P. Abdul Salam v. State of Kerala, Saniyyabi Mukkath and Shamna

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 19TH DAY OF JANUARY 2018 / 29TH POUSHA, 1939** **Crl.Rev.Pet.No. 200 of 2016** **( AGAINST THE ORDER/JUDGMENT IN CRA 68/2012 of ADDL. D.C. & SESSIONS COURT - II, MANJERI DATED 11-01-2016** **AGAINST THE ORDER/JUDGMENT IN MC 31/2010 of C.J.M.,MANJERI DATED 19-01-2012)** ## **REVISION PETITIONER(S)/APPELLANT/RESPONDENT** ## **P. ABDUL SALAM,** **S/O. SAIDALAVI, PAIKKAD HOUSE, SOUTH PUTHALAM, AREACODE P.O., MALAPPURAM DISTRICT.** **BY ADV.SRI.K.RAKESH** ## **RESPONDENT(S)/RESPONDENTS & AGGRIEVED PERSONS :** **1. THE STATE OF KERALA,** **REPRESENTED BY PUBLIC PROSECUTOR,** **HIGH COURT OF KERALA, ERNAKULAM-682 031.** **2. SANIYYABI MUKKATH,** **D/O. MUHAMMED, PAIKKAD HOUSE, SOUTH PUTHALAM, AREACODE, MALAPPURAM DISTRICT-673 639.** ## **3. SHAMNA,** **D/O. SANIYYABI MUKKATH, PAIKKAD HOUSE, SOUTH PUTHALAM, AREACODE, MALAPPURAM DISTRICT-673 639.** **R2&3 BY ADV. SRI.K.M.SATHYANATHA MENON** **R2&3 BY ADV. SMT.KAVERY S THAMPI** **R BY PUBLIC PROSECUTOR SMT.M.N.MAYA** **THIS CRIMINAL REVISION PETITION HAVIN,G BEEN FINALLY HEARD ON 15/9/2017, ALONG WITH CRL.R.P.NO.1747/2016 & ANOTHER THE COURT ON 19/1/2018 PASSED THE FOLLOWING:** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl.R.P.Nos. 200,1747 & 1748 of 2016** - - - - - - - - - - - - - - - - - - Dated this the 19[th] day of January, 2018 ## **COMMON ORDER** All these revisions arise from MC No. 31/2010 of the Chief Judicial Magistrate Court, Manjeri, filed by a wife and daughter seeking reliefs under the Protection of Women from Domestic Violence Act (hereinafter referred to as the “DV Act” for short). 2. The revision petitioner in Cr.R.P.No.200/2016 had married the second respondent herein on 2/4/1978. Four children were born in the matrimonial relationship. The third respondent in the above revision is the youngest daughter who is unmarried. All other three children were married and settled in life. The husband and the wife lived together happily till October 2010. Thereafter, matrimonial relationship got strained leading to the registration of MC No. 31/2010 by the wife seeking protection order, monetary benefits, restraint order and other reliefs. In the application, the wife contended that, the husband had committed acts of domestic violence, threatened to marry another woman and to throw the wife Cr.R.P.No.200/2016 & others 2 out the house. It was alleged that, 50 sovereigns of gold ornaments and Rs. 50,000/- given to the husband at the time of marriage was misappropriated by him. The present value of the gold ornaments was quantified at Rs. 7,50,000/-. The husband locked the house No.443/09 of Areacode Grama Panchayath wherein she was living with family. She was put in possession with the aid of police. The house was constructed with the funds of the wife. An attempt was made by the husband to dispose of the shared household. The wife claimed monetary relief of Rs. 10,50,000/- under the various heads. The wife contended that, the husband was receiving a sum of Rs.75,000/- per month from his business. The unmarried daughter claimed Rs.2,500/- as monthly maintenance and they sought, protection order, residence order, restraint order and monetary benefits. 3.The husband contested the proceedings by filing a detailed objection. The husband in his objection admitted the marriage and birth of four children. He denied the allegation of commission of domestic violence. He asserted that, the land was purchased by him and the claimed shared household was constructed by him with his funds and both were living there from 1999 onwards. According to him, he was employed in Polytechnic, Tirur and after his retirement, he was receiving only Rs.5,000/- as pension. It was contended that, the wife was employed in an institution and she was receiving a salary of Rs.20,000/- per month. The husband Cr.R.P.No.200/2016 & others 3 asserted that, there was no other property than the shared household. He also denied the allegation of commission of domestic violence. 4. Both sides let in oral and documentary evidence. The court below, on an appreciation of the entire evidence, granted protection order restraining the husband from committing the acts of domestic violence. An order termed as a residence order was passed restraining the husband from alienating, disposing of or encumbering the building No.443/09 of Areacode Grama Panchayat and the property wherein the shared house hold situated. A monetary relief of Rs.1,000/- per month payable to the unmarried daughter from the date of the petition till she gets married was also ordered. The above order was carried in appeal by the husband. 5. The appellate court , by a detailed judgment in Crl.Appeal No. 68/2012 analyzed the evidence let in by the trial court and concurred with the findings rendered by the trial court. The above findings are challenged by the husband in revision in Crl.R.P.No.200/2016. 6. Pending the proceedings before this Court, the wife and the daughter filed separate applications before the court below as Crl.M.P. Nos. 2632/2016 and 2443/2016 in MC 31/2010 for appropriate orders for enforcement of the reliefs granted by the trial court. The orders passed thereon are the subject matter of Cr.R.P.No.200/2016 & others 4 Crl.R.P.Nos. 1747/2016 & 1748/2016 respectively filed by the wife and the daughter . 7. Heard all the revisions together and examined the records. 8. It appears that, there is no dispute that the husband, wife and the children originally stayed in the house No. 443/09 of Areacode Grama Panchayat. However, both husband and wife claimed the ownership of the house. The husband contended that, he had purchased the land wherein the house was situated by registered document Ext.D7, which was produced before the court below. It was further contended that, he had constructed the house therein. The wife, on the other hand, contended that, the house was constructed by her with her funds and hence she is the owner of the property. For the limited purpose of adjudicating the relief under the D.V Act, the trial court correctly confined itself to the question as to whether it was a shared household or not. The court arrived at a conclusion that, it was a shared household. Primarily, this finding was based on the admission of both sides that they were living together since 1999. Further, husband denied the allegation that he attempted to forcefully evict the wife and further asserted that he has no intention to evict her. Hence, there is no reason for any interference in the finding concurrently arrived at by the courts below. 9. It is also on record that relationship between the parties were strained. PW1 alleged that, she was subjected to matrimonial Cr.R.P.No.200/2016 & others 5 cruelty. Both the courts, on the basis of the available facts, arrived at a conclusion that the husband had subjected the wife to domestic violence and if not, at least there was apprehension regarding the violence. Rival contentions set up by the both sides and the very fact that, the husband had alleged that the wife was maintaining illicit relationship with another person itself, was held by the court below to be a reasonable ground for apprehending domestic violence. It seems to be a proper and correct conclusion arrived at by the court below and was rightly confirmed by the appellate court. There is no scope for any interference in the protection order granted by the court below. 10. The restraint order passed by the court below was vehemently challenged by the revision petitioner in Crl.R.P.No.200/2016. It is admitted fact that, till the dispute arose, both the parties were residing in the house. Rival contentions were set up as to whether the wife continues to remain in the house thereafter. Ext.P1 is a document produced by the wife which shows that she was residing in the house for the past 15 years. It was issued by the local grama panchayat. In fact, the husband had denied the allegation that he was attempting to forcefully oust the wife. The wife in her evidence had stated that the husband located the house and she gained the entry with police aid. It was also found that a portion of the land appurtenant to the land comprising the shared household was sold by the Cr.R.P.No.200/2016 & others 6 husband. It was concluded by the court below that, only seven cents of land with house alone was available at the time of consideration by the trial court. It was hence held that if the property was sold, that would cause irreparable injury to the wife and she was entitled for the restraint order prohibiting the husband from selling the property. 11. It was vehemently contended by the learned counsel for the husband that ,the wife was divorced and after the divorce, matrimonial relationship was brought to an end and the divorced wife was not entitled for residence order in the house. This contention seems to have been asserted at the time of admission of the revision, which prompted this court to observe at the time of admission, that the wife was divorced wife. It seems that, vague allegation was made that the wife herein was divorced by the husband. However, in the MC there seems to be no specific reference that the wife was divorced by the husband. Husband did not have a case that he has divorced her. In fact, in answer to the allegation of the wife that husband had threatened to divorce her, the stand of the husband was that even though he had initially thought of a second marriage, he later abandoned it. No evidence was also let in to establish that husband had divorced the wife. In fact, there is no finding by the trial court that she was a divorced woman. A copy of the objection filed by the husband in MC No. 31/2010 shows that, the husband had asserted that he had never Cr.R.P.No.200/2016 & others 7 attempted to sell the shared household nor attempted to throw out the wife and the daughter. Even in the petition dated 7/11/2011 in CMC No. 5421/2010, the husband seems to have asserted that the wife had challenged him to pronounce talak. In the above circumstances, there was no finding that the husband had pronounced talak and the wife was a divorced woman. In fact in Crl.R.P. No.200/2016, Annexure-A was produced which is a photocopy of a marriage certificate to evidence that the revision petitioner therein had married one Rukkiya on 1/5/2013. Still it is not clear whether the revision petitioner has divorced the respondent No.2 in the above revision. Such a contention was set up only at later stage without any basis. 12. The Supreme Court in **Juveria Abdul Majid Patni v. Atif Iqbal Mansoori & Another (CD J 2014 SC 1085)** had considered the question whether even the divorced wife is entitled to relief. After detailed evaluation of the legal proposition, it was concluded that, even if it is accepted that the appellant therein had obtained talak under the Muslim Personal Law, the petition under section 12 of the Domestic Violence Act 2005 is maintainable. 13. In a different context in **Bipin v. Meera ( 2016 (4) KLT 418),** this court had held that any act of violence which satisfy the definition of section 3 of the Act and has a rational nexus to matrimonial relationship or which arises therefrom or consequent to that relationship should fall within the provisions of the Domestic Cr.R.P.No.200/2016 & others 8 Violence Act. Hence, even assuming the contention of the husband to be correct, there is no scope for interference. The court below, on a correct evaluation of the facts, had concluded that the wife is entitled for restraint order prohibiting the respondent from selling the property. Hence, that finding is only to be confirmed. 14. Though several monetary claims were set up by the wife, all were rejected by the court below. The daughter was granted monthly maintenance at the rate of Rs.1,000/- This was vehemently challenged by the husband contending that after attaining the age of majority, the daughter is not entitled for maintenance. In **Jagadesan v. the State of Tamil Nadu ( CDJ 2015 MHC 2506),** it was held that If the contention that the maintenance cannot be granted on attaining majority is accepted, the expression “ in addition to “ employed in section 20 (1) (d) would be otiose. Hence, the above conclusion of the court below is also liable to be confirmed. 15. Having regard to the entire facts, the **Crl.R.P.200/2016** is liable to be dismissed confirming the findings of the trial court in its entirety as confirmed by the appellate court. 16. Pending the revision, the wife and the daughter moved separate applications before the trial court seeking police protection to enforce their right of residence in the disputed property. The premise on which, such application was sought was that this court in revision had not granted any stay. It seems that, Cr.R.P.No.200/2016 & others 9 when Crl.R.P.No.200/2016 came up before this court for admission, another Bench of this court passed an order on 16/2/2016 in Crl.M.A.No.862/2016 as follows: “ Heard. I find no absolute necessity of stay at this stage. The petitioner is practically regarding the second part of the order of the trial court restraining alienation of the so called shared house hold. The claimant admittedly is a divorced woman and it is submitted that she has been residing elsewhere. The trial court has not given her orders permitting to continue in the shared house hold. In such a situation, further orders in this proceeding will be passed after hearing both the parties in detail.” 17. The above order was interpreted by the husband contending that, there was a stay of the proceedings and, the wife and the daughter contending that absolute stay was not granted. It was alleged that, in spite of the order of restraint passed by the trial court, the husband had alienated the property to the third party and had evicted the wife and the daughter forcefully. They sought for police protection to restore their possession and enjoyment of the shared household with the assistance of the police by preferring Crl.M.P.Nos.2443/2016 & 2632/2016. The husband opposed the applications contending that the matter was before Cr.R.P.No.200/2016 & others 10 this court and the execution of the order in MC No. 31/2010 was stayed. It was also contended that, no order was passed in MC No. 31/2010 permitting the continued residence of the petitioner in the house. The court below, after having referred to the order of this court, concluded that the execution of the order stands stayed by this court in Cr.M.A No.862/2016 and hence, applications cannot be considered on merits at this stage. These orders are under challenge in Crl.R.P.Nos.1747/2016 and 1748/2016. 18. It is true that, a close perusal of the order of this court dated 16//2/2016 Crl.M.A.No.862/2016 does not specifically indicate that, the stay was granted by this Court. However, this court had observed that an absolute stay was not granted at that stage on a premise that objection was regarding the second part of the order of the trial court restraining alienation. This proceeded on a premise that, it was an admitted case of the parties that the wife was a divorced woman. As mentioned above, there was no finding by the courts that the wife was divorced. Of course, a contention was set up by the husband that after divorce, the wife is not entitled to reside in the shared household. It was further contended that ,the divorced woman is not entitled to any share in the shared household. Definitely, Domestic Violence Act contemplates orders which are essential to protect the interest of the aggrieved person. Even the right of residence can only be subject to further proceedings in the court of law. It appears that, Cr.R.P.No.200/2016 & others 11 the trial court went wrong in holding that there was a stay of the proceedings. In fact, there was no stay granted by this Court. Subsequently, this Court passed an order on 10/8/2016 by clarifying that the execution of the warrant issued against the husband stands deferred. However, in the light of the ambiguity that was created by virtue of the order dated 16/2/2016, The court below cannot also be found fault with for not considering Crl.M.P.Nos.2443/2016 and 2632/2016. 19. In the light of the confirmation of the trial court's order granting reliefs, the trial court will now be entitled to proceed in accordance with law. Even by orders in CMP Nos. 2443/2016 & 2632/2016 the court below had only adjourned the consideration of the application till appropriate orders are passed by this court. In the light of the dismissal of Cr.R.P.No. 200/2016 by this order, the trial court is entitled to proceed in Crl.M.P.Nos.2443/2016 and 2632/2016. 20. One of the question that was vehemently marshalled by both sides was that, there was only a restraint order passed by the court below prohibiting the husband from alienating the property and there was no specific direction permitting the wife and the daughter to reside in the house. It seems that this issue was dealt by the trial court at para 9 of the order in MC 31/2010. It was held that the wife and daughter have right to reside in the shared household, they being the wife and younger child of the husband. Cr.R.P.No.200/2016 & others 12 It was held that, only 8 cents of the land under the shared household was available for the residence of the wife and the daughter. The court took note of the apprehension of the wife and the daughter that if the husband alienates or disposes of or encumber the property, it would cause injury to them. The case of wife and daughter before the trial court was that, they were residing in the shared household. Having considered that, the court below had granted the restraint order. This answers the contention of both sides.. The relief moulded by the court below was also couched as a residence order restraining the respondent from alienating or disposing of or encumbering the property wherein the shared household situated. Having considered this, necessarily, the court below will be entitled to enforce the order of the trial court in accordance with law. 21. In the result, Cr.R.P. No. 200/2016 is dismissed. Crl.R.P.Nos.1747/2016 & 1748/2016 are disposed of directing the court below to take up and consider Crl.M.P.Nos.2632/2016 and 2443/2016 in accordance with law and to pass appropriate orders after giving reasonable opportunity to both sides to raise all their contentions. ## **-** Sd/ **SUNIL THOMAS** ## dpk /true copy/ PS to Judge. Cr.R.P.No.200/2016 & others 13