Disposed

Ibrahimkutty v. Subaidath

Kerala HC6 Jul 2012Crl.Rev.Pet/864/2012

Case brief

AI extract

What is this about?

The High Court disposed of a criminal revision petition challenging an appellate order under the Domestic Violence Act. The Court clarified the interpretation of a shared household order, emphasizing the petitioner's obligation to arrange suitable, inhabitable accommodation for the wife and child, with the alternative of paying monthly maintenance if they fail to do so. Liberty was granted to the

What did the court decide?

Liberty granted to the respondent to file an affidavit suggesting the location of alternative accommodation within a week to enable the petitioner to comply with the modified order to arrange suitable

Ibrahimkutty Vs Subaidath — Domestic Violence | Kerala HC (2012)

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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 C.T.RAVIKUMAR

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FRIDAY, THE 6TH DAY OF JULY 2012/15TH ASHADHA 1934

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Crl.Rev.Pet.No. 864 of 2012 ()

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JUDGMENT IN CRA.38/2012 of II ADDL. SESSIONS COURT, KOLLAM ORDER IN CMP.NO.4307/2011 IN M.C.NO.79/2011 of J.M.F.C.,

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SASTHAMCOTTA

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REVISION PETITIONERS/APPELLANTS/COUNTER PETITIONERS :

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IBRAHIMKUTTYM, AGED 48 YEARS

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S/O. HYDROSE KUNJU, SAINABHA MAHAL

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FROM THUNDIL VEEDU, PALLISSERICKAL MURI

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SASTHAMCOTTA VILLAGE, KUNNATHOOR TALUK KOLLAM DISTRICT.

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MUHAMMED KUNJU, , AGED 56 YEARS

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FROM THUNDIL VEEDU, PALLISSERICKAL MURI SASTHAMCOTTA VILLAGE, KUNNATHOOR TALUK KOLLAM DISTRICT.

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AISHAKUNJU, , AGED 52 YEARS FROM THUNDIL VEEDU, PALLISSERICKAL MURI SASTHAMCOTTA VILLAGE, KUNNATHOOR TALUK KOLLAM DISTRICT.

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MUHAMMED KUNJU,

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FROM THUNDI VEEDU, PALLISSERICKAL MURI

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SASTHAMCOTTA VILLAGE, KUNNATHOOR TALUK

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KOLLAM DISTRICT.

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SATHAR,FROM THUNDIL VEEDU, PALLISSERICKAL MURI SASTHAMCOTTA VILLAGE, KUNNATHOOR TALUK KOLLAM DISTRICT.

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BY ADV. SRI.R.SATISH KUMAR

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Crl.Rev.Pet.No. 864 of 2012 () :2:

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RESPONDENTS/RESPONDENT/PETITIONER AND STATE:

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SUBAIDATH,, AGED 36 YEARS

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A.R. MANZIL, PUTHENSANKETHAM MURI

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THEVALAKKARA VILLAGE, KOLLAM.

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STATE OF KERALA,

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REPRESENTED BY THE PUBLIC PROSECUTOR

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HIGH COURT OF KERALA, ERNAKULAM.

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BY ADV. SRI.R.LAKSHMI NARAYAN FOR R1 BY ADV. SMT.R.RANJINI

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BY PUBLIC PROSECUTOR SRI.BIJU MEENATHOOR FOR R2

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06-07-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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C.T.RAVIKUMAR, J.

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Crl.R.P.No.864 of 2012 ---------------------------Dated 6^th July, 2012

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ORDER

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` Much Ado About Nothing ' is the apt expression to describe the nature of the lis involved in this case. Though many a contentions have been raised in the revision petition save the challenge against the modified order regarding the shared household the other contentions were not pressed into service. However, that challenge is nothing but a claptrap founded on a misconception of its purport.

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This revision petition carries the challenge against the judgment of the court of the II Additional Sessions Judge, Kollam. The first petitioner and the first respondent are man and wife. The boy born in their wedlock is having seven and a half years of age. According to the first respondent, the first petitioner and the other revision petitioners forcibly evicted her from the shared household. The wife, thereupon, approached the Judicial First Class Magistrate Court, Sasthamcotta by filing M.C.No.79 of 2011 seeking orders under the various provisions of the Protection of Women from Domestic Violence Act, 2005 (for short `the Act') for protection order, residence order, monetary relief and custody order of the minor son. Admittedly, that court passed orders under sections 18, 19, 20 and 21 of the Act.

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Cr.R.P.No.864/2012 2

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Feeling aggrieved by the orders passed in M.C.No.79 of 2011, the revisions petitioners herein filed Crl.A.No.38 of 2012. In the appeal the petitioner assailed the interim order passed in M.C.No.79 of 2011 granting monthly maintenance at the rate of Rs.1,000/- each, interim compensation of Rs.5,000/- to the first respondent herein, custody of their minor child and prohibitory orders in respect of shared household under the Act. Upon considering the rival contentions and perusing the materials on record the appellate court partly allowed the appeal. The appellate court sustained the order relating the directions to pay the monthly maintenance at the rate of Rs.1,000/- each to the first respondent and the child born in their wedlock and leaving the custody of the child with the first respondent. The order to pay compensation at this stage was set aside by the appellate court. The order regarding the shared household was modified as hereunder:-

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“The order regarding the shared household is modified to the effect that the 1st counter petitioner shall arrange a rented house for the residence of the petitioner and her son at a place near the school in which the son is studying or near her family house or in the alternative shall pay an amount of Rs.5,000/- (Five thousand only) per month for taking a house on rent by petitioner himself till the final disposal of the MC case. If he fails to do so within one month from the date of this judgment the petitioner is entitled to reside in Sainaba Mahal mentioned in the Domestic incident report.”

(emphasis supplied)

Cr.R.P.No.864/2012

I have heard the learned counsel for the petitioners, the learned counsel for the first respondent and the learned Public Prosecutor.

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As already noticed hereinbefore, this Court is called upon to consider only the challenge against the modified order regarding the shared household, as extracted above. Obviously, contentions advanced on behalf of the petitioners would reveal that they are under the belief that going by the impugned order the first petitioner is under an obligation to find out an alternative accommodation for the first respondent and that too, a house having the facilities to fetch a rent of Rs.5,000/- and his failure to do so within a month from 7.3.2012, would make her entitled to reside in `Sainaba Mahal' which, admittedly, is her shared household. True that, the first petitioner has also raised the contention that he had pronounced Talaq on 12.12.2011 and therefore, the first respondent is not entitled to claim residence in the shared household. But, the first respondent denied the validity of the Talaq. Admittedly, as of now, there is no legally sustainable evidence to show that the first respondent is a legally divorced wife. With the available materials and the admitted facts the learned Magistrate passed the interim order in the M.C. as aforesaid. Though the first petitioner

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Cr.R.P.No.864/2012

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contended that the first respondent is having house in her own name it is disputed by the first respondent and there is nothing on record to uphold the contention of the petitioners. I do not think that I should delve into the facts any further for the simple reason that now, the scope of consideration of this revision petition is reduced only to the point mentioned earlier, which is founded only on a misconception. At his juncture, it is to be noted that the M.C. is still pending. Now, to the apprehension sounded by the petitioners, the modified order regarding the shared household, as extracted earlier, itself would reveal its hollowness. In fact, direction of the court, while modifying the order regarding the shared household, is only to the effect that the first petitioner herein shall arrange a rented house for the residence of the first respondent and her son at a place near the school in which the son is studying or near her family house. The direction to pay Rs.5,000/- per month for taking a house on rent by the first petitioner is only an alternative order that is to take its effect only in case of his failure to arrange a rented house for the first respondent in the manner it is set out in the order. When that be so, the understanding of the first petitioner with respect to the said modified order is in bereft of any basis.

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The learned counsel for the petitioners, then submitted that the first petitioner is absolutely unaware of the institution where his

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Cr.R.P.No.864/2012 5

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child is now studying and therefore, without knowing the location of the son's school he will not be in a position to arrange a house in terms of the order passed by the appellate court. The learned counsel for the first respondent submitted that the first respondent may be permitted, in the light of the modified order of the appellate court, to make the suggestion, that is, whether to arrange a house near the son's school or near to her family house. The learned counsel for the first respondent further submitted that the first respondent may be permitted to file an affidavit with respect to the same before the Magistrate Court in the M.C., with notice to the first petitioner, taking into account the fact she has to live with the minor child and therefore, safety and security is of prime importance. I am of the view that it is only a reasonable prayer. Therefore, liberty is given to the first respondent to file an affidavit on that aspect in M.C.No.79 of 2011, with notice to the first petitioner to enable him to comply with the modified order passed by the appellate court. The first respondent shall file appropriate affidavit within a week from today.

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The learned counsel for the first respondent also voiced an apprehension that by virtue of the liberty granted by the appellate court which is now clarified by this Court the first petitioner may arrange an uninhabitable house and considering the fact that the first respondent

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Cr.R.P.No.864/2012

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has to live with the minor child such eventuality may pose threat to their safety and security. I do not find any reason for entertaining such an apprehension. It is very much evident from the order of the appellate court that in case of failure of the first petitioner to find out a house in the manner directed thereunder he has to pay Rs.5,000/- per month. It would definitely indicate that the house which is to be arranged by the first petitioner should be one which is inhabitable to enable them to have a decent living with a sense of security. The first respondent shall file appropriate affidavit, as mentioned above, with notice to the counsel for the first petitioner before the trial court, within one week and within one month from the date of receipt of such an affidavit the first petitioner shall arrange the accommodation in terms of the order passed by the appellate court taking note of the observations made hereinbefore. It is made clear that upon his failure to arrange such a house within the above stipulated time the modified order passed by the appellate court regarding shared household will come into operation.

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The Revision petition is disposed of accordingly.

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Sd/-

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C.T.RAVIKUMAR

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TKS

Ibrahimkutty v. Subaidath

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Ibrahimkutty v. Subaidath

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