Asmi v. Praseel A Fasal and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS FRIDAY ,THE 07TH DAY OF SEPTEMBER 2018 / 16TH BHADRA, 1940** **OP (FC).No. 153 of 2018** **AGAINST THE ORDER/JUDGMENT IN OP 1512/2017 of FAMILY COURT, ATTINGAL** ## **PETITIONER/S:** ## **ASMI** **W/O PRASEEL A FASAL, AGED 25 YEARS,NOW RESIDING AT THEEBA HOUSE, KURAKKANNI DESOM,VARKALA VILLAGE, VARKALA TALUK, FROM ELANKATHIL VEEDU,ELIPPAKKULAM PO, VALLIKKUNNAM VILLAGE, MAVELIKKARA TALUK,ALAPPUZHA DISTRICT.** **BY ADV. SRI. M. KIRANLAL** ## **RESPONDENT/S:** |**1**|**PRASEEL A FASAL**| |---|---| ||**AGED 32 YEARS, S/O M.A FASAL, THEEBA**| ||**BHAVANAM,KURAKKANNI DESOM, VARKALA VILLAGE,**| ||**VARKALA,THIRUVANANTHAPURAM DISTRICT. 695141.**| |**2**|**M.A FASAL**| ||**AGED 60 YEARS, THEEB BHAVANAM, KURAKKANNI DESOM,VARKALA**| ||**VILLAGE, VARKALA, THIRUVANATHAPURAM DISTRICT.695141.**| |**3**|**JISIYA**| ||**AGED 54 YEARS, W/O M.A FASAL, THEEBA BHAVANAM,VARKALA**| ||**VILLAGE, VARKALA, THIRUVANANTHAPURAM DISTRICT.695141.**| |**4**|**PRASEEA**| ||**AGED 30 YEARS, D/O M.A FASAL, THEEBA**| ||**BHAVANAM,KURAKKANNI DESOM, VARKALA VILLAGE,**| ||**VARKALA,THIRUVANANTHAPURAM DISTRICT. 695141.**| **5 SHASIYA AGED 26 YEARS, D/O M.A FASAL, THEEBA BHAVANAM,KURAKKANNI DESOM, VARKALA VILLAGE, VARKALA,THIRUVANANTHAPURAM DISTRICT. 695141.** **BY ADV. SRI. M.R. RAJESH** ## **OTHER PRESENT:** **CRI. C.S. DIAS -AMICUS CURIAE** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 6.6.2018 THE COURT ON 7.9.2018 PASSED THE FOLLOWING:** ## **V.CHITAMBARESH & ALEXANDER THOMAS, JJ.** ================== O.P(F.C.) No.153 of 2018 ================== Dated this the 7[th] day of September, 2018 ## **J U D G M E N T** ## **A. THOMAS, J.** The order under challenge in this Original Petition (Family Court) is the one at Ext.P-2 order dated 11.1.2018 rendered by the Family Court Attingal, on I.A.No. 2596/2017 in O.P.No. 1512/2017 filed by the petitioner herein, whereby her application for grant of temporary injunction sought against the respondents has been rejected. The prayers in this Original Petition are as follows: - _“i. To set-aside Ext.P-2 order being not sustainable in law._ _ii. Such other order or directions which this Honourable court deems fit on facts and in the interest of justice.”_ 2. Heard Sri.M.Kiranlal, learned counsel appearing for the petitioner, Sri.M.R.Rajesh, learned counsel appearing for the respondents and Sri.C.S.Dias, learned Amicus Curiae. 3. The petitioner herein is the wife of the 1[st] respondent. Respondents 2 & 3 are the father and mother respectively of the 1[st] respondent and respondents 4 & 5 are the siblings of the 1[st] respondent. There are various matrimonial litigative proceedings pending between the petitioner (wife) and R-1 (husband). The 1[st] O.P(FC)No.153/2018 - : 4 :- respondent (husband) has filed O.P.No.1170/2017 before the Family Court, Attingal, seeking nullity of marriage on the ground that the petitioner is suffering bi-polar mental ailments, which was not disclosed to him and on some other grounds. The petitioner has filed O.P.No. 1132/2017 before the Family Court, Mavelikkara, seeking return of money. The petitioner has also filed a petition as M.C.No. 107/2017 before the Judicial First Class Magistrate's Court, Varkala under the provisions contained in the Protection of Women from Domestic Violence Act, 2005 (herein after referred to as “ _D.V. Act_ ”). In the abovesaid proceedings under the Domestic Violence Act initiated by the petitioner, she has initially secured ex parte interim order dated 27.9.2017. In the abovesaid proceedings, the petitioner had contended that she is entitled to reside in the “ _shared household_ ” of the 1[st] respondent. The learned Magistrate had passed an ex parte interim order dated 27.9.2017 for the protection and to permit her residence in the “ _shared household_ ” as per the D.V. Act on the premise that the said residence is belonging to the 1[st] respondent herein (husband). Later the petitioner had filed Ext.P-1 O.P.No. 1512/2017 before the Family Court, Attingal, on 11.12.2017 praying for order of injunction to restrain the respondents therein (respondents herein) from obstructing her right of residence in the said household O.P(FC)No.153/2018 - : 5 :- and other related prayers. In Ext.P-1 O.P. the petitioner had filed an application for temporary injunction. It appears that later, the learned Magistrate had, vide order dated 9.2.2018 vacated the ad interim ex parte order dated 27.9.2017 granted on C.M.P.No.11519/2017 in M.C.No.107/2017 in the proceedings under the Domestic Violence Act after finding that the petitioner cannot make any claim in respect of the abovesaid alleged shared household, as it belongs to respondents 2 and 3, who are the parents of R-1 (husband). Therein the learned Magistrate took note of the dictum laid down by the Apex Court in _**S.R.Batra & Anr. v. Taruna Batra**_ reported in (2007) 3 SCC 169, as per which, it was held that the wife is only entitled to claim right of residence in a shared household and that a shared household within the meaning of the D.V. Act would only mean a house belonging to or taken on rent by the husband or a house which belongs to a joint family, of which the husband is a member and that the residence belonging to the motherin-law or father-in-law of the applicant wife could not be construed as a shared household. So also the learned Magistrate has taken note of the decision rendered by this Court in _**Hashir v. Shyma**_ reported in 2015 (2) KLT 919, wherein it was held by this Court that a residence belonging to the mother-in-law or father-in-law would not be O.P(FC)No.153/2018 - : 6 :- construed as a shared household, as per the D.V. Act. The learned Magistrate in the abovesaid order dated 9.2.2018 on C.M.P.No. 11519/2017 in M.C.No. 107/2017 found that the petitioner herein does not have any dispute regarding the exclusive right of 2[nd] and 3[rd] respondents herein (father-in-law and mother-in-law) over the residence in question and that she has no claim that the property does not belong to a joint family of which her husband is a member, etc. On this basis, the learned Magistrate by order dated 9.2.2018 vacated the ad interim ex parte order granted on 27.9.2017 to the extent relating to “ _shared household_ ”, etc. 4. From a reading of the averments in Ext.P-1 O.P.No. 1512/ 2017 it can be seen that there is only a vague averment about the institution of the D.V. Act proceedings as per M.C.No.107/2017 on the file of the Judicial First Class Magistrate's Court, Varkala and the further details regarding the issuance of the ad interim ex parte order dated 27.9.2017 in that proceedings by the learned Magistrate have not been disclosed in Ext.P-1 O.P.No.1512/2017 filed on 11.12.2017. 5. The Family Court has passed the impugned Ext.P-2 order dated 11.1.2018 on I.A.No. 2596/2017 in O.P.No. 1512/2017 ordering that the issue as to whether the residence in question is a shared household of the 1[st] respondent, is not a matter to be considered by O.P(FC)No.153/2018 - : 7 :- the Family Court and is to be decided by the Judicial First Class Magistrate's Court, Varkala in the pending M.C.No. 107/2017 in terms of the provisions contained in the Domestic Violence Act. The Family Court opined in the impugned Ext.P-2 order that since the main claim of the petitioner regarding shared household, etc. and other related issues are pending before the learned Magistrate in the D.V. Act proceedings, it is not proper for the Family Court to make any findings or observations regarding that aspect and further held that the petitioner has not made out any prima facie case and the balance is convenience is also in favour of the respondents. Further the Family Court has noted that Ext.P-2 I.A.No. 2596/2017 has been filed by suppressing material facts regarding the D.V. Act proceedings and that the petitioner is not entitled to get the prayer of temporary prohibitory injunction, as sought for in that I.A. It is this order at Ext.P-2 rendered on 11.1.2018 that is under challenge in this O.P.(F.C). 6. The main contention raised by the learned counsel for the petitioner is that the Family Court has gone wrong in holding that it is not proper for it to consider the issue of shared household raised by the petitioner on the mere ground that proceedings in that regard under the D.V. Act is pending before the learned Magistrate and that O.P(FC)No.153/2018 - : 8 :- the impugned view taken by the Family Court has been rendered without adverting to the crucial provision contained in Sec. 26 of the Protection of Women from Domestic Violence Act, 2005. 7. Sec. 26 of the abovesaid Domestic Violence Act, 2005 provides as follows: _**“Sec. 26: Relief in other suits and legal proceedings.-** (1) Any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a Civil Court, Family Court or a Criminal Court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act._ _(2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a Civil or Criminal Court._ _(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.”_ On the basis of the provisions contained in Sec.26 of the abovesaid Act, the petitioner would contend that any relief available under Secs.18 to 22 of the abovesaid Act could also be sought in any legal proceedings before a civil court, family court or criminal court affecting the aggrieved person and the respondent and further that sub section (3) of Sec. 26 only stipulates that in case any relief has been obtained by the aggrieved person in any proceedings other than a proceedings under the D.V. Act, she shall be bound to inform the Magistrate of the grant of such relief, etc. It has been held by the Division Bench of this Court in _**Sudhannya v. Umasanker**_ O.P(FC)No.153/2018 - : 9 :- _**Valsan**_ , reported in 2013 (1) KLT 135 that Sec.26 of the D.V. Act gives option to aggrieved person, to approach either the Magistrate under Sec.12 of the Act or the Family Court concerned, if the said person needs the reliefs contemplated under Secs.18 to 22 of the D.V. Act. 8. This Court has also held in the case in _**Raju Narayana Swamy v. Beena**_ , reported in 2017 (1) KLT 661, that an application under Sec.12 of the D.V. Act seeking various reliefs under Secs.18 to 22 of the said Act cannot be filed as an original or independent application before the Family Court, as the D.V. Act expressly stipulates that the original proceeding under Sec.12 of the D.V. Act has to be filed before the Magistrate competent to entertain the application and that the Family Court will have jurisdiction under the D.V. Act to grant relief to the victim of domestic violence only if there is an existing legal proceeding before the Family Court and the application under Sec.26 of the D.V Act seeking relief under Secs.18 to 22 of the D.V. Act is filed in that pending proceedings before the Family Court concerned, etc. 9. The learned counsel appearing for the petitioner had raised certain contentions regarding the correctness of the views rendered by a learned Single Judge of this Court in _**Raju Narayana**_ O.P(FC)No.153/2018 - : 10 :- _**Swamy's case**_ supra. Earlier this Court had also appointed Sri.C.S.Dias as Amicus Curiae to assist this Court. 10. After having heard the learned Advocates for the petitioner and the respondents as well as the learned Amicus Curiae, we are of the considered view that there is no necessity for us to enter into any issues regarding the correctness or otherwise of the views rendered by a learned Single Judge in _**Raju Narayana Swamy's case**_ supra, reported in 2017(1) KLT 661. In the facts this case, there is not much dispute that the petitioner has not fully disclosed the details of the D.V. Act proceedings initiated by her and about the ad interim ex parte order granted by the learned Magistrate in the said D.V. proceedings on 27.9.2017 in the averments in Ext.P-1 O.P.No.1512/2017 filed before the Family Court, Attingal, on 11.12.2017. Therefore, the view taken by the Family Court in the impugned interim order dated 11.1.2018 at Ext.P-2 that the petitioner has suppressed material facts and that therefore she is not entitled for the grant of discretionary relief of temporary injunction cannot be said to be illegal or improper. So also, the petitioner has not seriously objected to the findings already made by the learned Magistrate as per the order dated 9.2.2018 on C.M.P.No.11591/2017 on M.C.No. 107/2017 in the D.V. Act proceedings that the alleged shared O.P(FC)No.153/2018 - : 11 :- household in question actually belongs to respondents 2 and 3 herein (father-in-law and mother-in law) and that it is not a joint family property, on which the petitioner's husband has any right. Moreover, Ext.P-2 I.A.No.2596/2017 has been filed in O.P.No. 1512/ 2017 only as an application under Order XXXIX Rules 1 & 2 C.P.C. and Sec. 151 C.P.C. and not as an application before the Family Court under the enabling provisions contained in Sec.26(1) of the Domestic Violence Act. Hence we are of the view that the impugned interim order rendered by the Family Court, Attingal at Ext.P-2 dated 11.1.2018 does not require legal interdiction by exercise of the constitutional discretionary power of visitorial superintendence conferred on this Court under Art. 227 of the Constitution of India. However, we make it clear that the impugned Ext.P-2 order rendered by the Family Court, Attingal, will not have any bearing on the separate proceedings initiated by the petitioner under the D.V. Act, which has to be decided by the learned Magistrate independently on its merits. In case the petitioner has any grievance as against the findings and directions in the interim order dated 9.2.2018 in C.M.P.No. 11519/2017 in M.C.No.107/2017 on the file of the Judicial First Class Magistrate's Court, Varkala, it is for the petitioner to challenge the said order in the manner known to law or to raise all her O.P(FC)No.153/2018 - : 12 :- contentions in the main matter in the D.V. proceedings in M.C.No.107/2017 pending before the learned Magistrate. We also make it clear that the Family Court, Attingal, will decide the main matter in Ext.P-1 O.P.No. 1512/2017 independently on the basis of the evidence adduced by the parties and untrammelled and uninfluenced in any manner by Ext.P-2 interim order dated 11.1.2018 rendered in that O.P. and the observations and findings in this judgment. With these observations and directions, the aforementioned O.P(F.C) will stand dismissed. Sd/- **V.CHITAMBARESH, JUDGE** Sd/sdk+ **ALEXANDER THOMAS, JUDGE** O.P(FC)No.153/2018 - : 13 :- ## PETITIONERS' EXHIBTS : P1 COPY OF THE PETITION IN OPNO.1512/17. P2. COPY OF THE ORDER DATED 11.1.2018 IN IA.NO.2596/2017 IN OPNO.1512/17 OF FAMILY COURT, ATTINGAL.