Interim Order 1

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IN THE COURT OF METROPOLITAN MAGISTRATE
66TH COURT, ANDHERI MUMBAI
C.C. NO. 285/DV/2018
Mrs. Indu Dilip Choudhary … Applicant
v/s.
Mr. Dilip Gos Choudhary & Ors. … Respondent
ORDER BELOW EXH.7 APPLICATION FOR INTERIM
RELIEF FILED BY THE APPLICANT
Read the application, say of the respondent, report of
the Protection Officer, affidavit of the applicant. Heard Ld.
Counsels for both the parties at length.
2. It reveals that applicant has made this application for
grant of interim relief against the respondent.
3. The relations in between the applicant and
respondent are not in dispute. It is also not disputed they
were blessed one issue. It is also not disputed that they are
residing separately from each other. It is not disputed fact
that respondent no.1 marriage with respondent no.9. It is also
not disputed fact that criminal case was registered against the
respondent under the provision of Indian Penal Code. It is
also not disputed fact that FIR under sections 498, 494 of
Indian Penal Code was registered against the respondent. It is
also not disputed fact that the child of the parties residing
with the applicant. It is also not disputed fact there exist
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dispute in between the applicant and respondent no.1. The
only question is arise who is responsible for the same.
4. In short it is the case of the applicant that since
marriage she was subjected to cruelty and domestic violence
at the hands of respondent no.1 and other respondents.
Sometimes she was treated as cruelty on account of dowry
and account of illicit relations of respondent no.1 with
respondent no. 9. Sometimes on account of main issue she
humiliated the same in future delay of right of it when at last
he performed second marriage which compelled the applicant
to reside at her parents house. She unable to maintain
herself, she requires maintenance, compensation and other
reliefs for the act perform by the respondent and protection
order for not to commit domestic violence against her.
5. The respondent filed his say and deny all the
allegations with regard to the domestic violence, come with
the case that with consent of the applicant he performed
second marriage with respondent no.9. He further stated that
it is the applicant who was not interested to cohabit with him,
as her marriage solemnized with him forcefully by her parents
and stated that she was not at all interested to marry him
inspite of that she performed marriage and she herself keep
aloof from the society. He said that the application is not
maintainable as applicant is not in domestic relationship with
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him. Further said she herself withdrawn from the society and
residing at her parents house since three years. He said that
he is not having source as alleged by the applicant, he earn
Rs.10,000/ p.m. and therefore unable to make payment to
the applicant. At last stated that no domestic violence as
alleged by the applicant occurred therefore, application is not
maintainable, pray to reject the same.
6. If considered the argument advanced by Ld. Counsels
of both the parties and undisputed facts and the fact of
performing second marriage by respondent no.1 during
lifetime of the applicant prima facie goes to show that he
committed domestic violence. As to whether with the consent
of the applicant the said marriage as a matter of fact in issue,
same can only be decided after fullfledge hearing. The act of
respondent no.1 comes within the purview of Domestic
violence Act.
7. So far as source as alleged by the applicant with
regard to possess immovable property at various places in
Mumbai and earning more than Rs.2 Lakhs per month but
there is nothing on record to show any documentary evidence
in that regard on the contrary respondent no.1 stated that he
is earning Rs.10,000/ per month but he has also not
produced any proof in that regard. It is admitted fact that the
applicant is residing with her child at her parents house.
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Considering all these aspects and above discussions the
applicant is need of maintenance. Therefore the said relief
required to be granted.
8. So far as quantum of maintenance is concerned, I am
of view that in view of section 106 of Evidence Act it was
boundant duty of respondent to disclose those facts within the
knowledge and it disclose produce the documents about the
same, but the same has not been done by him. Unless the
respondent have sufficient source he would not perform
second marriage as he performed it means he is having
sufficient means.
9. Considering this aspect I am of view that amount of
Rs.20,000/ for the applicant and Rs.5,000/ for child is
sufficient for their survivalship. Further considering the said
dispute in between the parties, protection order restraining
the respondent from committing the domestic violence against
applicant in future is required to be issued.
10. Considering all above discussions the application is
required to be allowed. Hence, I proceed to pass the following
order:
O R D E R
1. The application is partly allowed.
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2. Respondent no.1 do pay the amount of Rs.20,000/
per month to applicant and Rs.5,000/ per month for
her child towards maintenance till the disposal of
main application.
3. Respondents are hereby restrained from committing
domestic violence against the applicant in future.
4. Copy of order be given to both the parties free of cost.
5. Copy of this order be sent to P.I. of concern police
station.
Sd/
Mumbai (R.M. Nerlikar)
Date : 15/05/2019 Metropolitan Magistrate
66th Court, Andheri, Mumbai
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