Sherifa Cherukunhi Beevi v. Sherifa Sainaba Beevi, Syed Liyakkathali Pookoya Thangal and State of Kerala (CRL.REV.PET NO. 435 OF 2017)

CRL.REV.PET NO. 435 OF 2017 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 15[TH] DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943 CRL.REV.PET NO. 435 OF 2017** **AGAINST THE ORDER/JUDGMENT IN Crl.A 418/2016 OF DISTRICT COURT & SESSIONS COURT,KOZHIKODE MC 38/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOZHIKODE** ## **REVISION PETITIONER/APPELLANT/2ND RESPONDENT** SHERIFA CHERUKUNHI BEEVI AGED 70 YEARS, D/O.SEETHIKOYA THANGAL, PALLIPURAM, PALLI PADU VIA MANKADA, PERINTHALMANNA-679324. BY ADV SRI.M.MUHAMMED SHAFI ## **RESPONDENT/COMPLAINANT/1ST RESPONDENT** 1 SHERIFA SAINABA BEEVI 50 YEARS, D/O.ABDULLA KOYA THANGAL, 33/1366 A, PANIKAR KANDY HOUSE, MERIKUNNU P.O., MALAPARAMBA, KOZHIKODE. 2 SYED LIYAKKATHALI POOKOYA THANGAL S/O.ABU SALIH, PALLIPURAM, PALLIPADI, MANKADA, PERINTHALMANNA, MALAPPURAM DISTRICT. 3 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. BY ADVS. SRI.P.V.ANOOP SMT.T.RASINI THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10.12.2021, THE COURT ON 15.02.2022 DELIVERED THE FOLLOWING: CRL.REV.PET NO. 435 OF 2017 2 ## **ORDER** By filing this revision petition the petitioner who is the second respondent in M.C.No.38 of 2009 on the files of the Judicial First Class Magistrate-I, Kozhikode is challenging the order of learned Sessions Judge, Kozhikode, and the dismissal of Crl.Appeal No.418 of 2016. The appeal was dismissed by the learned Sessions Judge as the petition to condone the delay of 1068 days in filing the appeal was not condoned. 2. The relevant facts required for disposal of this revision petition in brief are as follows: M.C.No.38 of 2009 was filed by the first respondent (wife) against the second respondent (husband) and this revision petitioner (mother-in-law of the first respondent) under Section 12 of the Protection of Women from Domestic Violence Act. Admittedly, the first respondent herein is the fourth wife of the second respondent. After their marriage she was taken to her matrimonial home by him and she was residing with him and the revision petitioner. A child was born to the respondents herein. While so, alleging mental and physical torture and violence, misappropriation of her money CRL.REV.PET NO. 435 OF 2017 3 including gold she preferred the complaint mainly with the prayer not to dispossess her from her matrimonial home. The court below after elaborate consideration of the evidence partly allowed the petition finding that the building situated at 'Pallippuram' where the first respondent is residing belongs to the revision petitioner. So the second respondent husband was directed to secure same level of alternate accommodation for her as enjoyed by her in the building at Pallipuram and hand over the same to her within a period of three months. 3. The said order was challenged by this revision petitioner in Crl.Appeal No. 418 of 2016 with a delay of 1068 days. The Appellate Court on the finding that the revision petitioner could not offer satisfactory explanation, refused to entertain the appeal resulting dismissal of the same. When this order is challenged before this Court in this revision petition, the matter has been taken up for settlement between the parties through mediator, but not settled in mediation. Though this revision petition is filed challenging the judgment dated 18.1.2017 in Crl.Appeal No.418 of 2017, the second respondent herein expressed his willingness to comply with the direction of the learned Judicial first Class Magistrate and to provide CRL.REV.PET NO. 435 OF 2017 4 alternate accommodation to the first respondent by constructing a separate house with all the required facilities. In fact he has constructed a new building for accommodating the first respondent and his daughter. A commissioner was appointed to inspect and report about the facilities available in the building constructed by him and also to report whether the newly constructed building is suitable for accommodation and whether it has road access towards the public road. 4. The Commissioner who inspected the property reported that the house constructed by him is in the very same district where the first respondent is residing and it is located approximately 650 metres away from Pathiriyal junction. It is further revealed from the report that this building is having access towards the public road from the said junction through a 3 metre wide unpaved mud road. The Commissioner has in detail reported about the facilities available in the newly constructed building which is a two storeyed building with three bedrooms and two toilets. Apart from that the house has a sit-out , a common hall, kitchen etc. 5. As per Annexure R2 (h) receipt the building has electric connection. Annexure R2(j) would reveal that water supply is also CRL.REV.PET NO. 435 OF 2017 5 there and motor pump has been installed for drawing water from the well on the rear side of the building. Thiruvali Grama Panchayath has **-** assigned number to the newly constructed residence as 15 **/** 80 B and the receipt produced as Annexure R2(i) would indicate that the second respondent had remitted the property tax for the second half of the financial year 2021-22. The Commission report also specify that residential houses are situated near to the newly constructed building and the building is situated in a residential area not affected with flood which had occurred in the previous years. So in short, it appears that an alternate building has been constructed by the second respondent with all the required facilities quite suitable to accommodate the first respondent and her daughter. She may also not feel loneliness as neighboring houses are located very close to this residence. 6. It is to be noted that the learned Judicial First Class Magistrate has found that the building where the first respondent was residing along with her daughter is the house owned by the revision petitioner. Section 17(1) of the Protection of Women from Domestic Violence Act reads as follows:- CRL.REV.PET NO. 435 OF 2017 6 “17. **Right to reside in a shared household** :- (1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. (2)The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.” ## Section 2(s) reads as follows: 2(s) :-“shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.” As per Section 2(s) shared household means the household where the aggrieved party lives or at any stage has lived in domestic CRL.REV.PET NO. 435 OF 2017 7 relationship. The learned Judicial First Class Magistrate on the basis of the materials on record found that the residential house at 'Pallipuram' where the first respondent is residing with her daughter is not the shared household as the building belongs to her motherin-law. In S.R.Batra and another v. Smt. Taruna Batra [ **AIR 2007 Supreme Court 1118]** held that as regards Section 17(1) of the Act the wife is only entitled to claim right of 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. 7. Here the learned Judicial First Class Magistrate found that the house belongs to the revision petitioner, the mother-in-law. The said order has not been challenged by the first respondent herein. Therefore, the first respondent cannot insist that she should not be asked to vacate the premises when an alternate accommodation is offered to her by her husband, the second respondent. The Commissioner was appointed by this court specifically to verify whether facilities are available in the new building with the location, road access and the other details. The learned Commissioner had furnished the entire facilities available for the building. It appears CRL.REV.PET NO. 435 OF 2017 8 that the second respondent has constructed the building with all the requirements to accommodate a family in a residential locality with direct road access. Electric facilities, water supply etc. are also available for the newly constructed building. The Commission report and the documents with the photographs produced by the second respondent and marked as Ext.R2(a) to (j) would indicate that the building is having all the facilities and it is a new and neatly constructed building ready to occupy and to accommodate a family. As the building is having all the facilities essential for a lady to reside with her daughter, I find that the first respondent has to occupy the same at the earliest. It is revealed that right now the revision petitioner who is the owner of the building at 'Pallipuram' is residing elsewhere with her married daughter as the first respondent has not vacated the premises. The revision petitioner is a lady aged 74 years. Since she has a desire to come back to her residence at this age, I find it just and proper to direct the first respondent to vacate the premises on or before 28.02.2022 and to occupy the above referred newly constructed building. The learned Counsel for the revision petitioner shall handover the key to the learned Counsel appearing for the first respondent on 21.02.2022, so as to facilitate CRL.REV.PET NO. 435 OF 2017 9 shifting of the residence by her with her daughter. Taking into account of the entire facts involved in this case, I find that the revision petition is only to be allowed. The judgment dated 18.1.2017 in Crl.Appeal No.418 of 2016 of the Sessions Court, Kozhikode in M.C.No.38 of 2009 of the Judicial First Class Magistrate-1, Kozhikode, is quashed and set aside. Sd/- SHIRCY V JUDGE smm