Vincent Chirayath v. Dr. P. L. Mary and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932** **Crl.Rev.Pet.No. 338 of 2011()** **------------------------------------------CRA.NO.319/2010 OF SESSIONS COURT, THRISSUR MP.NO.6596/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT I, THRISSUR.** **.....** ## **PETITIONER/APPELLANT/RESPONDENT:** **--------------------------------------------------------------** **VINCENT CHIRAYATH, AGED 57 YEARS, S/O.DEVASSY, CHIRAYATH HOUSE, OPP.DEEPTHI HIGH SCHOOL, THALORE P.O., NOW RESIDING NEAR SURYA EXPORTING COMPANY, KODANNUR P.O., THRISSUR PIN - 680 574.** **BY ADV. SRI.P.CHANDRASEKHAR** ## **RESPONDENT(S): RESPONDENT/PETITIONER/STATE/UNION OF INDIA:** - **---------------------------------------------------------------------------------------------------------** **1. DR.P.L.MARY, AGED 55 YEARS, D/O.LATE P.L.LONAPPAN, PROFESSOR OF PHYSIOLOGY, PONDICHERRY INSTITUTE OF MEDICAL SCIENCES, C/O.P.L.JOSE, PANTHALOORKARAN HOUSE, UNITY ROAD, KURIACHIRA, THRISSUR PIN 680 006.** **2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** **3. THE UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF LAW AND JUSTICE, NEW DELHI.** **R2 BY PUBLIC PROSECUTOR SMT. REKHA C. NAYAR R3 BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/02/2011, THE COURT ON 11/02/2011 PASSED THE FOLLOWING:** **Kss** ## **V.K.MOHANAN,J.** **---------------------------------------------------------Crl.R.P.No. 338 of 2011 --------------------------------------------------------Dated this the 11[th] day of February,2011** ## **O R D E R** The sole respondent, who is none other than the husband of the aggrieved person in an application filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to for short as 'the Act' only) is the revision petitioner. By order dated 19.5.2010 in M.P.No.6596 of 2008, the court of the Judicial First Class Magistrate-I, Thrissur allowed the petition in part granting the following reliefs, in favour of the aggrieved person/wife:- “1. The respondent is restrained from uttering obscene words and from making defamatory statements against the petitioner and also from committing any acts of violence in her working place. 2. The respondent is directed to remove himself from the shared house situated in the 'A' schedule property. 3. The respondent is restrained from committing any mischief to the 'B' schedule items kept in the 'A' schedule house. 4. The respondent is restrained from alienating or from encumbering the property having an extent of 6½ cents comprised in survey No.598/1 of Thrissur village.” ## 2. Aggrieved by the above order of the trial court, the petitioner herein had preferred an appeal before the Sessions ## **Crl.R.PNO.338 of 2011** ## **:-2-:** Court, and by judgment dated 22.10.2010 in Crl.A.No.319 of 2010, the court of Sessions Judge, Thrissur dismissed the above appeal. Thus, the present revision petition is preferred by the husband (hereinafter referred to for short as 'the petitioner' only) who is the appellant in the court below and the respondent in the trial court, challenging the above orders of the court below. 3. From the judgments of the courts below, the case of the first respondent herein (hereinafter referred to for short as 'the aggrieved person' only) is revealed as follows:- According to her, herself and the petitioner herein are belonging to Roman Christian community and their marriage was solemnised on 23.5.1993 and they have adopted a male child in October,2003. According to the aggrieved person, after completing her M.Sc. and Ph.D., she was working as Professor at P.S.G.Medical College, Coimbatore and the petitioner was working at Calcutta. After the marriage, she went to Vienna and Austria in 1994 and she had been there for ## **Crl.R.PNO.338 of 2011** ## **:-3-:** about 2½ years and subsequently, she worked at Coimbatore, Mangalore, Thiruvalla and at Amala Medical College, Thrissur. According to the aggrieved person, the petitioner has no job or income and he was living depending on the income of the aggrieved person. It is the specific case of the aggrieved person that the petitioner began to ill-treat the aggrieved person since 2006 and he had no love and affection towards her. According to her, the petitioner used to interfere with her job and because of his harassment and ill-treatment, the aggrieved person had to resign the job from Amala Medical College on 6.12.2006 and she was assaulted on 20.1.2007. It is also the assertion of the aggrieved person that A schedule property was purchased in the name of the aggrieved person in 2005 as per document No.2216/2005 of S.R.O.,Cherpu. It is also averred that the petitioner has slapped her in the canteen of the Amala Medical College. It is also the case of aggrieved person that on 10.2.2007, the petitioner demanded Rs.5000/from her. According to the aggrieved person, the petitioner ## **Crl.R.PNO.338 of 2011** ## **:-4-:** had withdrawn all the amount from the South Indian Bank deposited in the account and in the name of the aggrieved person. It is also the case of the aggrieved person that when she refused to pay the amount, she was beaten by the petitioner and she had to escape from there along with her son and finally the aggrieved person was constrained to seek shelter to the house of her brother. It is the further case of the aggrieved person that the petitioner had quarrelled with her brother on 11.2.2007 and he had locked the movables worth of Rs.4 lakhs in the building. Thus, according to the aggrieved person, the petitioner has committed the domestic violence against her and he used to abuse her. It is also the case of the aggrieved person that apart from A schedule building, the petitioner has no other place of residence and the petitioner has no right over A and B schedule properties and according to the aggrieved person, she is entitled to get Rs.20 lakhs as damages from the revision petitioner. 4. The contention put forward by the revision petitioner ## **Crl.R.PNO.338 of 2011** ## **:-5-:** in the courts below is that the petition itself was not maintainable and he had not caused any harm or injury either physical or mental to the aggrieved person. But, according to the petitioner, he was physically assaulted and seriously injured on 2.3.2007 at the instance of one Mr.P.L.Jose, who is the elder brother of the aggrieved person and consequently, the Ollur Police had registered a crime for the offence under Section 323 read with Section 34 I.P.C. According to the petitioner, the Family Court, Thrissur has appointed him as the sole guardian of the male child. According to him, it was, at the instance of the petitioner, the aggrieved person was sent to Vienna in Feburary 1994 for her Post-Doctoral studies and the petitioner had met with the expense for the study and the stay of aggrieved person at Vienna. According to the petitioner, he was working as Export Manager of M/s. Jindal Aluminium Ltd. at Bangalore and he went to Vienna at his own merit and obtained appointment as Export Officer at the Embassy of India and he never lived depending on the earnings of the ## **Crl.R.PNO.338 of 2011** ## **:-6-:** aggrieved person. According to the revision petitioner, he had investments in Bank and reputed companies and he is also an Advocate, enrolled after obtaining the L.L.B.Degree from Calcutta University in 1982. The petitioner has denied all the allegations of the aggrieved person that he had treated the aggrieved person cruelly and also the averment that he had assaulted her on 6.12.2006 and on 10.2.2007 at various places. According to the petitioner, the aggrieved person has an intolerable attitude and harsh tongue as a result of which neighbours, colleagues and superiors of the aggrieved person are against her. According to the petitioner, the Kodannur house and property were bought by himself with his own earnings, but in the name of the aggrieved person and the aggrieved person has no case of domestic violence or case of ill-treatment or harassment, in any of the proceedings pending before the Family Court, including the divorce petition or any other petitions pending before the Family Court, Thrissur. It is also the contention of the petitioner that in OP No.1597 of ## **Crl.R.PNO.338 of 2011** ## **:-7-:** 2007 pending before the Family Court, Thrissur, the aggrieved person has already sought each and every one of the same reliefs and obtained a status quo order with regard to the movable household articles and also the Kodannur property covered by document No.2216 of 2005 of the Cherpu Sub Registry. 5. I have heard Sri.P.Chandrasekhar, learned counsel appearing for the revision petitioner and I have carefully perused the judgments of the appellate court as well as the trial court. 6. Learned counsel for the revision petitioner vehemently submitted that the trial court as well as the appellate court issued the impugned orders in favour of the aggrieved person in the absence of any proper, positive and reliable evidence. It is also the submission of the learned counsel that the direction of the court below directing the petitioner to remove himself from the shared house is highly oppressive and unjust especially when the aggrieved person is residing far ## **Crl.R.PNO.338 of 2011** ## **:-8-:** away in Pondicherry. Besides the arguments of the learned counsel based upon the facts and evidence involved in the case, it is also his submission that the Protection of Women from Domestic Violence Act, 2005 is violative of Articles 14,21,25 and 29 of the Constitution of India and is liable to be declared as void, inoperative and non est. 7. I have carefully considered the arguments advanced by the learned counsel for the petitioner and I have carefully perused the judgments of the courts below. 8. Though several grounds are taken in the memorandum of revision petition in support of the contention against the constitutional validity of the Protection of Women from Domestic Violence Act, 2005 as it infringes Articles 14,21,25 and 29 of the Constitution of India, except a casual reference, no detailed argument is advanced on those grounds. It is also the contention of the learned counsel that the orders of the courts below are liable to be set aside as there was no fair and proper opportunity given to the petitioner to substantiate his **:-9-:** ## **Crl.R.PNO.338 of 2011** defence. 9. In the light of the arguments advanced by the learned counsel for the revision petitioner, the question to be considered is whether the courts below are justified in granting such reliefs to the aggrieved person and whether the judgments of the courts below and the findings contained thereon are liable to be interfered with on the ground of any irregularity, illegality or impropriety. 10. The learned counsel for the revision petitioner raised a contention that the Family Court has already issued a status quo in O.P.No.1597 of 2007. Besides the above, according to the learned counsel, the petitioner was appointed as the guardian of the child and the orders now passed by the learned Magistrate, which are confirmed by the appellate court, would amount to interference with the orders passed by the Family Court which is impermissible and highly arbitrary. With respect to the above submission, according to me, as rightly pointed out by the appellate court, in view of Section 26, the ## **Crl.R.PNO.338 of 2011** ## **:-10-:** aggrieved person is entitled to get any relief from a civil court or family court or criminal court even though similar reliefs are available under Sections 18,19,20,21 and 22 of the above Act. So, according to me, the contention raised by the learned counsel in this count also fails. 11. Another argument advanced by the learned counsel is that the revision petitioner was not granted ample opportunity to establish his defence. Therefore, the procedure and orders of the trial court are liable to be set aside. In the light of the procedure adopted by the trial court and the proceedings of the trial court which are mentioned by the revision petitioner in paragraph 5 of the memorandum of Criminal Revision Petition, it can be seen that the aggrieved person and her witnesses were thoroughly cross-examined for and on behalf of the petitioner and besides that, from the side of the petitioner, he himself was examined as RW1 and one of his witnesses was examined as RW2. The above facts itself are sufficient to show that the petitioner was granted ample ## **Crl.R.PNO.338 of 2011** ## **:-11-:** opportunity of being heard including for adducing evidence. Therefore, the above arguments of the learned counsel fail. 12. The main argument advanced by the learned counsel is purely on the basis of the facts and evidence and the materials involved in the case. According to the learned counsel, except the interested version of the aggrieved person, there is no other independent evidence and the evidence of the aggrieved person is not corroborated by any independent source of evidence. According to me, this Court is not expected to re-appraise the evidence in revision. Going by the judgments of the trial court as well as the appellate court, it can be seen that both the courts, being the fact finding courts, after having considered the evidence and materials on record and appreciation of the same and by assigning legal and factual reasons, found that the petitioner has committed domestic violence. Admittedly, the revision petitioner as well as the aggrieved person are highly qualified in education and they are professionals. As rightly observed by the trial court ## **Crl.R.PNO.338 of 2011** **:-12-:** as well as the appellate court, the aggrieved person, as she left with no other remedy, as a last resort approached the court with a complaint against the revision petitioner who is her husband because of the gravity of the harassment and illtreatment meted out against her by the revision petitioner. The observation of the learned Magistrate is that normally no wife would come against her husband with such a petition alleging false allegations in a court of law. Going by the judgment of the appellate court, it can be seen that the aggrieved person has narrated elaborately, specific instances of ill-treatment and harassment including physical assault. It is a common knowledge that the nature of the incidents, which are alleged by the aggrieved person are connected with internal domestic affairs for which naturally, there may not be any independent witnesses. Therefore, the test to be applied is whether the evidence of such aggrieved person is reliable, and trustworthy or whether the same is tainted or unreliable due to any acceptable reasons. The victim of the harassment and ill- ## **Crl.R.PNO.338 of 2011** ## **:-13-:** treatment is the most competent witness to depose about the same. Merely because the victim herself mounted to the box and deposed in terms of her allegations in the complaint, her deposition cannot be thrown away treating the same as interested version. In the present case, though the aggrieved person has cited and examined PW2, her brother, the court below did not accept his evidence and the same was not acted upon. But, the courts below after careful scrutiny of the evidence of the aggrieved person, opted to accept the same, as reliable and acceptable and especially there is nothing to reject such evidence. 13. It is the further submission of the learned counsel that stray incident in a family life cannot be made as a ground for issuing orders like the present one under the various provisions of the above Act. In the light of the facts and circumstances involved in the case, according to me, the above arguments are liable to be rejected. As I indicated earlier, the aggrieved person has specifically stated several incidents of ## **Crl.R.PNO.338 of 2011** ## **:-14-:** harassment and ill-treatment. According to me, the learned counsel advanced such a contention simply because the revision petitioner himself, while he was examined as RW1, admitted certain instances of ill-treatment and harassment. The appellate court in paragraph 9 of its judgment has stated that when the petitioner was cross-examined as RW1, it is admitted by him that he had informed PW1, the aggrieved person that he would destroy her carreer and that PW1 had agony on hearing this. It is also observed by the learned Sessions Judge that RW1, the petitioner admitted that there was scuffle between the revision petitioner and the aggrieved person and the wedding chain of PW1 aggrieved person was broken in the scuffle. RW1 has again admitted that the character and conduct of the aggrieved person are intolerable and the said averment in the counter is correct. The above admission of the revision petitioner during his crossexamination regarding those incidents, render credibility of the evidence and averments of the aggrieved person, i.e., she ## **Crl.R.PNO.338 of 2011** ## **:-15-:** was subjected to cruel ill-treatment and harassment. As rightly observed by the learned Sessions Judge, even the verbal and emotional abuse amount to domestic violence in view of Section 3 of the above Act. So the findings of the courts below regarding the domestic violence meted out against the aggrieved person from the part of the revision petitioner are based upon clear evidence and therefore, the first relief granted in favour of the aggrieved person is absolutely correct and legal. 14. Admittedly, Ext.P1 document would show that the property shown in 'A' Schedule property was purchased in the name of the aggrieved person. According to her, the said property was purchased by using her own money. Though the revision petitioner has got a case that the said property was purchased by him with his own money, but in the name of the aggrieved person, there is no evidence to substantiate such claim, but the documentary evidence like Ext.P1 would show that it is in the name of the aggrieved person. The revision ## **Crl.R.PNO.338 of 2011** ## **:-16-:** petitioner has also admitted that the aggrieved person has no other house apart from the house in the A schedule property. Therefore, the relief granted by the court below under Section 19 in favour of the aggrieved person is fully justified. 15. The trial court as well as the appellate court have found that the revision petitioner, as evidenced by receipt dated 30.5.2010, has removed 13 items from the building. It is also relevant to note that as rightly observed by the appellate court, the prayer in I.A.No.4893 of 2007 in O.P.No.1597 of 2007 was only to restrain the revision petitioner from causing damages or not to remove the items specified in B schedule. But, as evidenced by receipt dated 30.5.2010, the revision petitioner has removed 13 items. So according to me, the court below rightly ordered the third relief in favour of the aggrieved person and against the revision petitioner and the same does not warrant any interference. 16. With respect to the fourth relief granted in favour of the aggrieved person, I am of the view that the facts and ## **Crl.R.PNO.338 of 2011** ## **:-17-:** circumstances and evidence involved in the case would justify in granting such a relief though the petitioner has claimed that the property lying in Sy.No.598/1 of the Thrissur Village is the ancestral property of the revision petitioner. According to the courts below, it has come out in evidence that the multistoreyed building in the above property was constructed by availing loan from the bank and the aggrieved person was a guarantor to the said loan. The court below observed that when the revision petitioner was examined as RW1, he had admitted that he had availed of a loan from the Bank and the salary certificate of the aggrieved person was given to the Bank as collateral security. He had also admitted that there is a three storeyed incomplete building in the said property. If that be so, in the light of the fact that the relationship between the petitioner and his wife got strained, the apprehension of the aggrieved person cannot be said to be baseless since in case the revision petitioner disposes of the property, the financial liability connected with the said loan would be on the ## **Crl.R.PNO.338 of 2011** ## **:-18-:** shoulder of the aggrieved person. Therefore, the court below has correctly granted the fourth relief which does not require any interference. 17. Though there was no much argument regarding the vires of the Act viz., the Protection of Women from domestic Violence Act,2005 I am of the view that the grounds taken in the memorandum of the Crl.R.P. are not sustainable in the light of the decision of the Division Bench of the Delhi High Court in **Aruna Parmod Shah** v. **Union of India** [2008(2) Crimes 714(Del.)] In the above decision, it is held as follows:- “3. Learned counsel for the petitioner has assailed the vires of the Act on the ground that inasmuch as it provides protection only to women and not to men, the statute offends Article 14 of the Constitution of India. It is beyond cavil that legislation must be presumed to be legally sound and proper, and therefore,the burden of proving that it is unconstitutional rests heavily on the petitioner who asserts so. It has been laid down that if it is evident that a statute is predicated on an intelligible differentia between persons falling within the protection of the provision viz-a-viz those falling outside, and this classification/differentia bears a reasonable nexus to the object sought to be achieved by the legislation, it would not infract or impinge upon the equality doctrine articulated and enshrined in Article 14 of the Constitution, we can do no ## **Crl.R.PNO.338 of 2011** ## **:-19-:** better than to reproduce the following paragraph from State of A.P. v. Nallamilli Rami Reddi, 2001 KHC 1632: 2001 (7) SCC 708: AIR 2001 SC 3616 which has also been relied upon in Basheer v. State of Kerala, 2004 KHC 540: 2004(3) SCC 609: 2004(2) KLT 39: AIR 2004 SC 2757: 8. What Article 14 of the Constitution prohibits is 'class legislation' and not 'classification' for purpose of legislation, if the legislature reasonably classifies persons for legislative purposes so as to bring them under a well defined class, it is not open to challenge on the ground of denial of equal treatment that the law does not apply to other persons. The test of permissible classification is two fold: (i) that the classification must be founded on intelligible differentia which distinguishes persons grouped together from others who are left out of the group and (ii) that differentia must have a rational connection to the object sought to be achieved. Article 14 does not insist upon classification, which is scientifically perfect or logically complete. A classification would be justified unless it is patently arbitrary, if there is equality and uniformity in each group, the law will not become discriminatory, though due to some fortuitous circumstance arising out of (sic) peculiar situation some included in a class get an advantage over others so long as they are not singled out for special treatment, in substance, the differentia required is that it must be real and substantial, bearing some just and reasonable relation to the object of the legislation. 4. Domestic violence is a worldwide phenomenon and has been discussed in International Fora, including ## **Crl.R.PNO.338 of 2011** ## **:-20-:** the Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995). The United Nations Committee Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) has recommended that States should act to protect women against violence of any kind, especially that occurring within the family. There is a perception, not unfounded or unjustified, that the lot and fate of women in India is an abjectly dismal one, which requires bringing into place, on an urgent basis, protective and ameliorative measures against exploitation of women. The argument that the Act is ultra vires the Constitution of India because it accords protection only to women and not to men is, therefore, wholly devoid of any merit. We do not rule out the possibility of a man becoming the victim of domestic violence, but such cases would be few and far between, thus not requiring or justifying the protection of Parliament.” After considering the various provisions of the above Act and challenge against the constitutionality of the above Act, the Delhi High Court in the above decision has held that “the challenge to the vires of the Protection of Women from Domestic Violence Act is misconceived and devoid of merit”. In the present revision petition also, the vires of the Act is challenged on the ground that inasmuch as it provides protection only to women and not to men, the statute offends Article 14 of the Constitution of ## **Crl.R.PNO.338 of 2011** **:-21-:** India. In the light of the similarity of the grounds in the present Crl.R.P. and the case indicated above with respect to the challenge of the vires of the above Act, I am of the view that the above decision is squarely applicable in the present case and in the light of the above decision, the challenge of the petitioner against the above Act fails. 18. In the light of the above facts and circumstances and discussions, I find no merit in the revision petition and the judgments of the courts below are perfectly legal, proper and correct and reliefs granted in favour of the aggrieved person are only just and proper and the same are confirmed. In the result, as there is no merit in the revision petition, the same is dismissed. **V.K.MOHANAN, Judge.** MBS/ ## **Crl.R.PNO.338 of 2011** **:-22-:**