Sreeja and Adhythian (Minor) v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **MONDAY, THE 05TH DAY OF OCTOBER 2020 / 13TH ASWINA, 1942** **Crl.Rev.Pet.No.404 OF 2010** **CRA 76/2009 OF SESSIONS COURT, THIRUVANANTHAPURAM** **CMP 5122/2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KATTAKADA** ## **REVISION PETITIONER/S:** |**1**|**SREEJA, W/O LATE SHIBUMON, PONNAMBALAM VEEDU,**| |---|---| ||**ARAYATTUKONATHU PEYAD,, NEYYATTINKARA TALUK,**| ||**THIRUVANANTHAPURAM DIST.**| |**2**|**ADHYTHIAN (MINOR), S/O.LATE SHIBUMON, PONNAMBALAM**| ||**VEEDU, ARAYATTUKONATHU PEYAD,, NEYYATTINKARA**| ||**TALUK, THIRUVANANTHAPLURAM DIST. REPRESENTED BY**| ||**HIS MOTHER AND NATURAL GUARDIAN (1ST PETITIONER).**| **BY ADV. SRI.BIJU BALAKRISHNAN** ## **RESPONDENT/S:** - **1 STATE OF KERALA, THE PUBLIC PROSESCUTOR, HIGH COURT OF KERALA, ERNAKULAM.** - **2 VIKRAMAPANICKER, INDIRA BHAVAN, PALOTTUVILA, MALAYINKEEZHU P.O., THIRUVANANTHAPURAM.** - **3 INDIRA, W/O.VIKRAMAPANICKER, INDIRA BHAVAN, PALOTTUVILA, MALAYINKEEZHU P.O., THIRUVANANTHAPURAM.** - **4 JAYAKUMAR, INIDRA BHAVAN, PALOTTUVILA, MALAYINKEEZHU P.O., THIRUVANANTHAPURAM. R2-4 BY ADV. SRI.B.SATHIQ** ## **OTHER PRESENT:** ## **SR.PP.M.S.BREEZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.Rev.Pet.No.404 OF 2010 **==> picture [31 x 8] intentionally omitted <==** ## **ORDER** Dated this the 5[th] day of October, 2020 The revision petitioners were the petitioners in CMP No.5122 of 2008 on the file of the Judicial First Class Magistrate Court, Kattakada, seeking to get appropriate relief under Section 12 of the Protection of Women from Domestic Violence Act, 2005. By its order dated 29.12.2008, the learned magistrate directed respondents 2 to 4 herein, who were respondents 1 to 3 in the CMP, to return 45 sovereigns of gold ornaments to the revision petitioners within a period of one month from the date of the order. The 3[rd] respondent/2[nd] respondent was directed to transfer ten cents of land comprised in Sy.No.409/16-1, which is in the name of the 3[rd] respondent/2[nd] respondent to the 2[nd] revision petitioner/2[nd] Crl.Rev.Pet.No.404 OF 2010 ..3.. petitioner within a period of one month from the date of the order and in the event of failure, the 3[rd] respondent/2[nd] respondent was directed to execute conveyance in favour of the 2[nd] revision petitioner/2[nd] petitioner. The 4[th] respondent herein, who was the 3[rd] respondent in the CMP, and respondents 2 and 3 herein, who were respondents 1 and 2 in the CMP, preferred Crl.Appeal Nos.75 of 2009 and 76 of 2009 respectively before the Sessions Court, Thiruvananthapuram, challenging the order in CMP No.5122 of 2008. By its common judgment dated 10.08.2009, both the appeals were allowed, wherein the order of the trial court directing the 3[rd] respondent/2[nd] respondent in CMP to execute a conveyance deed in respect of 10 cents of property covered by Exts.P3 and P5 documents in favour of the 2[nd] revision petitioner/2[nd] petitioner in CMP is set aside without prejudice to the right of Crl.Rev.Pet.No.404 OF 2010 **==> picture [31 x 8] intentionally omitted <==** the aggrieved person to get her remedy through the civil court. Feeling aggrieved, the revision petitioners/petitioners in CMP are before this Court. 2. The parties are hereinafter referred to as the petitioners and respondents according to their status in the trial court unless otherwise stated. 3. Respondents 1 and 2 are the father in law and mother in law of the 1[st] petitioner respectively. The 3[rd] respondent is the son in law of respondents 1 and 2. The marriage between the 1[st] petitioner and the son of respondents 1 and 2 was solemnized on 17.08.2003. On 17.08.2007, the husband of the 1[st] petitioner died of cancer. In connection with his treatment, it is alleged that, respondents 1 and 2 received an amount of Rs.4,00,000/- and 60 sovereigns of gold ornaments from the aggrieved. The 2[nd] Crl.Rev.Pet.No.404 OF 2010 ..5.. respondent executed a settlement deed No.296/07 dated 19.01.2007 of the Sub Registry, Malayinkeezhu in favour of her son, Shibumon. On 10.12.2006, the right hand of Shibumon was amputated due to cancer at the Regional Cancer Centre, Thiruvananthapuram. Thereafter, respondents 1 to 3 fabricated a sale deed in favour of the 2[nd] respondent on 17.03.2007 as per sale deed No.1221/2007 of the Malayinkeezhu Sub Registry Office. It is alleged that after the death of the 1[st] petitioner's husband on 17.08.2007, both the petitioners were forcibly evicted from the matrimonial home. It is further alleged that household articles and other valuable gifts, which were entrusted to the respondents at the time of marriage, are still under the custody of respondents 1 to 3. Hence, CMP No.5122 of 2008 was filed before the Judicial First Class Magistrate Court, Kattakada, to return the Crl.Rev.Pet.No.404 OF 2010 **==> picture [31 x 8] intentionally omitted <==** gold ornaments and also to get the sale deed executed in favour of the 2[nd] respondent set aside. 4. Although the trial court allowed the application, the appellate court relied on the decision in **S.R.Bhadra and Another** v. **Smt.Tharuna Bhadra** [AIR 2007 SC 1118] and held that the wife is not entitled to get accommodation in the shared household, which was belonging to the mother in law or any other third person, where the husband of the aggrieved person has no right. The appellate court held that there is nothing on record to show that the deceased had any right in the residence as claimed by the petitioner. Further, no evidence was adduced to prove that she was in possession of the gold ornaments when she came to the house after the death of the deceased. The appellate court has taken into consideration the averments in the Crl.Rev.Pet.No.404 OF 2010 **==> picture [31 x 8] intentionally omitted <==** counter that proceedings have been pending before the Family Court in this regard as well. Hence, the appellate court allowed the appeal without prejudice to the rights of the revision petitioners to seek appropriate remedies through the civil court. 5. When the revision petition has come up for hearing, the learned counsel for the revision petitioners submits that OP No.1401 of 2007 is pending before the Family Court, Nedumangad between the parties. The submission is recorded. 6. On a perusal of the evidence on record, it is clear that OP No.1401 of 2007 is pending before the Family Court, Nedumangad between the parties. The appellate court has taken into consideration the entire aspects in detail and allowed the appeal on merits leaving open the remedies of the revision petitioners through the civil court in this Crl.Rev.Pet.No.404 OF 2010 **==> picture [31 x 8] intentionally omitted <==** regard. Hence, no interference is warranted in revision. In the result, the revision petition stands dismissed without prejudice to decide the dispute between the parties in OP No.1401 of 2007 on the file of the Family Court, Nedumangad. Pending applications, if any, stand disposed of. ## **Sd/-** **N.ANIL KUMAR** **JUDGE** Bka/05.10.2020