Kerala High Court
P.N.Samyuktha vs Aravind Ratnakaran on 27 September, 2018
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
THURSDAY ,THE 27TH DAY OF SEPTEMBER 2018 / 5TH ASWINA, 1940
Crl.Rev.Pet.No. 807 of 2018
AGAINST THE ORDER/JUDGMENT IN CRA 116/2018 of SESSIONS COURT,
THALASSERY DATED 23-06-2018
AGAINST THE ORDER/JUDGMENT IN MC 62/2017 of J.M.F.C.,THALASSERY
PETITIONER/RESPONDENT/PETITIONER:
P.N.SAMYUKTHA
W/O.LATE RATNAKARAN, RESIDING AT "GOVARDHAN",HOLLOW WAY
ROAD, P.O THALASSERY,KANNUR DISTRICT 670 101
BY ADVS.
SRI.SHAJI THOMAS
SRI.JEN JAISON
RESPONDENT/APPELLANT/RESPONDENT NO.1:
ARAVIND RATNAKARAN
S/O. LATE RATNAKARAN, RESIDING AT "GOVARDHAN",HOLLOW
WAY ROAD, P.O THALASSERY, KANNUR DISTRICT 670 101.
BY ADVS.
SRI.C.P.UDAYABHANU
SRI.C.J.VARGHESE VINU
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
14.09.2018, THE COURT ON 27.09.2018 PASSED THE FOLLOWING:
Crl.R.P.807/18
2
ORDER
The revision petitioner is a 78 year old widow who is the applicant in MC No.62/2017 filed under section 12 of the Protection of Woman from Domestic Violence Act(hereinafter referred to as the DV Act for short).
2. Shorn of unnecessary details, the crux of the contention of the revision petitioner is that, she held absolute ownership of the disputed house "Govardhan" at Talassery. The respondent is her son. The revision petitioner lived with her husband, son and his wife in the above house. Husband died on 29/7/2017. Thereafter, the respondent started physically and mentally harassing her. The dispute allegedly related to the execution of a Will by the revision petitioner, bequeathing her properties in favour of her two daughters. The respondent herein attempted to lock her in a room and to compel her to execute documents in his favour. He also attempted to take over the business run by her. She laid a complaint before the police on 3/12/2017. It was alleged that, the respondent was a chronic alcoholic. He used to abuse her using filthy language. The respondent had criminal antecedents also. Hence, she laid MC No.62/2017 seeking reliefs under section 18(a)(f) and 19 (1)(b), (c) and (d) of the DV Act, against the respondent herein. His wife was arrayed as the second respondent.
Crl.R.P.807/183
3. The respondent herein appeared and filed objection contending that the allegations were baseless. It was stated that the second respondent had filed MC No.56/2017 and had obtained an order. Present petition was filed only as a counter blast. The revision petitioner executed a will fraudulently bequeathing properties belonging to her husband. She was not interested in residing in the above disputed house. The respondent had no house of his own.
4. The court below, on the basis of the available materials found that that there were prima facie materials to establish domestic violence. Hence, it granted interim relief directing the respondent not to commit acts of domestic violence and not to communicate with the revision petitioner in any manner. There was a further direction that the respondent shall vacate the disputed house and shall remove himself from the house. There was a further order restraining him from entering the above house. He was also restrained from disturbing the aggrieved person in any manner.
5. The above order was challenged by the respondent in Crl.Appeal No.116/2018. The appellate court after hearing both sides, by the impugned order concurred, prima facie with the finding of the Magistrate that there were materials to establish instance of domestic violence. Hence, it was concluded that the protection order under section 18 was justified.
6. The appellate court noticed that the residence order granted by the court below was two fold, by which the respondent was restrained from entering the house. There was a further direction not to disturb the revision Crl.R.P.807/18 4 petitioner from holding her possession of the property and the enjoyment of the household properties . The appellate court held that the second part of the above direction, to the extent of directing the respondent not to disturb the revision petitioner from holding possession and enjoyment was not liable to be interfered. However, regarding the first part of the residence order directing the respondent to vacate the house, the appellate court differed with the trial court for several reasons. It was held that, though the revision petitioner was the absolute owner of the house, that was not a relevant consideration at the present stage. It was held that, the respondent and his wife were residing in the house even during the life time of the father, along with the revision petitioner. It was further held that the relief directing the respondent to vacate the house could be granted only in the final stage on merits and it could be granted as an interim relief, only under exceptional circumstances. The appellate court proceeded to hold that an exceptional circumstance warranting such an interim order was not made out. The appellate court further noted that, the wife of the appellant was not proceeded against. She was still residing in that house. However, it was held that the apprehension of the revision petitioner about the commission of acts of domestic violence in future has been properly taken care of and protected by granting the protection order. On the basis of the conclusions arrived at, the court below allowed the appeal in part, setting aside the direction of the court below to the respondent to vacate the disputed house.
Crl.R.P.807/185
7. Aggrieved by the above judgment of the appellate court, in so far as it relates to the order of the trial court setting aside the part of the order and directing the respondent to vacate the house, the revision petitioner has preferred this revision.
8. Heard both sides and examined the available records.
9. Perusal of the impugned judgment clearly shows that the appellate court had properly considered the rival contentions and passed a well considered and reasoned judgment on most of the issues. The main contention of the revision petitioner centered around the judgment of the appellate court to the extent of setting aside the direction of the trial court to vacate the house.
10. Admittedly, the revision petitioner is the absolute owner of the house. It is also an admitted fact that during the life time of her husband, the revision petitioner and her husband lived with the respondent and his wife, in the above building. Cordial relationship seems to have existed during the life time of the father. It is also not in dispute that the dispute arose between the parties later and the revision petitioner is now staying outside the house, since December 2017, as seen from the records. It is in this factual scenario, the rival contentions will have to be appreciated. According to the learned counsel for the revision petitioner, no relief was sought against the second respondent and that by itself cannot be a reason for passing an order against the revision petitioner. It was contended that the revision petitioner had no specific Crl.R.P.807/18 6 grievance against the second respondent. It was further contended that the revision petitioner had not raised any allegation of domestic violence against the second respondent. Entire allegations were projected against the first respondent only. It was also further contended that apart from the above facts on merits, legally, the revision petitioner was not entitled to seek any relief against the second respondent, under the DV Act, being a woman.
11. The revision petitioner is well founded in her above contention. The lower appellate court seems to have erred in holding that, since the revision petitioner did not proceed against the second respondent therein, she is precluded from seeking relief against the first respondent.
12. Regarding the exceptional circumstances warranting grant of a direction to the respondent to vacate the house, there seems to be several materials on record. Admittedly, relationship between the parties is strained. Even the counter affidavit filed by the respondent and the documents filed by both sides show that, there was bitter fight between the revision petitioner and the respondent. The revision petitioner had raised a specific allegation of physical and mental torture. It was alleged that, she was locked in a room. She further alleged that, the respondent was chronic alcoholic and was treated for de-addiction. The respondent used to act violently, it was contended. According to the learned counsel for the revision petitioner, even the physical presence of the respondent was sufficient to create fear in the mind of the revision petitioner. Evidently, the revision petitioner is 78 year old. It is also Crl.R.P.807/18 7 on record that, the respondent stands arrayed as an accused in Crime No.976/2017 on an allegation that, he had pointed out pistol against the revision petitioner and her daughter. However, according to the learned counsel for the respondent, that case was settled. It is also on record that the, the second respondent had filed MC No. 56/2017 against the daughter of the revision petitioner alleging that she got the property allegedly from the mother and was trying to dispossess the second respondent. It is also on record that, civil suit was filed by the respondent against the revision petitioner and one daughter. Revision Petitioner had laid a complaint b efore the DYSP, against the respondent. Most of the above allegations are on record. It is also to be noted that even now, notwithstanding the protection order, the revision petitioner had chosen to remain away from the the disputed house. Normally, the above facts are sufficient to hold that there exists extraordinary circumstances warranting the exceptional relief. To that extent, the finding of the court below that no exceptional circumstance was made out appears to be not correct.
13. The revision petitioner is also the owner of the house. The court below had specifically held that, title was not relevant consideration in this case at the present stage. Though claim is on the basis of the concept of shared household, when claim is set up by a person with ownership, it can be a relevant consideration. Title over the property coupled with proof of commission of acts of domestic violence is a relevant and crucial consideration, Crl.R.P.807/18 8 if aggrieved person claims benefit under the domestic violence Act, additionally on the strength of the title also. Definitely, the situation would have been different, if the aggrieved person was an estranged wife claiming right of residence along with another person holding title over the shared household.
14. Whether a person in possession and occupation of the house can be directed to vacate the house for the benefit of a person claiming relief under the Domestic Violence Act is also to be considered. Definitely, the DV Act enables the aggrieved person to seek order directing the respondent to vacate the house and to withdraw himself from the disputed house. Learned counsel for the revision petitioner relied on few decisions to substantiate his case. In Sachin and another v. Jhabbu Lal and another (Laws ( DLH) 2016 1131), the learned Single Judge of the Delhi High Court in a civil proceeding initiated by a father seeking mandatory injunction against the son had observed that where the house is self acquired by the the parents, son, whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents upto the time the parents allow. Merely because the parents have allowed him to live in the house so long as his relations with the parents were cordial, does not mean that the parents have to bear his burden throughout his life. This was followed in Shadab Khairi & Anr.v. the State of Ors. (LPA 783/2017 and connected cases). The Delhi High Court considered the question whether the Crl.R.P.807/18 9 Maintenance Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act 2007 has the jurisdiction to pass an order of eviction. The court, relying on the various legal decisions had held that, senior citizen is entitled to institute an application seeking eviction of his son, daughter or other legal heir from his self-acquired property on the ground of ill-treatment and non-maintenance. In Dattatrey Shivaji Mane v. Lilabai Shivaji Mane and other (W.P.(C) No.10611/2018), the Single Bench of the Bombay High court referring to the Sachin's case (cited supra), held that where a house is self acquired one of the parents, merely because they have permitted the son to live in their house indicate that he can live in the house even after the relationship got strained. It was held that no child can compel his parents to stay with him.
15. The above decisions clearly show that the court in appropriate cases under the DV Act is also competent to direct the respondent to remove himself from the disputed shared household even at the interim stage. Under the DV Act interim orders are granted only to protect the interest of the aggrieved person and to ensure peace and harmony during the pendency of the proceedings. However, since emotional issues are involved, court has to perform the delicate task of balancing interest of both sides, with predominant aim of ensuring safe and peaceful residence of the aggrieved person. If in a shared household, aggrieved person and the respondent cannot live together, the court shall definitely consider the possibility of directing the respondent to Crl.R.P.807/18 10 remove himself or to vacate the shared household within the time stipulated to enable the aggrieved person to continue residence in shared household, though at the interim stage, only in exceptional circumstances.
16. As mentioned above, the reasons projected by the court below to set aside the order directing the respondent to vacate the house does not appear to be based on sound legal principles. Evidently, the court below erred in exercising the jurisdiction by eschewing relevant inputs. This jurisdictional error is liable to be corrected in revision. The order of the trial court is liable to be restored in revision.
The revision petition is hence allowed. The impugned order is set aside and the order of the trial court is restored. Respondent is directed to vacate the house forthwith, failing which, the revision petitioner will be entitled to get the order enforced by due process of law.
Sd/-
SUNIL THOMAS JUDGE dpk/ Crl.R.P.807/18 11 APPENDIX PETITIONER'S/ EXHIBITS:
ANNEXURE A1 TRUE PHOTOCOPY OF THE COMPLAINT FILED BY PETITIONER'S GRANDDAUGHTER DATED 10.09.2017 ANNEXURE A2 TRUE PHOTOCOPY OF THE FIR IN CRIME NO.976/2017 OF THALASSERY POLICE STATION ANNEXURE A3 TRUE PHOTOCOPY OF THE ORDER DTD 19.09.2017 IN CRL.M.C.NO.1283/2017 OF THE SESSIONS COURT, THALASSERY ANNEXURE A4 TRUE COPY OF THE RECEIPT ISSUED FROM THE AMRITA INSTITUTE OF MEDICAL SCIENCE, KOCHI FOR THE ADMISSION OF THE RESPONDENT AT THE HOSPITAL DTD 01.08.2015 ANNEXURE A5 TRUE PHOTOCOPY OF THE ADVERTISEMENT THAT PUBLISHED IN THE FACEBOOK PAGE OF THE RESPONDENT ANNEXURE A6 TRUE PHOTOCOPY OF THE COMPLAINT DTD 23.03.2018 SUBMITTED BY THE PETITIONER BEFORE THE DISTRICT POLICE CHIEF, KANNUR RESPONDENT'S/ EXHIBITS ANNEXURE R1(a) TRUE COPY OF THE FIR IN CRIME NO.36/2018 ON THE FILES OF THE TELLICHERRY POLICE STATION ANNEXURE R1(b) TRUE COPY OF THE MC NO.56/2017 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, THALASSERY ANNEXURE R1(c) TRUE COPY OF THE AFFIDAVIT FILED IN ANNEXURE R1(b) BY APARNA RETNAKAR CHOWDHARY DTD 20/12/2017 ANNEXURE R1(d) TRUE COPY OF THE ORDERS PASSED BY THE JUDICIAL MAGISTRATE OF FIRST CLASS, THALASSERY IN CMP NO.4262/2017 IN MC NO.56/2017 DTD 22/12/2017 ANNEXURE R1(e) TRUE COPY OF THE PLAINT IN OS NO.79/2017 ON THE FILES OF THE SUBORDINATE JUDGES COURT, THALASSERY ANNEXURE R1(f) TRUE COPY OF THE WRITTEN STATEMENT WAS FILED BY THE PRESENT PETITIONER IN OS NO.79/2017 ANNEXURE R1(g) TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 3 rd RESPONDENT IN OS NO.79/2017 ON THE FILES OF THE SUBORDINATE JUDGES COURT, THALASSERY ANNEXURE R1(h) TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 3rd DEFENDANT COMPLAINT FILED BY ME BEFORE THE CIRCLE INSPECTOR OF POLICE, KANNUR TOWN DTD 23.03.2018