Sona C. Soman v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 27[TH] DAY OF OCTOBER 2021 / 5TH KARTHIKA, 1943 CRL.REV.PET NO. 472 OF 2021** **CRA 33/2021 OF ADDITIONAL DISTRICT & SESSIONS COURT - VI,** ## **THIRUVANANTHAPURAM** **MC 22/2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS IV (MOBILE),** ## **THIRUVANANTHAPURAM** ## **REVISION PETITIONER/APPELLANT/PETITIONER** SONA.C.SOMAN, AGE 25, W/O. AMAL.G., RESIDING AT ROHINI, MRA B-21, MUKKOLA, NETTAYAM , THIRUVANANTHAPURAM DISTRICT. BY ADV SHAJIN S.HAMEED ## **RESPONDENTS/RESPONDENTS/STATE & COUNTER PETITIONERS** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR , HIGH COURT OF KERALA, ERNAKULAM 682 031. 2 AMAL G AGED 28 YEARS S/O. GOPAKUMAR, ROHINI, MRA B-21, MUKKOLA, NETTAYAM , THIRUVANANTHAPURAM DISTRICT. 695 013. 3 GOPAKUMAR, AGED 58 YEARS ROHINI, MRA B-21, MUKKOLA, NETTAYAM , THIRUVANANTHAPURAM DISTRICT. 695 013. 4 AJITHAKUMAR, AGED 51 YEARS W/O. GOPAKUMAR, ROHINI, MRA B-21, MUKKOLA, NETTAYAM , THIRUVANANTHAPURAM DISTRICT. 695 013. Crl.R.P.472/21 2 5 AKHIL .G., AGED 26 YEARS S/O. GOPAKUMAR, ROHINI, MRA B-21, MUKKOLA, NETTAYAM , THIRUVANANTHAPURAM DISTRICT. 695 013. BY ADVS. K.B.MOHANAN J.R.PREM NAVAZ PP C. SEENA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 1.10.2021, THE COURT ON 27.10.2021 DELIVERED THE FOLLOWING: Crl.R.P.472/21 3 ## **ORDER** - “CR” 1. This revision petition has been filed against the order in C.M.P.437 of 2020 in M.C.22/20 on the file of Judicial First Class Magistrate-IV, Thiruvananthapuram, which has been confirmed in the judgment in Crl.A.33/21 dated 3.8.21 of the Additional District and Sessions Court, VI, Thiruvananthapuram. 2. M.C.No.22/20 has been filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short the Act) against respondents 2 to 5. The 2[nd] respondent is the husband of the revision petitioner and respondents 3 to 5 are the father, mother and brother respectively of the second respondent. M.C.22/2020 has been filed under section 12 of the Act claiming reliefs under Sections 18 and 19 of the Act. 3. Interim order under section 23 of the Act was granted in favour of the petitioner restraining the respondents from evicting the petitioner from the shared household until further orders and also restraining them from committing any act of domestic violence against the petitioner. The second respondent, the husband of the petitioner filed C.M.P.437/20 to alter or modify the interim order. The second respondent expressed his willingness to provide equivalent alternate accommodation to the petitioner. That petition was considered along Crl.R.P.472/21 4 with other CMPs. Since the facts in other CMPs are not relevant for the disposal of this revision petition, I am not going into those aspects. The petitioner is aggrieved by the impugned order vacating the residence order granted to the petitioner and directing to vacate her from the shared house within one month. The 2[nd] respondent was also directed to provide equivalent alternative accommodation suitable to the petitioner or in lieu to provide Rs.8000/- per month as rent. 4. According to the learned counsel for the petitioner, the order vacating the residence order passed in favour of the petitioner is bad for reasons more than one. (i). the Magistrate as well as the Additional Sessions Court went wrong in applying the principles in **Satish Chander Ahuja v. Sneha Ahuja (2021 (1) SCC 414 = 2020 (5) KHC 496)** to the case in hand since the person who moved the petition for modification of the residence order is the husband and not the father in law as in **Satish Chander Ahuja** 's case (2) there is no change of circumstance so as to invoke Section 25(2) of the Act. 5. The learned counsel for the respondents on the other hand would contend that the principles laid down in **Satish Chander Ahuja's** case is squarely applicable to the fact situation of this case and the learned Magistrate and also the learned Additional Sessions Judge passed a balanced order and no interference is called for by this Court Crl.R.P.472/21 5 while exercising the limited jurisdiction under Section 397 r/w 401 of Cr.P.C. It is also his contention that the respondents are apprehending false allegation and cases at the instance of the petitioner and it would be dangerous for them to stay with the petitioner in the house and hence they have occupied a separate rented house. It is also contended that the 4[th] respondent/brother of 2[nd] respondent is a bachelor and if some unnecessary allegations are raised by the petitioner against him it would tarnish the name and image of the family and hence according to the learned counsel, they are afraid of staying with the petitioner in the house and hence they have started residing in a rented premises. 6. On going through the order passed by the Magistrate as well as that of the Additional Sessions Court, it appears that they were taken away by the contention of apprehension of false accusation at the hands of the petitioner while residing together. Petitioner also had filed C.M.P.No.431/2020 for a direction to respondents 2 to 5 to reside in “Rohini, MRA B 21, Mukkola”. That relief was not considered finding that the act does not provide with any power upon the Magistrate to give a direction to the respondents to stay with the petitioner and the power of the Magistrate is only to give protection order for the aggrieved person and it is also found by the Additional Sessions Court that respondents have every right to live wherever they want. That Crl.R.P.472/21 6 aspect is not further challenged before this Court by the the petitioner. But the grievance as stated earlier, is with regard to the lifting of the residence order and direction to provide alternative accommodation to the second respondent, to find out a suitable alternative accommodation or to pay rent of Rs.8000/-. 7. So the point for determination by this Court is whether the lifting of the residence order by the Magistrate as confirmed by the Additional Sessions Court is liable to be interfered with ? 8. Paragraph 83 of **Satish Chander Ahuja's** case has been followed by the Magistrate ,which reads as below : - “...the right to residence under Section 19 is not an indefeasible right of residence in shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. The senior citizens in the evening of their life are entitled to live peacefully not haunted by the marital discord between their son and daughter-in-law. While granting relief in both in application under Section 12 of the Act, 2005 or in any civil proceedings, the court has to balance the rights of both parties”. 9. It has been found that it would be befitting to provide the petitioner an equivalent alternate accommodation till the disposal of M.C. That Crl.R.P.472/21 7 has been simply followed by the Additional Sessions Judge while confirming that order. But the facts and circumstances in which the order passed by the High Court which has been confirmed by the Apex Court in **Satish Chander Ahuja's** case, has not been gone into either by the Magistrate or by the Additional Sessions Judge. 10. To analyze the situation more vividly, it would be necessary to state brief facts of **Satish Chander Ahuja's** case. That was a case in which father-in-law, the appellant, approached the Apex Court against the modified order passed by the trial court which has been modified by the High Court by granting a provision for providing alternate accommodation. It is to be noted that in that case, the appellant, the father-in-law originally filed a Suit against the daughter-in-law as the defendant for a mandatory and permanent prohibitory injunction and for recovery of damages. The case of the plaintiff/father-in-law that he is a senior citizen aged 76 years and the defendant, the daughter-inlaw is in occupation of two bedroom house with attached kitchen on the first floor. It is his case that he is a heart patient and had undergone Angioplasty and suffers from hypertension and high blood pressure. According to him, the defendant/daughter-in-law filed false criminal case against the plaintiff and his wife and hence he prayed for removal of daughter-in-law from the suit property so as to have a peaceful life. Initially, the trial Court based on the pleadings raised by Crl.R.P.472/21 8 the defendant/wife in the domestic violence case whereby she admitted the plaintiff as the owner of the suit property, granted mandatory injunction on the ground of admission as per Order XII Rule 6 read with Section 151 of the Code of Civil Procedure, 1908, upon the application filed by the plaintiff, father in law in that Suit. Against which daughter-in-law, the defendant, filed RFA before the High Court of Delhi and that was heard along with other five RFAs filed by the respondent and as per common judgment, the High Court set aside the decree of the trial Court and remanded the matter for fresh consideration to the trial Court as per the directions and that directions were extracted in paragraph 56 of the judgment of the High Court. In direction No.2, the High Court directed the trial court that before passing a decree of possession on the premise of ownership rights, it should be ensured that in view of the subsisting rights of the wife under the DV Act, she is provided with an alternate accommodation as per Section 19(1)(f) of the DV Act and that would be continued to be provided to the wife till the subsistence of the matrimonial relationship. That direction was confirmed by the Apex Court while disposing the Appeal filed by the plaintiff/father in law. So the fact situation in **Satish Chander Ahuja's** case and the case in hand has no resemblance at all. 11. In this case nobody has any case that the father-in-law or the Crl.R.P.472/21 9 mother-in-law had filed any Suit for mandatory injunction or possession etc, as against the petitioner, the daughter-in-law. Originally while passing the interim order under Section 23, a residence order was passed in favour of the petitioner. The only reason which could be gathered from the impugned order of the learned Magistrate and also the Sessions Court which prompted them to modify the order vacating the residence order and providing an alternate accommodation to the petitioner is that, the respondents vacated the house, ie, the matrimonial home of the petitioner immediately on the day when the interim residence order was passed by the Magistrate. It is to be noted that, nobody has got any case that by passing the residence order either the courts below ever intended that the respondents in the MC should vacate from the house. Respondents including the husband of the petitioner voluntarily vacated the house as soon as the residence order has been passed and occupied a rented house and thereafter, the husband who is the first respondent in the M.C filed C.M.P.No.437/2020 for modification of the interim order to vacate the residence order passed which resulted in the impugned order. 12. First of all, as has been rightly contended by the counsel for the petitioner, it has to be analyzed whether there existed any change of circumstances in order to pass an order under Section 25(2) for lifting Crl.R.P.472/21 10 the residence order passed in favour of the petitioner. Section 25(2) of the Act expressly provides that the Magistrate on receipt of an application from the aggrieved person or the respondent if satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may for reasons to be recorded in writing, pass such an order as he may deem appropriate. First of all, petition for modification of the order has been filed by the first respondent/husband seeking to provide the petitioner an equivalent alternate accommodation. 13. As rightly pointed out by the learned counsel for the petitioner, no petition for modification of the order has been filed either by the father-in-law or mother-in-law. The finding of the Magistrate which has been confirmed by the Additional Sessions Court quoted paragraph 83 of **Satish Chander Ahuja's** case which has been extracted above, have no application at all since the facts and circumstances are entirely different. 14. Section 17 of the Act confers right upon every woman in a domestic relationship to reside in the shared household whether or not she has any right, title or beneficial interest in the same. Subsection (2) of Section 17 further clarifies that the aggrieved person shall not be vacated or excluded from the shared household or any part of it by the respondent save in accordance with the procedure Crl.R.P.472/21 11 established by law. 15. In **Sathish Chander Ahuja** ’s case father-in-law initiated proceedings for evicting the daughter in law through a due process of law by filing a suit for mandatory injunction and permanent prohibitory injunction. That is not the case here. Father-in-law or mother-in-law has not moved for modification of the interim order passed in favour of the petitioner also. 16. Section 2(s) of the Act defines the shared household as follows :- “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.” 17. Section 17(1) of the Act deals with a right of every woman in a domestic relationship to reside in the shared household not to be excluded from the said home than by due process of law. Section 17 of the Act enacted for the first time protecting the right of residence in Crl.R.P.472/21 12 - favour of such woman. The Act being a beneficial legislation, the Court should adopt a construction to advance the remedy visualized by the Parliament while enacting the Act. A place of abode is a primary need of a human being and by the promulgation of the Act, the Parliament intended to protect that basic need of the woman in the relationship provided therein in shared household. 18. The dictum laid down in **S.R. Batra and Anr. v. Smt. Taruna Batra (2007 (2) SCC (Cri) 56 = AIR 2007 SC 1118 = 2007 (1) KHC 536)** that the wife is entitled only to claim a right under Section 17(1) of the Act, of residence in a shared household and 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 by which the husband is a member is held to be not good law in **Satish Chander Ahuja's** case. 19. So the position of law is settled that house owned or possessed by the father-in-law or the mother-in-law will also come within the purview of Section 2(s) of the Act. So whether the order passed by the Magistrate as confirmed by the Additional Sessions Court directing to provide alternate accommodation to the petitioner based upon a petition for modification of the order filed by the first respondent/husband could be legally sustained or not, is the issue. Facts of the case would go to show that when a residence order under Crl.R.P.472/21 13 Section 23(2) has been passed in favour of the petitioner, respondents 2 to 5 vacated the shared household of the petitioner and started occupying a rented house. If that attitude of the husband and in-laws is accepted, every residence orders passed in favour of the aggrieved person can be modified by giving a direction to provide alternate accommodation on the ground that the husband and the inlaws vacated the house and occupied a rented house. It would result in defeating the right of the aggrieved person in the shared household by resorting to an indirect method. In this particular case, the petitioner is a lady aged 25 years and as per the averments their marriage was a love marriage and was solemnized only on 11.9.2018. The learned counsel for the petitioner also expressed the anxiety oif petitioner living alone in a lonely house alternatively provided by the respondent making her life most insecure in such an young age. 20. It is to be noted in this context that in **Satish Chander Ahuja's** case referred above, the daughter-in-law was having daughters also along with her. A decree of eviction was passed against her by the competent Civil Court and it is while setting aside that order the High Court gave such direction to provide alternate accommodation on satisfaction as to whether there was any unambiguous admission by the daughter-in-law about the ownership of the father-in-law in respect of the Suit premises and further that if she has her defence of Crl.R.P.472/21 14 being dispossessed there from is her right of residence under the DV Act, then the trial Court shall before passing a decree and dispossession on the wife ensuring in view of the subsisting rights of the daughter-in-law under the DV Act to provide with an additional accommodation as per Section 19(1)(f) of the Act. 21. So the right of residence in the shared household to the petitioner/wife cannot be curtailed by providing an alternate accommodation in all cases under Section 19(1) upon a petition filed by the husband on the ground that himself and parents and sibling vacated premises immediately on passing the residence order. It can only be taken as a short cut method indirectly to evict the petitioner forclosing her rights provided under the Act, that is not the purpose for which Section 25(2) of the Act has been introduced. There should be sufficient factors to be satisfied by the court before passing modification of the residence order already passed in favour of the aggrieved person. Here what could be gathered as borne out from the facts and circumstances referred from the impugned orders passed by the Magistrate as confirmed by the Additional Sessions Court is only an act of the husband of the petitioner joining with his parents and brother by taking a rented house and shifting residence from the shared household as soon as residence order has been passed in favour of the petitioner and thereafter filing a petition for modification 15 ## Crl.R.P.472/21 of order under section 25 (2) of the Act. Mere apprehension of legal proceedings against the parents and brother at the instance of the petitioner and shifting residence voluntarily after the residence order passed in favour of an aggrieved person is not a change of circumstances for the husband to move for modification of the order as provided under section 25(2) of the Act. Hence, the impugned order passed is illegal and improper and is liable to be set aside. 22. In the result, revision petition stands allowed and the impugned order set aside restoring the interim order of residence passed in favour of the petitioner. ## **M.R.Anitha, Judge** Mrcs 16 ## Crl.R.P.472/21 ## **APPENDIX OF CRL.REV.PET 472/2021** ANNEXURES Annexure A PHOTOCOPY OF THE APPLICATION PREFERRED BY THE PETITIONER UNDER SECTION 12 OF THE ACT. Annexure B PHOTOCOPY OF THE INTERIM APPLICATION SUBMITTED BY THE PETITIONER. Annexure C PHOTOCOPY OF THE ORDER DATED 30/11/2020 IN CMP NO. 1172/2020 IN MC 707/2020.