K.K. John v. Rosy John @ Rosily and The State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V. WEDNESDAY, THE 25[TH] DAY OF AUGUST 2021 / 3RD BHADRA, 1943 CRL.REV.PET NO. 1553 OF 2018** **JUDGMENT IN CRA 141/2018 OF III ADDITIONAL SESSIONS COURT, THRISSUR CRL.M.C. 29/217 OF JFCM, CHALAKUDY** ## **REVISION PETITIONER/RESPONDENT/RESPONDENT:** K.K.JOHN, AGED 54 YEARS S/O KUNJUVAREETH, KAVUNGAL HOUSE, CHETTIKULAM DESOM, KODASSERY VILLAGE, CHALAKKUDY TALUK, THRISSUR DISTRICT, RESIDING AT P.B. NO. 19609, AL AIN, U.A.E. BY ADVS. P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA ## **RESPONDENTS/APPELLANT/APPLICANT:** 1 ROSY JOHN @ ROSILY AGED 54 YEARS W/O JOHN, KAVUNGAL HOUSE, RAILWAY STATION ROAD, CHALAKKUDY, THRISSUR DISTRICT 680 307 2 THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031 BY ADVS. SRI.N.T.SASI SRI.T.MADHU SMT.C.R.SARADAMANI ## **OTHER PRESENT:** C.N.PRABHAKARAN- SR.P.P THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13.07.2021, THE COURT ON 25.08.2021 DELIVERED THE FOLLOWING: Crl.R.P. 1553/2018 2 ## **ORDER** **DATED THIS THE 25TH DAY OF AUGUST, 2021** This revision petition is filed by the petitioner, who is the respondent in M.C. No. 29 of 2017 filed by the respondent herein under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'Act of 2005'). 2. The respondent herein, who is the wife of this revision petitioner has filed the petition before the Judicial First Class Magistrate, Chalakudy inter alia to restrain him from alienating or encumbering his property. Admittedly, she is the legally wedded wife of the petitioner. Certain facts are not in dispute. Their marriage was solemnized on 19.05.1985 and four children were born to them in the wedlock. This petitioner was employed abroad at the time of their marriage and they started to reside Crl.R.P. 1553/2018 3 together abroad with their children. The petitioner husband has purchased property at Chalakudy and constructed a house and it is her shared house. While they were residing together, their relationship strained and thus she filed a petition under Section 12 of the Act of 2005 against the petitioner. The Judicial First Class Magistrate, Chalakudy admittedly disposed of the petition with a direction to provide his apartment situated at Thrissur for the accommodation of the respondent herein. Till that time, she was permitted to reside in the house situated in the petition schedule property. The said order was passed by the learned Judicial First Class Magistrate, Chalakudy on 18.04.2018. Challenging the said order, Criminal Appeal No. 141 of 2018 has been preferred by the respondent contending that the building at Chalakudy is her shared household and she has been residing there from 2011 onwards and only occasionally she used Crl.R.P. 1553/2018 4 to go abroad to see her daughters. So, she had challenged the order mainly on the ground that the alternate accommodation provided by the petitioner is not sufficient for her accommodation and so the order of the learned Magistrate has to be set aside. The learned Sessions Judge, after hearing both sides, set aside the order of the Judicial First Class Magistrate and restrained this petitioner from dispossessing her from the building at Chalakudy and also restrained from alienating the shared household. 3. So, a residence order is passed by the learned Sessions Judge permitting the respondent herein to reside in the shared household at Chalakudy and at the same time restraining the petitioner from alienating or dispossessing her from the said residence. The said order is under challenge before this Court. Crl.R.P. 1553/2018 5 4. It is not in dispute that the petitioner herein is having properties in Dubai as well in Kerala. The couple were residing in Dubai for quite sometime. The question to be looked into in this case is whether the respondent is having any right under Section 17 of the Act of 2005 so as to claim right of residence over the building which is situated at Chalakudy. Under Section 17(2) of the Act of 2005, the aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law. So, according to the learned counsel for the respondent, under Section 17(2) of the Act, she is having a right not to be evicted from the shared household at Chalakudy. But the learned counsel for the petitioner would contend that as per Section 19(f), if the petitioner is able to provide the same level of alternate accommodation, then she Crl.R.P. 1553/2018 6 can be dispossessed from the shared household and the liability of the husband is to provide alternate accommodation for the aggrieved person as enjoyed by her in the shared household if the circumstances so require. 5. Here, the definite contention raised by the learned counsel for the petitioner is that, his younger daughters are yet to be married and he is in need of money to meet the expenses in connection with their marriage. So, in order to ensure that his children are given away in marriage properly, he wants to sell the property and the building therein and therefore, as an alternate accommodation for her, he had offered a fully furnished flat in Thrissur Town. It is also pointed out that, he had an apartment in Abu Dubai where she used to reside and she is also receiving the maintenance allowance ordered by the Dubai Court. So, she is not always residing in Kerala, but her accommodation is only Crl.R.P. 1553/2018 7 temporary and for that the fully furnished flat is available and he is ready to provide the same. When such an argument was advanced before this court, as per the order dated 23.09.2020, this court has directed him to furnish the details of the alternate residential accommodation offered by him, one of which is said to be a flat in Thrissur and the other residential house at Chalakudy and also about the square feet area of the residential units with all other details. 6. In compliance of the said order, a statement has been filed on behalf of the petitioner. In the statement in paragraph 3, the petitioner has stated that the subject matter in the revision petition is a residential building situated in 23.458 cents of land in Sy. No. 344 of East Chalakudy Village which was purchased on 26.08.1997 and the carpet area of the building constructed is 3000 sq. feet and the building has four bed rooms. Another property with a building Crl.R.P. 1553/2018 8 is there in Kodassery Grama Panchayat and that is the family house of the petitioner having a carpet area of 1800 sq. feet with 3 bed rooms. The building is kept locked. Then further, it is submitted that a flat in the 6[th] floor of Skyline Apartment, namely Skyline Villa Heights situated near to Sakthan Thampuram Market having a carpet area of 1400 sq. feet with three bed rooms fully furnished lying vacant is owned by the petitioner, and the another flat is also there in his possession in Skyline Sylvania, Kakkanad with No. 16C having a carpet area of 1650 sq.ft. Both the flats in Thrissur as well in Ernakulam are lying vacant. 7. So, according to the revision petitioner, these two flats are lying vacant, one is fully furnished, and available for the respondent and he is offering the flat at Thrissur which is fully furnished as the alternate accommodation which has been granted by Crl.R.P. 1553/2018 9 the learned Magistrate while disposing the application filed by her. 8. As mentioned earlier, in the application filed under Section 12 of the Act inter alia, she sought for permission to reside in the shared household which is having a carpet area of 3000 sq.ft. But it is situated in Chalakudy Municipality. Admittedly, the respondent is residing all alone as her children, that too the unmarried children, are residing abroad. The learned Magistrate had directed the petitioner to provide the flat at Thrissur for her accommodation mainly taking into consideration of her safety, as she is supposed to reside all alone. It has also come out in evidence that she occasionally resides in Kerala and most of the time she used to reside with her married daughter working abroad or in Dubai. So, it is clear that she is not permanently residing in Kerala. **In Sathish Chander Ahuja v. Neha** Crl.R.P. 1553/2018 10 **Ahuja** (2020 SCC Online SC 841) it has been held by the Supreme Court that the living of a woman in the 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. So, no doubt the court has to balance the right of both parties while granting the relief both in appeal or under Section 12 of the Act. 9. Here, as mentioned earlier, it has come out in evidence that she is not a permanent resident of Kerala. Moreover, as rightly held by the learned Judicial First Class Magistrate, her safety would be more assured when she is residing in the apartment at Thrissur in the heart of the city rather than in a building at Chalakudy. She used to come to Kerala only during vacation and she requires the accommodation only during that period. The court below has also observed that since the revision petitioner wants to Crl.R.P. 1553/2018 11 mobilize funds to meet the expenses for the marriage of their unmarried daughter who is now aged 29 years, it is not fair and justifiable to restrain him from alienating the property at Chalakudy. Considering the entire facts and circumstances involved in this case in a fair and reasonable manner the fully furnished flat at Thrissur will definitely, serve the purpose, as an alternate accommodation with same level of the accommodation and facilities she enjoyed. Therefore, the finding of the learned Magistrate that the petitioner has to provide the flat to the respondent herein as alternate accommodation appears to be quite a reasonable and appropriate decision which requires no interference. Hence, I am also of opinion that as the accommodation is having the very same level of facilities that she enjoyed and her residence at Kerala is not of a permanent nature and is only a casual living once in a while she visits Kerala for vacation, Crl.R.P. 1553/2018 12 the apartment, i.e., Skyline Apartment near Sakthan Thampuran Market will be more safe and convenient for her. Hence, I find that the Judgment of the learned Additional Sessions Judge is liable to be set aside and the order of the learned Judicial First Class Magistrate is only to be confirmed. Therefore, this revision petition is allowed and the Judgment of the learned Sessions Judge under challenge is set aside and the order passed by the learned Judicial First Class Magistrate is confirmed. The respondent is provided with an alternate accommodation in the flat owned by this petitioner in the 6[th] floor of Skyline Apartment, Skyline Villa Heights, Thrissur. **==> picture [55 x 13] intentionally omitted <==** **SHIRCY V JUDGE** **sb**