O.P.(Crl.).No.133 of 2016 (Q)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **TUESDAY, THE 21ST DAY OF FEBRUARY 2017/2ND PHALGUNA, 1938** **OP(Crl.).No. 133 of 2016 (Q) -----------------------------** **(AGAINST THE ORDER/JUDGMENT IN MC 148/2015 of J.M.F.C.-I, CHERTHALA)** **PETITIONER(S)COUNTER PETITIONERS IN MC: ----------------------------------------** **1. R.RADHAKRISHNAN NAIR,AGED 43 YEARS, S/O.RAJAPPAN NAIR, KOLLATT NIVARTHIL HOUSE, KADAKKARAPPALLY VILLAGE, CHERTHALA TALUK, KADAKKARAPPALLY P.O., ALAPPUZHA DISTRICT PIN: 688 529.** **2. RAJAPPAN NAIR,AGED 83 YEARS, S/O.KRISHNA PANICKER, KOLLATT NIVARTHIL HOUSE, KADAKKARAPPALLY VILLAGE, CHERTHALA TALUK, KADAKKARAPPALLY P.O., ALAPPUZHA DISTRICT PIN: 688 529.** **3. THANKAMMA, AGED 78 YEARS, W/O.RAJAPPAN NAIR, KOLLATT NIVARTHIL HOUSE, KADAKKARAPPALLY VILLAGE, CHERTHALA TALUK, KADAKKARAPPALLY P.O., ALAPPUZHA DISTRICT PIN: 688 529. BY ADVS.SRI.K.V.JAYADEEP MENON SRI.T.P.RAMESH (THENGUMPILLIL) SMT.P.KRISHNAPRIYA** **RESPONDENT(S)/PETITIONER IN M.C:: ---------------------------------** **PREETHI MOL K.R.,AGED 40 YEARS, ADVOCATE, W/O.R.RADHAKRISHNAN NAIR, NOW RESIDING AT NANDANAM - SREEMANGALAM, PERUMPADI P.O., MANNARKKAD, PALAKKAD DISTRICT, PIN: 678 732.** **R1 BY ADV. SRI.K.RAMAKUMAR (SR.) R1 BY ADV. SRI.S.M.PRASANTH R1 BY ADV. SMT.ASHA BABU R1 BY ADV. SMT.R.S.ASWINI SANKAR R1 BY ADV. SMT.S.PARVATHI** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 10-022017, THE COURT ON 21/2/2017 DELIVERED THE FOLLOWING:** **OP(Crl.).No. 133 of 2016 (Q) -----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** **P1: TRUE COPY OF THE MEDICAL CERTIFICATE DATED 11/1/2016 ISSUED TO THE 2ND PETITIONER** **P2: TRUE PHOTOCOPY OF THE MEDICAL CERTICATE DATED 7/1/2016 ISSUED TO THE 3RD PETITIONER** **P3: TRUE PHOTOCOPY OF THE DISABILITY CERTIFICATE DATED 17/12/2015 ISSUED TO THE 1ST PETITIONER** **P4:TRUE PHOTOCOPY OF THE MEDICAL CERTIFICATE DATED 27/12/2015 ISSUED TO THE 1ST PETITIONER** **P5: TRUE PHOTOCOPY OF THE M.C NO.40/2014 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT -1, CHERTHALA.** **P6: TRUE PHOTOCOPY OF THE AGREEMENT DATED 31/3/2014** **P7: TRUE PHOTOCOPY OF THE M.C NO.E 1822/2015 ON THE FILE OF THE MAINTENANCE TRIBUNAL, ALAPPUZHA.** **P8: TRUE PHOTOCOPY OF THE ORDER DATED 27/7/2015 IN M.C NO.E 1822/2015 ON THE FILE OF THE MAINTENANCE TRIBUNAL, ALAPPUZHA** **P9: TRUE PHOTOCOPY OF THE APPEAL FILED BEFORE THE DISTRICT COLLECTOR, ALAPPUZHA AGAINST THE ORDER IN M.C NO.E 1822/2015 ONTHE FILE OF THE MAINTENANCE TRIBUNAL, ALAPPUZHA** **P10: CERTIFIED COPY OF THE COMPLAINT IN MC NO.148/2015 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-1, CHERTHALA.** **P11: COPY OF THE CMP NO.8311/2015 IN MC NO.148/2015 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRRATE COURT, 1, CHERTHALA.** **P12: COPY OF THE REPORT OF THE PROTECTION OFFICR IN MC NO.148/2015 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT - 1, CHERTHALA.** **P13: COPY OF THE FIR IN CRIME NO. 124/2012 OF ERUMELY POLICE STATION.** **P14: COPY OF THE CMP NO.1182/2012 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT - II, KANJIRAPPALLY, KOTTAYAM DISTRICT.** **RESPONDENT(S)' EXHIBITS** **----------------------NIL** **/TRUE COPY/ PS TO JUDGE.** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **O.P.(Crl.).No.133 of 2016** - - - - - - - - - - - - - - - - - - Dated this the 21[st] day of February, 2017 ## **O R D E R** The counter petitioners in MC No.148 of 2015 of the Judicial First Class Magistrate Court-I, Cherthala for offences punishable under Sections 18 and 20 of the Protection of Women from Domestic Violence Act 2005, have preferred this original petition. 2. The above proceedings were initiated by the respondent herein. The first petitioner herein had married the sole respondent on 17/10/2005. The second and third petitioners are his parents. According to him, at the time of marriage, he was employed in Gulf Countries and thereafter, he worked at Mumbai. Later, matrimonial relationship got strained leading to the institution of various proceedings. It was alleged by the first petitioner herein that, immediately after the marriage, the wife left abroad,according to her will and wish without informing the first petitioner. Thereafter,she returned with huge amount and purchased several landed properties in her name at Mannarkkad. The first petitioner has no source of income now and his eye sight has considerably deteriorated and is on the way of becoming blind. He relied on Exts.P1 and P2 to substantiate it. The second petitioner executed a settlement deed No.605/2014 of SRO Pattanakkad with regard to 9 O.P.No.133/2016 2 cents of land and house situated therein in the joint name of the first petitioner and the respondent herein. The settlement deed was executed on the assurance made by the respondent that the aged parents would be maintained. Since it was not complied with, the parents had filed an application before the competent authority invoking the provisions under the Maintenance and Welfare of Parents and Senior Citizens Act,2007, for cancelling the settlement deed,which according to them was executed by committing fraud. The respondent herein appeared before the trial court and undertook to maintain the parents and, on that assurance, the order was passed as Ext.P8. Contrary to the assurance, she again started torturing the aged parents. As part of her pressure tactics for the purpose of harassing the aged parents, she has filed MC No.148/2015 before the Judicial First Class Magistrate Court-I, Cherthala against the petitioners herein seeking an order of injunction restraining them from causing obstruction to the entry of respondent herein to the house and residing in the house covered by the document No.605/2014. It was contended by the petitioners herein that, the respondent herein was claiming right over the property obtained by exercising fraud. Further proceedings are pending for canceling the said documents under the provisions of Maintenance and Welfare of Parents and Senior Citizens Act,2007. It was further contended that the property in which the respondent has put forwards for her claim and right is not one coming within O.P.No.133/2016 3 the purview of the 'shared house' under section 2 (s) of the Domestic Violence Act. Yet another contention advanced was that, under Section 27 of the above Act, the jurisdiction of the civil court is ousted in respect of any matter to which any provisions of this Act applied. 3. The respondent appeared and contested the entire proceedings. It was contended that the original petition is not maintainable in fact and law and that in a matter of matrimonial dispute, the original petition was not sustainable. It was also contended that, during the matrimonial relationship, she was harassed in connection with demand for dowry and she was physically and mentally harassed. According to her, the entire details of harassment were mentioned by her in Ext.P10 complaint. It was alleged that the property comprised in settlement deed No.605/2014 was validly conveyed to her and that she has got a right over the property . According to her, in the light of the fact that they resided together in that house and that relationship between the parties were that of a domestic relationship, she was entitled for reliefs. 4. It is on record that, the relationship between the first petitioner and the respondent herein was strained. There are some indications that, the parties have resided in the house covered by document No. 605/2014. In the light of the strained relationship and the contention now set up by the petitioners claiming absolute 4 O.P.No.133/2016 right over the property, definitely the respondent herein has a cause of action. 5. The learned counsel for the petitioners herein, relying on the decision reported in **Hashir A.R.and Others v Shima and Others(2015 (3) KHC 97)** ,contended that none of the ingredients for invoking the provisions of the Act were proved and that, the respondent herein could not have claimed any right with respect to the house of the property. It was further contended that the right over the property was obtained by her by committing fraud and it is the subject matter of another proceeding. It is true that, the proceedings are initiated by the parents under the statute seeking appropriate relief. However, as long as the documents stand, the respondent herein is entitled to claim right over the property and further, in the light of the fact that they had lived together in the shared household and that was too in a domestic relationship, she is entitled to claim relief over the property. 6. The learned senior counsel for the respondent contended that the facts disclosed, prove the right to relief and cause of action in relation to the property. It was further contended that in **Jacky v .Tiny Alias Antony and Others [(2014) 6 Supreme Court Cases 508],** the Hon'ble Supreme Court had held that interference in the civil/private disputes by exercising the writ jurisdiction was not to be appreciated. 7. An evaluation of the entire facts shows that, the petitioners 5 O.P.No.133/2016 herein have not made out any ground for invoking the writ jurisdiction with respect to the dispute involved. The petitioners herein are free to move the court below and to raise their all objections there. Since the disputed questions of fact are to be probed into, the writ jurisdiction cannot be invoked in the case at hand. Hence, the original petition is liable to be dismissed. Accordingly, the original petition fails and is dismissed. Sd/- **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge. O.P.No.133/2016 6