Allowed

Chithragathan v. Seema.C.

Kerala HC14 Oct 2009Crl.MC/2998/2007

Case brief

AI extract

What is this about?

This judgment quashes criminal proceedings under Section 31 of the Protection of Woman from Domestic Violence Act, 2005. The court held that no petitioner-resident daughter was a 'respondent' as she lacked a domestic relationship with her father in a shared household. Additionally, the breached residence order was not a protected 'protection order' under Section 31.

What did the court decide?

The order passed against the petitioner under Section 31 and consequent criminal proceedings are quashed.

Chithragathan Vs Seema.C. — Pension and Retirement Benefits | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS.JUSTICE K.HEMA

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WEDNESDAY, THE 14TH DAY OF OCTOBER 2009/22ND ASWINA, 1931

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Crl.MC.No. 2998 of 2007 ( ) --------------------------CC.159/2007 of C.J.M.,KOLLAM

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PETITIONER(S)/ACCUSED:

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CHITHRANGATHAN, SREEPADMAM, NEAR SARADA MUTT, S.N.COLLEGE JUNCTION KOLLAM.

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BY ADVS.SRI.M.BALAGOVINDAN SRI.M.R.SASITH

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COMPLAINANT(S)/COMPLAINANT & STATE:

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SEEMA C.,

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N.B.BHAVAN, PULIMOOTTIL, MUNDAKKAL

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MUNDAKKAL VILLAGE, KOLLAM.

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STATE OF KERALA, REPRESENTED BY

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ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.

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BY PUBLIC PROSECUTORS (SRI.B.VINOD & SRI.P.A.SALIM)

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14-10-2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K. HEMA, J.

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-----------------------------------------Crl.M.C.No. 2998 of 2007

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------------------------------------------Dated this the 14^th day of October, 2009.

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ORDER

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A petition was filed by first respondent herein (daughter) against petitioner (father) under Section 31 of the Protection of Woman from Domestic Violence Act, 2005 ('the Act' for short), alleging that petitioner violated a protection order issued by the court etc. The petitioner filed a written objection to the petition and, after hearing both sides, the Magistrate court found that, prima facie, there is a breach of “protection order” passed by the court by the petitioner herein and hence, a case was taken on file as C.C.No.159/2007 under Section 31 of the Act, by virtue of Annexure-D order.

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This petition is filed to quash Annexure-D order and also further proceedings initiated against petitioner, pursuant to such order. The relevant facts, which are necessary to dispose of this petition can be briefly narrated as follows:- A lady Advocate filed a petition against her father before Magistrate Court seeking reliefs under the Act. In the main petition, she also filed a petition (C.M.P.No.1523/07) under Section 12(1) of the

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Act and sought for an order under Section 19 of the Act to restrain her father from dispossessing or throwing her out from the shared household and from entering that portion of the shared household in which she resides. An affidavit was also filed under Section 23(2) of the Act stating that she had been living with the respondent at “Sreepadma” since 1.1.2007 and that she apprehended repetition of the acts of domestic violence from her father and that he had threatened her that at any costs he would evict her from the shared household.

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The Magistrate passed Annexure-B order ex parte under Section 23 of the Act by which petitioner is restrained from evicting his daughter from the premises (which is described in paragraph 8 of the affidavit). Notice was issued to petitioner. Petitioner entered appearance. In the meantime, on 14.3.2007, the daughter had also filed another petition under Section 23(2) of the Act which is taken on file as C.M.P.1706/07 seeking an order under Section 19(d) of the Act. Petitioner-father, on appearance, filed a counter affidavit denying the allegations made in the petition stating that the application filed under the Act is not maintainable, since as per the averments made by first respondent-daughter, she was residing in the house under the strength of a rent deed. Hence, only the civil courts will have

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jurisdiction to grant the relief.

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It is also stated in the counter affidavit that the house in respect of which an order is sought by the applicant is in possession, occupation and enjoyment of the petitioner's wife. The said property was purchased by the wife of the petitioner. Petitioner and his wife are permanently residing in Thiruvananthapuram whereas the house referred to in this case is in Kollam. Petitioner's wife is a retired Professor. The respondent herein had approached petitioner and his wife demanding Rs. 5 lakhs to settle some of her liabilities. When the petitioner informed his inability to raise the amount, the respondent and her husband, who is also an advocate, started harassing petitioner and his wife in several ways. She started residing in the house constructed in the property of petitioner's wife, after looting the articles in the household and keeping her own articles in the house.

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Thereafter, a petition was filed by the respondent herein as Crl.M.P.No.1769/07 alleging that petitioner manhandled her for forcibly evicting her from the shared household on 13.2.2007 and she was rescued by her husband, who is also a lawyer. A complaint was also filed in respect of the incidents before the police and on the same day, she was allegedly staying

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in the relatives house and when she came to the shared household on the next day afternoon, the respondent allegedly found her household articles being kept outside by petitioner's men and the house was also found looted and that immediately, the matter was reported to the police etc.

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It is also alleged that she was directed to remove all the household articles from the compound and hence, she was forced to take away household articles on 14.3.2007 afternoon. Thus, she was forcibly evicted from the shared household, in violation of the order granted by the Court in C.M.P.No.1523/07. The cause of action arose on 13.3.2007 on the date on which complainant was evicted from the shared household. Therefore, the respondent asserts that no action be taken for the breach of the “protection order” under Section 31 of the Act.

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Petitioner herein filed a detailed counter-affidavit denying all the allegations made therein stating that from 13.3.2007 onwards, petitioner was admitted in District Hospital, Kollam as inpatient and he was discharged only on 19.3.2007. The respondent was not dispossessed from the house but the complaint was filed only to escape from the legal proceedings initiated against first respondent's husband for manhandling petitioner, by violating the order of the court. Petitioner also

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initiated proceedings against first respondent's husband and obtained an order. According to petitioner, his daughter, in collusion with her husband, had fabricated some documents purporting to be the rent deed etc. but no action can be taken against petitioner on the strength of the petition filed under Section 31 of the Act.

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This case was heard on more than one day. First respondent was represented by her counsel Sri.B.S.Sivaji and he was heard in the matter in detail but yesterday, he reported that he got instruction from first respondent that she did not want to engage him to argue the matter any more and hence, he reported no instruction. I heard learned counsel for petitioner and learned Public Prosecutors Sri.B.Vinod and Sri. P.A. Salim, who also helped this court in taking a decision in this case. There is no representation for respondent when the case was called today.

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Learned counsel for petitioner argued that there is no protection order in this case. Annexure-B order is only an order passed under Section 19 of the Act and it is a “residence order” and hence no action can be taken under Section 31 of the Act. As per Section 31 of the Act, only a breach of protection or interim protection order by the respondent would be punishable under Section 31. Considering the same matter, in Crl.R.P.No.1216 of

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2007, a learned single Judge of this Court, as per order dated 4.9.2007 in paragraph 5 of the order held that the relevant order (Annexure-C herein) is a “residence order” passed under Section 19 read with Section 23(2) of the Act. The said order has become final.

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It is also pointed out that even as per the allegations made by first respondent herself, the house in respect of which she has sought the reliefs under the Act, is occupied by first respondent as a “tenant” under the petitioner's wife. The fact that she took the house on rent is specifically alleged in the affidavit filed by respondent. She had also filed a written statement in a civil suit filed by petitioner's wife as O.S.220/07 seeking prohibitory injunction against first respondent herein and she raised specific contentions that with effect from 1.1.2007, she along with her husband shifted their residence to the house involved in this case on the strength of rent deed executed in favour of petitioner's wife.

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The civil court has considered the dispute between first respondent and petitioner's wife and after considering rival contentions, passed an order on 23.8.2008 restraining first respondent and her husband from causing any sort of nuisance or interference to the peaceful living of petitioner's wife in the house

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etc. The said decree has become final and it is not challenged by the respondent herein or her husband. In such circumstances, the first respondent is not entitled to get any order against the petitioner under the provisions of the Act, it is argued.

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On hearing petitioner's counsel and learned Public Prosecutors in detail, the first question to be considered is whether petitioner can be proceeded against under Section 31 of the Act. Section 31 reads as follows.

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“ Penalty for breach of protection order by respondent: - (1) A breach of protection order, or of any interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.

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(2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused.

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(3) While framing charges under subsection (1), the Magistrate may also frame charges under Section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1906 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.”

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[Crl.M.C.No.2998/07]

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A reading of Section 31 shows that if there is a breach of the protection order, or interim protection order by the respondent, it will amount to an offence under the Act and is punishable with imprisonment of either description for a term which may extend one year or with fine which may extend Rs.20,000/- or both. The said offence shall, as far as possible, be tried by the Magistrate who passed the order, the breach of which is alleged to have been caused by the accused.

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It is clear from Section 32(2) that upon the sole testimony the court “may” conclude the commission of the offence by the accused. But on a close reading of the various provisions in the Act, I find that merely because an aggrieved person mounts the box and states that the person shown as respondent in the cause title committed breach of protection order and thereby he committed the offence, the court cannot proceed against him.

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The person, who is shown in the cause title as respondent, cannot be proceeded against under Section 31 of the Act. Only if the court finds that such person falls within the definition of “respondent” in Section 2(q) of the Act, he can be proceeded against under Section 31. To constitute offence under Section 31 of the Act there has to be breach of protection order

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or interim protection order by “ respondent”. “Respondent” is

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defined in Section 2(q) of the Act. Section 2(q) reads as follows:

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“Respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner”.

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A plain reading of the definition of “respondent” in Section 2(q) will show that a respondent is not a person who is shown as a respondent in the cause title or against whom an order is passed under the provisions of the Act. There is a definite meaning given to the expression “respondent”. A person can be proceeded against under Section 31 of the Act only if there is breach of the particular order passed by the court by the respondent.

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The “respondent” means any adult male who is, or has been, in a 'domestic relationship' with the aggrieved person and against whom the aggrieved person has sought for relief under the Act. The expression 'domestic relationship' is also defined under the Act. A reading of Section 2(f) shows that there is definite meaning given to said expression,”domestic relationship”. It is a relationship between two person who “live”

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or at any point of time have “lived together” in a shared household when they are related by consanguinity, marriage etc.

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It is clear from a reading of Section 2(f) that it is not sufficient if parties are wife or husband or father or daughter etc. to proceed against a male person under the provisions of the Act. But what is most relevant under Section 2(f) is that such persons who are related by consanguinity, marriage etc. must live or must have lived together at any point of time. Merely because the applicant and the respondent stated in the petition have a relationship by consanguinity or marriage, the court cannot conclude that there is any domestic relationship as defined under the said Section.

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The court must confirm that they lived or have lived together at any point of time in a shared household. So, for the mere reason that the parties to the petition filed under the provisions of the Act are father or the daughter or husband and wife, court cannot conclude that there is domestic relationship as defined under the Act. The court must find out from the materials available whether the accused satisfies the requirements under Section 2(q) of the Act and he “is” or “has been” in domestic relationship with the aggrieved person. The expressions “is” and “has been” are also relevant and those denote present tense.

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The definition domestic relationship also refers to “shared household”. The shared household has also specific meaning under Section 2(s) of the Act. A plain reading of Section 2(s) shows that 'shared household' is a 'household', but 'household' does not mean a 'house'. The 'household' is not defined under the Act. As per Oxford Concise Dictionary (7^th Edn.) the word “household” means “occupants of house; domestic establishment, all the people living together in a house”. A s per Co Build English Language Dictionary, the word “household” means, all the people in a family or group who live together in a house. The word “household” means “a family living together; (2) a group of people who dwell under the same roof”( vide Black's Law Dictionary).

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Learned counsel for petitioner pointed out that it is laid down by the Supreme Court in Oswal Asro Mills Ltd. v. C.C.E. ((1993) Suppl. 3 SCC 716) that the word “household” signifies a family living together. Therefore, shared household cannot be confined to a house where they live together. It implicates a living together of people in a family in a domestic establishment. Going by the dictionary meaning, the word “household” means occupants of the house or the people who live together in a house of the people in a family. Therefore, a house

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where the aggrieved persons reside alone, strictly speaking, cannot be treated as a household.

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Having gone through the meaning given to “domestic relationship” and “respondent” under the Act, it is evident that “shared household” as stated in Section 2(s) cannot be a mere house which is taken on rent by the wife or the husband or the parties to the petition. To constitute a shared household, there must be a living together by the aggrieved person and the respondent against whom a relief is sought for. Interestingly, there are no averments in the petition under Section 12(1) or in the affidavit from which the court can infer that the petitioner herein is “respondent” as defined under the Act.

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There are absolutely no allegations or averments made either in the petition under Section 12(1) or in the affidavit in Form-III from which the court can conclude that there was 'domestic relationship' or 'shared household' or that the petitioner is a 'respondent' as stated in the Section. The trial court has passed the impugned order against petitioner even without confirming whether averments in the petition disclose that petitioner is a person who falls under the definition of “respondent”. He is proceeded against under Section 31 of the Act and restrained from doing certain acts against the first

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respondent even without confirming whether he is a “respondent” as defined under the Act.

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At any rate, the petitioner cannot be proceeded for offence under Section 31 of the Act, since no protection order is passed against him. The order allegedly breached is a “residence order” and hence no offence under Section 31 will be attracted. When the matter came up for revision before this Court, another Bench of this Court held that Annexure-B order is only a residence order. Therefore, for this sole reason itself petitioner ought not to have been proceeded against under Section 31 of the Act. The proceedings initiated under Section 31 of the Act against petitioner is illegal.

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25. The trial court passed a hasty order under Section 31 of the Act without even confirming whether the person against whom the order is passed falls under the definition of “respondent” who is in “domestic relationship“ and “lives” or “has lived” in shared household. The provisions of the Act introduced for protecting women from acts of domestic violence committed against her by a person who is in domestic relationship with her. But, while protecting the rights of a woman, the court has to be careful and cautious in not violating the rights of the male also.

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26. It is to be borne in mind that any wrong order passed in haste without looking into the provisions of the Act will harm the woman herself, since by such wrong order passed, it is likely that the relationship between the parties may become more strained and it will lead to disastrous consequences in the family relationship. If the court is not cautious in passing orders under the Act, the woman herself may be victim of the wrong order and that is not what the legislature has intended by the Act.

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27. In the result, Annexure-D order passed against petitioner and the proceedings initiated against him, consequent to the said order under Section 31 of the Act are illegal and those are hereby quashed.

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This Crl.M.C. is allowed.

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Sd/-

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K. HEMA, JUDGE.

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krs.

Chithragathan v. Seema.C.

Case brief

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Chithragathan v. Seema.C.

Case brief

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