Order 1

Pdf Text: 1 C. C. NO.205/DV/2018
Mohini Dabhade W/o Nitin Kate .... The petitioner
Vs
Nitin Vijay Kate & 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 petition, the petitioner lady claimed interim
relief/s. Heard Ld counsels of both the parties.
Perused written arguments of both sides.
2. Petitioner is the wife of respondent. According to the petitioner
lady, she got married with respondent No.1 on 28.08.2013. She is
issueless. However, she was subjected to various types of domestic
violence.
3. Respondent submitted reply and strongly opposed the
application.
4. It is admitted position that both the parties had got married. Said
marriage was performed on 28.08.2013. It is admitted position that
presently, petitioner wife is not staying with respondent husband.
5. According to arguments of both the parties, previously petitioner
and respondent were doing job jointly. According to respondent
petitioner wife is serving in logistic/shipping company, therefore she is
not entitled to monetary relief. Per contra, according to petitioner
wife, eventhough she was serving in said company but in 2018 she has
resigned and now she is jobless. Petitioner wife produced her bank
passbook showing that in 2015 she was doing job and getting salary
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between Rs.9,000/ to 10,000/ per month. From said passbook I
have perused entries till 06.03.2019. It shows that since 2018 no any
salary is deposited in her saving account. Therefore, it shows that now
she is jobless. It is true that petitioner lady is having education and
ability to do job but she is not doing job for reasons known to her.
However, due to this reason, this fact will affect her amount of monthly
maintenance.
6. According to respondent, both the parties have taken mutual
divorce before public notary on 04.06.2017. However, law is clear that
divorce by way of mutual consent can be granted by the competent
court U/Sec.13(B) of Hindu Marriage Act. Notary cannot allow such
divorce. Even if it is considered to be customary divorce, then also the
same has to be proved in the court of law. Therefore, due to legal bar
said deed of divorce cannot be considered at this stage.
7. DV Act is a social legislation. Therefore, at this primary stage,
objections raised by the respondent cannot be considered in detail.
Those objections will have to be considered on merits.
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 to
wife. Perusal of record it shows that respondent is a able and well built
person. He has not placed on record his salary. Even applicant lady has
not produced any income proof of respondent or any proof of his any
property. Under such circumstances by doing guess work this
application has to be decided by this court.
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
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are concerned, the same will have to be decided after recording
evidence at the time of final judgment.
10. 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 total Rs.6,000/p.m
interim maintenance (including rent) to the Petitioner wife, from the
date of this petition.
3. Respondent is hereby restrained from causing any sort of
domestic violence to the petitioner lady in any manner.
4. Respondent shall not visit the place where petitioner wife is
staying presently.
5. Parties are at liberty to submit application for referrring
matter to the Mediation, for amicable settlement.
6. The above observations are preliminary in nature, the same
may vary during the final judgment, subject to proposed evidence.
7. Copy of this order be given to the parties free of costs vide
Sec.24 of the Act.
8. Petitioner wife is at liberty to show copy of this order
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before the concern Protection Officer/PSO, as and when required.
9. Respondent shall not aliminate the immovable properties
(if any) standing on his name till disposal of this case.
Sd/
Dt : 04.05.2019. ( S.C. Pathare),
Metropolitan Magistrate,
65th Court, Andheri, Mumbai.
ask
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