Balakrishnan v. State of Kerala represented by Public Prosecutor, High Court of Kerala and Jayalakshmi V.M.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` MONDAY, THE 20[TH] DAY OF DECEMBER 2021 / 29TH AGRAHAYANA, 1943 ``` ``` CRL.MC NO. 4309 OF 2017 ``` ``` AGAINST THE ORDER/JUDGMENT IN MC 137/2015 OF JUDICIAL MAGISTRATE ``` ``` OF FIRST CLASS -I,PALAKKAD ``` ## **`PETITIONER/APPELLANT:`** ``` BALAKRISHNAN AGED 63 YEARS S/O.LATE CHELLAN, PUTHANVEEDU HOUSE, KUTHANUR, ALATHUR TALUK, PALAKKAD DISTRICT. ``` ``` BY ADVS. ``` ``` SRI.T.SETHUMADHAVAN (SR.) SMT.DEEPA NARAYANAN SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH SMT.VANDANA MENON ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.`** ``` 2JAYALAKSHMI V.M. W/O.LATE K.C.RAJAN, AGED 72 YEARS, NIVEDHYAM, PUTHANVEEDU HOUSE, KUTHANUR, ALATHUR TALUK, PALAKKAD DISTRICT. ``` ``` BY ADVS. ``` ``` SMT.R.RAJITHA SRI.SANTHOSH P.PODUVAL ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01.12.2021, THE COURT ON 20.12.2021 PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 4309 OF 2017 ``` ``` 2 ``` ## **`ORDER`** The petitioner herein is the 1[st] respondent in M.C.No.137/2015 on the file of the Judicial First Class Magistrate Court I, Palakkad. The aforesaid complaint was submitted by the 2[nd] respondent herein under Sections 12 and 19 the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred as DV Act) seeking various reliefs under Section 19(1)A, 19(1)B and 19(1)C. 2. The basic averments contained in the said complaint which is produced as Annexure A is that, the 1[st] respondent who is the wife of the brother of the petitioner, is entitled for a right of residence in the tharavadu house situated in the petition A schedule property. She also sought for a relief that movables shown in petition B Schedule, are belonging to her and the same shall not be destroyed. According to the 2[nd] respondent, her husband was a co-owner of the said house, who passed away on 15.02.2009. Until his death, she was residing in the house along with her husband and thereafter she started residing along with her brother’s son, as she became lonely consequent to the death of her husband. It is to be noted that the 2[nd] respondent does not have any children. It was contended that, she is now being obstructed from entering into the tharavadu house by the petitioner herein and the other ``` CRL.MC NO. 4309 OF 2017 ``` ``` 3 ``` respondents in the Annexure A complaint. The petitioner herein and the 2[nd] respondent in Annexure A are the brothers of deceased husband of the 2[nd] respondent. The 3[rd] respondent in Annexure A is the wife of the petitioner herein. According to her, the Annexure A complaint was submitted in the aforesaid circumstances. 3. The case of the petitioner herein is that, the 2[nd] respondent cannot be treated as an aggrieved person as defined under Section 2(a) of DV Act, as there is no domestic relationship between the petitioner and the 2[nd] respondent herein. It is pointed out that in order to constitute a domestic relationship, the parties must have been lived or have at any point of time lived together in a shared household. It is pointed that the 2[nd] respondent was not a resident of the building which is the subject matter of the dispute and even according to her, she left the aforesaid residential building after the death of her husband in the year 2009. On the basis of the above contentions, the petitioner seeks to the quash the proceedings in M.C. No.137/2015. 4. Heard Sri.T.Sethumadhavan, learned Senior Counsel appearing for the petitioner, Sri.Santhosh P.Poduval, learned counsel appearing for the 2[nd] respondent and Public Prosecutor, Sri.Aravind V. Mathew. ``` CRL.MC NO. 4309 OF 2017 ``` ``` 4 ``` 5. The learned Senior Counsel for the petitioner contends that, in this case the provisions of DV Act cannot be invoked, as the 2[nd] respondent cannot be treated as an aggrieved person as she is not a person having domestic relationship with the petitioner herein or with the other respondents in the Annexure A complaint. It is pointed out that as per Section 2(f) of DV Act, domestic relationship means a relationship between two persons who lived or have at any point of time lived together in a shared household. In this case, according to the learned Senior Counsel, the petitioner was not a person who lived in the building which is subject matter of the proceedings, in a domestic relationship, in recent past with the petitioner herein or other respondents in the Annexure A complaint. The specific case put forward by the learned Senior counsel for the petitioner is that even going by the address shown in Annexure A complaint it can be seen that the 2[nd] respondent herein is residing in separately. My attention was also brought to Annexure C judgment rendered in O.S. No.687/2011 by the Sub Court, Palakkad which was a partition suit between the parties herein in which the 2[nd] respondent was the 1[st] defendant. The subject matter of the dispute was the tharavadu properties of the petitioner as well as the husband of the 2[nd] respondent. In the said suit also the address of the 2[nd] respondent is ``` CRL.MC NO. 4309 OF 2017 ``` ``` 5 ``` shown as different from address of the building situated in petition B schedule property. The aforesaid suit was filed in the year 2011 and relying upon the same it is pointed out that the aforesaid document would clearly indicate that the 2[nd] respondent was not residing in the aforesaid house and therefore, it cannot be treated as a case where the parties were living in a shared household. The learned Senior Counsel places reliance upon the judgment rendered by the hon’ble Supreme Court in **Satish Chander Ahuja v. Sneha Ahuja [2020(6) KLT 208 (SC)].** 6. On the other hand, learned counsel appearing for the 2[nd] respondent would contend that the Crl.M.C. itself is not maintainable in this case, by virtue of the principles laid down by this Court in **Vijayalekshmi Amma V.K. (Dr.) and Another v. Bindu V. and Others** **[2010(1) KHC 57].** By relying upon the said judgment, it is pointed out that the proceedings under DV Act is basically civil in nature and therefore the same cannot be quashed by invoking the powers of this Court under Section 482 Cr.P.C. 7. The basic dispute that arises is as to the existence of a domestic relationship between the parties. The specific case of the petitioner is that even according to the averments made in the Annexure A complaint the 2[nd] respondent started separate residence immediately ``` CRL.MC NO. 4309 OF 2017 ``` ``` 6 ``` after the death of her husband and the date of death was on 15.02.2009. The Annexure C judgment would indicate that even in O.S. No.687/2011 which was filed in the year 2011 the address of the 2[nd] respondent is a different one which would indicate that she was residing separately. It is a specific case of the petitioner that merely because of the reason that the 2[nd] respondent resided in the aforesaid residence at some point of time along with her husband, that would not make out a domestic relationship as defined under Section 2 (f) of the DV Act. The learned Senior case Counsel relies on the judgment in **Satish Chander Ahuja’s** (supra), wherein paragraph 62 and 63 it was observed as follows: _“62. The observation of this Court in S.R. Batra Vs. Taruna Batra (supra) in paragraphs 24, 25 and 26 were made while considering the expression “person aggrieved lives or at any stage has lived”. This Court observed in paragraph 26 that if the interpretation canvassed by learned counsel for the respondent is accepted that the house of the husband’s relative where respondent resided shall become shared household, shall lead to chaos and would be absurd. The expression “at any stage has lived” occurs in Section 2(s) after the words “where the person aggrieved lives”. The use of the expression “at any stage has lived” immediately after words “person aggrieved lives” has been used for object different to what has been apprehended by this Court in paragraph 26. The expression “at any stage has lived” has been used to protect the women from denying the benefit of right to live in a shared household on the ground that on the date when application is filed, she was excluded from possession of the house or temporarily absent. The use of the expression “at any stage has lived” is for the above purpose and not with the object that wherever the aggrieved person has lived with the relatives of husband, all such houses shall become shared household, which is not the legislative intent. The shared household is contemplated to be the household, which is a_ ``` CRL.MC NO. 4309 OF 2017 ``` ``` 7 ``` _dwelling place of aggrieved person in present time. When we look into the different kinds of orders or reliefs, which can be granted on an application filed by aggrieved person, all orders contemplate providing protection to the women in reference to the premises in which aggrieved person is or was in possession. Our above conclusion is further fortified by statutory scheme as delineated by Section 19 of the Act, 2005. In event, the definition of shared household as occurring in Section 2(s) is read to mean that all houses where the aggrieved person has lived in a domestic relationship alongwith the relatives of the husband shall become shared household, there will be number of shared household, which was never contemplated by the legislative scheme. The entire Scheme of the Act is to provide immediate relief to the aggrieved person with respect to the shared household where the aggrieved person lives or has lived. As observed above, the use of the expression “at any stage has lived” was only with intent of not denying the protection to aggrieved person merely on the ground that aggrieved person is not living as on the date of the application or as on the date when Magistrate concerned passes an order under Section 19. The apprehension expressed by this Court in paragraph 26 in S.R. Batra Vs. Taruna Batra (supra), thus, was not true apprehension and it is correct that in event such interpretation is accepted, it will lead to chaos and that was never the legislative intent. We, thus, are of the considered opinion that shared household referred to in Section 2(s) is the shared household of aggrieved person where she was living at the time when application was filed or in the recent past had been excluded from the use or she is temporarily absent._ _63. The words “lives or at any stage has lived in a domestic relationship” have to be given its normal and purposeful meaning. The living of woman in a household has to refer to a living which has some permanency. Mere fleeting or casual living at different places shall not make a shared household. The intention of the parties and the nature of living including the nature of household have to be looked into to find out as to whether the parties intended to treat the premises as shared household or not. As noted above, Act 2005 was enacted to give a higher right in favour of woman. The Act, 2005 has been enacted to provide for more effective protection of the rights of the woman who are victims of violence of any kind occurring within the family. The Act has to be interpreted in a manner to effectuate the very purpose and object of the Act. Section 2(s) read with Sections 17 and 19 of Act, 2005 grants an entitlement in favour of the_ ``` CRL.MC NO. 4309 OF 2017 ``` ``` 8 ``` _woman of the right of residence under the shared household irrespective of her having any legal interest in the same or not.”_ 8. It is true that in the light of the principles laid down by the hon’ble Supeme Court in **Satish Chander Ahuja’s** case (supra), the contention put forward by the learned Senior Counsel is sound. 9. However, the crucial question that arises is whether the powers of this Court under Section 482 Cr.P.C. can be exercised in respect of a proceedings under the DV Act and to quash the same. In support of the said contention learned counsel for the 2[nd] respondent relies on the judgment in **Vijayalekshmi Amma V.K. (Dr.)** (supra). In paragraph 16 onwards this Court considered the said question in detail and it reads as follows: _“16. It is thus clear that though under sub section (1) of Section 28, all proceedings under sections 12,18,19,20,21,22 and 23 of the Act and offence under section 31, shall be governed by the provisions of Code of Criminal Procedure, the penal provisions under the Act are under sub section (1) of Section 31 and Section 33 of the Act. When under section 34, cognizance of offence under section 33 could only be taken by the Magistrate on a complaint filed with the previous sanction of the State Government or an officer authorised by it on that behalf. Under sub section (1) of Section 32, an offence under sub section (1) of Section 31 is cognizable and no complaint is necessary for the Magistrate to take cognizance of that offence._ _17. In an application filed under section 12 claiming reliefs either under section 18,19, 20, 21 or 22, the Magistrate can pass an interim order under section 18 to 23. All these reliefs are in respect of the civil liability and not the criminal liability. If that be so, it is not for this court under section 482 of the Code of Criminal Procedure, to quash the proceedings invoking the extra_ ``` CRL.MC NO. 4309 OF 2017 ``` ``` 9 ``` _ordinary inherent powers provided under the Code, as such order is necessary neither to give effect to any order under the Code nor to prevent abuse of the process of any court nor to secure the ends of justice. An offence under sub section (1) of Section 31, or an offence under section 33 taken cognizance by the Magistrate or an order passed by the Magistrate directing the respondent to execute a bond as provided under sub section 3 of Section 19, which by the mandate under sub section 5 that such order is to be treated as an order under Chapter VIII of Code of Criminal Procedure, stand on different footing. They are truly criminal proceedings. Except in respect of such proceedings it is not for the High Court to exercise the extraordinary inherent jurisdiction to quash the proceedings pending before the Magistrate._ _18. A person to whom notice was issued by the Magistrate in a petition filed under section 12 of the Act can appear before the Magistrate and contend that the proceedings is not maintainable either on the ground that the person who filed the application is not an aggrieved person as defined under section 2(a) or the application is not filed for an aggrieved person. He is also entitled to contend that he is not a respondent, as defined under section 2(q) of the Act. He is also entitled to contend that there is no domestic violence as defined under section 2(g) or the reliefs sought for are not the reliefs provided under the Act. In all such cases, it is not for this court to consider the question, when it could legitimately be raised and decided before the Magistrate. So long as the respondent is not an accused in a proceeding initiated under the Act and pending before the Magistrate and he is not obliged to apply for bail in respect of such proceedings and even his personal presence is not mandatory for hearing and disposing a petition under section 12, it is not for this court to consider the question whether the petitioner before the Magistrate is an aggrieved person as defined under section 2(a) or the respondent is a respondent as defined under clause (q) of Section 2 or the household is a shared household as defined under clause (s) or whether there is any domestic relationship between the parties or whether the reliefs sought for in the petition could be granted. These are matters which are to be considered by the Magistrate, before granting relief in the petition filed under section 12, either under section 18 or 19 or 20 or 21 or 22 or 23._ _19. Learned counsel appearing for the petitioner pointed out that in various decisions of this court and the other High Courts and Apex Court, proceedings initiated under section 12 of the Act were quashed invoking the powers under section 482 of Code of Criminal Procedure and in such circumstance, it cannot be held_ ``` CRL.MC NO. 4309 OF 2017 ``` ``` 10 ``` _that inherent powers under section 482 of the Code of Criminal Procedure is not to be exercised. In none of those decisions, the question was addressed as stated above and in fact in none of those decisions, question whether the inherent jurisdiction under section 482 of Code of Criminal Procedure is to be invoked to quash a proceeding initiated under the Act which is enacted to provide a remedy under the civil law was not considered. In such circumstances, for the reason that proceeding under the Act was quashed invoking the powers under section 482 of the Code of Criminal Procedure it cannot be said that the powers under section 482 is to be invoked in all cases. I am of the firm view that a party against whom proceedings were initiated by the Magistrate under section 12, on a petition filed under section 12(1) of the Act seeking relief under section 18 to 23, has adequate remedy before the Magistrate, it is not for the High Court to exercise the extraordinary inherent powers and quash the proceedings. Section 482 is to be invoked in appropriate cases either to give effect to any order passed under the Act or to prevent abuse of process of any court or to secure the ends of justice, when cognizance was taken by the Magistrate for an offence under sub section (1) of Section 31 or Section 33 of the Act. In all other cases, the affected party could raise the question and seek an order from the Magistrate including the maintainability of the proceedings and if an order is passed against him, he is at liberty to file an appeal as provided under section 29 of the Act. If that be so, it is not for this court to invoke the extraordinary jurisdiction under section 482 of the Code of Criminal Procedure, to quash a proceeding initiated under section 12 (1) of the Act._ _The petition is dismissed.”_ 10. In the said judgment after elaborately discussing various provisions of the DV Act and also the provisions under Cr.P.C. this Court came to a definite conclusion that Section 482 Cr.P.C, cannot be invoked for quashing a proceeding under DV Act unless the said proceeding is an offence under Sub-section 1 of 31 or an offence under Section 33 of the DV Act. In this case the proceedings are under Section 19 of the Act and ``` CRL.MC NO. 4309 OF 2017 ``` ``` 11 ``` is not a criminal proceeding. The view taken in **Vijayalekshmi Amma V.K. (Dr.)’s** case (supra) is followed by this Court in **Latha P.C. and Others v. State of Kerala and Others 2020 (6) KLT 496** . In the light of the principles laid down in **Vijayalekshmi Amma V.K. (Dr.)** (supra), the application submitted by the petitioner cannot be maintained. Thus in the light of the aforesaid judgments, this Crl.M.C. is not maintainable. As held in **Vijayalekshmi Amma V.K. (Dr.)’s** case (supra) the grievances and contentions highlighted by the petitioner can be raised before the learned Magistrate who has ample power to adjudicate the aforesaid question including the existence of domestic relationship between the parties. In such circumstances, this Crl.M.C. is dismissed by leaving open the contentions of either parties to be adjudicated by the learned Magistrate. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` ## **`scs`** ``` CRL.MC NO. 4309 OF 2017 ``` ``` 12 ``` ## **`APPENDIX OF CRL.MC 4309/2017`** ``` PETITIONER ANNEXURE ANNEXURE A-TRUE COPY OF M.C.NO.137/2015 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PALAKKAD. ANNEXURE B-TRUE COPY OF COUNTER FILED BY THE PETITIONER AND OTHER RESPONDENTS. ANNEXURE C-TRUE COPY OF THE JUDGMENT IN O.S.NO.687/2011 ON THE FILE OF THE SUB COURT, PALAKKAD. ```