Interim Order 1

Order Details: Interim Maintenance Order
Pdf Text: 1 C. C. No. 76/DV/2019
IN THE COURT OF METROPOLITAN MAGISTRATE,
RAILWAY MOBILE COURT, ANDHERI, MUMBAI
C. C. No. 76/DV/2019
Kamaljit Kaur Kohli ... Applicant
V/s.
Amarjit Singh Kohli + 2 ... Respondents
ORDER BELOW EXH. 02
1. This is an application filed by the applicant for getting
interim reliefs under the provisions of the Protection of Women From
Domestic Violence Act, 2005 (for short 'the Act').
2. In brief, it is the case of the applicant that she got married
with respondent no. 1 on 22/05/1972 as per Sikh rites and customs.
The applicant and respondent no. 1 are blessed with two sons
(respondent nos. 2 and 3) and one daughter Aneet Kaur, who is
presently staying at Toronto, Canada. At present the applicant is
residing in Flat nos. 1 and 2, Unit no. 8, ground and first floor, Brighton
Tower, 2nd Cross Lane, Lokhandwala Complex, Mumbai. The applicant
is owner of flat no. 1 as per registered document dated 02/07/1989.
Flat nos. 1 and 2 are in the nature of duplex, with a staircase joining
the ground and first floor. Both the flats are sharedhousehold of the
applicant. At present respondent nos. 2 and 3 are residing separately
with their respective families.
3. It is further case of the applicant that sometime after
marriage respondent no. 1 started showing true colours. Respondent
no. 1 had a perpetual drinking habit and was also a womanizer.
Respondent no. 1 was showing no affection towards the applicant and
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her children. Respondent no. 1 always subjected the applicant to
humiliation, abuse and arrogance. Respondent no. 1 always lived like a
playboy and always had one night stand with various women.
Considering high income of respondent no. 1 and his family,
respondent no. 1 projected the applicant as one of the assessors, for
income tax benefit and started filing income tax returns in her name.
Respondent no. 1 obtained signatures of the applicant on various
documents. On the pretext of investment, respondent no. 1 also took
all the money and gifts from the applicant which were received by her
from her family. Respondent no. 1 has been staying for six days in a
week at Pune and only on Wednesday evening he would come to the
matrimonial house. Respondent no. 1 never care for the applicant and
her children. Respondent no. 1 alongwith his brother Manjeet Singh
Kohli and respondent nos. 2 and 3 had illegally trespassed on the
ground floor of shared household and started removing belongings of
the applicant and started putting wooden partition and blocking entry
of the applicant. Due to which the applicant lodged report in respect of
the said incident in police station Oshiwara on 10/11/2018.
Respondent nos. 2 and 3 have become greedy at the instance of
respondent no. 1. The respondents have committed various acts of
domestic violence against the applicant. The applicant is senior citizen
woman and she is staying all alone. Hence, this application.
4. The respondents resisted the application by filing their
reply (Exh. 5). Admittedly, the applicant is wife of respondent no. 1
and respondent nos. 2 and 3 are their sons. The respondents have
denied all the adverse allegations made against them. It is the case of
the respondents that the applicant has suppressed material facts. The
applicant is suffering from mental illness. She is suffering from
delusions and schizophrenia. Respondent no. 1 is 70 years of age and
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he is heart patient. There is no domestic relationship between the
applicant and respondent no. 1 since last 20 years. Respondent nos. 2
and 3 never resided in domestic relationship with the applicant.
Respondent no. 1 has already filed petition for divorce in the Family
Court. The applicant has withdrawn lacs of rupees from the joint
account of the applicant and respondent no. 1. The respondents have
already provided more than 1 crore rupees to the applicant so that she
can live on interest received therefrom. The applicant is also having
jewellery and ornaments worth rupees more than 2 crores. The
bungalow / flats are purchased by respondent no. 1 from his self
acquired income. The applicant is staying on ground floor and
respondent no. 1 is staying on first floor. The respondents have not
made any alteration or addition in the flats. Only wooden ply came to
be repaired which was already there. Respondent no. 1 is paying
maintenance bill of society and electricity bill of ground floor flat since
last more than 20 years. The respondents have not committed any act
of domestic violence. The application is an abuse of process of court.
Hence, the application may be rejected.
5. I have gone through the record. I have heard the
submissions of both side advocates. The learned advocate of the
applicant argued that the applicant is victim of domestic violence. He
also pointed out and argued on many incidents of domestic violence
mentioned in the application. Lastly he submitted that the applicant is
entitled for the interim reliefs claimed by her. Percontra, the learned
advocate of the respondents argued that there is no domestic
relationship between the parties since long. He also referred pleading
of the applicant filed in Family Court to support his submissions.
According to the learned advocate of the respondents as there is no
domestic relationship between the parties since last many years, there is
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no question of domestic violence and therefore the applicant is not
entitled for any reliefs.
6. I have given due consideration to the submissions of both
the parties. Admittedly, the applicant is wife of respondent no. 1 and
their marriage still subsist. Admittedly respondent nos. 2 and 3 are
sons of the applicant. Even as per the case of the respondents the
applicant and respondent no. 1 are residing in the same bungalow.
According to respondent no. 1 he is staying at first floor and the
applicant is staying on ground floor. Respondent no. 1 also stated that
he is paying maintenance charges of the society and also electricity
charges of the ground floor. In the circumstances, it cannot be said that
there is no domestic relationship between the applicant and respondent
no. 1 since long. Further, as per Section 2(f) of the Act 'domestic
relationship' also includes where two persons have at any point of time
lived together in a shared household. Hence, the application is prima
facie maintainable against the respondents.
7. I have considered the submissions of both the parties on
the point of domestic violence. The case is at initial stage. Both parties
have made several allegations against each other. Those allegations
may be inquired into at the time of trial. The allegations of the
applicant is supported her affidavit. At this stage, I do not find any
reason to disbelieve the case of the applicant. The respondents also
failed to show any convincing reason for making false allegations
against them by the applicant. The allegations made by the applicant
primafacie shows that the applicant is victim of domestic violence.
Therefore, the applicant is certainly entitled for appropriate and
necessary interim reliefs under the provisions of the Act.
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8. The applicant has prayed that respondent no. 1 be directed
to pay Rs. 2,50,000/ per month to her towards interim maintenance.
The applicant submitted that she is senior citizen lady and without any
support. She is entitled for total interim maintenance of Rs. 2,50,000/,
for food, clothing, medical expenses, servant expenses, etc. Respondent
no. 1 is wealthy rich and having no dependant. On the contrary,
according to the respondents the applicant has been sufficiently
provided by the respondents. The applicant is receiving interest from
all investments which is more than what she is asking for. The
applicant is not entitled for any maintenance.
9. I have heard the submissions of both the parties. Record
shows that considering the rival claims of both parties in respect of
financial capacity, the applicant and respondent no. 1 were directed to
file their affidavit for giving all the details of their all bank accounts and
details of their earning from investments and other sources. They were
also directed to submit statements of their all bank accounts of last two
years. Record shows that accordingly both parties filed their affidavits
and documents. At the time of argument both the parties made
allegations against each other regarding suppression of actual income.
They also pointed out documents filed on record and the applicant
argued that respondent no. 1 is having huge investment and bank
balance. Respondent no. 1 argued that the applicant is having huge
investments and bank balance. Both parties have denied the claim of
each other. I have given due consideration to the submissions of both
the parties. Considering the rival claim of the parties the actual
financial status of the parties may be decided at the trial on the basis of
the evidence adduced by the parties. Admittedly, the applicant is senior
citizen and she is staying alone. It is not the case of respondent no. 1
that he has no capacity to pay maintenance to the applicant. In the
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circumstances, at interim stage it is the legal and moral duty of
respondent no. 1 to pay reasonable amount to the applicant for her
interim maintenance. Respondent no. 1 cannot avoid his liability by
saying that the applicant is capable of maintaining herself on the basis
of interest of investments and bank balance. The amount claimed by
the applicant seems to be excessive. Therefore, considering the facts
and circumstances of the case and status of the parties which appears
from the record, it would be proper to grant interim maintenance of
Rs.50,000/ per month to the applicant from respondent no. 1 from the
date of the application till disposal of the case.
10. The applicant has prayed that the respondents be directed
to immediately remove the illegal additions, alterations and changes
made at the entrance door of flat no. 1 at ground floor. The applicant
submitted that the respondents have carried out additions and
alterations in the flat to restrict her movements in the shared
household. On this point the respondents have denied the allegations
of the applicant. They submitted that there always existed a wooden
ply and respondent no. 1 resides at first floor which has a separate
entrance. Considering the bad condition of wooden ply only it was
repaired.
11. Considering the rival claim of the parties and considering
the request of the applicant to appoint a Court Commissioner for
conducting inspection, by way of order dated 15/05/2019 Protection
officer was directed to visit the house of the applicant and respondent
no. 1 and to submit his report regarding changes, additions and
alterations on the entrance of the house of the applicant, if any.
Accordingly Protection officer visited the house of the applicant and
submitted his report. As per report dated 10/06/2019 filed by
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protection officer, the main entrance gate of the house is permanently
kept closed by plywood and due to which the applicant has only
entrance from the door of the kitchen. As per said report though the
protection officer contacted the respondents at the time of inspection,
they did not responded and cooperated for inspection.
12. I have considered the submissions of both the parties. The
report of protection officer supports the allegation of the applicant.
From the report of protection officer it is clear that the applicant is
compelled to use the door of kitchen for entering into the house and
main entrance of the house came to be closed by the respondents.
Certainly the act of the respondents is not proper. The applicant has
every right to use main door of the house for entrance. Hence, it is
necessary to direct the respondents to remove the plywood which is put
for blocking the entrance gate of ground floor of the house.
13. The another prayer of the applicant is that all the
respondents be directed to remove the security guards employed by
respondent no. 1. The applicant submitted that respondent no. 1 has
kept six security guards and trying to disturb her possession. The
respondents submitted that the security guards are for the safety of
bungalow. Considering the submissions of both the parties I do not
find the apprehension of the applicant in respect of security guards as
well founded. I do not find it fit to direct removal of security guards as
they are employed for the safety of the house.
14. The applicant has further prayed that respondent no. 1 be
directed to return the gold, diamond ornaments and cash which were
seized by income tax department at the time of income tax raid in the
year 1985. The applicant submitted that her ornaments and cash were
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seized by income tax department in the raid. Respondent no. 1 has
recovered said ornaments and cash from the income tax department by
fabricating the documents and forging the signature of the applicant.
The applicant further prayed that all the respondents be restrained from
using the documents in the nature of power of attorney or any other
document claiming to be signed by the applicant and they be restrained
for misusing the said documents in respect of her flat of Powai. On
these points the respondents have denied all the allegations of the
applicant. The respondents submitted that the applicant has not
executed any power of attorney in favour of the respondents for selling
any property. The jewellery of the applicant is laying in safe deposit
locker of the bank. Considering the rival submissions it is for the
applicant to prove her case at the time of trial in respect of these reliefs.
These reliefs cannot be granted without their being dependable
evidence. So at this stage, I am not inclined to pass any order in
respect of two prayers referred in this para. In the result, the
application is liable to be partly allowed. Hence, the order.
ORDER
1. The application is partly allowed.
2. Respondent no. 1 shall pay Rs. 50,000/ per month to the
applicant for her interim maintenance from the date of the application
till disposal of the case.
3. The respondents are directed to remove the plywood
which is put for blocking the entrance gate of ground floor of the
shared household of the applicant referred in para no. 2 of the order.
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4. Costs in the cause.
(Imran R. Marchiya)
Metropolitan Magistrate,
Railway Mobile Court,
Date : 28/02/2020 Andheri, Mumbai.
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