MyNation KnowledgeBase

Landmark Judgments and Articles on Law

Register to Download

Women can be vacated from Parents residence if she remove Residence Rights underneath DV case

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.

READ  SC: Precaution to be taken by court before Granting police aid for Execution of decree

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.

READ  DNA report can be challenged only on ground of tampering with accused’s blood sample at any stage

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.

READ  SC : live-in Relationship is permissible in India

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.

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2021 MyNation KnowledgeBase
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, though No Lawyer will give we Advice like We do

Please review Group Rules – CLICK HERE, If You determine afterwards Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We hoop Women Centric inequitable laws like False Section 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

READ  SC : live-in Relationship is permissible in India
MyNation FoundationMyNation FoundationMyNation Foundation