OP(Crl.) No. 596 of 2016 (Q)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 13TH DAY OF FEBRUARY 2017/24TH MAGHA, 1938** **OP(Crl.).No. 596 of 2016 (Q)** **-----------------------------** **ORDER DTD.8.8.2016 IN CMP.5967/2016 IN MC.NO.97/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KOLLAM** **.....** **PETITIONER(S):** **-------------** **B.SURESH, AGED 68 YEARS, GOKULAM HOUSE, KADAPPAKKADA NAGAR-84, KADAPPAKKADA, KOLLAM TALUK, KOLLAM DISTRICT.** **BY ADV. SRI.V.PHILIP MATHEW** **RESPONDENT(S):** ## **--------------** ## **1. AHALYA,** **D/O MURALEEDHARAN, THUMBATTU VEEDU, MULLUVIALA, S.N.G.NAGAR-129, VADAKKEVILA PO, KOLLAM DISTRICT-691 010.** ## **2. SARVESH (MINOR),** - **AGED:9 YEARS, S/O AHALYA, THUMBATTU VEEDU, MULLUVIALA, S.N.G.NAGAR-129, VADAKKEVILA PO, KOLLAM DISTRICT-691 010. MINOR REPRESENTED BY HIS NEXT FRIEND/ MOTHER (FIRST RESPONDENT)** ## **3. SURAJ S.K.,** - **S/O SURESH, GOKULAM HOUSE, KADAPPAKKADA NAGAR-84, KADAPPAKKADA, KOLLAM TALUK, KOLLAM DISTRICT-691 008.** ## **4. KRISHNAKUMARI,** - **W/O B.SURESH, GOKULAM HOUSE, KADAPPAKKADA NAGAR-84, KADAPPAKKADA, KOLLAM TALUK, KOLLAM DISTRICT-691 008.** ## **5. THE CIRCLE INSPECTOR OF POLICE,** **KOLLAM EAST, KOLLAM-691 001.** ## **6. THE SUB INSPECTOR OF POLICE,** **KOLLAM EAST, KOLLAM-691 001.** **R1 BY ADVS. SRI.K.SHAJ** **SRI.RENJIT GEORGE** **R5 & R6 BY GOVERNMENT PLEADER SRI.C.N.PRABHAKARAN** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 13-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **OP(Crl.).No. 596 of 2016 (Q)** ## **-----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** - **P1 COPY OF SETTLEMENT DEED NO 467/1976 DATED 4/8/1976** - **P2 COPY OF ORDER DATED 9/12/2014 PASSED BY THE FAMILY COURT, KOLLAM** - **P3 COPY OF M.C.NO. 97/2016** - **P4 COPY OF ORDER DATED 16/3/2016 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT-11, KOLLAM IN M.C.NO. 97/2016** - **P5 COPY OF PETITION DATED 28/7/2016 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT** - **P6 COPY OF RECEIPT DATED 28/7/2016 ISSUED FORM THE OFFICE OF THE 5TH RESPONDENT** - **P7 COPY Of CMP NO. 5967/2016 FILED BY THE PETITIONER IN M.C NO. 97/16** - **P8 COPY OF OBJECTION FILED BY THE PETITIONER IN CMP 5967/2016** - **P9 COPY OF ORDER DATED 8/8/2016 PASSED BY THE JFMC-II, KOLLAM IN CMP NO. 5967/2016 IN MC NO 97/16** - **P10 COPY OF DISCHARGE SUMMARY ISSUED FROM DR. NAIRS HOSPITAL, ASRAMAM, KOLLAM STATING THAT SHE WAS DISCHARGED FROM THE HOSPITAL ON 6/11/2015** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** ## **NIL** ## **//TRUE COPY//** ## **P.S.TO JUDGE** **Msv/** ## **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------O.P.(Crl.) No.596 of 2016** ## **----------------------------------------Dated this the 13[th] day of February, 2017** ## **J U D G M E N T** - 1.The petitioner herein is the 2[nd] respondent in M.C. No.97 of 2016 pending on the files of the Judicial Magistrate of First Class-II, Kollam. The aforesaid proceeding was initiated by the respondents 1 and 2 herein who are the wife and minor child of the son of the petitioner under section 12 of the Protection of Women from Domestic Violence Act, 2005. - 2.The 3[rd] respondent, who is the son of the petitioner herein had married the respondent No 1 on 27.11.2005. The 2[nd] respondent was born in the wedlock. The petitioner is the absolute owner of 3.50 Ares of property and a residential building therein where he is residing with his family. It is specifically contended that the marital relationship between the 1[st] respondent and the 3[rd] respondent fell into rough weather. For the past several years, the OP(Crl) 596/2016 2 respondents 1 to 3 were residing separately. 3.While so, in the year 2014 , M.C. No.97 of 2016 was preferred by respondents 1 and 2 against the petitioner, and respondents 3 and 4 under section 12 of the Protection of Women from Domestic Violence Act (Hereinafter referred to as 'the Act' for brevity) praying for a residence order claiming that she was driven away by the 4[th] respondent. Maintenance was also sought from the 3[rd] respondent. In the petition, it was stated that the respondents 1 and 2 were staying in a house at Mulluvila, Kollam. The learned Magistrate by order dated 16.3.2016 restrained the petitioner and respondents 3 and 4 from committing any type of harassment against respondents 1 and 2 and the 3[rd] respondent was directed to pay a monthly maintenance of Rs.2,000/- each per month to respondents 1 and 2. However, the learned Magistrate had refused to grant residence order to respondents 1 and 2. However, on 28.7.2016, respondents 1 and 2 along with their henchmen and lawyer are alleged to have OP(Crl) 596/2016 3 criminally trespassed into the house of the petitioner claiming that she had obtained residence order from the learned Magistrate. They have no right to enter the premises or to reside there as it was not a shared household according to the petitioner . 4.The petitioner initially preferred a complaint before the Police seeking action. Later, he preferred Ext.P7 petition before the learned Magistrate wherein it was contended that the house is not a shared household and that the 1[st] respondent cannot claim any residence in the said house. The respondents 1 and 2 filed detailed objection to the same as well. In the objection filed, the 1[st] respondent has stated that she had entered the shared household after obtaining the permission from the learned Magistrate. By Ext.P9 order, the Court below holding that the contentions advanced are in the realm of evidence took the view that forcible eviction cannot be ordered. It was also observed that the matter could be taken up for detailed consideration and a meritorious order can be OP(Crl) 596/2016 4 passed after taking evidence. The said order is under challenge . - 5.The learned counsel appearing for the petitioner as well as the respondents were heard. 6.The learned counsel appearing for the petitioner would vehemently contend that the order passed by the learned Magistrate cannot be justified. According to the learned counsel, the court has ample powers under section 23 and 25 of the Act to pass any interim order or to alter, modify or revoke the order already passed. It was also urged by the learned counsel relying on the decision of the Apex Court in **Minu Kumari V State of Bihar** ( 2006 (4) SCC 359 ) that the courts would possess in the absence of any express provision to such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle _quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest._ The learned counsel would also rely on section 28 of the Act and would contend that the courts can adopt its OP(Crl) 596/2016 5 own procedure to dispose of an application and nothing prevented the court from considering the petition filed by the petitioner on its merits and in passing appropriate orders. Finally, relying on the decision of the this Court in **Hashir A.R. v. Shima** (2015 (2) KLT 919), it was contended that the residence belonging to the mother-inlaw or father-in-law would not be a shared household and the respondents 1 and 2 would not be entitled to have a right of residence . - 7.The learned counsel appearing for the 1[st] respondent would counter the submissions of the learned counsel and would contend that the Act was enacted to protect women, who are the victims of violence of any kind. According to the 1[st] respondent, the respondents 1 and 2 have no other place to reside and they are justified in residing in the shared household. - 8.I have considered the rival submissions and have gone through the order impugned. - 9.There cannot be any doubt that the original petition is one OP(Crl) 596/2016 6 filed invoking the supervisory jurisdiction vested on this Court under Article 227 of the Constitution, which is visitorial in nature. Unless the Court below had committed any grave error of jurisdiction or had traversed the provisions of any Statute or had passed an order which is totally perverse, to the extent it will strike conscience of this Court, no interference is unwarranted. 10.After going through the impugned order, I am of the view that the stand taken by the learned Magistrate cannot be said to be perverse. The question whether the 1[st] respondent had abused the provisions of the Domestic Violence Act can only be decided after taking of evidence. The view of the Magistrate that the Court below would not be justified in throwing out the wife and child from the premises without going into the merits of the matter appears to be unexceptionable. Even otherwise Section 17 (2) of the Act 43 of 2005 clearly states that the aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in OP(Crl) 596/2016 7 accordance with the procedure established by law. The petitioner can always work out his remedies in accordance with law. As rightly held by the learned Magistrate, the question can be determined only after taking of evidence. In that view of the matter, I am of the considered view that the view taken by the learned Magistrate is quite a plausible view and is not liable to be interfered with under the visitorial jurisdiction of this Court. The learned Magistrate shall proceed with the matter and pass orders expeditiously. This petition is disposed of as above. **RAJA VIJAYARAGHAVAN.V. JUDGE** vps