Interim Order 1

Order Details: Interim Maintenance Order
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IN THE COURT OF THE METROPOLITAN MAGISTRATE,
44th COURT, ANDHERI, MUMBAI.
C. C. No. 315/DV/2018
Mrs. Padmavati Venugopal Balla
@ Chitra Lalba Gaddamwar, .... Applicant/Petitioner
V/s
Mr. Venu Gopal S. Balla and Ors., …. Respondents
ORDER BELOW EXH.NO.3
(Passed on 27/09/2023.)
The applicant who filed the petition under Section 12 of
the Domestic Violence Act, has moved this interlocutory application for
grant of maintenance allowance. So also the applicant has sought the
protection order.
The facts of the application are summarized as under:
2. The applicant is a legally wedded wife of respondent No.1.
Out of this wedlock, two daughters namely Nandini and Gayatri were
born. These two minor girls are residing with the applicant.
3. According to the applicant, she was subjected to domestic
violence and therefore, she is residing separate.
4. The applicant alleges that the respondent did not provide
any maintenance to her and her daughters in spite of having sufficient
means. According to the applicant, the respondent No.1 is an Engineer
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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and earns more than Rs.2,00,000/ per month. So also the respondent
No.1 gets pension and nobody is dependent upon him. The applicant
alleges that she has been suffering from various ailments due to
constant mental harassment and torture given by the respondent No.1.
It is her case that she is in need of monetary relief to fulfill fundamental
needs including medical expenses of her daughters. So also the
applicant sought the possession of the shared house. Hence, she filed
this application alongwith her assets and liabilities.
5. The respondent No.1 denied all the adverse allegations
levelled against him and has come with the stand that the applicant
willfully left him and she ill treated him and his parents. He expressed
his desire to cohabit with the applicant and his children. According to
him, he is not capable to provide the maintenance allowance as sought
by the applicant.
6. In the backdrop of the rival submissions and the documents
placed on record, following points arise for my determination:
Sr.
No.
POINTS FINDINGS
1. Whether the applicant is entitled
for interim monetary relief and
protection order as prayed for?
Yes
2. What order? The application is partly
allowed as per final
order.
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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REASONS
AS TO POINT NO.1:
7. At the outset, it is pertinent to note here that the applicant
filed the petition under Section 12 of the Protection of Women from
Domestic Violence Act on 20/10/2018.
8. In fact, having regard to the facts and circumstances of the
case, this Court has discretionary power to pass interim order under
section 23 of the Protection of Women from Domestic Violence Act.
Therefore, in my opinion, this application is tenable. Now the question
arises as to whether the applicant and her daughters are entitled for
the interim monetary relief to fulfill emergency medical expenses and
another basic needs as mentioned in this application.
9. The learned advocate for the respondent No.1 argued that the
applicant has source of income and therefore, she is not entitled to seek
interim maintenance. But I do not agree with his submission. In fact,
in the case of Sunita Kachwala Vs Anil Kachwala reported in (2014) 16
SCC 715, the Hon'ble Supreme Court held that merely because the wife
was earning some income, it could not be a ground to reject her claim
for maintenance.
10. The applicant has stated on oath that the respondent No.1
earns more than Rs.2,00,000/ per month by doing job of Engineer. So
also it is submitted that the respondent No.1 is a pensioner. In fact,
these averments are not denied. It is admitted position that the
daughters of the applicant and the respondent No.1 are residing with
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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the applicant and they are minor. In such scenario, the respondent
No.1 is under moral obligation to provide the maintenance to the
applicant as well as to his daughters.
11. So far as the willingness of the respondent No.1 that he is
ready to cohabit with the applicant is concerned, in my opinion, this
Court is not empowered to grant decree for restitution of conjugal
rights.
12. Apart from this, the applicant levelled serious allegations
against the respondent No.1 and their relations are strained. In such
circumstances, it will not be justified to direct the applicant to reside
with the respondent No.1. On the other hand, having regard to the
facts regarding the domestic violence which are stated on oath, I am of
the opinion that the applicant deserves to have protection order as
contemplated under section 18 of the Protection of Women from
Domestic Violence Act. Resultantly, I record my finding in affirmative
for Point No.1.
13. In view of the discussion noted above and the assets and
liabilities filed on record, I am of the opinion that the applicant and her
daughters namely Nandini and Gayatri are entitled to have maintenance
allowance from the respondent No.1. The record shows that the
daughters of the applicant and respondent No.1 are minor and they are
in need of monetary relief to fulfill their basic needs. Hence, having
regard to the standard of living of the applicant and her daughters and
the financial status of the respondent No.1, following order would meet
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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the ends of the justice:
O R D E R
1. The application filed at Exh.No.3 is partly allowed.
2. The respondent No.1 is directed to pay the interim maintenance
of Rs.10,000/ (Rupees Ten Thousand Only) to the applicant and
Rs.10,000/ (Rupees Ten Thousand Only) each to his daughters
Nandini and Gayatri towards the maintenance allowance from the
date of application.
3. The respondent No.1 is hereby restrained from dispossessing the
applicant and his daughters from the shared house i.e. Flat No.1
C, 129 Vahatuk Nagar, Ceaser Road, Amboli, Andheri (W),
Mumbai, until further order.
4. The respondent No.1 is hereby restrained from creating any
disturbance in the life of applicant and from entering into the
place of her residence and work until further order.
5. The copy of this order be forwarded to the concerned Protection
Officer for further compliance in accordance with law.
6. The copy of this order be supplied to the parties free of costs.
Sd/
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
Date : 27.09.2023 44th Court, Andheri, Mumbai.
spj
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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