Dismissed

S.Prabhakaran v. State of Kerala

Kerala HC6 Jun 2008Crl.MC/845/2008

Case brief

AI extract

What is this about?

This criminal miscellaneous petition challenged a Magistrate's order under the Protection of Women from Domestic Violence Act, 2005, which granted a residence order against a wife in her in-law's house. The High Court held the house was a 'shared household' under the Act's inclusive definition and dismissed the petition.

What did the court decide?

The petition under Section 482 CrPC was dismissed; the residence order passed by the Magistrate under Section 19 of the POCSO Act was upheld.

S.Prabhakaran Vs State of Kerala — Domestic Violence | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE A.K.BASHEER

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FRIDAY, THE 6TH JUNE 2008 / 16TH JYAISHTA 1930

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Crl.MC.No. 845 of 2008

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------------------------------CRMP.1554/2008 of JUDL.MAGISTRATE OF FIRST CLASS-III, PUNALUR

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PETITIONER:

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S. PRABHAKARAN, S/O.LATE KANNAN KUZHUMBIL VEEDU, AMBALATHUMKALA P.O. KOTTARAKKARA, KOLLAM DISTRICT.

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BY ADV. SRI.B.MOHANLAL

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RESPONDENTS:

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STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE KOTTARAKKARA POLICE STATION, KOLLAM DISTRICT THROUGH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.

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SHINY PRABHA, D/O.VASUDEVAN SHINY BHAVAN, PIRAVANTHOOR P.O. PATHANAPURAM TALUK, KOLLAM DISTRICT.

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K.P.SAJI, KUZHUMBIL PUTHEN VEEDU AMBALATHUMKALA P.O., KOTTARAKKARA KOLLAM DISTRICT, NOW RESIDING AT SAYANA TOURIST HOME, PATHANAPURAM P.O. KOLLAM DISTRICT.

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PUBLIC PROSECUTOR SRI.P.A.SALIM. SRI. K.SHAJ FOR R2 SRI.B.BALRAJ FOR R2

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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A.K. BASHEER, J.

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 845 of 2008

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6^th day of June, 2008 Order

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In this petition filed under Section 482 of the Code of Criminal Procedure , Annexure IV order passed under Sections 18, 19 and 20 of the Protection of Women from Domestic Violence Act 2005 (for short the Act) is under challenge.

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By the impugned order the learned Magistrate has restrained the petitioner's son (respondent No.3 herein) from “disturbing the peaceful possession and enjoyment” of the residential building by his wife (respondent No.2) and from inflicting any type of mental and physical torture to her until further orders. The Sub Inspector of the local Police Station has also been directed to give protection to the wife and assist her to implement the “residence order”.

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Petitioner , who is the father-in-law of respondent No.2, claims that the order issued by the learned Magistrate under Section 19 of the Act is ex facie illegal and unsustainable. He was not a party to the proceedings before the court below. He contends that he has got absolute right, title and interest over the said residential building to the exclusion of his son. However he admits that respondent No.2 had resided in the said building as his daughter-in-law for a short duration.

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CrlMC.845/2008. 2

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According to the petitioner, since his son did not have any kind of right over the residential building, the learned Magistrate was not justified in issuing a “residence order” as contemplated under Section 19 of the Act, on the sole ground that she had resided in that building as his daughterin-law. He further contends that the residential building will not fall within the ambit of 'shared household' as defined under Section 2(s) of the Act.

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Per contra, it is contended on behalf of respondent No.2 (hereinafter referred to as the wife) that the residential building had been constructed by her and her husband very near to the existing ancestral home belonging to the petitioner, utilising their joint funds. Learned counsel submits that as far as the wife is concerned, the residential building in question is the matrimonial home. Further, even assuming the building belongs to the petitioner, her husband being a legal heir of the petitioner having a share in the property, the learned Magistrate was justified in issuing the impugned order. It is pointed out by the learned counsel that the wife had been residing in the said house ever since her marriage in 1998 till May 2007.

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It is not in dispute that petitioner's son had married respondent No.2 in the year 1998. According to the wife, she was residing with her husband initially in the ancestral home of her husband's parents. But later,

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CrlMC.845/2008. 3

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a new building was constructed adjacent to the ancestral house and thereafter she had been living with her husband in the said new building for the last few years. In May 2006 some misunderstanding arose between the husband and wife. It is alleged by the wife that she was subjected to harassment while residing in that house.

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It appears that the Protection Officer had submitted a “domestic incident report” under Sections 9(B) and 37(2) (c) of the Act before the Judicial Magistrate of First Class, II, Punalar. A copy of the said report is on record as Annexure R2(e). In the said report the Officer had shown the period of incident of domestic violence as from May 31, 2006 till May 24, 2007.

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In her application filed by the wife before the Magistrate under Sections 18, 19 and 20 of the Act, she alleged that she was rescued from the matrimonial home , where she was put under confinement, with the help of Kottarakkara Police. She further alleged that she was not being allowed to enter the matrimonial home and that she apprehended danger to her life at the hands of her husband. It was in the above circumstances that the learned Magistrate had passed the impugned order after considering the averments made by the wife in the above application.

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The husband had denied the allegations in the petition and

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CrlMC.845/2008. 4

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contended that the residential building in respect of which the wife had sought residence order, did not belong to him. He further stated that he had filed a petition for divorce and that his wife had been harassing him by filing false cases.

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The learned Magistrate while repelling the contentions raised by the husband took the view that the claim made by the wife was just and reasonable and that as an interim measure an order of residence and protection had to be issued.

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In this context it may be pertinent to note that the husband had challenged the above order (which is impugned in this case) before the Sessions Court, Kollam in Crl.A.No.112/2008. The sessions Court did not interfere with the order passed by the learned Magistrate and dismissed the same. A copy of the judgment is on record as Annexure A2(g).

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Petitioner who was not a party to the proceedings before the learned Magistrate has preferred this petition seeking to invoke the inherent power of this Court under Section 482 of the Code.

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The thrust of the argument of the learned counsel for the petitioner is based on the definition of 'shared household' contained in Section 2(s) of the Act which is extracted hereunder:

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“2 (s) 'Shared household' means a

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household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondents, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.” (emphasis supplied)

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Learned counsel submits that even assuming respondent No.2 had resided in the house as his daughter-in-law for a short duration, she is not entitled to get an order in her favour under Section 19 of the Act, since her husband did not have any manner of right, title or interest over the residential building.

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In this context learned counsel has placed heavy reliance on the judgment rendered by their Lordships of the Supreme Court in S.R.Batra &

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Anr v. Taruna Batra ( (2007)3 SCC 169 .

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CrlMC.845/2008. 6

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It is true that in the above judgment it was held that every house wherever the husband and wife lived together in the past , may not become a “shared household”. It was observed by the apex Court thus:

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“...It is quite possible that the husband and wife may have lived together in dozens of places e.g. with the husband's father, husband's paternal grandparents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces etc. If the interpretation canvassed by the learned counsel for the respondent is accepted, all these houses of husband's relatives will be shared households and the wife can well insist in living in all these houses of her husband's relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd.”

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The case before the Supreme Court had arisen in the following facts and circumstances.

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The wife (Smt.Taruna Batra) had sought residence order in respect of a building which admittedly belonged to her mother-in-law. It had come out on record that Smt. Taruna had shifted her residence to her

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CrlMC.845/2008. 7

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parental home because of some dispute with her husband. Later, she went to the residence of her mother-in-law. She was denied entry. At that stage she preferred a civil suit praying for a mandatory injunction to enable her to enter the house.

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The trial court held that Smt.Taruna was entitled to live in the residence of her mother-in- law and issued an order of temporary injunction restraining the mother- in-law and others from interfering with her residence. The above order was reversed by the appellate court holding that Smt.Taruna could not claim any right over the property which did not belong to her husband.

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The said order was challenged before the High Court by Smt.Taruna. The High Court upheld the view taken by the trial court and found that she was entitled to continue to reside in the building which belonged to her mother-in-law. But the apex Court reversed the order passed by the High Court at the instance of the parents of the husband, and held that the wife was not entitled to claim right of residence in her motherin-law's house, since the trial court had found on facts that the wife had never resided in that house as her matrimonial home.

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But in the case on hand it may be noticed that the wife (respondent No.2) has got a specific case that she and her husband had

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CrlMC.845/2008. 8

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shifted to the new residential building jointly constructed by them, just adjoining the ancestral house of the parents-in-law, where they had been initially living. Therefore the petitioner may not be able to draw much support from the judgment of the apex Court in Batra's case (supra), in the given facts and circumstances of this case.

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It is true that the Supreme Court in the above decision had referred to the definition of “shared household” contained in Section 2(s) of the Act. But it may incidentally be noticed that the latter part of the above definition undoubtedly shows that a household, which may belong to the joint family, of which the respondent (husband) is a member, irrespective of whether the respondent or the aggrieved person has right, title or interest in the shared household, will also fall within the ambit and sweep of the said definition. In other words, the inclusive definition, referred to above, will take within its fold a household over which the husband in his capacity as a member of the joint family has some subsisting right, even assuming he does not have any exclusive right, title or interest.

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In this context it is necessary to refer to Section 17 of the Act also, which is extracted hereunder:

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“17. Right to reside in a shared household:-(1) Notwithstanding anything contained in any other law for the time being in force,

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every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right,m title or beneficial interest in the same.

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(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.

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Sub-section (1) of Section 17 quoted above starts with a non obstante clause. It postulates that every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.

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“Domestic relationship” is defined in clause (f) of Section 2 of the Act as hereunder:

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“ (f) “domestic relationship” means a

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relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;

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If we read the provisions contained in Section 17(1) keeping in view the definitions of “domestic relationship” as well as “shared household”, there

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CrlMC.845/2008. 10

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can be no ambiguity with regard to the right of the wife to live in the household whether it be the joint family house of the husband or the residential building of the parents-in-law, if the wife lives or has at any stage lived in a domestic relationship either singly or along with the husband.

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Similarly Section 19(1)(a) of the Act also is relevant in this context , which reads thus:

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“19(1) While disposing of an application under sub-section (1) of Section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order--

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(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;

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(emphasis supplied)

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In the case on hand it is not in dispute that respondent No.2 had

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been residing with her husband in the residential building situated very close to the ancestral home. It is true that the two residential buildings stand in the name of the petitioner. He has been paying tax for those two

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CrlMC.845/2008. 11

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buildings. But there are materials on record which would prima facie show that the wife had been residing in the newly constructed building for quite some time. The domestic incident report referred to above (Ext.R2(e)) also will clearly show that the wife had been residing in that building at least till May 2007. Therefore it cannot be said that the wife had lived in that residential building only for a short duration and that too occasionally. The inclusive definition of shared household contained in Section 2(s) of the Act read with the provisions contained in Sections 17 and 19 of the Act will undoubtedly show that the residential building in question, even if it belongs to the petitioner, has to be treated as a “shared household” coming under the purview of the Act. That being the position, the learned Magistrate was justified in issuing Annexure IV order under Section 19 of the Act for facilitating residence of the wife whether or not the husband has a “legal or equitable interest in the shared household “.

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As rightly pointed out by the learned counsel for the wife, the petitioner has not come before this Court with clean hands. He has shown the address of his son (respondent No.3) in the cause title of this case as though he is living in a lodge. But respondent No.3 in the appeal preferred by him before the Sessions Court had shown the very same residential address as that of the petitioner in his appeal memorandum. This aspect of

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CrlMC.845/2008. 12

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the matter will also clearly show that the attempt of the petitioner is only to frustrate the wife somehow from getting a roof over her head.

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It has to be remembered that the intent and purpose of the legislation has to be kept in view while interpreting the provisions contained in the Act, which has been primarily enacted to ameliorate the hardships that may be caused to hapless wives at the matrimonial homes. The Court should come to the aid of these helpless victims who may be destined to suffer silently. In cases where atrocities perpetrated at the matrimonial homes come to light, the Court should step in diligently. Majority of the womenfolk in this country are still not “liberated” in the euphemistic sense of the word. Even in cases where the victim girl is well educated and employed, instances of harassment and atrocities manifest in large number of matrimonial homes in different hues and colours. Such ingenuities can be tackled only if the provisions of the Act are given a purposive interpretation without, of course, doing violence to the legislative exercise.

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Having considered the entire materials available on record, I am not at all satisfied that this is a fit case warranting interference in exercise of the inherent power of this Court under section 482 of the Code.

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CrlMC.845/2008. 13

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I do not find any merit in the contentions raised by the petitioner. The

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Crl.M.C fails and it is accordingly dismissed.

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an.

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A.K. BASHEER,

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JUDGE.

S.Prabhakaran v. State of Kerala

Case brief

What is this about?

What did the court decide?

S.Prabhakaran v. State of Kerala

Case brief

What is this about?

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