Selvaraj v. The State of Kerala & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **WEDNESDAY, THE 07TH DAY OF OCTOBER 2020 / 15TH ASWINA, 1942** ## **Crl.MC.No.5558 OF 2016** **AGAINST THE ORDER IN CMP 800/2009 DATED 14-01-2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,NEYYATINKARA** ## **PETITIONER/:** **SELVARAJ AGED 50 YEARS S/O.NELSON NADAR,SG BHAVAN,KUCHAPPURAM, KULATHUMMAL VILLAGE,KATTAKKADA TALUK.** **BY ADVS. SRI.S.V.PREMAKUMARAN NAIR SMT.P.S.ANJU SMT.M.BINDUDAS SRI.P.K.JANARDHANAN SRI.R.T.PRADEEP** **RESPONDENTS/STATE & PETITIONER & RESPONDENTS IN CMP 800/2009:** **1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM-682031. 2 K.SOBHANA, AGED 58 YEARS D/O.KALLYANI,SOMAVILASOM,KADAVATTARAM,CHITTAKKOD E, ATHAZHAMANGALAM,NEYYATINKARA.P.O,NEYYATTINKARA TALUK,PIN-695121. 3 M.DAS, AGED 62 YEARS S/O.MOSSAS,LIJI BHAVAN,VITTYODE ROAADARIKATHU VEEDU, VAZHICHAL,KUDAPPANAMOODU,VAZHICHAL VILLAGE,NEYYATTINKARA TALUK-695121.** ## **Crl.M.C.No.5558 of 2016** **:-2-:** **4 AKESH DAS SOMAVILASOM,KADAVATTARAM,CHITTAKKODE, ATHAZHAMANGALAM, NEYYATTINKARA.P.O, NEYYATTINKARA TALUK-695121.** **5 SUB INSPECTOR OF POLICE ARYANCODE POLICE STATION,NEYYATTINKARA-695121.** **R1 BY ADV. SMT.INDULEKHA JOSEPH R1 BY ADV. SRI.NEERAJ NARAYAN R2 BY ADV. SRI.D.KISHORE** ## **OTHER PRESENT:** ## **ADV.SRI.M.V.ANANDAN, SR.G.P.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18.8.2020, THE COURT ON 07.10.2020 PASSED THE FOLLOWING:** ## **Crl.M.C.No.5558 of 2016** ## **:-3-:** ## **Dated this the 7[th] day of October, 2020** ## **O R D E R** The petitioner is a stranger to CMP No.800/2009 on the file of Judicial First Class Magistrate Court-1, Neyyattinkara, in which a residence order under Section 19 of the Domestic Violence Act, 2005 (for brevity, 'the DV Act') was passed in favour of the second respondent herein, the wife rejecting the contentions of the husband, the third respondent. The wife claimed MDS Bhavan, Kuravara, Ottasekharamangalam to be her shared household and the learned Magistrate issued a residence order on 14-1-2011 restraining the third respondent from alienating the shared household or parting with his rights over the land and house. The second respondent was further permitted to reside in the building and the third respondent was restrained ## **Crl.M.C.No.5558 of 2016** ## **:-4-:** from causing any sort of disturbance to her possession and enjoyment of the shared household. 2. The petitioner purchased the shared household and the land in his name subsequent to the aforesaid order and became the absolute owner in possession of the same. There was a mortgage outstanding in the property in the name of a stranger at the time of purchase which also, he redeemed as authorised in the sale deed. 3. The grievance of the petitioner is that he recently received Annexure-V notice from JFCM-1 Neyyattinkara, dated 3.8.2016 in CMP No.2588/2015 calling upon him to obey the order dated 14-1-2011 though he was not a party to the proceedings initiated under the DV Act. His contention is that he is not bound by the residence order and it is not enforceable against him under law. It is contended that, he purchased the property without ## **Crl.M.C.No.5558 of 2016** **:-5-:** being aware of the litigation pending between the spouses. He contends that he being the paramount title holder of the shared household, the second respondent has no right to enforce the order as if the shared household still subsisted. On these grounds, invoking Section 482 of the Cr.P.C., he seeks to quash the residence order dated 14-1-2011 as well as the notice dated 3-8-2016 issued to him by the court. 4. The third respondent does not contest this proceeding though he was served. 5. The second respondent contends that the petitioner being a total stranger to CMP No.800/2009, has no locus standi to question the residence order passed against the third respondent by invoking Section 482 of Cr.P.C. If at all he is aggrieved by the residence order and Annexure-V notice, his remedy lies under Section 29 of the DV ## **Crl.M.C.No.5558 of 2016** **:-6-:** Act for preferring an appeal before the concerned Sessions court. It was pointed out that impugned order dated 14-1-2011 was challenged by his assignor, the third respondent before the II Additional Sessions Judge, Thiruvananthapuram, in Crl.Appeal No.56/2011, in which also, the lower court's order was only confirmed. The orders of the court below are contended to be binding on the petitioner after the sale deed dated 14-11-2011 having been executed by the third respondent in gross violation of the residence order. It is further contended that the petitioner had clear knowledge of the proceeding under the DV Act pending between the spouses as well as the order passed by the courts. According to the second respondent, she is not bound by the subsequent transfer of shared household. On the other hand, the impugned residence order is not only binding ## **Crl.M.C.No.5558 of 2016** **:-7-:** but enforceable also against the petitioner. Lastly, it was contended that the legal remedy open to the petitioner in any case is only to sue the third respondent for damages. In support of his overall contentions, he relied on the decisions in **Bhanot V.D. v. Savita Bhanot (2012(1) KHC 610)** , **Venugopalan v. Jayasree V.Nair (2012(3) KHC 232)** , **Shalini v. Kishore & ors. (2015(3) KHC 636)** and **Saraswathy v. Babu (2014(3) SCC 712)** . 6. I heard the learned counsel for the petitioner as well as the contesting second respondent. 7. The contention raised by the learned counsel for the second respondent that the petition under Section 482 itself is not maintainable, does not appear to be sound. 8. In my opinion, the petitioner cannot be considered to be a total stranger to the ## **Crl.M.C.No.5558 of 2016** **:-8-:** proceedings after he purchased the shared household. He rightly claims to be affected by the residence order since the court below has now chosen to proceed against him after having sent to him Annexure-V notice dated 3.8.2016 seeking obedience to the order. When he assails the notice and also the order to be not legally binding for reasons which require scrutiny under law, it is difficult to accede to the argument that remedy is not available to the petitioner under Section 482. So also the contention that he should have preferred appeal invoking Section 29 of the DV Act is devoid of merit since such a remedy if at all was available also, one could not have expected him to file the appeal and questioned the legality of the order when his contention is to the effect that he was quite ignorant of the proceedings which were pending between the spouses. Whether the petitioner ## **Crl.M.C.No.5558 of 2016** ## **:-9-:** was aware of the proceedings or not is a disputed material fact which cannot be gone into in a proceeding under Section 482 of Cr.PC. 9. The question that arises for consideration is whether the residence order passed in CMP No.800/2009 which was later confirmed in Crl.Appeal No.56/2011, could be enforced against the petitioner despite his contention that he is not a party to the proceedings and further that assignment of shared household taken from the party to the proceeding was without knowledge of the order prohibiting alienation. 10. This is not a case of the second respondent having been dispossessed from the shared house either by the third respondent or the petitioner during the pendency of the proceedings or in breach of any interim order of prohibition. On the other hand, it is the second respondent's admitted case ## **Crl.M.C.No.5558 of 2016** **:-10-:** that she was not in occupancy of the shared household right before 26.9.2009 when CMP was instituted. She admits having lost possession of shared house as early as on 10.10.2008. The nature of residence order passed by the court below is to the effect that it permitted the second respondent to take possession of the shared household and further, the third respondent was prohibited from alienating or releasing his rights in the share household and the surrounding property to the third parties and also from dispossessing or disturbing her possession and enjoyment thereof in any manner. 11. I have to hold that the part of the prohibitory order is bad in law to the limited extent that it prevented the third respondent from alienating the surrounding landed property also since Section 19 of the DV Act does not extend such a wider power to the court, it rather limits the ## **Crl.M.C.No.5558 of 2016** **:-11-:** authority to order restraint of alienation only of the shared household and nothing more. 12. Looking at the order dated 14-1-2011, it should be interpreted in such a meaningful manner that it entitled the second respondent to enter into the shared household and the third respondent was restrained from causing obstruction to past occupancy being restored by the court to her. The order is no doubt binding on the third respondent especially after he lost the criminal appeal which challenged the legality of the order of the lower court. 13. It is an undisputed fact that no interim order had been passed by the learned Judicial First Class Magistrate-1 against the third respondent from alienating the shared household and a prohibitory order restraining transfer of property came to be finally passed only on 14-1-2011. ## **Crl.M.C.No.5558 of 2016** **:-12-:** Annexure-I sale deed dated 14-11-2011 relied on by the petitioner was admittedly registered and executed while the prohibitory order against alienation was in force. 14. So far as the third respondent is concerned, he being a party to the residence order which prohibited alienation, he can no longer contend that MDS Bhavan ceased to be the shared household after it was sold to the petitioner on 14.11.2011. This is for the apparent reason that the sale of the property was in complete breach of the prohibition against alienation of the shared household. The third respondent has not till date sought to dispute the sale nor contended that his action did not amount to breach of the order. 15. The question for our consideration is whether the residence order against the third respondent could be enforced against the petitioner ## **Crl.M.C.No.5558 of 2016** **:-13-:** who is a subsequent transferee of the shared household in the light of his contention that he had no notice of the proceeding under the DV Act between the spouses or the order passed against the third respondent. 16. The contention of the learned counsel for the petitioner is that the order cannot at all be enforced against him since he is not a respondent within the scope and definition of Section 2(q) of the DV Act. It is true that the petitioner is not a person in a domestic relationship with the aggrieved person or a relative of the third respondent. The Act necessarily contemplates reliefs being granted only against the respondent defined under the Act. But there is nothing in the Act to indicate that a residence order against respondent should not be enforced against a person who claims under the respondent under the Act. ## **Crl.M.C.No.5558 of 2016** **:-14-:** Granting of reliefs against the respondent and enforcement of the order granting reliefs against a person who claims under the respondent are to be treated differently. The contention of the petitioner would be incapable of acceptance if he could be shown to be a person who claims under the original respondent and as one who being aware of the prohibitory order took assignment of the share house in collusion with the transferor with a view to depriving the right of the aggrieved person to shared household. 17. In my opinion, if the transferee of a shared household took the assignment of the property with the knowledge of the residence order which prohibited the respondent under the Act from transferring the shared household, the order must be held to be enforceable against him as if he was also a party to the proceedings and the transfer of ## **Crl.M.C.No.5558 of 2016** ## **:-15-:** shared household did not affect the rights of the aggrieved person. If a different view is taken to the effect that after the sale deed or the transfer, the shared household itself ceased to exist and consequentially the residence order is not enforceable, it would only defeat the ends of justice and deny the benefits which the DV Act assures to the aggrieved person. 18. The court which issued the residence order possesses jurisdiction to conduct necessary enquiry and conclude whether the transfer of the shared household in a particular case was in breach of the prohibition and the transferee took the assignment with knowledge of the order which prohibited transfer and was consequently bound by the order. If the transfer was in breach of the order of which the transferee had knowledge, the order is enforceable against the transferee as a person ## **Crl.M.C.No.5558 of 2016** ## **:-16-:** bound by the order. 19. The learned counsel for the petitioner contended that the petitioner did not have the knowledge of the prohibitory order passed by JFCM- 1, Neyyattinkara, which was later confirmed in Crl.Appeal No.56/2011 until Annexure-V notice was received by him. It was further pointed out that when he took Annexure-I, the shared household was in the occupancy of a mortgagee by name Vinod Kumar who had taken possession of the house and the land as early as on 13-1-2011. The submission is that when the mortgagee was in actual occupancy, no prudent person would have had reason to doubt that there was any prohibitory order in existence restraining alienation of assets of the respondent under the Act. Needless to say that I am not supposed to make any comment on this aspect which is now uncalled for and that too in a proceeding ## **Crl.M.C.No.5558 of 2016** ## **:-17-:** under Section 482 of the Cr.P.C. Any comment if made is certain to prejudice the parties and further it is, after all, a material fact which requires to be examined by the court below on evidence. 20. If on evidence the court below finds that Annexure-I was taken in the name of the petitioner with notice of the prohibitory order which restrained the third respondent from transferring the shared household, it shall be open to the court below to enforce the order against the petitioner in accordance with the provisions of the DV Act. 21. The court below before proceeding to enforce the order should however realise that what ought to be enforced is the liability of the third respondent. The third respondent's liability to provide shared house to the second respondent does not lapse in as much as the transfer under Annexure-I ## **Crl.M.C.No.5558 of 2016** **:-18-:** sale deed was made in breach of the prohibitory order of the court and therefore itself his liability to arrange alternative accommodation for the second respondent must continue under law. 22. That means the court below before proceeding against the petitioner should call upon the third respondent to provide alternative accommodation in terms of Section 19(1)(f) of the DV Act and in that process also, direct him to execute a bond as required under Section 19(3) thereof. 23. It is trite law that the aggrieved person cannot claim right to shared household focused on a particular house building. The right cannot be sought to attach to a fixed or any specific house of the respondent under the Act. The shared house under law is never considered to be static and the aggrieved person cannot have the privilege of ## **Crl.M.C.No.5558 of 2016** ## **:-19-:** laying claim on a fixed building demanding it to be her permanent shared household. The right to shared household is neither an alienable nor a heritable interest under the scheme of the DV Act. It is nothing but an obligation which is fastened on the person of the respondent. The right is not one which can survive even after the matrimonial relationship between the spouses coming to an end. 24. The gist of the discussion is to the effect that the third respondent is bound to satisfy the residence order and discharge his liability by providing alternative accommodation to the aggrieved person in the manner indicated in Section 19(1)(f) of the DV Act. In the result, the Crl.MC is allowed in the light of the observations and directions given above. Since I did not have the opportunity of reading CMP No.2588/2015, I direct the court below ## **Crl.M.C.No.5558 of 2016** ## **:-20-:** to make sure that the petition contains necessary averments as to how the petitioner is bound by the residence order, before it proceeds to hold inquiry in the matter. It is further directed that CMP No.2588/2015 or the proceedings, as the case may be, shall be disposed of at the earliest at any rate within 3 months from the date of receipt of a certified copy of this order. It is also made clear that O.S.No.1260/2015 now pending before the Munsiff court, Neyyattinkara, shall be decided untrammelled by any of the observations made in this order. All pending interlocutory applications are closed. Sd/- ## **T.V.ANILKUMAR JUDGE** ami/ ## **Crl.M.C.No.5558 of 2016** ## **:-21-:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE I TRUE COPY OF SALE DEED NO.1727/2011 DATED 14.11.2011** **ANNEXURE II TRUE COPY OF MORTGAGE DEED DATED 13.1.2011 ANNEXURE III TRUE COPY OF ORDER DATED 14.1.2011 IN C.M.P.NO.800/2009 OF J.F.C.M-I, NEYYATTINKARA** **ANNEXURE IV TRUE COPY OF PLAINT DATED 20.10.2015 IN O.S.1260/2015 BEFORE MUNSIFF'S COURT, NEYYATTINKARA** **ANNEXURE V TRUE COPY OF NOTICE DATED 3.8.2016 IN C.M.P.NO.2588/2015 BY J.F.M.C.I, NEYYATTINKARA.**