Gopalakrishnan Nair v. Sreelatha and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **THURSDAY, THE 9TH DAY OF FEBRUARY 2012/20TH MAGHA 1933** ## **Crl.Rev.Pet.No. 1526 of 2011 ( )** **-------------------------------CRA.190/2010 OF ADDITIONAL SESSIONS COURT-I, MAVELIKKARA MC.36/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, HARIPAD** **................** ## **REVISION PETITIONERS/APPELLANT/COUNTER PETITIONER:** **------------------------------------------------------------------------------------------** **GOPALAKRISHNAN NAIR, AGED 38 YEARS, S/O. PARAMESWARAN NAIR, PONGOTTU HOUSE, KARUVATTA NORTH. P.O., KARUVATTA.** **BY ADV. SRI.S.KRISHNAMOORTHY.** ## **RESPONDENTS/RESPONDENTS/PETITIONER:** **-------------------------------------------------------------------** **1. SREELATHA, AGED 28 YEARS, D/O. RADHAMANI, AMBALATHINTE VADAKKETHIL, KARUVATTA NORTH. P.O., PIN-690 554.** ## **2. STATE OF KERALA,** **REP. BY PUBLIC PROSECUTOR,** **HIGH COURT OF KERALA,ERNAKULAM-682 031.** ## **R2 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** ## **Crl.Rev.Pet.No. 1526 of 2011** ## **APPENDIX** **PETITIONER'S ANNEXURES:-** **ANNEXURE I COPY OF THE JUDGMENT IN OP(HMA) NO.1/2008 DATED 15/03/2010 OF THE FAMILY COURT, ALAPPUZHA.** **RESPONDENT'S ANNEXURES:NIL.** **//TRUE COPY// P.A. TO JUDGE** **rs.** ## **P.BHAVADASAN, J.** ---------------------------------------------------Crl. RP No.1526 of 2011-A ---------------------------------------------------Dated this the 9[th] day of February 2012 ## Order This revision petition is filed by the counter petitioner in MC No.36/08 before the JFCM Court-II, Haripad, who suffered orders under Sections 18, 19 and 20 of the Protection of Women from Domestic Violence Act, on an application filed by the wife of the revision petitioner under Section 12 of the said Act. 2. The marriage between the petitioner before the court below and the counter petitioner therein took place on 6.12.1998 at Sreekrishna Swami Temple Karuvattamkulangara as per the Hindu religious rites. It is claimed in the petition that at the time of marriage, the petitioner was given 25 sovereigns of gold ornaments and Rs.65,000/- in cash. After the marriage, the petitioner was living with her husband in the matrimonial house. The husband is alleged to have sold her gold ornaments CRRP 1526/11-A 2 and utilised the money given at the time of marriage, for putting up a building in the property owned by him. In addition to the amount of Rs.65,000/-, the parents of the petitioner had given an amount of Rs.25,000/- to the counter petitioner at the time of construction of the house. According to the petitioner before the court below, the counter petitioner used to consume alcohol and create problems in the house, causing mental and physical torture to the petitioner. She makes mention of an incident occurred on 2.12.2007 when she was manhandled by the counter petitioner and was expelled from the matrimonial house. Subsequently, at the intervention of mediators, the matter was compromised and the petitioner continued to live in the matrimonial house. Again, on 5.2.2008, the counter petitioner battered the petitioner, which caused a fracture on her wrist and later, she was again expelled from the matrimonial house. Thereafter, she took up residence in her paternal house. It is pointed out that the counter petitioner is a welder by profession and is earning more CRRP 1526/11-A 3 than Rs.18,000/- per month. The petitioner contends that she has no independent means of livelihood and she has to depend upon her husband for maintenance. She, therefore, claimed maintenance @ Rs.2,000/- per month. She also prayed for an order directing the counter petitioner to return an amount of Rs.90,000/- to her which was given to him by her parents at the time of marriage and construction of the house and also to return 20 sovereigns of gold ornaments. She further prayed for an order restraining the counter petitioner from alienating the properties having an extent of 4.05 ares comprised in Survey No.285/13 of Karuvatta village. 3. The claim was resisted by the respondent. He denied having received the gold ornaments and cash, as alleged in the petition. However, he admitted that she was given 8 sovereigns of gold ornaments at the time of marriage. According to him, the amount of Rs.65,000/- was deposited in the name of the petitioner in post office and he has not taken any amount from that deposit and it still CRRP 1526/11-A 4 remains in the post office deposit. The building in the property had been put up jointly by him and his brother by availing loans from the Housing Board, Life Insurance Corporation of India and K.S.F.E. He disputed the various allegations in the petition. He also denied the allegation that he is a drunkard and he used to manhandle the petitioner. It is contended that he has spent huge amounts for the infertility treatment of the petitioner and frustrated by the same, the petitioner had even tried to commit suicide. It is claimed by the counter petitioner that he has always been a loving and caring husband. He would also say that on 9.12.2007, the relatives of the petitioner trespassed into his house, manhandled him and caused damage to the household articles. He claimed that his monthly income is only Rs.3,000/- and he does not have any regular income. It is also contended that the petitioner is running a dairy farm from which she gets Rs.3,000/- per month. On the basis of the above contentions, it was pointed out by the counter petitioner that the petitioner is not entitled to any CRRP 1526/11-A 5 reliefs in the petition. 4. Evidence was called for. Evidence consists of the testimony of PWs 1 and 2 from the side of the petitioner. Counter petitioner examined DWs 1 to 4 and had Ext.D1 marked. Exts.X1 and X2 third party exhibits were also marked. 5. On an appreciation of the evidence in the case, the trial court found that charges against the counter petitioner are proved and passed an order, which reads as follows : - “15. Point No.6 – In the result, - 1.This petition is allowed in part. - 2.The counter petitioner shall not commit any acts of domestic violence against the petitioner. - 3.The counter petitioner is directed to pay Rs.1,500/- per month as maintenance to the petitioner. - 4.The counter petitioner is restrained form CRRP 1526/11-A 6 dispossessing the petitioner from the shared house situated in 4.05 ares of land comprised in Survey No.285/13 of Karuvatta village. - 5.The counter petitioner shall not transfer or alienate or otherwise encumber the properties comprised in the above mentioned survey number. - 6.Considering the facts and circumstances of the case, petitioner is also allowed to realise the cost of the mpetition from the counter petitioner. - 7.The other reliefs sought for in the petition are refused. 6. The counter petitioner before the trial court preferred an appeal as Criminal Appeal 190/10 before the Sessions Court, Mavelikara. The lower appellate court, after an indpendent consideration of the evidence in the case, concurred with the trial court, confirmed the order and dismissed the appeal. CRRP 1526/11-A 7 7. The learned counsel for the revision petitioner pointed out that both the courts below have not adverted to the evidence in the proper manner and has drawn wrong conclusions based on misappropriation of evidence in the case. It is also contedned that since the wife has obtained a divorce, a petition under Section 12 of the Protection of Women from Domestic Violence Act is not maintainable. In support of the said contention, the learned counsel for the revision petitioner relied on the decision in **Surendran v. State of Kerala** (2009(3) KLT 967). It is also pointed out that there was no relief sought for by the wife regarding a place of residence for her and her claim was confined to seeking an injunction against the counter petitioner, restraining him from alienating the property. It is also poined out that subsequently, there was a partition suit between the members of the family of the counter petitioner before the trial court and in that suit, a decree has been passed whereby half of the property and the building has CRRP 1526/11-A 8 been set apart to the brother of the counter petitioner. It is further pointed out that the court below was not justified in granting Rs.1,500/- to the petitioner as maintenance without assessing the actual income obtained by the counter petitioner. For the above reasons, the learned counsel pointed out that the order of the courts below is clearly unsustainable and has to be set aside. 8. Both the courts below have come to the conclusion based on the evidence of Pws 1 and 2 and Dws 2 and 4 that domestic violence has been committed. Though both the courts below have observed that Dws 2 and 4 have supported the petitioner's case, on going through the evidence of Dws 2 and 4, there is nothing in their evidence to support the plea of domestic violence in the form of assault, as alleged by the petitioner. Physical assault and cruelty are spoken to only by Pws 1 and 2. No doubt, their evidence may be sufficient to hold that there is physical violence. The incident which happened on 02.12.2007 is specifically narrated by the petitioner when CRRP 1526/11-A 9 she was physically assaulted and thrown out of the matrimonial house. She says, she is unable to live with the counter petitioner who is highly alcoholic and used to assault her. It is, therefore, necessary to consider whether the evidence of PWS 1 and 2 will be sufficient. 9. Next is the question regarding alienation of the shared house. Both the courts below have come to the conclusion that the counter petitioner has no consistent case in this regard at all. At one point of time, he took the stand that the house was constructed by him. Thereafter, he says that the house was put up jointly by him and his brother. At the time of evidence, he took the stand that the house was put up by his brother. These inconsistent views, along with the evidence of Pws 1 and 2 persuaded the courts below to come to the conclusion that the counter petitioner has right over the building and that in all probability, the petitioner might also have contributed towards the construction of the house. CRRP 1526/11-A 10 10. As far as the maintenance aspect is concerned, the amount awarded seems to be just and reasonable. 11. However, another aspect needs to be considered. The court has injuncted the respondent before it from dispossessing the petitioner from the shared household situated in 4.05 ares of land comprised in Survey No.285/13 of Karuvatta village. 12. The learned counsel for the revision petitioner pointed out that at the relevant time, she was not residing in the shared household and there was no question of dispossession, as ordered by the court below. Emphasis is laid on the decision in **Surendran v. State of Kerala** (supra) to contend that since divorce has already been ordered, the petitioner before the court below is not entitled to any reliefs under the provisions of the Protection of Women from Domestic Violence Act. CRRP 1526/11-A 11 13. The facts of the case in **Surendran v. State of Kerala** (supra) show that the wife sought for a declaration that the marriage is null and void and she obtained a decree in her favour. It was thereafter that she approached the court under the provisions of the Protection of Women from Domestic Violence Act. After considering the various aspects, this court had occasion to hold as follows : - “3. Under S.12 of the Act, an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person is entitled to file a petition seeking one or more reliefs provided under the Act. S.18 provides for protection order, S.19 for residential order and S.20 for monetary reliefs. An aggrieved person is defined under cl(a) of S.2 as any woman who is or has been in domestic relationship with the respondent and who alleges to have been CRRP 1526/11-A 12 subjected to any act of domestic violence by the respondent. Domestic relationship is defined under cl.(f) of S.2 as relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. Domestic violence is defined under cl(g) of S.2 as the same meaning assigned to it in S.3.” 14. However, in the decision in **Priya v. Shibu** (2008(3) KLT 1), almost a similar question was considered. That was a case where the wife had moved for a divorce and she got a declaration in that regard with effect from 13.5.2005. The petition under the provisions of the Protection of Women under the Domestic Violence Act was filed subsequently. A contention was taken that the petition is not maintainable. But, this court, after construing CRRP 1526/11-A 13 the various provisions of the Act, held that at least to the extent of getting monetary benefits, the petition may be maintainable. It was observed in the said decision as follows : “5. I am afraid that I cannot agree with the above submissions. It is true that on 11.1.2007, when the revision petitioner, Priya approached the Magistrate under S.12(1) of the Act, she was already a divorced wife, her divorce having been declared with effect from 13.5.2005 by the Family Court, Alappuzha. But the main relief prayed for in the application was for return of the sum of Rs.59,000/- paid in cash and 40 sovereigns of gold ornaments allegedly given as dowry. This is a claim which can be made under S.19(8) of the Act even by a divorced wife. Likewise, a claim for maintenance under S.125 Cr.P.C. is a monetary relief which can be claimed under S.20 of the Act. It cannot be CRRP 1526/11-A 14 gainsaid that even a divorced wife is entitled to claim maintenance under S.125 Cr.P.C. 6. The further question is as to whether the applicant should continue to be in a domestic relationship with the respondents on the date of preferring the claim and whether the persons who are related by consanguinity, marriage or any of the relationship referred to in S.2(f) of the Act should continue to be in that relationship on the date of filing the petition. In other words, whether the employment of present perfect continuous tense in Ss.2(a), 2(f), 2(q) and 2(s) renders it obligatory on the part of the applicant to be in a domestic relationship on the date of preferring the application. I am not inclined to accept the contention made on behalf of the respondents that the present perfect continuous tense used is to indicate the continuance of the relationship even on the date of preferring the CRRP 1526/11-A 15 application. On the contrary, the words 'has been' and the words 'have lived' are employed for the purpose of showing the past relationship or experience between the parties concerned and they cannot be so construed as to mean that unless the 'domestic relationship' continues on the date of application, the applicant will have no locus standi to move the Magistrate. The existence of the present status as a wife cannot be read into those provisions to hold that the application filed by he revision petitioner before the Magistrate was not maintainable. The view taken by the learned Sessions Judge is clearly wrong. The judgment sought to be revised is accordingly set aside and the order dated 11.1.2007 passed by the Magistrate is restored.” 15. Before this court, as already noticed, the revision petitioner has produced the order dated 15.3.2010 in OP(HMA) No.1/2008 to show that in a petition moved by CRRP 1526/11-A 16 the revision petitioner herein for divorce, the court declared the marriage between the revision petitioner herein and the party respondent as dissolved with effect from the date of decree. Unlike in the decision cited above, in the case on hand, the divorce was during the pendency of the proceedings. So, the impact of the decree for divorce will have to be determined with reference to the prayer sought for in the petition. However, as observed in the decision in **Priya v. Shibu** (supra), prima facie, monetary claims are sustainable. If that be so, the maintenance awarded @ Rs.1,500/- shall be continued to be paid till the matter is determined afresh. In the result, this revision petition is allowed. The impugned order is set aside and the matter is remanded to the trial court for fresh consideration in accordance with law and in the light of what is stated above, subject to the condition that the petitioner continues to pay Rs.1,500/- to the first respondent herein as monthly allowance and also deposits the entire arrears till date before the court below CRRP 1526/11-A 17 within a period of two months from today subject to the condition that the deposit and payment as ordered will be subject to the final orders to be passed after remand. **P.Bhavadasan, Judge** sta CRRP 1526/11-A 18