Final Order 2

Order Details: Copy  of Judgment
Pdf Text: JUDGMENT 1 C.C. NO.353/DV/2018
MHMM190128232018
Presented on : 01.12.2018
Registered on : 01.12.2018
Decided on : 22.06.2023
Duration : 04Y 06M 21D
Exh. No. 31
BEFORE THE ADDIL. CHIEF METROPOLITAN MAGISTRATE,
22nd COURT, ANDHERI, MUMBAI.
(Presided Over by J. W. Gaikwad)
C.C.No.353/DV/2018
Mrs. Anita Santosh Sangare
Age : 30 years
Occupation : Housewife
R/at:C/o Mr. Ananda balwanta Vairal
Ganesh Chawl, Subhash Nagar No.2,
Galli No.6, Mahakali Caves Road,
Andheri(East),
Mumbai – 400 093. : .…. Applicant
V/s.
1) Mr. Santosh Kalu Sangare
Age : 29 years
Occupation : Service
R/at: Chala Chawl No.3,
Room No.5, Adarsh Nagar,
Manohar Sheth Nagar,
Nagwadi, Diva,
Thane.
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JUDGMENT 2 C.C. NO.353/DV/2018
2) Mrs. Indubai Kalu Sangare
Age : Adult
R/at: Room No.167,
Uday Nagar, Near Hanuman
Mandir, Mulund West,
Mumbai 400 080. : .….Respondents
APPEARANCE :
Ld. Counsels :- Ms. Krishna Dhadhi
Ms. Trupti Bharadi
Dr. Vipin Kumar …......... for Applicant.
Ld. Counsel :- Mr. J. P. Jaiswal …........ for respondents
APPLICATION UNDER SECTIONS 12, 23(2) AND OTHER RELATED
SECTIONS OF THE PROTECTION OF WOMEN FROM DOMESTIC
VIOLENCE ACT, 2005
J U D G M E N T
(Delivered on 22.06.2023)
1 The applicant is the legally wedded wife of respondent
No.1. The marriage between applicant and respondent No.1 was
solemnized on 17.05.2009. The applicant is educated upto 9th class and
is house wife. She had no source of income and depended solely on the
husband's support to maintain herself and her two children.
2. On 09.09.2018 she was subjected to extreme violence and
physical abuse and thrown out of her matrimonial house by the
respondents. Since then the applicant is staying at father's house along
with her two children.
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JUDGMENT 3 C.C. NO.353/DV/2018
3. According to applicant, respondent No.1 husband is
employed with M/s. Supermarket Grocery Supplies Pvt Ltd.(Big
Basket). He is also doing additional work of a Specialist Heavy
Equipment Operator for private clients, which is part of his extra
income. The respondent No.2 is the mother of respondent No.1. The
respondent No.1's estimated average monthly income from all sources is
about more than Rs.40,000/. The respondent No.2 also draws a
regular pension of her husband from the BMC being a widow. The
respondents also earn rent from Mulund premises which they have
rented after expelling the applicant.
4. The applicant is having two children out of the said
marriage. The elder son namely Aniruddha is aged 8 years and the
second son namely Ayush is 6 years old. Both of them are school going.
5. The respondent is womaniser by nature and is having affair
with a married woman in the neighbourhood which is his second such
affair. He is also a heavy drinker and after consuming alcohol becomes
violent and aggressive.
6. The applicant after their marriage in or about the year
January 2010, along with respondent shifted to a premise in a chawl at
Mulund. The respondents took the entire streedhan of applicant
gradually upto the year 2012 and thereafter under some pretext or the
other and have not returned the same till date.
7. That in or around the year 2012, the applicant realised that
the respondent No.1 was neglecting and not taking any interest in the
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JUDGMENT 4 C.C. NO.353/DV/2018
applicant, the two children and neither giving any money for household
expenditures, thereby putting everyone in the family under difficult
situation. The applicant also learnt that the respondent No.1 had
developed close and intimate friendship with a young married female in
the neighbourhood and was thus spending his entire income on this
woman friend and nurturing their illegitimate relationship. The
applicant brought this illegitimate affair to the notice of the respondent
No.2. The respondent No.2 being a pensioner had regular and stable
income and hence the respondent No.2 started helping financially in
running the household expenditures partly. The respondent No.2 in
order to bring solution to the illegitimate extramartial relationship of
the respondent No.1, shifted the applicant with her children to premises
at Thane in or around the year April 2013 or thereabouts.
8. That after shifting to Thane in 2013, the relationship
between the respondent No.1 and the female friend of respondent No.1
appeared to be broken and shortly thereafter, the female left the
premises of Mulund as she was staying on rent. The respondent No.2
thereafter, decided to shift the applicant and children back to Mulund
house in or around April 2014. The applicant again came to know
around December2017 or thereabouts that the respondent No.1 has
developed intimate friendship with a married female in the
neighbourhood who is aged 25 years and the respondent No.1 is
spending his entire income on liquor and entertaining this female
friend. The applicant brought this second extramartial affair of the
respondent No.1 to the notice of the respondent No.2, who once again
decided to shift the entire family to Diva in February2018.
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JUDGMENT 5 C.C. NO.353/DV/2018
9. The applicant was tortured and illtreated for raising this
issue by respondent No.1. The female's husband and relatives, with
whom the respondent No.1 was having an affair, also came to fight
with the respondent No.1 in or around January 2018 and hence the
respondent No.1 then ran away to his village home abandoning the
family. This female friend of respondent No.1 also threatened and
abused the applicant on a continuous basis in the absence of the
respondents.
10. On each and every occasion and over a period of time,
beating her and abusing her in derogatory language almost every other
day, until the applicant was compelled to take shelter at her parents
place. He used to come home drunk and under the influence of alcohol
threaten and abuse her on one or the other pretext. In or around
09.09.2018 the applicant was beaten up by the respondents and
subsequently thrown out of the house by them. The respondent No.2
joined hands with the respondent No.1 and both together beat the
applicant mercilessly and was thrown out of the house at around
10.00 p.m. in the night at Diva, along with her two minor children.
11. Under these circumstances, the applicant somehow
managed to reach Kanjurmarg at around 11.30 p.m. in the night and
called her parents who then advised the applicant to come to their
house at Andheri. The applicant had earlier lodged a complaint with
the Mulund police station.
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JUDGMENT 6 C.C. NO.353/DV/2018
12. The respondent No.1 is duty bound to maintain his wife
(the applicant) as well as provide her shelter as per laws. The applicant
further states that the respondent No.1 is not providing any financial
support to the applicant since last several months. The applicant is
dependent upon her father who is senior citizen. That the applicant has
no employment and has no regular source of income and she is finding
it very difficult to maintain herself.
13. The respondents have ignored to look after the applicant
and her children. The applicant prayed that respondents be restrained
from committing any act of domestic violence. Further the respondent
No.1 and his friends or relatives be restrained from entering the
temporary residence of applicant. The respondent No.1 be restrained
from attempting to communicate in any form, whatsoever, with the
applicant including personal, oral, written, electronic or telephonic
contact and he be directed to communicate only through applicant's
advocate. The respondents be restrained from alienating the assets or
creating third party rights, without the permission of this court, or the
assets owned by the applicant either singly or jointly with the
respondent. The respondent be restrained from causing violence or
verbal abuse of any type to the father and brother of applicant. The
respondents be directed to forthwith return all the clothes and other
personal paraphernalia of the applicant and her children along with
household goods which are with the respondents. The respondents be
directed to secure alternate accommodate for the applicant. That the
respondents be directed to pay a sum of Rs.10,000/ towards
maintenance including extra expenses towards separate
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JUDGMENT 7 C.C. NO.353/DV/2018
accommodation. The applicant seeks monetary relief, compensation
order, adinterim and/or exparte order with regard to above prayers.
14. In reply at Exh.9 the respondents have denied all the
allegations leveled in the application. According to respondents, at the
very outset the application filed by the applicant is not maintainable. As
the applicant has not approached this court with clean hands and
suppressed the material facts. The applicant further suppressed the fact
that she herself left the matrimonial house as per her own accord and
desire. The applicant above named has given total incorrect version. It
is admitted by the respondents that respondent No.1 got married with
the applicant in accordance with Hindu Rites and Rituals on 17.05.2009
at village Varudhi Pathar, TalSanamner, DistrictAhmednagar. The
said marriage is arranged marriage and the expenses of the said
marriage was equally divided by the both parties. Thus, there is no
question of any demand of dowry by the respondent No.1 and his
parent i.e. respondent No.2.
15. It is further admitted that, since 2008 to 09.09.2018 there
were no disputes with the applicant and not a single complaint has been
ever made. During cohabitation applicant gave birth to two sons. The
elder son is aged about 8 years and his name Master Anirudha and
second son is 6 years and his name is Master Ayush. Both are in
custody of applicant..
16. It is further admitted that the respondent No.1 is working
with Supermarket Grocery Suppliers Pvt. Ltd. 'Big Basket' his monthly
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JUDGMENT 8 C.C. NO.353/DV/2018
salary Rs.13,000/ per month. His monthly expenses Rs.4,000/ per
month, house rent Rs.800/, electricity bill and other grocery and
travelling expenses, etc.
17. The respondent contended that the applicant left her matri
monial house along with two minor sons with her stridhan and joined
her parental house. The respondent No.2 is widow and she is senior
citizen and suffering from several illness, so, she has to spend her
monthly pension for her treatments.
18. It is denied by the respondent No.1 that he is a womaniser
by nature and is presently having an affair with a married woman in the
neigbourhood, which is his second such affair It is denied that he is
also a heavy drunker and after consuming alcohol becomes violent and
aggressive. The respondent submitted that the applicant on her own
wish and accord left her matrimonial house and not willing to cohabit
with the respondent, she is no more interested to lead a life with
respondents, she deliberately and in order to harass the respondents
filed the above proceeding under the PWDV Act and therefore prayed
that the application deserves to be rejected with compensatory costs.
19. In view of above rival facts following points arise for my
determination and I record my findings thereon with reasons thereof :
SR.
NO.
POINTS FINDINGS
1] Does the applicant prove that she was
subjected to Domestic Violence by
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JUDGMENT 9 C.C. NO.353/DV/2018
respondents as alleged ? ….In the affirmative.
2] If yes, is she entitled for protection
order as claimed ? ….In the affirmative.
3] Does the applicant prove that she is
entitled for maintenance? ….In the affirmative.
Rs. 8,000/ per month
4] Does the applicant prove that she is
entitled for rental accommodation? ….In the affirmative.
Rs. 4,000/ per month
5] What order? ….As per final order.
R E A S O N S
20. To substantiate her claim, applicant examined herself at
Exh16. The respondents did not crossexamine applicant as much as
they did not even lead any evidence to prove their stand. By an order
dated 03.03.2023, the evidence of the respondents was directed to be
closed. The Nonapplicant remained absent at the time of trial.
AS TO POINT NO. 1 & 2 :
21. In order to prove her case, the applicant has examined
herself at Exh16 testifying that she married to nonapplicant No.1 on
17.05.2009 and from the marriage she got two children. This fact is not
denied by the respondent while filing reply.
22. It is further testified that the nonapplicant used to come
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JUDGMENT 10 C.C. NO.353/DV/2018
dead drunk and illtreat applicant. He is a womaniser, he had couple of
affairs with neighbourhood lady and in order to prevent him from
indulging into extramartial relation, the applicant has twice changed
the place of residence with the help of respondent No.2 by bringing the
fact to her knowledge. Respondent No.2 is pensioner and the
respondent No.1 has no responsibility to shoulder, as respondent No.2
has her own source of income. Even respondents have immovable
property, which is on rent and from that they draw handsome return. It
has also come in the evidence that respondent is employed in a super
market grocery supplier and also does an additional work of a Specialist
Heavy Equipment Operator for private clients. In an average he earns
Rs.40,000/ per month.
23. In her support she examined PW No.2 who is brother of
applicant who testified at Exh28 and his testimony is in line with
applicant. The testimony of both the witnesses went unchallenged, as
respondents failed to crossexamine the witnesses.
24. In the matrimonial dispute the husband/inlaws on the one
hand and the wife/bride on the other, are privy to the incidents. There
can't be any independent witness to witness the bickering happening
between the spouses on daytoday basis or periodically, subject to
exception. The applicant is a woman from a mediocre family hardly
having any independent means. When she is forced to leave the
matrimonial house, then it can't be casually accepted that she is fond of
living separately on her own, specially when she had nothing to fall
back upon. In the present case, whatever she stated on oath, went
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JUDGMENT 11 C.C. NO.353/DV/2018
unrebutted. The respondents left the case uncontested midway.
Though they filed reply in counter, but failed to prove their stand. In
such circumstances, the version put forth by the applicant has to be
accepted as it is and this court find no reason to disbelive the same
when it is corroborated by the independent witness PW No.2 and his
testimony too went unchallenged.
25. The applicant has claimed maintenance. In order to decide
quantum of maintenance, she has testified that he earns Rs.40,000/
per month. However, there is no evidence to that effect, but at the
same time the respondent has also not rebutted the evidence. Even the
respondent failed to file his Assets & Liabilities statement. Looking to
the state of affairs and living standard of the parties, an amount of
Rs.8,000/ per month towards maintenance will meet the ends of justice
with extra Rs.4,000/ per month towards accommodation. Hence, I
answer all the points in the affirmative and pass the following order:
O R D E R
1. The petition is partly allowed.
2. The respondents are hereby prohibited from committing any
sort of domestic violence upon applicant.
3. The respondent No.1 shall pay of Rs.8,000/ per month
maintenance to the applicant from the date of filing of the
petition.
4. The respondent No.1 shall also pay Rs. 4,000/ per month to
the applicant towards rental accommodation from the date of
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JUDGMENT 12 C.C. NO.353/DV/2018
filing of the petition.
5. The copy of judgment be supplied free of cost to the applicant.
6. The order of interim maintenance is merged with the final
order.
7. Any payment made in compliance to the interim order shall be
adjusted while considering the final maintenance order, from
the date of application.
8. The copy of judgment shall also be forwarded to local police
station as well as Protection Officer.
(Judgment dictated on dais and pronounced in open court).
Date.: 22062023
(J. W. Gaikwad)
Addl. Chief Metropolitan Magistrate
22nd Court, Andheri, Mumbai
csj
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