Interim Order 1

Pdf Text: 1 C. C. NO.134/DV/2018
Jyoti Rohit Chandaliya .... The petitioner
Vs
Rohit Chandaliya & Ors. .... The respondent/s
ORDER BELOW INTERIM APPLICATION U/SEC 23 OF THE PROTECTION
OF WOMEN FROM DOMESTIC VIOLANCE ACT, 2005
1. By way of present interim petition, the petitioner lady claimed
interim relief/s.
Heard Ld counsel of applicant. Respondents and their Ld counsel
are absent for arguments, when called repeatedly.
2. According to the petitioner lady, she got married with
respondent No.1 on 22.04.2015. She is having two minor children.
However, she was subjected to various types of domestic violence.
3. Respondent/s submitted reply and strongly opposed the
application.
4. The relationship between the parties is admitted.
5. According to petitioner lady, she is not having any income.
Further her minor sons are depending on her.
6. According to her, respondent is having stall of Vadapav and earns
handsome amount. Further he is having cloth shop and also gets
additional income therefrom. It is true that petitioner lady has not
produced documentary evidence in that regard. However, when
respondent is physically well built in that event, it can be assumed that
he is having just and proper income. Apart from that it is to be noted
that when any person gets married and gives birth to two children in
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that event, it is crystal clear that he is having sufficient income,
therefore he got married and got increased own
responsibilities/liabilities.
7. DV Act is a social legislation. It is expected by law that when any
person prefers to get married then prior to that he must ensure that he
shall be able to maintain the wife & children.
8. It is the settled position of law that husband even if a beggar or
hermit or physically challenged person, the same cannot be a ground to
exonerate him from the responsibility of paying interim maintenance
etc to wife/children.
9. The petitioner lady submitted the application which is supported
by her affidavit, therefore, prima facie, it appears that petitioner wife
was subjected to domestic violence. So far as, the remaining prayers
are concerned, the same will have to be decided after recording
evidence at the time of final judgment.
10. It is the settled position of law that after marriage income of
parents or brother of the wife cannot be considered in such cases. After
marriage, responsibility to maintain wife/children shifts on the
shoulders of husband/father.
Eventhough respondents are claiming that petitioner lady is
tailor and earns money thereby. However, in absence of reliable
evidence, said fact cannot be accepted at this stage.
11. Respondent admitted that he works as sweeper and earns
Rs.3,000/pm. However when he has not produced such documents in
that event it is unbelievable to accept that he earns such a lower
income, in this modern era. Thus, it shows that Respondent No.1 is
having reasonably sufficient income.
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12. So far as, quantum of maintenance is concern, there are two
ends. One is to award the same from higher side, the other one is to
award it from the lower side. However, in my humble view, court has
to strike balance between the said both the ends and to award
justifiable/reasonable interim maintenance.
Considering peculiar facts, circumstances, alongwith liabilities &
evidence etc of the parties, petitioner wife is entitled to reasonable
interim maintenance. Therefore, in view of object of DV Act, I proceed
to pass following order in the interest of justice :
O R D E R
1. The petition stands allowed, partly.
2. The respondent husband shall pay Rs.10,000/p.m interim
maintenance (inclusive of rent etc all) to the Petitioner wife & children
from the date of this petition.
3. Respondents are hereby restrained from causing any sort of
domestic violence to the petitioner lady & children in any manner.
4. Parties are at liberty to submit application for referrring
matter to the Mediation, for amicable settlement.
5. The above observations are preliminary in nature, the same
may vary during the final judgment, subject to proposed evidence.
6. Copy of this order be given to the parties free of costs vide
Sec.24 of the Act.
7. Petitioner lady to continue her custody over her children till
final disposal of this matter.
8. Respondents shall not transfer or create third party interest
in any manner on the immovable properties standing on the name of
respondent No.1 husband(if any), till final disposal of this matter.
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9. Petitioner wife is at liberty to show copy of this order
before the concern Protection Officer/PSO, as and when required.
Sd/
Dt : 13.06.2019. ( S.C. Pathare),
Metropolitan Magistrate,
65th Court, Andheri, Mumbai.
ask
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