Interim Order 2

Order Details: Interim Maintenance Order
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IN THE COURT OF THE METROPOLITAN MAGISTRATE,
44th COURT, ANDHERI, MUMBAI.
C. C. No. 327/DV/2018
Vanita Balchandra Rane .... Applicant/Petitioner
V/s
Balchandra Rane & Ors., …. Respondent
ORDER BELOW INTERIM APPLICATION UNDER ORDER 23 (2) OF
THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT
(Passed on 03/05/2024.)
In view of the directions given by the Hon'ble Bombay High
Court in Writ Petition (ST) No. 3372/2024, the interim application
which was filed by the applicant before this Court on 01/11/2018, is
remanded to be decided afresh.
2. Before embarking upon the conclusion, let us have a glance
at the brief facts mentioned in the application.
3. Having got married with the respondent in the year of
2002, the applicant started to cohabit with him. The applicant alleges
that the respondent used to harass her mentally and physically.
Thereafter, the respondent shifted to the flat of applicant's mother. It is
alleged by the applicant that the respondent and his son made false and
forged documents and thereby tried to get the flat transferred in his
name. After death of her mother she came to know that the respondent
approached the society to get the flat transferred in his name.
Thereafter, he insisted the applicant to transfer the said flat. But when
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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the applicant refused to do so, the respondent assaulted and threatened
her. Thus, the applicant was subjected to domestic violence at the hands
of the respondent. Hence, she filed several complaints against the
respondent before the police station Versova. But the concerned police
station registered the noncognizable offences against the respondent.
However, the respondent was directed under section 107 of Indian
Penal Code to maintain peace and order in the society.
4. The applicant has come with the case that there is
apprehension in her mind that the respondent would kill her and
thereafter, will take the charge of the flat. It is further alleged that the
respondent and his son and daughter harassed and assaulted her. She
has been residing in the said flat in great trauma and therefore, she has
sought the protection order against the respondent restraining him from
entering into the said flat.
5. It is the case of the applicant that the respondent is a
pensioner who gets pension of Rs.22,000/ per month. According to
her, the respondent did not provide her maintenance amount and
therefore, she has sought the interim maintenance from the respondent
to the tune of Rs.10,000/ per month alongwith the payment for
medical expenses. In addition to the monitory relief, the applicant has
also sought her stridhan which is said to be in possession of the
respondent.
6. Per contra, the respondent filed his reply and thereby
denied all the allegations levelled against him. According to the
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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respondent, he is a senior citizen suffering from several health issues.
He submits that he purchased the said flat in the year of 2005 by way of
sale deed from the mother of the applicant. According to him, the
applicant purchased property situated at Mulund. It is alleged that the
applicant attempted to commit suicide and levelled false allegations
against him.
7. It is the stand of the respondent that he gets a very
miserable pension amount and he has to bear all his medical expenses
with that pension amount. According to him, he has to look after his
daughter also. Thus, according to him, he is unable to provide the
monetary relief as sought by the applicant.
8. The another stand taken by the respondent is that the
applicant has not made out a prima facie case of domestic violence and
levelled false allegations against him. According to him, the applicant
has sufficient source of income to maintain herself. Hence, he prayed to
reject the application with compensatory cost.
9. Having heard learned advocates for both the sides, I
perused the record. The learned advocate for the respondent filed
written notes of argument.
10. In the backdrop of the rival submissions and the documents
placed on record, following points arise for my determination:
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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Sr.
No.
POINTS FINDINGS
1. Whether the applicant is entitled
for interim monetary relief and
protection order as prayed for?
Yes
2. Whether the applicant is entitled for
residence order under section 19 (f)
of the Protection of Women from
Domestic Violence Act ?
Yes
3. What order? The application is partly
allowed.
REASONS
AS TO POINT NO.1 AND 2:
11. 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 01/11/2018. In view of the notices /
summons the respondent appeared and contested the matter.
12. 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 is entitled for the interim monetary
relief to fulfill her basic needs as mentioned in this application.
13. Having gone through the application and the reply filed on
record, one fact is crystal clear that the applicant and the respondent
have made several serious allegations against each other and the
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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relation between them are strained. Moreover, it has been established
on record that the applicant is residing separate from the respondent.
14. Though it is the stand of the respondent that the applicant
is having source of income, yet he did not file any material document in
this regard to support his claim. On the other hand, the affidavit of
assets and liabilities filed by the applicant shows that she gets income
of Rs.7,500/ per month by doing parttime job in cooperative society.
According to her, she has to spend Rs.15,000/ per month as the total
expenditure towards her fundamental and basic needs. Thus, it is the
stand of the applicant that the income which she gets falls short to fulfill
her fundamental and basic needs.
15. It is pertinent to note here that the respondent filed his
affidavit of assets and liabilities wherein he has mentioned that he has
to look after his son and daughter. But the record shows that his son
and daughter are major and married. In such circumstances, the stand
taken by the respondent that he has to maintain his son and daughter
does not hold water.
16. It is also pertinent to note here that though the respondent
mentioned that the applicant gets Rs.25,000/ per month, yet he has
not filed any relevant document to show the exact income of the
applicant. On the other hand, the applicant has filed her bank account
statements which reveal that she gets salary of Rs.7,500/ per month.
In fact, the bank account statement and the postal pass book filed by
the respondent himself disclose that he gets pension to the tune of
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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Rs.31,000/ per month at this juncture. Thus, the documents filed on
record are sufficient to come to the conclusion that the respondent is
getting more income than that of the income received by the applicant.
Since it has been established on record that the applicant is residing
separate from the respondent, he is required to provide her separate
maintenance to fulfill her basic fundamental needs which cannot be
satisfied with the income received by her by doing parttime job in Co
operative society.
17. Even though for the sake of argument, it is assumed that
the applicant will be doing some job to meet her basic needs, yet the
respondent who is her husband cannot be escaped from his legal and
moral obligations regarding the maintenance of his legally wedded wife.
18. In this regard, I am guided by the ratio laid down by the
Hon'ble Apex Court, in the case of Sunita Kachwala Vs Anil Kachwala
reported in (2014) 16 SCC 715, wherein 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.
19. It is needless to say here that this court is empowered to lay
its own procedure to meet the ends of the justice for disposal of
application for interim relief as contemplated under section 23 of the
Protection of Women from Domestic Violence Act. In the present case
on hand, the applicant who is said to be victim of domestic violence,
has been fighting for her rights since last five years. The record shows
that the respondent has not provided any amount for her maintenance.
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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In such scenario, this Court is of humble opinion that the discretionary
power as contemplated under section 23 of the Protection of Women
from Domestic Violence Act may be invoked to meet the ends of the
justice.
20. So far as the prayer regarding the protection order under
Section 18 of the Protection of Women from Domestic Violence Act is
concerned, I am of the opinion that the documents filed on record show
that the relations between the applicant and respondent are strained.
Moreover, the applicant has made several serious allegations against the
respondent. Moreover, there is dispute regarding the ownership of the
flat between the respondent and the applicant. Therefore, in order to
avoid the further unwanted events, the respondent is required to be
prohibited from committing any domestic violence in future till further
order.
21. The applicant has come with the case that the respondent
has no right to make any interference in the flat where she resides. In
fact, it is admitted position that the applicant/aggrieved person lived in
domestic relationship with the respondent in the said flat where the
domestic violence is alleged to have taken place. In such circumstance,
having regard to the definition of Section 2 (s) of the Protection of
Women from Domestic Violence Act, the said flat/residential place
comes within the ambit of shared household and therefore, in view of
Section 17 of the Protection of Women from Domestic Violence Act, the
applicant has right to reside in the said shared household.
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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22. It is needless to say here that the applicant and the
respondent have to prove their case or defence on the touch stone of
evidence. This procedure will take its own time. Hence, having regard
to the allegations made by the applicant on oath, I am inclined to pass
the protection order in favour of the applicant who comes within the
ambit of aggrieved person.
23. So far as the relief regarding the return of stridhan as
sought by the applicant is concerned, I am of the opinion that such
relief cannot be granted at this stage because the applicant has not
produced any relevant document to show the details about her stridhan.
Thus, in the absence of the relevant documents, this prayer cannot be
allowed. However, having regard to the facts and circumstances of the
case, I am of the opinion that the applicant is entitled for the interim
monitory relief and the protection order alongwith the residence order.
24. In view of the discussion noted above, I have come to the
conclusion that the applicant has made out the prima facie case to get
the premium of interim relief as contemplated under section 17, 18, 19
and 20 of the Protection of Women from Domestic Violence Act.
Resultantly, I record my findings in affirmative for point no.1 and 2.
Logical corollary of my aforesaid findings leads me to pass
the following order:
O R D E R
1. The application filed at Exh.No.2 is partly allowed.
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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2. The respondent is hereby directed to pay sum of Rs.8,000/
(Rupees Eight Thousand Only) per month to the applicant as the
interim maintenance from the date of the application filed at
Exh.No.2.
3. The respondent 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.
4. The copy of this order be forwarded for compliance to the
concerned Protection Officer and the concerned Police Station in
charge under whose jurisdiction the domestic violence is alleged
to have been taken place.
5. The copy of this order be supplied to the parties free of costs.
Sd/
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
Date : 03.05.2024 44th Court, Andheri, Mumbai.
spj
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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