Interim Order 1

Order Details: Interim Maintenance Order
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C C No.109/DV/2018
ORDER BELOW INTERIM APPLICATION EXH.3
1) The Applicant has filed this application for interim reliefs
such as monetary relief, protection order and residence order in
the shared household. It is the submission of Applicant that she is
widow and senior citizen. That the Respondent No. 1 is her son,
Respondent no. 2 is the wife of Respondent No. 1 and Respondent
No.3 is the daughter of Respondent No. 1 and 2. That the
Applicant and all Respondents are residing in the same shared
household. That the Applicant wish to reside and continue her
living in said shared household which is infact her matrimonial
home. But the Respondents are harassing her and force her to out
of said shared household. That the Applicant is depend on her
unmarried daughter who look after her daily needs. That the
Applicant has constructed extra room of 133 square feet in said
shared household for accommodation of Respondents. That after
death of husband of Applicant, said shared household came to be
devolved upon her as she was declared as nominee by her late
husband. That the Applicant is residing in said shared household
since from 50 years and she cannot afford to have a separate
accommodation for herself or for her unmarried daughter. That
the Respondents have multiple residence and are monetarily
sound and healthy and can look after themselves. However the
Respondent No.1 in order to pressurize the Applicant to surrender
said household in his favour is deliberately harassing her and her
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daughter and not supporting her financially. That the Respondent
No.1 is drawing pension and also getting income from giving
consultancy services. That the Respondent no.3 is highly qualified
and gainful employed. That the Applicant is subjected to mental
torture, harassment and cruelty by the Respondents. That the
Respondents do not want that the Applicant continue living in the
shared household. If the Respondents are restrained from
occupying said shared household, neither prejudice nor injustice
would be caused to them as they already have alternate
accommodation which is let out by them. Hence prayed direct the
Respondents to pay monetary relief in the form of monthly
expense of Rs.35000/ and remove themselves from said shared
household and protection order be passed against the Respondents
till the conclusion of trial.
2) Respondents have filed their say at Exh.6 and denied
contentions made in the application. Respondents have admitted
relationship between Applicant and Respondents and they also
admitted that the Applicant and Respondents are residing in the
same shared household. It is further say of Respondents that the
Applicant has concealed the fact that her unmarried daughter is
residing in the same house since last 50 years and daughter of
married daughter is also residing there since last 33 years without
any quarrel. On the contrary Respondents desire to live peaceful,
fearless and strainless life is shattered because of continuous
instigation and involvement of her married daughter and her
husband since last 10 years. That the Applicant has been
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housewife all her life and never earned a single rupee. That the
shared household was purchased by the father of Respondent No.1
from his sole salary income. That the Respondent No.1 only borne
total expenses of additional construction and also contributed
more than rupees one lakh in each case under title of building
repair funds. That the father of Respondent No.1 during his
lifetime made nomination in the name of Applicant as well as
Respondents on 17081969. That the Respondent No.1 is also
senior citizen and patient of myasthenia gravis and suffering from
pain in leg joints and on regular medical care. The Respondents
are willing to continue to take share in the household expenses of
the Applicant along with other family members. That the Applicant
is getting Rs.9000/ p.m. in the form of interest from bank savings.
That the unmarried daughter of Applicant is earning Rs.300000/
and grand daughter is MD by profession and run private
dispensary and earns around Rs.50000/ p.m. That the Applicant
has registered illegal and void Gift deed of said flat in favour of her
daughter Malini Shah. That the Respondents does not have any
other residential accommodation in Mumbai. On 28082018, the
Applicant and her unmarried daughter fought with the Respondent
No.1 and 2 and therefore Respondent No.1 has filed N.C. report to
Vileparle police station on next day. That the Respondent No.1 is
retired and having income of Rs.234000/ per year. That the
Respondent no.2 is doing social service by teaching folk dance.
That the Respondents never objected on the Applicant's right to
dwell and reside in said property. That Malini Shah is earning
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Rs.300000/ annually. That the Applicant has not approached this
court with clean hands. Hence prayed to dismiss the application.
3) Both the parties have filed their affidavits of assets, income
and expenditure. Learned Advocates of both the parties have filed
their written arguments. I heard both sides. Perused the contents
of application, say given by Respondents, documents filed by both
the parties and affidavits of assets, income and expenditure.
4) The contents of affidavit of assets and liabilities of the
Applicant shows that the Applicant is senior citizen of 98 years old
and staying in same flat along with the Respondents. It further
shows that her monthly expenses is Rs.76,256/ approximately. It
further shows that the Applicant is suffering from old age aliment.
It further shows that the Applicant is not having any income
source. It further shows that the Respondents are residing along
with the Applicant on mercy of Applicant's house at free of cost. It
further shows that the Respondent No.1 is retired from M/S
Colour Chem. Ltd, having post of Manager, received retirement
benefits, and presently providing services to various organic
companies as Chemical / Dyestuff Consultant.
5) On the contrary the contents of affidavit of assets and
liabilities of Respondent No.1 shows that he is also senior citizen
of 75 years old and he is having income of Rs. 32790/ per month.
It further shows that he is having monthly expenditure of
Rs.32808/. He is having his wife and unmarried daughter who are
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depend on him. It further shows that the Respondent No. 1 is
ready to pay his share with her other children. It further shows
that the Applicant is having income of Rs.9000/ p.m. in the form
of interest from banks savings. The Respondent No.1 has
contended in his affidavit that his mother is having shared house
where both the parties are residing. As per Annexure A of affidavit
of Respondent No.1, it shows that he is having Senior Citizen
Saving Schemes in bank as well as in post office and having
amount in it approximately worth Rs.1500000/ along with
interest. Annexure A further shows that Respondent No.1 is having
investment in equity shares which is having current price
approximately Rs. 8 Lacs. Annexure A further shows that
Respondent No.1 is having investment in mutual funds which is
having present value approximately Rs. 6 Lacs. Annexure A
further shows that Respondent No.1 is having investment with LIC
approximately Rs. 10 Lacs. Annexure A further shows that
Respondent No.1 is having investment in FD approximately Rs.
350000/. The Respondent has filed documents such as bank
statements, income tax returns, hospital bills and medical reports
along with affidavit. The Respondents have filed copy of N.C.
report lodged by the Applicant against the Respondents and copy
of complaint dated 29082019 filed by the Respondent against the
Applicant.
6) On the contrary the Applicant has filed gas bills, grocery
bills, legal fees, society maintenance bill, medical bills and
electricity bills paid by the Applicant. The Applicant has filed
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documents such as copy of share certificate of Sukumar coop
housing society Ltd. Vileparle, bills of maintenance of society and
its payment receipts paid by the Applicant, electricity bills which
are in the name of Applicant, interest certificates of SBI bank
which are in the name of Applicant, bank statements of Applicant
of ICICI bank and copy of interim order passed by City Civil Court,
Mumbai in Civil Suit No. 558/2018 which is pending between the
Respondent and Applicant.
7) The Applicant has filed copy of NC report dated 29.08.2018
filed by the Applicant against the Respondents.
8) The Applicant has filed Copies of gas bills paid by the
Applicant, Grocery bills paid by the Applicant, Receipt of legal fees
paid by the Applicant, Society maintenance bills, Medical bills of
the Applicant and Electricity bills.
9) On the contrary the Respondents have filed documents along
with his written argument such as records slips, copies of NC
reports filed by the Respondents against the Applicant. The
Respondent has filed copy of NC report filed by the Applicant
against the Respondent and copy of complaint filed by the
Respondent against the Applicant. The Respondents have filed
xerox copy of share certificate of the Respondent No.2, current
maintenance receipt of the housing society, xerox copies of cash
voucher and photographs of grand daughter of the Applicant.
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10) The Respondents have filed certain documents alongwith
their reply such as copy of MTNL bills, Share certificate of the
Applicant, Bank statements/Passbook of the Respondent No.1,
Bills of Contractor, Copy of page of nomination register, copy of
share certificate issued by Sukumar Cooperative Housing Society,
Copy of NC report dated 29.08.2018 filed by the Respondent No.1
against the Applicant, Copy of income tax returns, Medical bills of
Respondent No.1 and Copy of declaration of Malini Shah dated
21.04.2017.
11) It is interim prayer of the Applicant that the Respondent do
pay monthly maintenance of Rs.35,000/ to the Applicant and to
remove themselves from shared household and to protect her till
conclusion of the trial. It appears from the contents of the
application and the reply given by the Respondents that both the
parties are residing in the shared household since long. It also
appears that both the parties have claimed right and interest in
shared household. It appears that the Applicant is senior citizen of
98 years old and Respondent No.1 and 2 are also senior citizens of
72 years and 66 years old respectively. Under these circumstances,
in my opinion, balance of inconvenience is in favour of the
Respondents if they are removed from the shared household.
Therefore, interim prayer of the Applicant in respect of removing
the Respondents from shared household cannot be granted.
12) The contents of the application, copies of NC reports filed by
the Applicant and application filed by the Applicant at Exh.21 and
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its order prima facie shows that the Applicant is subjected to
domestic violence at the hands of Respondents and therefore in my
opinion, it is necessary to grant protection order in favour of the
Applicant. In such circumstances it is necessary to pass interim
protection order against the Respondents restraining them from
causing domestic violence on the Applicant.
13) The Applicant has prayed interim maintenance of
Rs.35,000/ per month from the Respondents. But said demand is
excessive. For deciding quantum of maintenance amount it is
necessary to see the income source of the Respondents, the needs
of Applicant and Respondents, the liabilities of the Respondents
and today's dearness. It is the contention of the Applicant that she
is not having any income source but the say given by the
Respondent No.1 and documents filed by him on record which
shows that the Applicant is getting income in the form of interest
from FD in the bank. But considering today's dearness, age and
health of the Applicant, her medical expenses in my opinion, the
income which the Applicant is getting in the form of interest from
her bank savings is not sufficient to maintain herself. Considering
the above discussion, it shows that the Respondent No.1 is having
sufficient income source by which he can maintain himself, his
family and the Applicant as well. Being the son, it is the
responsibility of Respondent No.1 to maintain his mother who is
98 years old. The Respondents have not filed any document to
show that he is maintaining the Applicant. The Respondents have
not filed any documents to show that from filing this application
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till today they are maintaining the Applicant.
14) Therefore, considering above discussion, I am of the view
that the Applicant is entitled to get interim maintenance from the
Respondent No.1. But the Applicant has claimed interim
maintenance of Rs.35,000/ per month which is excessive.
Therefore, considering needs of the Applicant, income source of
the Respondent No.1, his responsibilities, his medical expenses and
today's dearness, in my opinion, Applicant is entitled to get
monthly expenses of Rs.20,000/ per month from the Respondent
No.1 from the date of filing of said application till final decision of
main petition. Therefore, the application is liable to be partly
allowed. Hence, I pass following order:
ORDER
Application is partly allowed and following interim reliefs are
granted :
1. Respondent No.1 is directed to pay interim maintenance of
Rs.20,000/p.m. to the Applicant from the date of this application
till decision of main petition.
2. Pending hearing and final disposal of main petition, the
Respondents are directed not to commit any act of domestic
violence with the Applicant.
3. The interim prayer of removing the Respondents from shared
household is rejected at this stage.
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4. Copy of this order be given free of cost to both the parties
vide Sec.24 of the Act.
5. Applicant is at liberty to show copy of this order to the
concern Protection Officer/PSO as and when required.
Sd/
Dt. 13.12.2022 (C.P. Kashid)
Metropolitan Magistrate
65th Court, Andheri, Mumbai.
ask
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