Order 1

Order Details: Interim Maintenance Order
Pdf Text: IN THE COURT OF ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
22nd COURT, ANDHERI, MUMBAI.
C.C. NO.357/DV/2018
ORDER BELOW INTERIM MAINTENANCE APPLICATION EXH18
FILED BY APPLICANT
1. The applicant has filed case against her husband and
inlaws under D.V. Act. Her husband used to abuse her, he used to
doubt her character. Even he did not allow her to go for work. She
further states that respondent No.1, her husband is having extramartial
relations. It is further contended that her husband used to pay her
Rs.7,200/ per month for household expenses, but with that meager
amount she could not meet the expenses, therefore, she runs a flour
mill in order to supplement her income. She further states that her
husband is missing from 7 years. He is not maintaining them. Her in
laws used to mentally harass her and used to create row. Even her
husband did not take her call. She wants maintenance from her
husband to upbring her children. In order to substantiate her stand, she
relied upon following rulings:
1) Shailja & another Vs. Khobbanna in Criminal Appeal
No. 125126 of 2017 passed on 18.01.2017 , in which the Hon'ble
Supreme Court held that, capacity to earn and actual earning are two
different things. This ruling, however, is not applicable, as it is not the
contention of respondents that she is capable of earning. In fact,
respondent specifically averred that she is running a flour mill in order
to eke her livelihood.
2) Smt. Megha Khandelwal W/o Rajat Khandelwal Vs.
Rajat Khandelwal S/o Shri. Deena Nath Khandelwal, in S.B.
Criminal Revision No. 408/208 of the Hon'ble Rajasthan High Court
decided on 12.04.2018. In the present case, maintenance was
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provided by the Trial Court, which was upheld by the Hon'ble High
Court stating that though there is no conclusive evidence of income of
the parties, still to meet the daytoday expenses, interim maintenance
granted by the Trial Court is held to be proper. The ratio of the ruling
is not applicable, as in the present case both the parties have filed their
asset & liability statement on affidavit. Moreover, the ruling is not
applicable, as the facts varies from the present case.
2. The husband has filed detailed reply at Exh19 and
admitted his relation with applicant. He further admits that he married
to applicant on 12.05.1996 and out of wedlock they had two children.
One is Prashant, who is now 24 years old and the other one is Isha, who
is 23 years old. They both are graduate and now they are standing on
their own feet. He further contended that other respondents Nos. 2 to 5
are residing separately and they are not sharing house with them. So,
there is no point in roping them in a case under D.V. Act, as at no point
of time, they have shared household with them. The entire allegations
leveled by the applicant are false. He specifically contended that
applicant lives in a Flat bearing No. 322, 3rd floor, 'D' Wing, Rustomjee
Society, Western Express Highway, Andheri, which stands on the name
of respondent No.1. Applicant is not allowing him to enter into the
house. She with the help of both the children used to abuse him
whenever he tried to have access in the house. The applicant is asking
him to transfer the flat on her name to which respondent is not ready
and this is the apple of the discord between them which triggered this
litigation by leveling false allegations. The applicant as well as both the
children used to abuse him. Even he has filed FIR against applicant. He
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Order below Exh.18 contd.
admits that he runs an auto rickshaw, but as per Government rules, the
auto rickshaw being old was put to scrap and now he is rendered
unemployed. He further states that all his belongings with all important
documents, ration card, PAN card, light bill, SRA allotment letter,
passbook, voter card are in the flat and the applicant is deliberately not
allowing him access there. As he needs those documents for renewing
registration. He further submits that the applicant is running a flour
mill and earning Rs.15,000/ per month. On the contrary, he is only
running auto rickshaw and earning Rs.12,000/ per month and due to
old age it falls short to meet his personal expenses. He submitted that
the application is meritless and motivated with an intention to grab the
flat.
3. Heard both sides.
4. The interim application filed by the applicant through her
counsel does not contain the required pleadings which can constitute
harassment, it is rightly contended by the Ld. Counsel for respondent
No.1. Further the respondent is out of house and in his reply on
affidavit, he disclosed the fact that the applicant along with her children
are not allowing him to enter in the house and they are collectively
compelling him to transfer the flat on the name of applicant. The
children for whom the applicant is seeking maintenance are not party to
the proceeding first, and secondly, both children are major and by the
submission of respondent on affidavit, they both are engaged in a job
and are earning members. Further, it is an admitted fact that applicant
is also running a flour mill in order to meet the expenses. The form
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which is forwarded through the Protection Officer contains the fact that
the respondent No.1 is missing from 7 years prior to the filing of this
litigation. It is not known as to how the respondent No.1 caused
violence upon applicant when he was not sharing the house itself for
seven long years. The averments in the form forwarded through the
Protection Officer to this Court as well as interim application of the
applicant filed through her Ld. Counsel is absolutely vague and having
no details of alleged illtreatment of any kind mental or physical,
undergone by them at the hands of respondents.
5. On the contrary, it is the respondent, who has filed FIR
against applicant, which supports his contention. This interim
application seems to be filed just to claim maintenance and the
maintenance can not be granted without there being any primafacie
case of violence upon the applicant. Admittedly, the applicant is well
residing in the flat owned by respondent. It is the respondent who is
out of his own property and he is not being allowed to enjoy it, as the
applicant along with her children do not allow him access over the
property. Though the applicant claims that the respondent is having
extra marital relation with a lady, but there is no averment in support of
her contention. It is absolutely vague and cannot be taken exfacie,
unless the party alleging proves on touch stone of evidence, which can
be possible only by initiating trial, till then it is hard to accept her
contention on the vague pleading that applicant undergone domestic
violence at the hands of respondents. Hence, the application being
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Order below Exh.18 contd.
devoid of substance stands rejected.
ORDER
1. The interim application(Exh18) is hereby rejected.
2. Cost in cause.
Sd/
Date : 31.01.2024
(J. W. Gaikwad)
Addl. Chief Metropolitan Magistrate,
22nd Court, Andheri, Mumbai
csj
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