Rajalakshmi v. Sheeja, Mohanan and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **MONDAY, THE 7[TH] DAY OF NOVEMBER 2022 / 16TH KARTHIKA, 1944 CRL.REV.PET NO. 571 OF 2021** **AGAINST THE JUDGMENT DATED 26.02.2021 IN CRA.NO.184/2017 OF COURT OF SESSIONS COURT, THALASSERY IN MC.NO.88/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA** ## **REVISION PETITIONER/APPELLANT/PETITIONER:** **RAJALAKSHMI, AGED 53 YEARS, W/O.LATE P.SURESH, THAYYIL HOUSE, PALATHUMKARA, KOOTHUPARAMBA, THALASSERY TALUK, KANNUR DISTRICT 670 643** **BY ADVS. MUHAMMED YASIL ROSIN JOSEPH AMRITA ARUN** ## **RESPONDENTS/RESPONDENTS/RESPONDENTS:** - **1 SHEEJA, AGED 53 YEARS, W/O.MOHANAN, KOLOATH HOUSE, KUNIYIL PALAM, (PO), KUTHUPARAMBA, THALASSERY TALUK, KANNUR DISTRICT 670 643** - **2 MOHANAN, AGED NOT KNOWN, S/O.KUMARAN, KOLOATH HOUSE, KUNIYIL PALAM, (PO) KUTHUPARAMBA, THALASSERY TALUK, KANNUR DISTRICT 670 643** - **3 STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031** **BY ADVS. SRI.K.P.PRADEEP SRI.T.THASMI SRI.C.N.PRABHAKARAN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.REV.PET NO. 571 OF 2021** 2 ## **O R D E R** This Crl. Revision Petition has been directed against the judgment dated 26.02.2021 in Crl.A.No.184 of 2017 on the file of the Court of Session, Thalassery (for short 'the appellate court') confirming the order dated 20.06.2017 in M.C.No.88 of 2016 on the files of the Judicial First Class Magistrate Court, Kuthuparamba (for short 'the trial court'). 2. The revision petitioner herein admittedly got married to one Suresh on 16.08.1991. The 1[st] respondent is the sister of the said Suresh and 2[nd] respondent is the husband of the 1[st] respondent. 3. The dispute between the parties is in respect of shared household shown in the petition filed before the trial court. According to the revision petitioner, after her marriage, she and her husband Mr.Suresh resided in the shared household. Three children were born out of the **CRL.REV.PET NO. 571 OF 2021** 3 wedlock. On 18.01.2002, the husband of the revision petitioner expired. It is alleged that even thereafter, she and her children have been residing in the shared household. It is further alleged that the respondents have been creating all sorts of trouble in their peaceful residence of the revision petitioner and her children at the shared household and they have even attempted to forcefully evict them from the house. In these circumstances, the revision petitioner has approached the trial below and filed a petition as M.C.No.88 of 2016 under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short 'the D.V. Act') claiming various reliefs under Sections 18 (a), (b), (c), (f) and (g) of the D.V. Act. 4. The revision petitioner gave evidence as PW1 and the 1[st] respondent gave evidence as RW1. Three witnesses were examined on the side of the respondents as RWs 2 to 4. Exts.D1 to D10 were marked on the side of the **CRL.REV.PET NO. 571 OF 2021** 4 respondents. The trial court found that even though the revision petitioner claimed relief under Sections 18 (a), (b), (c), (f) and (g) of the D.V. Act, there is no pleading for the reliefs under Sections 18 (c), (f) and (g). After evaluating the evidence, the trial court found that the house over which the revision petitioner claimed relief does not satisfy the definition of “shared household” as defined under the D.V. Act and that the revision petitioner failed to prove that, at any point of time, she resided in the said house along with her husband and children. Accordingly, the petition was dismissed by the trial court. The revision petitioner challenged the said order before the appellate court, which also ended in dismissal. Challenging both the judgment and the order, the revision petitioner has now preferred this revision petition. 5. I have heard Sri.Muhammed Yasil, the learned counsel for the revision petitioner and **CRL.REV.PET NO. 571 OF 2021** 5 Sri.C.N.Prabhakaran, the learned Public Prosecutor. 6. The relationship between the parties is not in dispute. It is also not in dispute that the husband of the revision petitioner is no more. As stated already, the dispute is with regard to the house shown in the schedule of the petition filed by the revision petitioner at the trial court. According to the revision petitioner, the said house qualifies the definition of “shared household” as defined under Section 2(s) of the D.V. Act inasmuch as, she along with her husband and children resided therein after the marriage. On the other hand, the 1[st] respondent contended that the said house originally belonged to her mother, who is the mother-inlaw of the revision petitioner and later on, her mother gifted the property to her in the year 2016 and at present it exclusively belongs to her. It is further contended that the revision petitioner or her children never resided in the said house and hence, the said house **CRL.REV.PET NO. 571 OF 2021** 6 does not qualify the definition of the term “shared household”. It is further contended that on 08.09.2015, the revision petitioner trespassed into the said house and started residing there and thereafter, she has preferred M.C. 7. As stated already, the evidence tendered by the revision petitioner consists of her oral testimony only. On the other hand, on the side of the respondents, the 1[st] respondent and 3 witnesses were examined. She also produced 10 documents as Exts.D1 to D10. In order to satisfy the definition of “shared household” under Section 2 (s) of the D.V. Act, the revision petitioner has to establish that she lives or at any stage has lived in a domestic relationship either singly or along with the respondent in the house in question. Apart from the interested testimony of the revision petitioner, absolutely no evidence, either oral or documentary, has been adduced by the revision petitioner to prove that she **CRL.REV.PET NO. 571 OF 2021** 7 ever lived in the alleged shared household at any point of time along with the respondents or at least with her husband. As rightly observed by both the courts below, as she was residing in the shared household since 1991, definitely there will be documents such as photos, ration card etc. None of them were produced. No independent witness was also examined to prove that she has ever resided in the said house. On the other hand, the evidence adduced by the respondents would show that the shared household originally belonged to the mother of the 1st respondent who is the mother-in-law of the revision petitioner and in 2016, she gifted the said property to the 1[st] respondent. Since then, it absolutely belongs to her. The evidence of RW4 would show that for the period from 2002 to 2016, he has been in the occupation of the shared household as a tenant under RW2, the mother of the 1[st] respondent. The lease deed has also been produced to substantiate the said oral evidence. **CRL.REV.PET NO. 571 OF 2021** 8 8. Both the courts below also relied on the decision of the Apex Court in **S.R.Batra and another v. Smt.Thruna Batra** [AIR 2007 SC 1118]. It was held therein that the wife is only entitled to claim a right to residence in a shared household, and a 'shared household' would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. However, later on the Apex Court in **Satish Chander Ahuja v. Sneha Ahuja** [2020 (5) KHC 496 (SC)], has held that **S.R. Batra** 's case (supra) does not lay down the correct law. It was held that, in event, the shared household belonged to any relative of the husband with whom in a domestic relationship the woman has lived, the conditions mentioned in Section 2(s) of the D.V. Act are satisfied and the said house will become a shared household. But it must be proved that the aggrieved person lives or at any stage has lived in the shared household in domestic **CRL.REV.PET NO. 571 OF 2021** 9 relationship along with the husband. As stated already, in this case, there is absolutely no scrap of evidence to show that the revision petitioner resided in the shared household at any point of time. 9. It is settled that the revisional jurisdiction under Sections 397 and 401 of Cr.P.C was to confer power upon superior criminal courts, a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment. It has been consistently held by the Apex Court that the jurisdiction of the High Court in revision is severely restricted and it cannot embark upon re-appreciation of evidence. In **Shlok Bhardwaj v. Runika Bhardwarj and others** [(2015) 2 SCC 721], it was held that the scope of revisional jurisdiction of the High Court does not extend to re-appreciation of evidence. **CRL.REV.PET NO. 571 OF 2021** 10 Since there are concurrent findings of two courts below, this Court would be circumspect in invoking the revisional powers under Section 397 r/w 401 of the Code of Criminal Procedure. I have carefully gone through the entire records, evidence, proceedings and judgments of the two courts below. I find no impropriety or illegality therein warranting interference under the exercise of revisional powers vested with the courts. There is no merit in the Criminal Revision Petition and accordingly, it is dismissed. Sd/- **DR.KAUSER EDAPPAGATH, JUDGE** AS **CRL.REV.PET NO. 571 OF 2021** 11 ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE A1 A TRUE COY OF THE AADHAR CARD OF THE APPELLANT. ANNEXURE A2 A TRUE COPY OF E-SHARAM CARD OF THE APPELLANT. ANNEXURE A3 A TRUE COPY OF THE BANK DETAILS OF KERALA BANK OF THE APPELLANT.**