Interim Maintenance of Wife Dismissed By Trial Court in DV Case

IN THE COURT OF ADDL.CHIEF METROPOLITAN MAGISTRATE _____ COURT, BORIVALI, MUMBAI.

C.C.NO.

Applicant Vs. Respondents

ORDER BELOW APPLICATION  EXH.3.

The applicant has filed proceeding u/sec.12 of the Protection of  Women from Domestic Violence Act, 2005 (for short, “D.V.Act”).  During pendency of the proceeding, she prayed for interim relief by way  of protection order, maintenance for herself and one son aged five  years, one daughter aged three years and also other interim reliefs in  the form of money, from respondent no.1 husband of the applicant. In  main application, several allegations of domestic violence have been  levelled against the first respondent husband as well as second  respondent mother­in­law.  It is alleged that on a number of dates the  husband used to commit violence ­physical and verbal, against the  applicant, on his own and some times at the instigation of the mother in­ law. The mother ­in­ law alleged to have committed violence by  taunting the applicant on one or the other count.  For Exh.3, contents of main application have been adopted.  The proceeding and application  Exh.3 is supported by Affidavit of the applicant.

2. The respondents   entered appearance in the proceeding.  On behalf of the respondents, first respondent husband filed written  statement at Exh.7.   All allegations made against them have been  denied.   In addition thereto, the allegations are made against the  applicant/ wife blaming her to be the negligent person.  It is contended  that being husband he discharged his all obligations and his mother  never made any violence,  physical or verbal against the applicant.  It is  prayed that the main proceeding as well as application for interim  reliefs are liable for dismissal and be dismissed.

3. In view of directions of the Hon’ble Supreme Court in case of  Rajnesh v. Neha & another, (2021) 2 SCC 324, the applicant as well as  first respondent filed their affidavits in respect of their income, assets  and liabilities.

4. Heard   arguments   of   learned   advocates   appearing   for   the  respective parties at length.  By way of synopsis or summary the parties  also filed written contentions at Exh.13 & Exh.12.   I have carefully  considered the submissions, rival grounds raised and the rival pleadings as well as supporting documents submitted by the parties on record, for  the purpose of decision on Exh.5.

5. The relevant facts to be noticed at this stage are that the family of  the applicant is settled at Bombay, at least from before marriage of the  applicant. Arranged marriage of the applicant and first respondent  performed at Ajmer on 4/5/2015.  Admittedly, respondents and their  family members are from Ajmer, Rajasthan State.  The couple resided in  joint family of the husband at Ajmer until their separation i.e. upto  18/04/2018.  Male child born on 13/07/2016 and a female child born  at Bombay on 09/09/2018, after separation of the couple.

6. The material allegation in respect of separation made by the applicant is that due to domestic violence made against   her, she  compelled to leave her matrimonial house and since date of separation,  she  has been residing at her parental home situated in Malad (W),  Mumbai.  Both­ a son and a daughter are in her care and custody.  All of  them have been maintained by her parents.

7. According to respondent husband, applicant wife left matrimonial  home on her own, without any reason and without giving information  to his family.  She left house for second delivery.  She did not return  back to matrimonial house in­spite of efforts made by them.   She  wanted that the husband and herself should settle down at Mumbai. It  was not possible for him.   Lastly, the husband filed petition for  restitution of conjugal rights bearing petition no.170/2020 in the  Family  Court at Ajmer.

8. Record   shows   that   in   April,   2021   applicant   wife   received  summons of above petition.  Subsequently on 10/08/2021, she filed  complaint to Malwani Police Station at Mumbai for offences u/sec. 498A, 406, 323, 504, 506 of IPC, followed by present proceeding under  D.V.Act.

9. As per submissions, allegations of the applicant are relied upon on her behalf and for respondents, the contentions raised on their  behalf are pressed.  The crucial point put forward on behalf of the  applicant is that the applicant needs same level accommodation which  she enjoyed while residing with the husband.  The description thereof is  ground   plus   first   floor   and   terrace   having   area   of   3500   sq.ft.  approximately.  It is a villa of seven bed rooms, hall kitchen having five  bathrooms and a garden in front of the house plus parking place.  The  family of   the  husband  own   four cars,  one  motorcycle  and  one  car demanded and given by brother of the applicant.  The family also owns  agricultural lands at Ajmer.

10. By way of interim maintenance, the applicant gave details of her  monthly   expenses   and   she   prays   for   monthly   maintenance   of  Rs.1,10,800/­ for herself and two children, wherein she included  Rs.40,000/­ per month by way of expected house rent.  It is ascertained  that the husband is doing business of manpower supply in the name  and style “ ——”, business of  customized bikes as well as third business under title “——-” and  earning not less than Rs.2 lakhs per month.

11. It is admitted fact that the respondent husband took education of  Diploma in Automotive Marketing – Business Administration from a  college in Canada.

12. On behalf of first respondent husband, it is submitted that applicant wife is a Doctor, has been practising and had also practised  Medical profession as a Dentist in a number of hospitals in Mumbai. She  is capable of earning to maintain herself.  The respondent is ready to  maintain children if given in his custody.  The prayer for protection  order is resisted submitting that communication is the only source  to  remain in touch with the wife and the children. Since the respondent is  residing at Ajmer,  there is no question of commission of any violence  against the applicant.

13. It is submitted that as the prima­facie case is not made out by the applicant, she is not entitled for interim reliefs particularly relief of  maintenance.    The   following   case  laws  are  relied   upon  by  the  respondents 

    i)Decision of the Hon’ble Madhya Pradesh High Court   in case of Mamta Jaiswal v. Rajesh Jaiswal, II (2000)        DMC 170.   While considering revision petition in respect of  interim alimony granted u/sec. 24 of the Hindu Marriage Act, it is  observed that section 24 has been enacted for  purpose of providing  monetary assistance  to such spouse who is incapable of supporting  himself/ herself in­spite of  sincere efforts.  Spouse well qualified to get  service immediately with less efforts is not expected to remain idle  to  squeeze out his/her purse by cut in nature of pendente lite alimony.  How can well qualified woman possessing qualification like M.Sc.,  M.C.M.Ed.     can   remain   without   service.     Lady   who   is   fighting  matrimonial petition filed for divorce, can not be permitted to sit idle and put her burden on husband for demanding pendente lite alimony  from him during pendency of matrimonial petition.
    ii) Judgment of the Hon’ble Karnataka High Court  in case of E. Shanthi v. Vasudev H.K., AIR 2005 Karnataka 417.  In  said decision, it is observed that petitioner wife working as Doctor prior  to marriage, continues her name on Board of clinic where she practised  a long with her brother.  Petitioner wife capable of earning and having  required qualification can continue the same profession.   Held that,  such wife is not entitled for separate maintenance during pendency of  divorce petition by respondent husband.   The husband working as  Medical Officer directed  to pay sum of Rs.2,500/­ per month to  maintain her minor daughter.
    iii) Judgment of the Hon’ble Delhi High Court  in case of Sanjay Bhardwaj & Ors. v. State and another, II (2010)  DMC 574.  It is observed that Domestic Violence Act does not create any additional right in favour of wife regarding maintenance.  Act is silent  about duties of husband and wife. No law provides that a husband has  to maintain a wife, living separately, irrespective of fact whether he  earns or not.  Court can not tell husband that he should beg, borrow or  steal, but give maintenance to wife, more so when both are equally  qualified and capable and earning.  Fixing of maintenance by court  without there being even proof of husband being employed in India is  contrary to law.  An unemployed husband holding MBA degree can not  be treated differently who unemployed wife also holding MBA degree.  Both are on equal footing, one can not be asked to maintain other  unless one is employed and other is not employed.  Parents can not be  burdened to maintain husband and wife.  Ultimately, order passed by  Metropolitan Magistrate and confirmed by the Additional Sessions  Judge fixing maintenance without there being any prima­facie proof of  the husband being employed are held to be not tenable under Domestic  Violence Act and are set aside.

14. Having given thought to the facts of the present case and case  laws, record is being assessed.  Whether the applicant is compelled to  leave matrimonial house or she left matrimonial house on her own is  disputed question of fact.  Incidents of domestic violence are asserted by  one the party and denied by the other party.  In respect of alleged  income of the respondent, there are no proofs on record.  He denies  said income of more than   Rs.2 Lakhs and asserts his income as  Rs.30,000/­ to Rs.35,000/­ per month.   Thus, all these facts are in  dispute and which shall be finally decided on the basis of evidence.
15. It is admitted fact that the applicant has completed his BDS degree from Vasantdada Dental College in the year 2010-­11.  According  to her, for last three years her status is housewife, because of her two  minor children.  Her income is nil, as shown by her.  According to the  applicant, her family is doing construction business.  It did not come on  record that after separation from 18/04/2018 any efforts for cohabitation or for restitution are made by the applicant or her family  members.   But the respondent husband asserted that he has made  efforts in that direction and also the fact is that he has filed petition for  restitution for conjugal rights.   After receipt of summons in that  petition,  the  applicant  wife  has  filed  complaint  at  Mumbai  and  subsequently, present proceeding.
16. Relief u/sec. 23 of the D.V.Act is discretional,   subject to the facts  and circumstances of the given case. Absence of efforts for co­habitation  on the part of the applicant and her parents goes against her.  She seeks  accommodation or rent for accommodation at Mumbai shows that she  intends to reside at Mumbai only.  In fact, her matrimonial place is  Ajmer in Rajasthan State.   This also goes against the applicant.  Presently, she has been residing with her parents means the applicant is  residing in the house in which she has every right to reside as the law  treats daughter and son equal in law in respect of the rights in the  properties of the parents.  In my considered view, the applicant is not  entitled for any relief on account of residence order.
17. Now children are grown up at least they are more than five years  and three years.  The applicant is Doctor.  She resides in Metropolitan  city i.e. Mumbai.  She is expected to do medical profession as a Dentist  and very easily she can get opportunity to do such job in Mumbai.  Such  a qualified applicant, in view of the ratio laid down in the cases noted  herein­above, is not entitle for her maintenance from the husband in  present case.
18. So far relief of protection order, no prima­facie case has been  made out to grant such reliefs of protection.
19. As far as reliefs in respect of Stridhan and other reliefs of  compensation in monetary terms, those are required to be decided on  the basis of evidence at the time of final disposal of the case.

20. Undoubtedly, a son and a daughter are in the care and custody of  the applicant.  Considering age of them, it is proper custody with the  mother.  The respondent being  father  is  duty  bound to  maintain   the children.  Admittedly, he has not made any expenses for his kids.  As  seen from his affidavit of income, assets and liabilities, his monthly  income stated to be upto Rs.35,000/­ appears to be incorrect as his  expenses shown on record are approximately Rs.40,000/­plus.  He has  not explained in detail or in specific manner   his earning from the  manpower supply business, which he has admitted.  In respect of other  business, there are no specific details.  It is also admitted that father of  the respondent, who is no more, was twice MLA.  He comes from well  to do family.  Considering these facts, fair and reasonable maintenance  is required to be granted for the children.  For the discussion made in  preceeding paragraphs, the applicant wife is not entitled for monthly  maintenance allowance or maintenance in lump­sum.  The application  deserves to be partly allowed in following terms.

    ORDER

    i) The application is partly allowed.
    ii) Respondent   no.1   is  directed to pay sum of Rs.10,000/­ (ten thousand)  per   month   for   maintenance   of   each   son   and  daughter,   total   Rs.20,000/­(twenty   thousand)  towards their maintenance, from the date of filing of  application Exh.3 i.e. dated 17/08/2021  and the  applicant is entitle to receive the said amount on  behalf of the children.
    iii) Prayer for interim maintenance for the applicant and  in respect of all other reliefs is rejected.
    iv)  Copy of this order be provided free of cost to the  applicant and respondent no.1.
    v)  A copy of this order be forwarded to the police  station in­charge of the concerned police station for  information and necessary action, if required.

    Date :26/07/2022

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