Interim Order 1

Pdf Text: 1 C. C. NO.143/DV/2018
Shital Kamlesh Kharat .... Petitioner
Vs
1.Kamlesh Pandurang Kharat.
2.Dadu Pandurang Kharat.
3.Ratan Dadu Kharat. .... Respondent/s
ORDER BELOW INTERIM APPLICATION U/SEC 23 OF THE PROTECTION OF
WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
1. By way of present interim petition, the petitioner lady claimed
interim relief/s.
Heard Ld counsels of both the sides.
2. According to the petitioner lady, she got married with
respondent on 15.05.2011. She is having one minor Son. However, she
was subjected to various types of domestic violence.
3. Respondent/s submitted reply and strongly opposed the
application.
4. In this case, respondent is admitting the relationship. He has
denied all the adverse allegations levelled by petitioner lady.
5. According to petitioner lady, she is not having any income.
Further her minor Son is depending on her.
6. In view of contentions of the parties, it is not disputed that
petitioner lady had instituted divorce petition before the Hon’ble Family
Court and the same came to be dismissed on 31.01.2017 on merits.
Therefore, in view of those observations I have to accept that till
31.01.2017 petitioner lady was not subjected to cruelty.
7. However, according to arguments of petitioner party, even
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thereafter respondent husband subjected/attempted to subject her to
cruelty. She has placed on the record non cognizable complaint dated
08.01.2019 showing that respondent husband abused etc to her.
Therefore, so far as subsequent events after said decree, this court can
consider grievances of petitioner lady.
8. In this case, petitioner is claiming interim maintenance for herself
and for her minor son. However, she has not produced copy of order of
interim maintenance what was passed by the Hon’ble family court for
perusal of this court, therefore at this stage, she is not found entitled to
interim monetary relief.
9. So far as, minor child is concern, it is judicially noticeable that
due to his minority he is not having any income. Considering his day to
day requirements etc he is entitled to claim interim
maintenance/reasonable school expenses etc from his father.
10. On behalf of petitioner lady, reliance is placed on the case of
Prakash Vs. Meena(internet copy dated 22.04.2016) wherein the
mutual divorce application of wife therein was rejected, therefore, the
Ld Magistrate had allowed the maintenance application because she
had remained lawfully wedded wife. However, in the present case, facts
and circumstances are different as above discussed. Therefore at this
primary stage, said guidelines are not helping to petitioner lady.
11. According to, petitioner party, respondent is serving at check
post(tolnaka) at Panchagani and earns Rs.25,000/per month. However,
according to respondent, in the meantime, he lost the job. When
respondent is physically well built then he is expected to work and earn
money for child. In short, said explanation of respondent is not
acceptable.
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12. DV Act is a social legislation. It is expected by law that when any
person prefers to procure child, then prior to that he must ensure that
he shall be able to maintain the child.
13. It is the settled position of law that father 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 child.
14. The petitioner lady submitted the application which is supported
by her affidavit, therefore, Ex-facie, it appears that petitioner party was
subjected to domestic violence, as discussed above. So far as, the
remaining other prayers are concerned, the same will have to be
decided after recording evidence at the time of final judgment.
15. 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 child shifts on the shoulders of
father.
16. 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 etc.
17. Considering peculiar facts, circumstances, along-with liabilities &
evidence etc of the parties, said child is entitled to reasonable interim
maintenance including rent. 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.
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2. The respondent husband shall pay Rs.4,000/-pm interim
maintenance (inclusive of all) to the said child, from the date of this
application.
3. Respondents are hereby restrained from causing any sort of
domestic violence to the petitioner lady & child 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 child till
final disposal of this matter.
8. Respondent husband shall not transfer or create third party
interest in any manner on the properties standing on the name of the
same (if any), till final disposal of this matter.
9. Petitioner wife is at liberty to show copy of this order
before the concern Protection Officer/PSO, as and when required.
Sd/-
Dt : 26.07.2019. ( S.C. Pathare),
Metropolitan Magistrate,
ask 65th Court, Andheri, Mumbai.
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