Jacob P Mathew v. Mini.K.U and State of Kerala

**“C.R.”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 30[TH] DAY OF JULY 2024 / 8TH SRAVANA, 1946 CRL.REVISION PETITION NO. 319 OF 2023** **AGAINST THE ORDER DATED 07.12.2022 IN CRL.MP 1518 OF 2022 IN CRA NO.96 OF 2019 OF THE ADDITIONAL SESSIONS COURT-V, KOTTAYAM, THE JUDGMENT DATED 28.09.2021 IN CRL.A.96 OF 2019 OF THE ADDITIONAL SESSIONS COURT-V, KOTTAYAM AND THE ORDER DATED 05.04.2019 IN MC NO.2 OF 2018 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, CHANGANACHERRY** ## **REVISION PETITIONER/PETITIONER/1ST RESPONDENT/RESPONDENT:** **JACOB.P.MATHEW AGED 50 YEARS S/O.P.K.MATHEW, NOW RESIDING AT C/O. MARIAMMA VARKEY, PLAPPARAMBIL HOUSE, PUTHENCHANDA, VAKATHANAM.P.O, KOTTAYAM, PIN – 686538.** **BY ADVS. P.T.DINESH AJIRAJ G.R.** ## **RESPONDENTS/RESPONDENTS/APPELLANT & R2/PETITIONER:** - **1 MINI.K.U AGED 48 YEARS W/O. JACOB MATHEW, NOW RESIDING AT PLAPPARAMBIL HOUSE, PUTHENCHANDA, VAKATHANAM.P.O, KOTTAYAM, PIN – 686538.** **2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031.** 2 Crl.Revision Petition No.319 of 2023 **R1 BY ADV.LUKE J CHIRAYIL R1 BY ADV.AMAL JOSE R1 BY ADV.ELSA MARY THOMAS R1 BY ADV.JASNI JALAL R2 BY SMT SHEEBA THOMAS, PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 22.07.2024, THE COURT ON 30.07.2024 DELIVERED THE FOLLOWING:** 3 Crl.Revision Petition No.319 of 2023 ## **P.G. AJITHKUMAR, J. “C.R.” ----------------------------------------------------------Crl.Revision Petition No.319 of 2023 ----------------------------------------------------------Dated this the 30[th] day of July, 2024** ## **O R D E R** Respondent in M.C.No.2 of 2018 on the files of the Judicial Magistrate of the First Class-I, Changanassery is the revision petitioner. He seeks to set aside the judgment of the Additional Sessions Judge-V, Kottayam dated 28.09.2021 in Crl.Appeal No.96 of 2019. That appeal was against the order in M.C.No.2 of 2018. The petitioner also seeks to set aside the order of the learned Additional Sessions Judge, dated 07.12.2022 in Crl.M.P.No.1518 of 2022 in Crl.Appeal No.96 of 2019. 2. The 1[st] respondent is the wife of the petitioner. She filed M.C.No.2 of 2018 seeking reliefs under Sections 19 and 20 of the Protection of Women from Domestic Violence Act, 2005 (PWDV Act). The learned Magistrate refused to grant a residence order, however, directed the petitioner to pay a monthly maintenance of Rs.3,000/-. In the appeal, a residence order was granted by reversing the findings of the 4 Crl.Revision Petition No.319 of 2023 trial court. Monthly maintenance was enhanced to Rs.7,500/-. While allowing the 1[st] respondent to reside in the shared household, the appellate court gave an option to the petitioner of providing an alternative accommodation to the 1[st] respondent. The petitioner has filed Crl.M.P.No.1518 of 2022 before the appellate court in order to get an order directing the 1[st] respondent to shift the alternative accommodation. He had furnished the details of the building he had availed on rent for that purpose. 3. The appellate court, after deliberating upon the pleadings, materials and the submissions of the parties, refused to allow that petition. The appellate court held as follows:- “5. Having considered the facts and circumstances of the case, especially taking note of the facts that no monthly maintenance is being provided to the wife for her livelihood, I am of the view that the husband continue to commit domestic violence by denying proper maintenance to his wife and therefore I do not find any merit in the application. Hence the petition is liable to be dismissed with a costs to the respondent/wife. In the result, this application stands dismissed with costs of Rs.5,000/- to the respondent/wife.” 5 Crl.Revision Petition No.319 of 2023 4. Heard the learned counsel for the petitioner, the learned counsel for the 1[st] respondent and the learned Public Prosecutor. 5. As stated, the appellate court granted a residence order. The 1[st] respondent was allowed to reside in the shared household. The Station House Officer of the jurisdictional police station was directed to render necessary assistance to the 1[st] respondent to resume her residence in the shared household. Concededly, based on the said direction, the 1[st] respondent started residence in the shared household and she continues her residence in the shared household. 6. The learned counsel for the petitioner would submit that in O.P.(Crl.) No.430 of 2021, this Court had stayed the operation of the judgment in Crl.Appeal No.96 of 2019 and inspite of the said order of stay, the 1[st] respondent continues her residence in the shared household. It is seen from Annexure A9 that the order of stay, insofar as the maintenance part, has been vacated. The learned counsel submitted that in the above context continuance of the 1[st] 6 Crl.Revision Petition No.319 of 2023 respondent in the shared household is illegal and in derogation of the direction of this Court. 7. Annexure A10 is the judgment in O.P.(Crl) No.430 of 2021. The said original petition was filed by the brother of the petitioner. He claimed that the so-called shared household along with the land appurtenant thereto was assigned to him by the father as per a settlement deed in the year 2017. He had filed O.S.No.65 of 2018 before the Munsiff's Court, Changanassery against the petitioner and the 1[st] respondent herein. An order of injunction restraining the petitioner and the 1[st] respondent from trespassing into the said building or committing any mischief was granted. Since the 1[st] respondent entered the said building in disregard of the order of injunction and she had obtained the residence order without impleading the petitioner in O.P.(Crl.) No.430 of 2021, this Court held the said original petition was maintainable. This Court as per Annexure A10 judgment allowed the said original petition and the residence order passed by the Additional Sessions Judge-V in Crl.Appeal No.96 of 2019 was 7 Crl.Revision Petition No.319 of 2023 modified. It was ordered that the 1[st] respondent should be provided with an alternative accommodation within two months from the date of that judgment, which was on 02.03.2023. The 1[st] respondent was, however, allowed to continue in the shared household till such alternative accommodation was provided. Pointing out the said direction and that a suitable alternative accommodation was not yet provided, the learned counsel for the 1[st] respondent submitted that there was no violation of the order of injunction. 8. With both the petitioner and the 1[st] respondent in the party array, O.P.(Crl) No.430 of 2021 was decided. The residence order in the judgment in Crl.Appeal No.96 of 2019 was modified. It was ordered that entitlement of the 1[st] respondent is to get an alternative accommodation. The petitioner is obliged as per the said order to provide an alternative accommodation to the 1[st] respondent. That order has become final and binding on the parties. Owing to that, the contentions of the petitioner that continuance of the 1[st] respondent in the shared household is highly detrimental to 8 Crl.Revision Petition No.319 of 2023 his parents and daughter, particularly when she subjected her daughter to cruelty and harassment do not crop up for consideration. In such circumstances, no challenge against the judgment in Crl.Appeal No.96 of 2019 insofar as the residence order can be entertained. The 1[st] respondent is entitled to get an alternative accommodation. 9. The petitioner filed Crl.M.P.No.1518 of 2022 seeking a modification to the judgment in Crl.Appeal No.96 of 2019 so as to get the 1[st] respondent shifted to the alternative accommodation provided by the petitioner. The appellate court did not allow that petition essentially for the reason that the petitioner did not pay the amount of maintenance. When the appellate court held in its judgment in Crl.Appeal No.96 of 2019 that the petitioner was entitled to get the order of residence modified by providing a satisfactory alternative accommodation to the 1[st] respondent, it was incumbent upon that court to consider the plea for modification on its merits. The order to pay maintenance could well be enforced and on the ground of 9 Crl.Revision Petition No.319 of 2023 default in payment of maintenance alone, the plea for modification ought not have been repelled. 10. Be that as it may, the question that now arises is whether the 1[st] respondent can continue in the shared household or is she liable to shift to the alternative accommodation. As pointed out above right of the 1[st] respondent now is only to have a suitable alternative accommodation. Though incidental, the question whether an order of a civil court has relevance while deciding a plea for residence order under Section 19 of the PWDV Act requires consideration. The appellate court in Ext.P10 judgment observed that in view of Section 17 read with Section 19 of the PWDV Act, no order of injunction can be passed against the aggrieved person, which would prejudice her right of residence. ## 11. The Apex Court in **Satish Chander Ahuja v. Sneha Ahuja [(2021) 1 SCC 414]** held that,- “83. Before we close our discussion on Section 2(s), we need to observe that the right to residence under Section 19 is not an indefeasible right of residence in 10 Crl.Revision Petition No.319 of 2023 shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law. While granting relief both in application under Section 12 of Act, 2005 or in any civil proceedings, the Court has to balance the rights of both the parties. The directions issued by High court in paragraph 56 adequately balances the rights of both the parties. xxxx xxxx 157. From the above discussions, we arrive at following conclusions: (i) The pendency of proceedings under Act, 2005 or any order interim or final passed under D.V. Act under Section 19 regarding right of residence is not an embargo for initiating or continuing any civil proceedings, which relate to the subject matter of order interim or final passed in proceedings under D.V.Act, 2005.” The law is thus clear that the right created in favour of a wife under Section 19 of the PWDV Act is not an absolute embargo for initiating or continuing a civil proceedings relating to the building in question. 12. As stated, the right of the 1[st] respondent is to get a suitable alternative accommodation. From the materials on 11 Crl.Revision Petition No.319 of 2023 record, it is seen that the petitioner had availed two houses for providing alternative accommodation to the 1[st] respondent. But she was not satisfied with either of the said houses. Several petitions were to be considered and visit of the building by the Advocate Commissioner had to take place. But no solution in the matter of providing alternative accommodation to the 1[st] respondent could be had. 13. Evidence on record would show that the 1[st] respondent on her own had earlier availed rented house for her accommodation. Before moving to the shared household in terms of the judgment in Crl.Appeal No.96 of 2019, she was residing in rented houses, a fact which is beyond dispute. Therefore, it is absolutely unnecessary for the court to take up the duty of finding an alternative accommodation to the 1[st] respondent. It may be noted that she has filed O.P.(Crl.) No.422 of 2023 seeking to depute an Advocate Commissioner at the expense of the petitioner herein just for ascertaining the conveniences and facilities of the building suggested as alternative accommodation. When that is the scenario, the 12 Crl.Revision Petition No.319 of 2023 feasible and desirable option is to direct the petitioner to pay to the 1[st] respondent a reasonable amount of rent for the alternative accommodation. The 1[st] respondent herself can find a proper accommodation for her residence. 14. The petitioner availed a house on a monthly rent of Rs.2,500/- as the alternative accommodation. Ext. P13 is the rent agreement. Besides the rent, electricity charges also requires to be paid. After considering the materials on record and the submissions of the learned counsel on either side, I am of the view that Rs.3,000/- shall be the reasonable rate of rent for which the 1[st] respondent can avail a convenient accommodation for her residence. Hence, there shall be a direction to the petitioner to pay to the 1[st] respondent at the rate of Rs.3,000/- towards the rent for her alternative accommodation. The 1[st] respondent shall vacate the shared household within two months from today. 15. The petitioner also assails the order of the appellate court directing him to pay monthly maintenance to the 1[st] respondent at the rate of Rs.7,500/-. The learned 13 Crl.Revision Petition No.319 of 2023 Magistrate ordered to pay monthly maintenance at the rate of Rs.3,000/-. The appellate court holding that income of the petitioner is Rs.19,000/- per month enhanced the rate of maintenance. 16. The learned counsel for the petitioner would submit that the 1[st] respondent is a qualified nurse and she is employed. RW2 was examined to prove that fact, but his evidence is not helpful to the petitioner. The fact that the 1[st] respondent is a qualified nurse and had worked as a nurse during various periods is admitted by her while examined as PW1. She maintained that she was unemployed while examined in the court. When she is a qualified nurse and had employment during various periods, her ability to earn by working as a nurse cannot be ignored. Certainly it is her will and desire to get employed or not. 17. The appellate court found that the petitioner has a monthly income of Rs.19,000/-. That was based on a bank statement concerning the petitioner’s account. There is no reason to interfere with the said finding. The contention of the 14 Crl.Revision Petition No.319 of 2023 petitioner is that he has an obligation to maintain his first wife and his minor son in that relationship. Besides, maintenance of his daughter in the first marriage and his aged parents is his obligation. It is contended that having regard to the said obligation of the petitioner, monthly maintenance at the rate of Rs.7,500/- per month is quite exorbitant and beyond his ability. 18. The Apex Court in **Rajnesh v. Neha [(2021) 2 SCC 324]** laid down the criteria for deciding the quantum of maintenance. The parameters relevant for deciding the amount of maintenance in this case are extracted below: “79. III. Criteria for determining quantum of maintenance.- (i) The objective of granting interim/ permanent alimony is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded. 80. The factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependant children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of 15 Crl.Revision Petition No.319 of 2023 income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife. 82. On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income _ipso facto_ does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications. (ii) A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home.” 16 Crl.Revision Petition No.319 of 2023 19. The learned counsel for the petitioner placed reliance in this regard on a few other decisions also. I do not propose to refer to those decisions since those are essentially decisions based on the particular facts of each case. Having considered the facts and evidence adverted to above, in the light of the law laid down in **Rajnesh** (supra) I am of the view that the monthly maintenance entitled by the 1[st] respondent is Rs.4,000/-. 20. The learned counsel for the petitioner at this juncture submitted that the 1[st] respondent purchased 1.40 Ares of land in the year 2020, a copy of which is Annexure A12 and she presently has employment, and therefore, she is not entitled to get any maintenance. Those subsequent events, which are not in evidence, are not liable to be considered in this revision petition. It is especially so when Section 25(2) of the PWDV Act enables any of the parties to approach the Magistrate for alteration/modification/revocation of the order. Therefore, I am not countenancing the contentions of the learned counsel for the petitioner in 17 Crl.Revision Petition No.319 of 2023 reference to Annexure A12 and the plea that the 1[st] respondent is now employed. 21. Accordingly, this revision petition is allowed in part. The petitioner is ordered to pay Rs.3,000/- to the 1[st] respondent as monthly rent for the alternative accommodation from the date of her vacating the shared household. The 1[st] respondent shall vacate the shared household within two months from today. The 1[st] respondent is entitled to get monthly maintenance at the rate of Rs.4,000/- from the petitioner from the date of filing of M.C.No.2 of 2018. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 18 Crl.Revision Petition No.319 of 2023 ## **APPENDIX OF CRL.REV.PET 319/2023** |**PETITIONER ANNEXURES**|**PETITIONER ANNEXURES**| |---|---| |**ANNEXURE-A1**|**TRUE COPY OF THE INTERIM ORDER DATED**| ||**23.11.2021 IN O.P.(CRL) NO. 430/2021.**| |**ANNEXURE-A2**|**TRUE COPY OF THE INTERIM ORDER DATED**| ||**1.12.2021 IN W.P(C).NO.26937/2021.**| |**ANNEXURE-A3**|**TRUE COPY OF THE RELEVANT PART OF THE**| ||**OUT PATIENT RECORD OF THE MINOR**| ||**DAUGHTER OF THER EVISION PETITIONER AT**| ||**GENERAL HOSPITAL, KOTTAYAM DATED**| ||**02.06.2022.**| |**ANNEXURE-A4**|**TRUE**<br>**COPY**<br>**OF**<br>**THE**<br>**LETTER**| ||**NO.DCPU/K/932/2022 DATED 30.07.2022 BY**| ||**THE DISTRICT CHILD PROTECTION OFFICER,**| ||**KOTTAYAM.**| |**ANNEXURE-A5**|**TRUE**<br>**COPY**<br>**OF**<br>**THE**<br>**LETTER**| ||**NO.DCPU/K/932/2022 DATED 30.07.2022 BY**| ||**THE DISTRICT CHILD PROTECTION OFFICER,**| ||**KOTTAYAM.**| |**ANNEXURE-A6**|**TRUE COPY OF THE ORDER DATED**| ||**06.10.2022 BY THE SESSIONS COURT,**| ||**KOTTAYAM IN CRL.M.P NO. 2135/2022.**| |**ANNEXURE-A7**|**TRUE COPY OF THE FIR NO.946 DATED**| ||**20.10.2022 BY THE VAKATHANAM POLICE.**| |**ANNEXURE-A8**|**TRUE COPY OF THE PETITION DATED**| ||**04.01.2023 BY THE MINOR DAUGHTER OF**| ||**THE REVISION PETITIONER TO THE**| ||**DISTRICT POLICE CHIEF, KOTTAYAM.**| |**ANNEXURE-A9**|**TRUE COPY OF THE INTERIM ORDER DATED**| ||**16.09.2022 IN CRL.M.A.NO.1/2022 IN**| ||**O.P.(CRL) NO. 430/2021.**| |**ANNEXURE-A10**|**TRUE COPY OF THE JUDGMENT DATED**| ||**02.03.2023 IN O.P.(CRL) NO. 430/2021.**| |**ANNEXURE-A11**|**TRUE COPY OF THE JUDGMENT DATED**| ||**02.03.2023 IN W.P.(C) NO.26937/2021.**| |**ANNEXURE-A12**|**TRUE COPY OF THE RELEVANT PART OF THE**| ||**SALE DEED NO.1141/20 OF THENGANA SUB**| ||**REGISTRAR OFFICE.**| |**ANNEXURE-A13**|**TRUE COPY OF THE RENT AGREEMENT DATED**| ||**12.01.2022.**| 19 Crl.Revision Petition No.319 of 2023 **ANNEXURE-A14 TRUE COPY OF THE MEMO DATED 27.10.2023 BY ADVOCATE S.DAMUKUMAR IN M.C.NO.2/2018, C.M.P. NO. 3175/2023 IN THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHANGANSSERY-I. ANNEXURE-A15 TRUE COPY OF THE PHOTOGRAPHS OF THE HOUSE OWNED BY SHRI.P.U.THOMAS ANNEXURE-A16 TRUE COPY OF THE PHOTOGRAPH OF THE HOUSE OWNED BY SMT.SARADA. ANNEXURE-A17 TRUE COPY OF THE PHOTOGRAPHS OF THE HOUSE OWNED BY SRI.XAVIER ANNEXURE-A18 TRUE COPY OF THE PHOTOGRAPHS OF THE HOUSE OWNED BY SRI. VIJAYANANDAN ANNEXURE-A19 TRUE COPY OF THE PHOTOGRAPHS OF THE HOUSE OWNED BY SRI. JAYAN.V.T ANNEXURE-A20 TRUE COPY OF THE ADVOCATE COMMISSION REPORT DATED 01.02.2024 SUBMITTED IN CMP 3175/2023 IN M.C NO.2/2018 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURTI, CHANGANASSERY** ## **ANNEXURE-A** **TRUE COPY OF THE CERTIFICATE DATED 04.02.2023 OF MASTER ROSHAN JACOB ISSUED BY DR.THOMAS GEORGE, MD, DNB, MNAMS, FSCAI, SENIOR INTERVENTIONAL CARDIOLOGIST AT CARITAS HOSPITAL, KOTTAYAM.** **ANNEXURE-B TRUE COPY OF THE TREATMENT SUMMARY ISSUED BY DR.SHAJI.K.THOMAS, MBBS, DCH, FACEE (PEM), SENIOR CONSULTANT (PEDIATRICS), KIMS HEALTH HOSPITAL, KUDAMALOOR, KOTTAYAM DATED 04.02.2023. ANNEXURE-C TRUE COPY OF THE MEDICAL REPORT DATED 18.10.2017 OF MARIYAMMA MATHEW ISSUED BY DR.THOMAS GEORGE, MD, DNB, MNAMS, FSCAI, SENIOR INTERVENTIONAL CARDIOLOGIST AT CARITAS HOSPITAL, KOTTAYAM. ANNEXURE-D TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY DR.ABRAHAM MOHAN MD (GEN.MED) OF CARITAS HOSPITAL, KOTTAYAM DATED 06.02.2023.** 20 Crl.Revision Petition No.319 of 2023 **ANNEXURE-E TRUE COPY OF THE DISCHARGE SUMMARY ISSUED BY DR.DEEPAK DEVARAJAN MD, CONSULTANT NEUROLOGIST, CARITAS HOSPITAL & INSTITUTE OF HEALTH SCIENCES, KOTTAYAM. ANNEXURE-F TRUE COPY OF THE MEDICAL REPORT DATED 27.01.2023 BY DR.LAKSHMI.M.S, MBBS MS, OPHTHALMOLOGIST, S.J.EYE HOSPITAL & RESEARCH INSTITUTE, KARUKACHAL. ANNEXURE-G TRUE COPY OF THE RELEVANT PART OF THE FILE IN THE MEDICAL COLLEGE, KOTTAYAM FROM 30.11.2021 TO 23.12.2021. ANNEXURE-H TRUE COPY OF THE BILL NO.PH181634 DATED 24.03.2022 FROM CARITAS HOSPITAL, KOTTAYAM. ANNEXURE-I TRUE COPY OF THE CASH BILL NO.18154 DATED 07.04.2022 FROM CARITAS HOSPITAL, KOTTAYAM. ANNEXURE-J TRUE COPY OF THE BILL NO.PH13164 DATED 23.04.2022 FROM CARITAS HOSPITAL, KOTTAYAM. ANNEXURE-K TRUE COPY OF THE BILL NO.SH27081 DATED 19.09.2022 FROM CARITAS HOSPITAL, KOTTAYAM. ANNEXURE-L TRUE COPY OF THE RELEVANT PART OF THE OUT PATIENT RECORD OF THE MINOR DAUGHTER OF THE REVISION PETITIONER AT GENERAL HOSPITAL, KOTTAYAM DATED 02.06.2022. ANNEXURE-M TRUE COPY OF THE MEDICAL REPORT DATED 04.02.2023 OF RIYA MARY JACOB ISSUED BY DR.LIJO JAMES, CONSULTANT NEUROLOGIST, CARITAS HOSPITAL & INSTITUTE OF HEALTH SCIENCES, KOTTAYAM.**