Kerala High Court
Subaida vs Noorudheen Rawthar on 5 April, 2019
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY, THE 05TH DAY OF APRIL 2019 / 15TH CHAITHRA, 1941
Crl.Rev.Pet.No. 390 of 2019
AGAINST THE ORDER/JUDGMENT IN CRA 41/2017 of ADDITIONAL DISTRICT
COURT & SESSIONS COURT - V, KOLLAM
AGAINST THE ORDER/JUDGMENT IN MC 32/2015 of JUDICIAL MAGISTRATE
OF FIRST CLASS , SASTHAMCOTTA
REVISION PETITIONER/S:
SUBAIDA,AGED 58 YEARS
D/O. NABEESA UMMAL, SUMAYYA MANZIL, PALLY MURI,
PORUVAZHY VILLAGE, PORUVAZHY P.O., KUNNATHUR TALUK,
KOLLAM 690 520, FROM FOUSIN MANZIL, CHEMMANTHOOR
MURI, PUNALUR VILLAGE, PATHANAPURAM TALUK, KOLLAM
DISTRICT.
BY ADVS.
SRI.P.RAHUL
KUM.NARAYANI HARIKRISHNAN
RESPONDENT/S:
1 NOORUDHEEN RAWTHAR,AGED 67 YEARS
S/O. THAMBI RAWTHAR, SUMAYYA MANZIL, PALLUY MURI,
PORUVAZHY VILLAGE, PORUVAZHY P.O.,
KUNNATHUR TALUK, KOLLAM 690 520.
2 STATE OF KERALA,REPRESENTED BY THE PUBLIC
PROSPECTOR, HIGH COURT OF KERALA, ERNAKULAM.
OTHER PRESENT:
SRI.P.V.DILEEP FOR R1,
SMT.PRIYA SHANAVAS, PUBLIC PROSECUTOR FOR R2
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
05.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ALEXANDER THOMAS, J.
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Crl.R.P.No.390 of 2019
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Dated this the 5th day of April, 2019
ORDER
The prayer in the above Criminal Miscellaneous Case are as follows:
"...... to call for the records of the case leading into the judgment in Crl.A.No.41/2017 of the Additional Sessions Court-V, Kollam dated 28.02.2019 which arose from the order of the Judicial First Class Magistrate's Court (Temporary), Sasthamcotta dated 17.02.2017 in C.M.P.No. 2314/2016 in M.C.No.32/2015 and to allow the said C.M.P. No. 2314/2016 as prayed for."
2. Heard Sri.P.Rahul, learned counsel appearing for the petitioner, Sri.P.V.Dileep, learned counsel appearing for contesting respondent No.1 and Smt.Priya Shanavas, learned Prosecutor appearing for R-2 State.
3. The petitioner filed application as M.C.No. 32/2015 before the Judicial First Class Magistrate's Court (Temporary), Sasthamcotta, under the provisions contained in Sec. 12(2) of the Protection of Women from Domestic Violence Act, 2005, wherein the 1st respondent herein has been arrayed as the respondent, seeking various reliefs under the DV Act, including that for residence, protection and maintenance. According to the petitioner, after her marriage with the 1st respondent, she has been living together with the Crl.M.C.390/19 - : 3 :-
1st respondent and that later, the 1st respondent had subjected the petitioner to cruelty and harassment and her financial needs were also not taken care of by him and accordingly, she was constrained to file the above application under the DV Act claiming the abovesaid reliefs.
4. The learned Magistrate had passed interim order as per order dated 17.2.2017 in C.M.P.No.2314/2016 in M.C.No. 32/2015, wherein it was ordered that the respondent therein (respondent herein) is restrained from alienating the shared household situated in 17 cents of property in Poruvazhy Village, Block No.6, Re-survey No. 125/1-2. Aggrieved by the said interim order dated 17.2.2017, the 1 st respondent husband had filed Crl.Appeal No. 41/2017 before the Court of Addl. Sessions Judge-V, Kollam, in which the appellate Sessions court concerned had rendered judgment dated 28.2.2019, whereby the abovesaid interim order dated 17.2.2017 passed by the learned Magistrate was set aside. The abovesaid appellate judgment was rendered by the lower appellate court on the premise that there are no prima facie materials to show the claimed residence in the shared household of the petitioner as understood in the provisions of the DV Act. Moreover, the Sessions Court has also taken cognizance Crl.M.C.390/19 - : 4 :-
of the plea of the husband that he had already pronounced talaq on the wife and that since the marital relationship has already been dissolved, there is no question of claiming any shared house hold right as comprehended in the DV Act.
5. It appears that the husband had taken up the plea that the wife is residing elsewhere independently in her house at Punalur and that therefore she cannot make any claim of shared house-hold rights in respect of the residential building of her husband. The husband has produced a certificate from the Village Officer concerned stating that the residential house at Punalur is in the name of the wife and that she is residing there. In view of these aspects, the lower appellate court has held that there are no materials to show that the wife is having any shared house-hold right over the subject property owned by her husband.
6. After having heard both sides, this Court of the view that interlocutory view taken by the learned Magistrate in passing the impugned order in favour of the wife cannot be said to be an illegal or unsustainable view in the matter. There is no serious dispute in the fact that the subject building is owned by her husband and that there is no serious dispute that the petitioner had married the 1 st Crl.M.C.390/19 - : 5 :-
respondent and that they were living together in the said house. Merely because a certificate has been produced from the Village Officer concerned to show that another residential building is owned in the name of the wife at Punluar, and that she is residing there, could not have been the basis for disturbing the interlocutory order passed by the learned Magistrate. The view taken by the learned Magistrate cannot be said to be unreasonable and things being so, the appellate court should not have gone to the extent of shaking the entire basis of the interim order, merely by placing reliance on a certificate issued by the Village Officer that the wife is having another building at Punalur and that she is residing there. The learned counsel for the wife would point out that the Village Officer has not conducted any proper inquiry with notice to her to come to the conclusion as to whether or not, she is residing in her house at Punalur and more particularly the fact that she is owing a residential building at Punalur, cannot be the legal basis for the court to conclude that she is not residing in the residential building owned by the husband and that too, after acting on the basis of the certificate issued by the Village Officer, which has been issued without conducting any inquiry with prior notice to the wife, who is the Crl.M.C.390/19 - : 6 :-
affected party.
7. In the light of these aspects, this Court should certainly hold that the lower appellate court has exceeded its brief in disturbing the interlocutory view taken by the learned Magistrate. In a matter like this, the lower appellate court could have directed the learned Magistrate to dispose of the main matter without any further delay so that the main controversy between the disputants could be thrashed out instead of focusing on the interlocutory arrangement. In the light of these aspects, it is ordered that the impugned judgment dated 28.2.2019 in Crl.Appeal No. 41/2017 rendered by the Court of the Addl. Sessions Judge-V Kollam, will stand set aside and consequentially it is ordered that the interim order dated 17.2.2017 rendered by the learned Magistrate on C.M.P No.2314/2016 in the main matter in M.C.No. 32/2015 will stand restored. Further it is ordered that the learned Magistrate will take up the matter in M.C.No. 32/2015 and should permit both sides to adduce evidence without any further delay and should ensure the final disposal of the main matter in M.C.No. 32/2015 without much delay, preferably within a period of 3 months from the date of production of a certified copy of this order.
Crl.M.C.390/19 - : 7 :-
8. Sri.P.Rahul, learned counsel appearing for the petitioner would point out that the incidental issue taken up by the lower appellate court that the petitioner has been divorced by the 1 st respondent and that therefore such a divorced lady cannot claim any shared house hold right in respect of the residential building in which she was residing along with her husband, is not legally tenable. It is pointed out that to the best of the knowledge of the petitioner no such valid talaq has been pronounced by the 1 st respondent on her and that in view of the later judgment of the Apex Court on such issues, heavy onus is there on the husband to prove that divorce has been validly obtained in the manner known to law. Further it is pointed out that this Court has clearly held in decisions as in Bipin v. Meera [2016 (4) KLT 418] that any act which has a rational nexus to the past matrimonial relationship or which arises therefrom or as a sequel to that relationship, should conceptually fall within the provisions of D.V. Act and that the cause of action for any relief under the DV Act is not confined to the fators of time and space with regard to the matrimonial relationship, but extents beyond their limits, if it has a rational nexus with the domestic relationship, past or present, etc. This Court need not enter into those aspects and if such Crl.M.C.390/19 - : 8 :-
issues are raised for consideration before the learned Magistrate, it is open to the petitioner to raise all necessary factual contentions available to her including the one based on the dictum laid down by this Court in Bipin v. Meera [2016 (4) KLT 418], etc.
9. Further it is pointed out that this Court has set aside the impugned decision of the lower appellate court only for consideration of the issue in narrow compass of the interlocutory arrangement and none of the findings and orders of this Court herein above shall in any manner fetter or influence the learned Magistrate in deciding the issues in the main matter and the same shall be done independently and the learned Magistrate should adjudicate and render a decision on all such issues independently and untrammelled by the observations and findings made by this Court herein above.
With these observations and directions, the above Crl.R.P. stands finally disposed of.
Sd/-
sdk+ ALEXANDER THOMAS, JUDGE