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High Court of KeralaSingle JudgeDismissed

SUBAIDATH vs STATE OF KERALA & ORS

Case / Petition Number:Crl.Revision Petition No.5 of 2020

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P.G. Ajithkumar
Judgment Date
2024-07-24
Court Decision / Holding
Revision petition dismissed. The High Court upheld the appellate court’s denial of a residence order, affirmed maintenance at ₹4,000 per month for the petitioner and her son, and upheld compensation for mental trauma. It found that since the petitioner has her own house (Ext. D1), invocation of Section 19 DV Act was unwarranted; constructive residence doctrine was applied but did not alter the outcome in favor of the petitioner.
Final Disposition
Dismissed

Parties to the Case

Appellants / Petitioners

  • Subaidath

Respondents

  • State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam
  • Ibrahim Kutty
  • Mohammed Kunju
  • Aisha Kunju
  • Sathar

Legal Representation & Advocates

Counsels for Petitioners

  • • R. Lakshmi Narayan
  • • Smt. R. Ranjanie
  • • Sri. M. Ashok Kini

Counsels for Respondents

  • • Sri. R. Satish Kumar

Case Synopsis & Summary

This Kerala High Court judgment concerns Crl. Revision Petition No.5 of 2020 filed by Subaidath challenging partial relief granted in MC No.79 of 2011 and the subsequent appellate order in Crl.Appeal No.97 of 2018. The petitioner sought protection under the Protection of Women from Domestic Violence Act, 2005 (DV Act), a residence order in the shared matrimonial home, and monetary relief for herself and her son (now major). The Trial Court of the Judicial Magistrate, Sasthamcotta, held no domestic violence in the sense of the DV Act and refused a residence order since the petitioner had her own house. The VI Additional Sessions Judge, Kollam, on appeal, modified the order, denying a residence order but allowing monetary relief and awarding compensation for mental trauma (₹1,00,000) and enhancing maintenance to ₹4,000 per month for the petitioner and her son. The petitioner argued the neglect and expulsion from the matrimonial home amounted to domestic violence and that constructive residence should be enough to grant a residence order in light of established jurisprudence. The High Court accepted that constructive residence principle exists but noted the petitioner’s own property Ext. D1 (A.R. Manzil) and observed that Section 19 of the DV Act need not be invoked when she resides in her own house. Relying on Prabha Tyagi v. Kamlesh Devi for constructive residence, the Court affirmed the lower courts’ findings on residence and monetary relief, and dismissed the revision petition.

Provisions of Law Cited

Criminal Procedure Code, 1973 (Section 397 read with Section 401)Protection of Women from Domestic Violence Act, 2005 (Section 19)Indian Evidence Act, 1872 (Section 92)

Legal Doctrines & Maxims

  • Constructive residence is sufficient to claim residence in the shared household (as per Prabha Tyagi v. Kamlesh Devi, (2022) 8 SCC 90)
  • Talaq, if prima facie valid, remains in force and must be acted upon until challenged in the proper forum

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that she and her minor son faced mental and physical harassment after separation; she was expelled from the matrimonial home; she seeks protection, a residence order, and monetary relief under the DV Act. She argues that the 2nd respondent’s neglect constitutes domestic violence. Although the 2nd respondent claimed talaq and remarriage, the main dispute is whether a residence order is warranted given she has her own house (Ext. D1). The petitioner asserts that the courts below erred in denying reliefs and that constructive residence should be recognized to grant protective orders under the DV Act. She also challenges the monetary relief awards.

Contentions of Respondents

The respondents deny domestic violence, noting the petitioner’s own house where she resides and the absence of exclusive occupancy rights in the matrimonial home. They point to the ex-serviceman’s income and obligations, including maintenance for his current wife. They argue the evidence on gold ornaments and cash is vague and insufficient to support enhanced monetary claims. They contend the provision of Section 19 DV Act is not applicable where the petitioner already has a residence in her own property, and support the appellate court’s maintenance determination and compensation while denying a residence order.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Prabha Tyagi v. Kamlesh Devi[(2022) 8 SCC 90]PositiveThe court cites Prabha Tyagi to support the doctrine of constructive residence in shared households and uses it to evaluate the petitioner’s claim in light of her own house.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 24[TH] DAY OF JULY 2024 / 2ND SRAVANA, 1946 CRL.REV.PET NO. 5 OF 2020** **AGAINST THE JUDGMENT DATED 08.11.2019 IN CRA NO.97 OF 2018 OF THE ADDITIONAL SESSIONS COURT-VI, KOLLAM ARISING OUT OF THE JUDGMENT DATED 29.11.2017 IN MC NO.79 OF 2011 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT,** ## **SASTHAMCOTTA** ## **REVISION PETITIONER/APPELLANT/PETITIONER:** **SUBAIDATH AGED 45 YEARS W/O.IBRAHIM KUTY, A.R.MANZIL, PUTHENSANKETHAM MURI, THEVALAKKARA VILLAGE, KARUNAGAPPALLY TALUK.** **BY ADVS. R.LAKSHMI NARAYAN SMT.R.RANJANIE SRI.M.ASHOK KINI** ## **RESPONDENTS/RESPONDENTS 1 TO 4 & 6/STATE & RESPONDENTS 1** **TO 3 & 5:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **2 IBRAHIM KUTTY, SAINABA MANZIL (THUNDIL VEEDU), PALLISSERIKKAL MURI, SASTHAMCOTTA VILLAGE, KUNNATHUR TALUK, PIN-690 540.** - **3 MOHAMMED KUNJU, AGED 62 YEARS S/O.HYDROSKUNJU, THUNDIL VEEDU, PALLISSERIKKAL MURI, SASTHAMCOTTA VILLAGE, KUNNATHOOR TALUK, PIN-690 540.** 2 Crl.Revision Petition No.5 of 2020 - **4 AISHA KUNJU, AGED 58 YEARS KADATHUVILAYIL, PALLISSERIKKAL MURI, SASTHAMCOTTA VILLAGE, KUNNATHOOR TALUK, PIN-690 540.** **5 SATHAR, AGED 38 YEARS KADATHUVILAYIL, PALLISSERIKKAL MURI, SASTHAMCOTTA VILLAGE, KUNNATHOOR TALUK, PIN-690 540.** **R1 BY SMT.PUSHPALATHA M.K., SR.PUBLIC PROSECUTOR R2, R4 & R5 BY ADV SRI.R.SATISH KUMAR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 09.07.2024, THE COURT ON 24.07.2024 DELIVERED THE FOLLOWING:** 3 Crl.Revision Petition No.5 of 2020 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Revision Petition No.5 of 2020 ----------------------------------------------------------Dated this the 24[th] day of July, 2024** ## **O R D E R** The petitioner in M.C.No.79 of 2011 on the files of the judicial Magistrate of the First Class, Sasthamcotta filed this revision petition. She filed the said M.C. claiming protection order, residence order and monetary relief. It was allowed only partly. She preferred Crl.Appeal No.97 of 2018 and the VI Additional Sessions Judge, Kollam allowed the appeal in part. Aggrieved thereby this revision petition has been filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Code). 2. Heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel for the respondents No.2, 4 and 5. 3. The petitioner was given in marriage to the 2[nd] respondent on 11.09.2000. The 2[nd] respondent was in Military Service and retired in the year 2009. The relationship 4 Crl.Revision Petition No.5 of 2020 between the petitioner and the 2[nd] respondent was estranged and they have been living separately. The 2[nd] respondent claimed that he pronounced talaq. The petitioner contending that she as well as her minor son (who is now a major) were expelled from the matrimonial home and were being subjected to mental and physical harassment, claimed a protection order, right to reside in the matrimonial home and maintenance. Both sides adduced evidence. The trial court found that the 2[nd] respondent did not commit any domestic violence in the nature of physical or mental torture and that the petitioner although has a right to claim an order of residence, she having a house of her own, was not entitled to get an order of residence. In regard to the maintenance, the trial court found that in consideration of the monthly income of Rs.7,890/- received by the 2[nd] respondent, the petitioner and her son were eligible to get Rs.3000/- each. The claim for compensation and other monetary claims were declined. 4. The appellate court considered the evidence in detail. There was no much contest concerning protection order 5 Crl.Revision Petition No.5 of 2020 before the appellate court. In regard to the residence order, the appellate court took the view that the petitioner having been the owner of 8.33 Ares of land along with a building, which she obtained as per Ext.D1 partition deed, she was not entitled to get an order of residence. The monetary claims concerning gold ornaments and cash payments were declined for want of evidence. In consideration of the mental trauma suffered by the petitioner on account of the separation of marital relationship, an amount of Rs.1,00,000/- was ordered to be paid as compensation to the petitioner. Amount of monthly maintenance was enhanced to Rs.4,000/- each to the petitioner and her minor son. 5. The petitioner assails all the findings, which the courts below concurrently had. It is the submission of the learned counsel for the petitioner that when there was neglect to maintain the petitioner and her son, and they were expelled from the matrimonial home, which belongs to the 2[nd] respondent, that amounts to domestic violence. The building covered by Ext.D1 is not available for the petitioner’s 6 Crl.Revision Petition No.5 of 2020 exclusive occupation and therefore the findings of the courts below that she is not entitled to get even an alternative accommodation is incorrect. Also, the findings in regard to the monetary reliefs, including maintenance, are also assailed. A _talaq_ was pronounced by the 2[nd] respondent dissolving the marriage between himself and the petitioner is not refuted. But the contention of the petitioner is that the _talaq_ is not valid. 6. True, the validity or otherwise of the _talaq_ is a matter to be decided by the appropriate forum. If the _talaq_ is _prima facie_ valid and it remains to be in force without being challenged, the same has to be acted upon. However, that question has no much relevance here. The 2[nd] respondent remarried and lives with the present wife. The petitioner is the owner of a house named A.R.Manzil as she obtained the same by virtue of Ext.D1. When the recitals in Ext.D1 proves that fact and the revenue records show her occupation of the building, she is debarred from adducing oral evidence contrary to the said terms in view of the provisions of Section 92 of the 7 Crl.Revision Petition No.5 of 2020 Indian Evidence Act, 1872. When the petitioner has a house of her own and the evidence came on record is to the effect that she has been residing in that house; and not in the matrimonial home, the necessity of invoking the provisions of Section 19 of the Protection of Women from Domestic Violence Act, 2005 in her favour does not arise. 7. The Apex Court in **Prabha Tyagi v. Kamlesh Devi** **[(2022) 8 SCC 90]** held that in order to claim right to residence in the shared household, the wife need not prove actual residence in the shared household; constructive residence is enough. Even, that principle does not help the petitioner to claim an order of residence since she has a house of her own and concerning her peaceful residence along with her son, there can be no concern. The view taken by the courts below in that regard cannot therefore be said to be perverse or illegal. 8. The evidence of PW1, the petitioner and PW2, her cousin, are relied on to prove handing over of gold ornaments and money. Their versions in that regard are too vague to be 8 Crl.Revision Petition No.5 of 2020 acted upon. After having a detailed consideration only the courts below took the view that the monetary claims are unsupported by reliable evidence. There is no reason to deviate from the said findings. 9. The fact that the 2[nd] respondent is an Exserviceman is beyond dispute. He admitted that he is working as a security personnel. After considering the income he has been drawing, and also the other obligations including maintenance of his present wife, his personal needs of treatment, etc. the appellate court fixed the quantum of monthly maintenance as Rs.4,000/- each. Having the son attained majority, the 2[nd] respondent may not have the obligation to continue payment to him. In the facts and circumstances of this case, I do not think that the amount of maintenance ordered by the appellate court is inappropriate. In the circumstances, this revision petition deserves only to be dismissed. Accordingly, this petition is dismissed. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr