on record.
25. The applicant stated on oath that the respondent deserted
her since the month of April, 2016 and gave threats to her life till the
year of 2017. According to her evidence, on 15/12/2017, when she
came out of the Family Court, Bandra, the respondent abused her and
pressurized her to sell the flat at Royal Court Building and thereafter,
she lodged the report against the respondent in BKC Police Station. The
applicant further testified that in the month of August, 2016 the
respondent came to her parental house and assaulted her. According to
her evidence, he threatened to kidnap their children.
26. It is admitted position that the respondent had filed the
petition against the applicant in the Family Court. In such
circumstances, it is probable that the applicant and the respondent
might have come across to each other in the Court premises. Moreover,
the respondent has not denied the fact of lodging FIR against him in
BKC Police Station. It is pertinent to note here that though the
applicant has been cross-examined at length, yet the above mentioned
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 10 of 22 --
11 C.C.No.53/DV/2018
piece of evidence has not been specifically denied by the respondent.
Thus, the evidence adduced by the applicant reveals that the
respondent committed ‘physical abuses’ as contemplated under section
3 of Protection of Women from Domestic Violence Act, 2005.
27. The applicant further testified that when she was pregnant,
the respondent did not take care of her. According to her evidence, the
respondent used to visit her parental house to satisfy his sexual lust. She
further deposed that the respondent used to harass her physically and
mentally on pretext of sex. According to her evidence, when she was
having three months pregnancy, the respondent committed sexual
intercourse with her in a very violent manner that caused bleeding.
28. The learned advocate for the respondent argued that the
applicant did not lodge the report against the respondent for the said
atrocity and therefore, according to her, the testimony of the applicant
cannot be believed. But I do not agree with her submission because in
matrimonial life, a wife may not go to Police Station to report the
incident in respect of the violent sexual intercourse caused by her
husband in her private life. Hence, having regard to the common course
of natural events and the human conduct, I am of the opinion that even
though the applicant might have not lodged the report against the
respondent regarding the alleged violent sexual intercourse committed
by her husband (respondent), still her statement made on oath before
the Court cannot be disbelieved. The another reason to accept the
testimony of the applicant is that no woman can dare to disclose the
incidents of her private life in open Court, unless and until she is
overpowered by the sexual abuses committed by her own husband. In
such scenario, I have no hesitation to take into consideration the
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 11 of 22 --
12 C.C.No.53/DV/2018
testimony of the applicant. The facts stated by the applicant on oath
regarding the said violent sexual intercourse committed by the
respondent comes within the ambit of ‘sexual abuses’ as contemplated
under section 3 of Protection of Women from Domestic Violence Act,
2005.
29. As per the evidence of the applicant, her father had given
money to purchase the Flat No.501/A in Royal Court Co-operative
Housing Society. It is pertinent to note here that the respondent himself
deposed that he and the applicant jointly invested the money and
purchased the said flat. Thus, it appears that the applicant has right and
interest in the said immovable property. However, according to her
evidence, the respondent pressurized her to sell that flat. She further
testified that when she refused to do so, the respondent assaulted her
by means of fist and kicked her. Though the applicant was cross-
examined at length, yet the respondent could not succeed to impeach
her testimony in accordance with law. Moreover, except denial to the
positive evidence adduced by the applicant, no any specific stand was
taken by the respondent while conducting the cross-examination of the
applicant in this regard. Thus, evidence adduced by the applicant
reveals that the respondent prohibited her from getting access to
resources or facilities which she is entitled to use by virtue of the
domestic relationship. In such scenario, it can be inferred that the
respondent deprived the applicant from getting her right in the said flat.
Having regard to the positive evidence adduced by the applicant, I have
no hesitation to hold that such violence can be termed as the ‘economic
abuses’.
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 12 of 22 --
13 C.C.No.53/DV/2018
30. In view of the positive evidence placed on record by the
applicant, I have come to the conclusion that the applicant was
subjected to domestic violence as contemplated under section 3 of the
Protection of Women from Domestic Violence Act, 2005. Resultantly, I
record my finding in affirmative for point no.1.
AS TO POINT NO.2
(Is the applicant entitled for monetary relief and maintenance?)
31. Before embarking upon the conclusion, it is necessary to
mention here the guidelines laid down by the Hon’ble Supreme Court in
case of Pravin Kumar Jain Vs Anju Jain (2025) 2 SCC 227 for fixing the
amount of maintenance and the factors to be looked into in this regard.
These guidelines are as under:
i] Status of the parties, social and financial.
ii] Reasonable needs of the wife and the dependent children.
iii] Parties’ individual qualification and employment statuses.
iv] Independent income or asset owned by the applicant.
v] Standard of life enjoyed by the wife in the matrimonial home.
vi] Any employment sacrifices made for responsibilities.
vii] Reasonable litigation costs for a non-working wife.
viii] Financial capacity of the husband, his income, maintenance
obligation and liabilities.
Keeping in mind these guidelines, I turn to make the scrutiny of
the evidence placed on record.
32. In this case, it is admitted position that the applicant and
her two sons have been residing separate from the respondent.
According to the evidence of the applicant, the respondent refused to
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 13 of 22 --
14 C.C.No.53/DV/2018
keep and maintain her and her children. It is pertinent to note here that
though the respondent had filed the petition before the Hon’ble Family
Court for getting the custody of the said two children, yet he did not file
the petition for restitution of conjugal rights. In such circumstances, it
can be inferred that the respondent did not even bother to save his
matrimonial knot with the applicant. It is admitted position that both
the children namely Abrar and Shuaib are school going children and
they reside with the applicant since April, 2016.
33. The learned advocate for the respondent vehemently
argued that the applicant is capable to maintain herself and the two
sons. Hence, according to the learned advocate for the respondent, the
applicant cannot claim maintenance amount from the respondent. In
order to support the claim, the respondent placed reliance on the
judgment passed by the Hon’ble Bombay High Court in Criminal Writ
Petition No.32/2014 (Kaushik Gharami Vs Sau. Sangeeta Gharami and
Ors., Judgment dated May 05, 2014).
34. I have gone through the judgment noted above. In this
citation, the Hon’ble Bombay High Court held that the Learned
Magistrate had committed an error in granting monetary relief to the
respondent no.2 and 3 despite the fact that domestic violence could not
be established. But in the present case on hand, the applicant has
succeeded to prove the domestic violence. Thus, the facts and
circumstances of the present case on hand are different than that of the
facts and circumstances mentioned in the said Judgment. Hence, with
due respect to the ratio laid down in the citation relied upon by the
respondent, this Court is of humble opinion that the said citation is not
helpful for the respondent to support his defence.
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 14 of 22 --
15 C.C.No.53/DV/2018
35. Per contra, the learned advocate for the applicant in his
well searched argument submitted that though the applicant is getting
salary, yet her income is insufficient to meet the basic needs of her
children. In such circumstances, it is necessary to decide whether the
applicant is entitled for the monetary relief as prayed.
36. It is admitted position that the Learned Predecessor of this
Court had granted the interim maintenance to the applicant to the tune
of Rs.20,000/- per month on 23/09/2019. But the respondent
challenged the said interim order by filing Criminal Appeal
No.276/2019 before the Hon’ble Additional Session Judge, Borivali
Division, Dindoshi, Mumbai. The said appeal was allowed and the
respondent is directed to pay Rs.15,000/- per month to the applicant
towards the maintenance of her children. This appeal was allowed on
06/01/2020.
37. In fact, when the said interim order was passed, none of
the parties to this case adduced evidence. In other words, the interim
order was passed on the basis of the documents placed on record. But
thereafter, the applicant and the respondent adduced evidence to
substantiate their respective claim. In such scenario, this Court is
called upon to make the scrutiny of the evidence to decide whether the
applicant is entitled for the maintenance in the light of evidence placed
on record.
38. The applicant testified that though she works on the post of
Scientific Assistant in Tata Memorial Center, Mumbai, yet her income is
insufficient to meet the expenses of basic needs and the other
educational expenditure of her children. She filed her affidavit of assets
and liabilities on 08/12/2022 which discloses that her monthly income
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 15 of 22 --
16 C.C.No.53/DV/2018
is Rs.90,594/-. She has further stated in the said affidavit that she is in
need of Rs.40,000/- per month to meet the educational and other
necessary expenses of her two children.
39. In this case, it is undisputed fact that the respondent is also
working as the Audit Assistant in Municipal Corporation of Greater
Mumbai. The respondent has filed his affidavit of assets and liabilities
along with his salary slip (Exh.No.'E'28). After perusal of the said salary
slip for the month of November, 2022, it appears that the respondent
received total salary of Rs.97,752/- for the month of November, 2022.
On the other hand, as per the averments made in the affidavit of assets
and liabilities of the applicant, she received the monthly salary of
Rs.90,594/- on 08/12/2022. Thus, prima facie it appears that the
respondent was getting higher salary than that of the salary received by
the applicant at the relevant time.
40. It is admitted position that both the children reside with the
applicant. It is not disputed that the respondent has been paying the
maintenance amount of Rs.15,000/- per month to the applicant towards
the maintenance of their children as per the order passed by the Hon’ble
Additional Session Judge, Borivali Division, Dindoshi, Mumbai in
Criminal Appeal No.276/2019 dated 16/01/2020. But having regard to
the hike in the rates of commodities and the increased inflation rate,
this Court is of humble opinion that the said amount of Rs.15,000/- per
month is insufficient. In other words, considering the growing age of
the said two school going children and their increasing basic needs, the
maintenance amount of Rs.15,000/- for a month is not sufficient to
fulfill their primary needs. Hence, this Court is of humble opinion that
the said amount deserves to be enhanced by invoking the powers under
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 16 of 22 --
17 C.C.No.53/DV/2018
section 28 of Protection of Women from Domestic Violence Act, 2005.
Now I turn to decide whether the applicant is entitled for the
maintenance amount/monetary relief.
41. In this case, the applicant has sought the maintenance
amount of Rs.15,000/- for her on the ground that the income which she
earns is insufficient to fulfill the basic needs. It is admitted position that
at this juncture the respondent resides with her parents and her place of
working is far away from her residence. In such circumstances, she is
required to bear the traveling expenses. Apart from this, if in future,
the applicant decides to reside separate with her two children, then it
will be impossible for her to carve out the expenses towards the rent.
Moreover, now her two children requires more money to meet the
tuition fees, education fees, traveling charges for transportation and
other necessary charges. In such circumstances, this Court is of humble
opinion that the salary which the applicant gets may be insufficient.
42. Apart from this, as discussed in the forgoing para, it has
been established on record that the monthly salary of the applicant is
lower than the salary of the respondent. Thus, it appears that there is a
disparity in the income of the applicant and the respondent. Apart from
this, the respondent has to look after only his old aged mother and he
resides in his house. On the other hand, the applicant is spending her
life at the mercy of her parents and she has to bear all the expenses
arising out of the fundamental needs and the basic needs of her
children also. In such circumstances, I am of the opinion that even
though the applicant is getting income, still she is entitled to get the
maintenance from the respondent.
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 17 of 22 --
18 C.C.No.53/DV/2018
43. In fact, according to the evidence of the applicant, the
respondent pressurized her to sell the flat in Royal Court Co-operative
Housing Society. The respondent has categorically stated on oath that
the said flat is locked. It is admitted position that the applicant is
residing with her parents along with the two children. In such scenario,
the applicant is in need of more money to fulfill all the expenses
including the proposed rent in future. Hence, in my opinion, even
though the applicant is getting monthly salary, still her claim of
maintenance cannot be rejected at the thresh hold. I am fortified with
my opinion in view of the ratio laid down by the Hon’ble Apex Court,
in the case of Sunita Kachwala Vs Anil Kachwala reported in (2014) 16
SCC 715, wherein the Hon'ble Supreme Court held that merely because
the wife was earning some income, it could not be a ground to reject
her claim for maintenance.
44. The facts and circumstances of the present case on hand
are similar to the facts and circumstances of the case of Shachindra
Kamalaprasad Shukla Vs Priya Shachindra Shukla, (Writ Petition
No.16275) reported in 2025 SCC OnLine Bombay 2505 decided on
18/06/2025. In this case law, the Hon’ble Bombay High Court observed
as under -
“In the present case though the wife is earning, the said
amount is not sufficient for her own maintenance since she
has to travel daily a long distance for her job. She is staying
with her parents which she cannot stay indefinitely. Because
of her meager earning, she is constrained to stay in the house
of her brother along with her parents causing inconvenience
and hardship to all of them. In such a income she is not in
position to live a decent life. As against, it if compared against
the petitioner’s income, his income is far more than the
respondent’s wife with no financial responsibilities on him.
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 18 of 22 --
19 C.C.No.53/DV/2018
Even assuming the certain expenses must be necessary for
maintenance of himself and the family member whom he is
obliged to maintain, the amount that remains is sufficient
enough to enable him to support the respondent-wife as per
the order passed by the Judge, Family Court at Bandra.
Merely because the wife is earning, she cannot be deprived
the support from her husband with the same standard of
living to which she is accustomed to in her matrimonial
home.”(Para No.14)
45. In the case of Kusum Sharma Vs Mahinder Kumar Sharma
(FAO-369/1996 Date of decision 6th August, 2020), the Hon’ble Delhi
High Court held that maintenance is not merely a legal right. It is part
and parcel of basic human rights. The object of providing maintenance
is two fold: firstly, to prevent vagrancy resulting from strained relations
between the husband and wife, and secondly, to ensure that the
indigent litigating spouse is not handicapped in defending or
prosecuting the case due to want of money.
46. In view of the discussion noted above, I have come to the
conclusion that the applicant succeeded to prove the domestic violence
committed by the respondent. So also it has been established on record
that the respondent refused to keep and maintain the applicant. The
record shows that the income of the respondent is far more than the
applicant. In such scenario, having regard to the facts and
circumstances of the present case on hand and the ratio laid down in
the citations
supra, I am of the opinion that the applicant is also entitled
for maintenance from the respondent. Hence, I record my findings in
affirmative for point no.2.
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 19 of 22 --
20 C.C.No.53/DV/2018
AS TO POINT NO.3:
(Is the applicant entitled for protection order?)
47. It is the case of the applicant that she was subjected to
domestic violence at the hands of the respondent. According to her
evidence, the respondent used to visit her residence at B/302, Sagar
Tower, Opp. FDC, Aqsa Majid Road, Jogeshwari (W), Mumbai and Flat
No.501/A, Royal Court CHS Limited, Near Millat Nursing Home, S.V.
Road, Jogeshwari (W), Mumbai and used to commit domestic violence
there. On the other hand, the respondent denied these allegations.
48. In the present case on hand, the respondent has
categorically deposed on oath that he jointly purchased the said flat
no.501/A in Royal Court Building as described above. According to the
evidence of the applicant, the respondent used to pressurize her to sell
the said flat. She further testified that on getting refusal in this regard,
the respondent assaulted and abused her.
49. It is the stand of the respondent that the applicant filed this
case as a counter blast to the proceeding which he had initiated against
the applicant in the Family Court. From these premises, it can be
inferred that the relations between the applicant and the respondent are
strained. Moreover, the applicant has stated on oath that she had
already lodged the police complaint against the respondent regarding
the ill treatment given by him, but the police did not take the
cognizance in this regard. Thus, having regard to the positive evidence
adduced by the applicant and the relevant documents produced on
record, I am satisfied that the domestic violence has taken place and
there is also likelihood to take place the same in future, if the
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 20 of 22 --
21 C.C.No.53/DV/2018
respondent is not restrained from committing the domestic violence. In
short, it can be held that the applicant has prima facie made out the
case for getting the protection orders as contemplated under section 18
of Protection of Women from Domestic Violence Act, 2005. Resultantly, I
record my finding in affirmative for point no.3.
The logical corollary of my aforesaid findings leads me to
pass the following order:
O R D E R
i] The petition is partly allowed.
ii] The respondent is directed to pay the maintenance amount to
the tune of Rs.10,000/- (Rupees Ten Thousand only) per month
to the petitioner/applicant and Rs.25,000/- (Rupees Twenty
Five Thousand Only) per month to their children namely Abrar
and Shuaib towards their maintenance from the date of filing
this application.
iii] The respondent is hereby prohibited from causing any domestic
violence to the petitioner, other relatives or any person who
give the aggrieved person assistance.
iv] The respondent is restrained from visiting the residence of the
applicant situated at B/302, Sagar Tower, Opp. FDC, Aqsa
Majid Road, Jogeshwari (W), Mumbai and he shall not enter
into the place of employment of the applicant/aggrieved person
or other place frequented by her.
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 21 of 22 --
22 C.C.No.53/DV/2018
v] Copy of this order be supplied to the applicant and respondent
free of cost.
vi] The copy of the order be forwarded to the concerned Protection
officer for compliance and necessary action.
(Sujitkumar C. Tayde)
Judicial Magistrate First Class,
Date :- 01.10.2025 44th Court, Andheri, Mumbai.
Typed On: 01.10.2025
Signed On: 01.10.2025
spj
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 22 of 22 --