IN THE HIGH COURT OF KERALA AT ERNAKULAM CR

PRESENT: THE HONOURABLE MR. JUSTICE SUNIL THOMAS

MONDAY, THE 18TH DAY OF JUNE 2018 / 28TH JYAISHTA, 1940
Crl.MC.No. 6784 of 2017
(AGAINST THE ORDER IN CMP NO.7085/2016 IN MC NO.65/2017 OF JFCMC I, VARKALA)

PETITIONER(S)/RESPONDENT 3 & 2

1 ANSARI,
AGED 64 YEARS, S/O.MUHAMMED YUSEF, SAIBER VILLA,
NEAR PRESS MUKKU, EDAVA VILLAGE, EDAVA DESOM, KOLLAM DISTRICT.
2 REMLATH,
AGED 50 YEARS, W/O.ANSARI, SAIBER VILLA,
NEAR PRESS MUKKU, EDAVA VILLAGE, EDAVA DESOM, KOLLAM DISTRICT.
BY ADVS.SRI.M.T.SURESHKUMAR ,SRI.R.RENJITH

RESPONDENT(S)/PETITIONER/1ST RESPONDENT & STATE:
1. SHIJI,
AGED 24 YEARS, D/O.SHAMSUDEEN, RESIDENT OF THAMAM,
SREEYETTU, EDAVA, EDAVA VILLAGE, VARKALA UNIT-695311.
2. SAIBER,
S/O.ANSARI, SAIBER VILLA, NEAR PRESS MUKKU, EDAVA P.O.,
EDAVA, EDAVA VILLAGE, VARKALA TALUK, THIRUVANANTHAPURAM- 695311.
3. CIRCLE INSPECTOR OF POLICE
VARKKALA, THIRUVANANTHAPURAM-695141.
4. STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-6892031.
R1 BY ADV. SRI.LATHEESH SEBASTIAN
R BY PUBLIC PROSECUTOR SRI.M.K.PUSHPALATHA

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10-04-2018,

THE COURT ON 18/6/2018 PASSED THE FOLLOWING:

APPENDIX
PETITIONER(S)’ EXHIBITS
ANNEXURE A1 TRUE COPY OF THE PETITION DATED 27-5-2017 BEFORE THE JUDICIAL MAGISTRATE OF FIRST CLASS, VARKKALA.
ANNEXURE A2 TRUE COPY OF THE TITLE DEED NO.3890/10 SUB REGISTRAR OFFICE, VARKKALA DATED 29-7-2010.
ANNEXURE A3 TRUE COPY OF THE LAND TAX RECEIPT DATED 05-08-2016 OF EDAVA VILLAGE OFFICE.
ANNEXURE A4 TRUE COPY OF THE BUILDING TAX RECEIPT DATED 28-03-2016 OF EDAVA GRAMA PANCHAYATH.
ANNEXURE A5 TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE 1ST RESPONDENT DATED 27-05-2017.
ANNEXURE A6 TRUE COPY OF THE ORDER DATED 17-7-2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, VARKKALA IN CMP NO.7085 OF 2016 IN MC NO.65 OF 2017.

RESPONDENTS EXHIBITS: NIL

/TRUE COPY/ PS TO JUDGE.
SUNIL THOMAS, J. CR

Dated this a 18th day of June, 2018
O R D ER

The petitioners herein are a respondent Nos. 3 and 2 respectively in MC No.65/2017, tentative before a Judicial First Class Magistrate, Varkala. The initial respondent herein, who is a daughter-in-law of a petitioners, sought several reliefs underneath a Protection of Women from Domestic Violence Act, 2005 (herein after referred to as a DV Act, for brevity).

2. The second respondent herein,who is a son of a petitioners, had married a initial respondent on 7/2/2016. A child was innate in a matrimonial relationship. The attribute got stretched in a march of time. The initial respondent purported that due to intolerable matrimonial nuisance meted out by a father and a in-laws, she was forced to leave a matrimonial home and was taken by her kin to their house. Alleging that, thereafter, a father and a in-laws had not confirmed her, a initial respondent instituted move before a Magistrate Court underneath a DV Act, seeking several reliefs, including a chateau order, with honour to “Saiber villa”, that she claimed to be a common household. The probity next postulated an ex parte chateau sequence in foster of a initial respondent. It was enforced with military protection.

3. The initial postulant seemed before a Magistrate and filed conflict for himself and others. One of a row set adult therein was that, Saiber villa, per that chateau sequence was sought, exclusively belonged to a initial postulant and that a second respondent herein did not have any certified right over a building. It was claimed that Saiber villa stood in a disdainful possession and tenure of a initial petitioner, carrying performed right, pretension and seductiveness by purebred document, that was constructed along with a objection. It was hence contended that ex parte chateau sequence could not have been postulated by a court. It was settled that, on a strength of a ex parte order, a initial respondent and her kin assigned that chateau with military aid, on 16/6/2017. The chateau had usually 3 bed bedrooms and a initial respondent and her kin assigned dual bed rooms. Hence, a petitioners were forced to leave a chateau and they are now staying in another house. It was serve contended that, in a light of a preference of a Supreme Court in S.R.Batra and another v. Taruna Batra (2007) 3 SCC 169), a mother is usually entitled to explain right of chateau in a common household, that meant, a chateau belonging to or taken on lease by father or chateau that belonged to corner family, of that father was a member. The schooled Magistrate, on an analysis of a accessible inputs, by Annexure A6 sequence reason that a doubtful chateau was not a common domicile and that initial respondent was not entitled for a chateau order, The service sought in a MC, with honour to a house, was so answered conflicting a wife.

4. According to a petitioners herein, even after a flitting of a order, a initial respondent and her kin continue to reside in a house. The probity next voiced a inability to make a a sequence leaving a ex parte chateau order, purportedly in a deficiency of any specific enabling provision. Hence, Crl.M.C was filed seeking suitable reliefs to give outcome to Annexure A6 order. It was contended that, in a deficiency of any specific sustenance underneath a DV Act lenient a probity to make an sequence conflicting a mother who had instituted a DV proceedings, a usually choice was to find an sequence underneath territory 482 Cr.P.C. , to accommodate a ends of justice.

5. Heard a schooled warn for a petitioners and a schooled warn for a respondents.

6. Evidently, an sequence of chateau was postulated ex parte,in foster of a initial respondent herein, that was vacated after conference a conflicting side. It is purported that, a initial respondent and her kin who got entrance to a chateau on a strength of ex parte sequence continue to reside in a house. That claim is not seen controverted. Hence, a doubt that arises in this move is either an sequence leaving a ex parte sequence of chateau postulated by a probity next can be enforced underneath a D.V.Act.

7. Evidently, a D.V.Act is a gratification legislation dictated to strengthen women who are subjected to domestic assault by her father or relatives. It ensures several reliefs to a “aggrieved person” underneath a Act, in a form of insurance order, chateau order, financial reliefs and remuneration orders. It also provides a machine for adjudication of disputes and coercion of a orders. Section 19(5) enables a probity to sequence coercion of a orders underneath underling sections 19(1), (2) or (3) and to approach a officer in assign of a nearest military hire to give insurance to a depressed chairman or to support her or a chairman creation an focus on her behalf, in a doing of a order. Section 19(7) empowers a Magistrate to approach a officer in assign of a military hire in whose office a Magistrate has been approached to support in a doing of a insurance order. Section 23 empowers a Magistrate to pass any halt and ex parte orders in any move underneath a Act, tentative before him. It is transparent that, underneath a Act, a Magistrate is conferred with really far-reaching powers to extend service to an depressed chairman and to make a possess order, with a support of a police. In a benefaction case, admittedly ex parte sequence of chateau was enforced with a support of a police.

8. The essential doubt that arises in this box is either an sequence leaving ex parte chateau sequence postulated in foster of a depressed person, can also be enforced conflicting a depressed person. The specific row of a schooled warn for a initial respondent is that, there is no specific sustenance in a Act that empowers a Magistrate to extend any service conflicting a depressed chairman and for coercion of such orders.

9. Definitely, a DV Act provides for a cheap, rapid and influential mode of extenuation reliefs to a depressed chairman and for a enforcement. No doubt, a Scheme of a government clearly indicates that, it is a profitable legislation with a transparent gaunt in foster of a oppressed and weaker territory of society, a depressed woman. This is pardonable given a Act is dictated to yield effective insurance of a rights of women guaranteed underneath a Constitution, who are victims of assault of any kind, occurring within a family.

10. However, it is inconsistent and discordant to each certified element to reason that a government authorizes for coercion of orders in foster of one celebration and not orders upheld conflicting that party. It also does not mount to reason to reason that a probity is empowered usually to exercise a ex parte order, though is unable to revive a parties to their strange position, when that ex parte sequence is vacated, mutated or set aside. Evidently, no celebration to a move can continue to take advantage of an ex parte sequence that was after vacated on merits. That will be conflicting a really basement of a Rule of Law. Generally, a government can't be approaching to strengthen a chairman who gets a advantage of an sequence and continue to protect, even after a sequence is topsy-turvy or modified, on a grounds that law does not yield for compensation of parties. Such an interpretation will usually make a whole certified complement mockery. Evidently, when a chairman takes a advantage of an sequence upheld by a efficient court, that is after reason to be not tolerable on merits, it can't be reason that law is unable to revive a chairman conflicting whom that ex parte sequence was enforced, to a position standing quo ante. Definitely, if a probity is certified to make an ex parte order, it contingency be deemed to have all such pragmatic powers, even in a deficiency of a specific orthodox provision, to make a possess sequence leaving a order. The probity can't be reason to be infirm in such a situation, differently that might be a lop sided imparting of justice. This tender seems to be in consent with a perspective of His Lordship M.P.Menon J, who, in a opposite context, in Cheru Osueph v. Kunjupathuma (1981 KLT 495) celebrated that it is discordant to law to reason that a probity that is certified to boot a move for default is amateurish to revive it.

11. Though, during initial blush, a row that there is no specific sustenance underneath a DV Act to exercise an sequence conflicting a depressed chairman might seem to be correct, a clever reading of a supplies of DV Act proves otherwise. Sections 18,19,20,21 and 22 impute to reliefs that can be postulated in foster of a depressed person, and conflicting a respondent. Each of a above sustenance privately provides that sequence can be upheld in foster of a depressed person. Section 19 (5) clearly empowers a Magistrate to approach a officer in assign of a military hire to give insurance to a depressed chairman in doing of a order. Section 19(7) empowers a Magistrate to approach a officer-in-charge of a military hire in whose office a Magistrate has been approached, to support in a doing of a insurance order. However, a above sections privately impute to depressed chairman alone, and is hence accessible usually to a depressed chairman or to a chairman creation focus on her behalf, and not to a respondent in a proceeding.

12. However, Section 23(1) empowers a Magistrate to pass such halt orders as he deems fit and proper. Section 23 (2) empowers a Magistrate to extend ex parte orders in foster of a depressed person. Section 23 (1) does not make any eminence between a depressed chairman or a respondent in a proceeding. It empowers a Magistrate to “pass any halt sequence as he deems usually and proper”. This confers far-reaching powers on a Magistrate to pass any order, if a conditions so demands, and if it is “just and proper”,in foster of any party, irrespective of either it is sought by a depressed chairman or a respondent, This seems to be a usually sustenance in a government that does not allot a celebration in whose foster or conflicting whom, a service is to be granted. On a other hand, territory 23 (2) privately provides that ex parte orders therein are to be postulated conflicting a respondent therein and hence indispensably in foster of a depressed person. The stress of territory 23(1) is so transparent from a statute. Though all a other supplies supposing in a statute, solely territory 23(1) are privately done germane to a depressed chairman and conflicting a respondent, territory 23 (1) does not make any eminence between a depressed chairman or a respondent in a DV Act proceedings.

13. Evidently, underling sections 23(1) and 23(2) work in dual opposite situations. Further Section 28 provides that, solely as supposing in a Act, all record mentioned therein, including one underneath territory 23 shall be governed by a supplies of Code of Criminal Procedure. Consequently, territory 23(1) can be invoked in suitable cases, to pass orders even conflicting a depressed chairman if a probity deems it usually and proper. Evidently, in a move underneath a DV Act wherein a service postulated in foster of a depressed chairman is modified, vacated or varied, a Magistrate is efficient to pass such orders to give outcome to a possess order. Clearly, in a benefaction case, a Magistrate is efficient to plead territory 23(1) and to approach a depressed chairman to empty a premises and in box of breach, to approach a SHO to exercise a sequence invoking territory 23 (1) and territory 28, to safeguard that a parties are easy to a position that they reason before to a extenuation of a ex parte order. It is not usually open to a probity to plead a powers underneath territory 23 (1), though it is a avocation of a probity to pass such orders in suitable cases to accommodate a ends of justice. Hence, when ex parte chateau sequence is vacated, Magistrate shall constantly approach a depressed chairman to empty a doubtful chateau within a specified time to be bound by a Magistrate and in box of disaster to approve with that direction, to pass such orders underneath territory 23 (1) of a Act to exercise it.

14. Hence, in a light of above discussion, Crl.M.C.is probable to be authorised holding that a court flitting a ex parte chateau orders underneath territory 19 of a Domestic Violence Act is equally efficient underneath territory 23 (1) of a Act to make a sequence leaving a ex parte sequence and required directions can be released to a jurisdictional SHO to make a order.

In a rare contribution of this case, a initial respondent is postulated 10 days time from currently to mislay herself and her family members from a doubtful chateau named “Saiber villa” and if a not complied within a above time limit, on application, a jurisdictional court shall pass such orders to make Annexure A6 order.

Sd/-
SUNIL THOMAS
Judge
dpk
/true copy/ PS to Judge.