Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 2200155/DV/2018
Presented on : 02062018
Registered on : 02062018
Decided on : 27112019
Duration : 01Y, 05M, 25D.
Exh. : 07
IN THE COURT OF ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
22ND COURT, ANDHERI, MUMBAI.
(PRESIDED BY S.C.PATHARE)
C.C.No. 2200155/DV/2018
CNR No. MHMM190058412018
Mrs. Aruna Suresh Kakade
Age : Adult, Occupation : Housewife
R/at : Room No.4, Kondakar Chawl,
Bhandar Wadi, Marol Andheri(East),
Mumbai 400 059. .... Applicant.
Versus
Mr. Suresh Gyanba Kakade
Age : 45 years, occupation : Service
R/at : Ramabai Ambedkar Nagar, behind Vijay
Nagar, Marol Pipeline, Andheri(East),
Mumbai400 059. …. Respondent.
Claim : U/sec. 12 of The Protection of women from Domestic
Violence Act, 2005.
Appearance : Ld Advocate Shri. K. C. TIwari for Petitioner.
: J U D G E M E N T :
(Delivered on 27112019 )
1. Factual matrix :
By way of present application, the applicant claimed
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various reliefs.
It is contended that petitioner lady got married with
respondent on 07041996. Thereafter, she went to the house of
respondent for cohabitation. It is contended that respondent used to
subject her to various illtreatments. He used to demand money,
gold, etc. In the mean time she gave birth to one son on 04091997.
Then also respondent inflicted violence on her.
2. It is contended that on 29062001 she gave birth to one
daughter. Then also respondent did not mend his ways. He continued
harassment of petitioner. Petitioner filed N.C. cases in Police Station
against respondent, from time to time. Respondent is not ready to
change his behaviour.
3. According to petitioner, she is unable to maintain herself
and her children.
4. It is contended that respondent is a labour contractor and
he is earning Rs. 40,000/ per month. He is holding property at his
native place. He has neglected to maintain petitioner and her children.
5. Respondent was absent despite service, therefore, on
18062018, my Ld. Predecessor ordered to proceed Exparte.
6. Following points arose for my determination :
SR.NO. POINTS FINDINGS
1 Whether petitioner is entitled to
reliefs, as prayed ? ..Partly Yes.
2 What order ? As per operative
order.
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R E A S O N S
As to point No. 1 :
7. In order to show existence of probabilities in her favour,
petitioner lady examined herself as PW 1 vide affidavit dated
20042019.
8. I have heard arguments advanced by the Ld. Counsel
appearing on behalf of the petitioner lady.
9. In the present matter respondent has not come for filing
say. Further the chief examination of petitioner has remained
unchallenged, because despite repeated opportunities, neither
respondent nor his any counsel took her cross examination. In short,
due to absence of respondent party, testimony of PW 1 remained intact.
Under such circumstances, I have no any reason to disbelieve her
evidence which is produced on oath. In this regard, it is necessary to
consider the provisions of Sec.114(g) of the Indian Evidence Act which
makes it clear that if any party withholds evidence then, Court can draw
adverse inference against such party. In the present matter also
respondent is not remaining present and not taking crossexamination
of PW 1 and he is not entering into the witness box for adducing
evidence on his part in that event, I am inclined to draw adverse
inference against him that he has no defence at all.
10. During the course of arguments Ld. Counsel of applicant
fairly admitted that son of petitioner is now major, thus he is not
entitled to monetary relief. The Ld. Counsel also admitted that
daughter of petitioner is now aged 18 years 4 months, but she is yet
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unmarried, therefore, to some extent she is entitled to the monetary
relief from respondent along with the mother.
11. From the testimony of PW 1 it has come on the record that
petitioner is not having any income source or properties on her name.
Her children are also not having source of income. Petitioner could not
bring on the record documentary income proof of respondent.
However, from the testimony of PW 1 it has come on the record that he
is a labour contractor, therefore, it can be inferred that he must be
getting sufficient income. Considering the basic needs of petitioner
partly, it would be just and proper to allow reasonable
expenses/maintenance/rent.
12. In view of the supra peculiar facts, circumstances and
evidence, I proceed to pass the following order :
O R D E R
1. The petition stands partly allowed.
2. The respondent husband shall not cause any domestic
violence to petitioner & her daughter in any manner.
3. Respondent husband shall pay maintenance(including rent,
etc.) Rs.10,000/ per month to the petitioner wife (including daughter)
from the date of this petition.
4. Respondent husband shall pay Rs.5,000/ to the petitioner
towards the costs of the present litigation.
5. Vide Sec.24 of the said Act, copy of this order be provided
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to both the parties, free of costs.
6. Petitioner is at liberty to produce copy of this order before
the concern Protection officer & concern PSO, as and when required.
7. During execution proceeding, parties will be at liberty to
again apply for mediation, if required.
8. Respondent is continuously absent. Hence, petitioner party
to communicate this order to him, by RPAD & report compliance, as
early as possible.
9. Respondent shall not alienate the properties(if any)
standing on his name without prior written permission of the Court.
Date : 27112019.
(S. C. Pathare)
Addl. Chief Metropolitan Magistrate,
22nd Court, Andheri, Mumbai.
*csj
Dictated on : 27112019
Typed on : 27112019
Signed on : 27112019
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