Order 1

Order Details: Copy of Order
Pdf Text: .. 1 .. C.C.No. 28/DV/2023
IN THE COURT OF JUDICIAL MAGISTRATE (FIRST
CLASS),
53RD COURT, MULUND, MUMBAI.
C.C. NO. 28/DV/23
Order below interim application Exh. 8:
(Passed on 10.03.2025.)
1] This is an application filed by the applicant
seeking interim maintenance under section 23 of
Protection of Woman from Domestic Violence Act against
respondent no.1 - husband ( Herein after, it be referred
to as “D.V. Act” in short for brevity).
2] Perused application, reply of respondent no.1
and documents filed by either parties in support of their
rival contentions.
3] Heard both sides at sufficient length.
4] Both parties have also filed affidavit of assets
and liabilities in pursuance of directions issued by
Hon’ble Apex Court in case of Rajneesh V/s. Neha
alongwith documents in respect of assets and liabilities.
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5] Before turning to the controversial aspect of
interim maintenance, I find it proper to mention the case
of both parties in brief for the sake of understanding as
under;
6] Applicant no. 1 married with respondent no.1
on 05.12.2019 as per the Hindu rites and customs. After
the marriage, she went her matrimonial home for
discharging her matrimonial obligations, but
circumstances became miserable for her thereafter few
days because of the mental, physical violences at the
instance of the respondents. She was never treated
properly. Her in-laws also used to abuse her on the
pretext of demand of dowery. They were also quarreling
with her regularly and putting restrictions on her
movement in society so that she should never meet with
her parents. Thereafter, differences and matrimonial
disputes reached to its peak level and joint meetings of
relatives were organized, but those resulted in vain. She
has to return back to parents house with her daughter.
The applicant has also knocked doors of police station
and lodged complaints. Further, respondent no.1 also
neglected and refused to maintain applicant and her
daughter. Therefore, she has filed the instant application
under section 12 of P.W.D.V. Act.
7] Per contra, the respondent has refuted all
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allegations. According to respondents, the application is
false and bogus and it has been only filed in order to
extract money from the respondents any how.
Respondents never treated applicant badly. They have
provided good amenities and facilities to the applicant.
According to them, applicant has created concocted and
false stories in order to get monetary reliefs. According
to the respondent, he is ready to cohabit with applicant.
Furthermore, all incidences have been categorically
denied by the respondents. He has also specifically come
with case that respondent has never committed any
domestic violence. Finally, he prayed for dismissal of
application.
8] Having gone through documents and pleading
of rival parties, following points arise for my
determination and I record my findings against each
point as under;
Points Findings
01. Whether the applicant prima-facie
proves that she has been prima-
facie subjected domestic violence?
Yes.
02. Whether she prima-facie proves
that she is aggrieved person as per
the provision of Protection of
Woman from Domestic Violence
Act?
Yes.
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03. Whether she proves that she is
unable to maintain herself and her
daughter without financial aid of
respondent no.1?
Yes.
04. Whether she is entitled for interim
maintenance as per section 23 of
Protection of Woman from
Domestic Violence Act?
Rs. 8,000/-
p.m. for
applicant
wife and Rs.
5,000/- p.m.
for daughter
from the date
of
application.
05. Whether she is entitled for rent as
per section 19 of Protection of
Woman from Domestic Violence
Act?
Rs. 6,000/-
p.m. rent
amount from
the date of
order.
06. Whether she is entitled for school
fees of daughter?
Yes.
07. What order? As per final
order.
REASONS
Point no. 1 to 6 :
9] After hearing and gone through documents
filed by the rival parties, I may mention that it is
imperative for this court to observe as to whether the
applicant is prima-facie aggrieved person of domestic
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violence ? In other words, whether prima-facie domestic
violence has been proved by the applicant or not? The
decision on this aspect is necessary before deciding any
interim relief as per section 23 of the D.V. Act.
10] Further, I may mention that both parties have
not subjected themselves to cross-examination and there
is no evidence on record. So, prima-facie observations
are required to be made on the basis of pleadings of both
parties, circumstances and documents filed by them.
11] In this case, I prima-facie find that after the
marriage, the couple resided happily for few days. After
passage of some period, differences started to develop
between the parties and the matrimonial dispute reached
to its peak level. It also seems that several meetings
were held in between families of both the parties to
settle the matrimonial dispute, but all resulted in vain.
12] In this case, I prima-facie find that the
domestic incident report has been filed by the Protection
Officer and it has also fortified contentions of the
applicant. Incidences which would lead to commission of
domestic violence are chronologically mentioned in
domestic incident report too. Not only this, the
Protection Officer has also requested for issuance of
orders in favour of the applicant. That apart, I prima-
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facie find that the crime under section 498A. 504, 506,
406 of IPC has been also registered in police station on
the basis of complaint of the applicant against
respondents.
13] Here, I also prima facie find that the
respondent-husband has denied allegations of violence in
toto. But, I may mention that normally & traditionally a
married Indian woman will not leave the house of
husband, when everything is very blissful and happy in
her matrimonial home which is tried to be portrayed by
the respondent. But, when circumstances become
miserable and painful to live in the matrimonial home, a
woman has to take a decision to leave the house of
husband only out of compulsion.
14] So, in view of above circumstances & material
i.e. domestic incident report and registration of FIR, non
providing of any amount of maintenance during the
course of separation to the wife and the daughter, I
prima-facie find that the treatment was not properly
given to the applicant in the house of respondents,
otherwise she would not have filed several cases or leave
the company of her husband that too when she is having
responsibility of minor daughter. So, in view of facts &
circumstances which I have discussed herein above, it
can be safely prima facie inferred that the applicant was
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subjected to domestic violence at the instance of
respondents in her matrimonial home.
15] Having considered aspect of domestic violence,
now let us turn to the aspect of interim maintenance.
The wife has filed affidavit of assets and liabilities at Exh.
09. She is graduate in commerce faculty. She has
shown her general expenses to tune of Rs. 30,000/- per
month. She has shown the responsibility of a daughter
who is aged about five years. She is presently residing
with her father. Further, she is running tuition classes
and earning the money from the same to tune of
Rs.5,000/- to Rs.7,000/- per month.
16] She has shown the profession of respondent
no.1 as actor in T.V. serials and his education as B.com,
LL.B. His monthly income is shown as Rs. Three Lakhs
per month. He has a house in Mumbai, Indore, Banglore
and at native place.
17] Per contra, the respondent has also filed an
affidavit at Exh. 15. He has mentioned his occupation as
worker on daily wage basis and his monthly income is
shown as Rs. 25,000/- per month. He has shown
applicant's income to tune of Rs. 20,000/- from business
of private tuition / coaching. He has shown his expenses
to tune of Rs. 20,000/- per month. He is residing in
rental house i.e. 301, Twins Park, Mira Road (E), Thane.
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18] This is the sum & substance of economic,
financial, education, standard of living of both parties
which has brought on record by means of affidavit. I may
mention that it has been generally noticed in such type of
cases that husband used to reduce his income and wife
used to enhance her expenses. But, the court has to find
out the balance so that there shall be a proper
determination of interim maintenance.
19] In this case, I find that the respondent-husband
has not denied the responsibility of daughter and he is
ready to pay maintenance for daughter. So, the issue of
payment of interim maintenance to daughter is no more
res-integra in view of submissions of respondent & his
advocate.
20] So far as the financial capacity of wife is
concerned, I find that she is residing on mercy of her
father, as the arrangement for her accommodation is not
done by the respondent. I prima-facie find that even if
she is earning some money from tuition classes then the
same cannot be treated as sufficient source of income
because it cannot be ignored that the respondent is the
responsible for her condition because if she will not do
the job then she has to face the situation of starvation, as
the respondent has not paid a single penny to her after
separation. It is the moral and legal responsibility of
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husband to pay maintenance to his wife and daughter,
when they have no sufficient source of income. I find
that the applicant has no sufficient source of income and
her meager income which she has fairly mentioned
cannot be criteria to refuse interim maintenance. So, I
prima-facie find that the applicant is in dire need of
financial assistance from her husband & the same is the
necessity of her having considered all above
circumstances.
21] Let us turn to income of respondents. I prima-
facie find that the respondent no.1 has recently passed
out LL.B. examination and enrolled as an advocate. I
find that the marriage was fixed & performed because he
was working as a professional and therefore, the aspect
of newly enrolled advocate will not come in the way to
believe that he is only depending on income of advocacy.
In this case, it is surprising that the husband has only
mentioned the work of daily wages. I find that he has not
mentioned where he is working?, what type of work is
being done as daily wage labour in his affidavit? So, I
find that the respondent has not come with clean hands
before the court, as it prima-facie seems that he is trying
the suppress his real work, profession & income from the
court, otherwise there was no reason for him to explain
his nature of work and duties for putting his case fairly.
So, I prima-facie find that husband is deliberately
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suppressing his real work & income. So, I prima-facie
find that the husband has sufficient source of income to
pay the interim maintenance to the wife as well as
daughter. I may also add here that respondent cannot
deny responsibility to maintain his wife and daughter
merely on the pretext that he has to look after his
parents & their diseases.
22] While awarding interim maintenance,
standard of living of the parties, their educational
background, their social background, their daily needs
according to their standard are required to be analysed. I
may also add here that, the maintenance shall be
awarded according to the standard of husband. I find
that the daughter has every right to get a quality
education and quality life and her demand of interim
maintenance appears to be proper and legitimate.
23] I prima-facie find that the rent is also required
to be ordered, as the wife has no shelter of her own. It is
the responsibility of husband to provide shelter to wife
and daughter during the course of separation in order to
protect their privacy and personal life. So, I find that the
interim rent for residence under section 19 is also
required to be passed in this case.
24] Law does not expect that one spouse will leave
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in luxury and another in misery. I prima-facie find that
considering the expenses of applicant and her education
as well as standard of living the interim maintenance of
Rs. 8,000/- per month for applicant will suffice the
purpose. Similarly, the interim maintenance Rs. 5,000/-
per month for daughter and rent of Rs. 6,000/- per month
will also suffice the purpose. Besides that, entire
responsibility of paying the school fees and tuition
classes of minor daughter can be also fixed on
respondent no.1 so that there will be no any
responsibility on the applicant to make payment of school
fees in the school of her minor daughter.
25] It is trite law that maintenance has to be
awarded from the date of application, unless there are
sufficient reasons to refuse it. In this case, no cogent
reason has been borne out to deny the maintenance from
the date of application. Therefore, the interim
maintenance and the amount of rent is required to be
ordered from the date of main application. In the result,
I answer point nos. 1 to 6 in affirmative.
Point no. 7 :-
26] In the backdrop of above discussion and
observations, I pass the following order;
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ORDER
(i) Application is partly allowed.
(ii) The respondent no.1 - husband shall pay
interim maintenance of Rs. 8000/- per month to applicant
no.1 and Rs. 5000/- per month for daughter vide section
23 of Protection of Woman from Domestic Violence Act
from the date of main application till final disposal of the
case.
(iii) Respondent no.1 husband shall pay Rs. 6000/-
p.m. towards rent to the applicant-wife from the date of
application U/s. 19 of Protection of Women from
Domestic Violence Act.
(iv) The respondent no.1 husband shall pay the
entire school fees of minor daughter from the date of
order either directly in the school or in the court as per
the time schedule of the school so that there shall not be
any inconvenience to the daughter.
(v) For the sake of clarity, the school fees includes
admission fee, term fees and tuition fees etc. which is
payable to school as well as the amount for books, bags,
shoes, & the transportation charges of vehicle from
house to school & vice versa.
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(vi) Copy of this order shall be given to the
applicant and respondent no.1 husband free of cost
under section 24 of above Act.
(vii) Copy of this order be provided to Protection
Officer and Police Station Officer for effective
implementation.
( M. R. Washimkar )
Date :- 10.03.2025 Judicial Magistrate (First Class),
53rd Court, Mulund, Mumbai.
pam
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