Dismissed

S.Rema v. Viswanathan

Kerala HC10 Apr 2018Mat.Appeal/177/2016

Case brief

AI extract

What is this about?

This appeal challenged a Family Court decree granting recovery of possession and permanent injunction in a suit filed by a divorced husband against his ex-wife. The Court held that no action under the Domestic Violence Act was initiated, denying the wife a right to a shared household. Upholding the lower court, it ruled that the plaintiff, as the lawful title holder, was entitled to recover posses

What did the court decide?

Appeal dismissed. No costs awarded.

S.Rema Vs Viswanathan — Matrimonial and Divorce | Kerala HC (2018)

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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.M.SHAFFIQUE

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& THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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TUESDAY, THE 10TH DAY OF APRIL 2018 / 20TH CHAITHRA, 1940

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Mat.Appeal.No. 177 of 2016 (F)

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AGAINST THE JUDGMENT IN OP 312/2013 of FAMILY COURT, MAVELIKKARA, DATED 28-11-2015

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APPELLANT/1ST RESPONDENT IN OP : -

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S.REMA, AGED 52 YEARS, D/O.SARASAMMA, VISWA VIHAR, PATTOOR MURI, NOORANADU VILLAGE, ALAPPUZHA DISTRICT.

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BY ADVS.SRI.M.V.THAMBAN

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SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN SRI.ARUN BOSE

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RESPONDENTS/PETITIONER & 2ND RESPONDENT IN OP: -

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VISWANATHAN, AGED 56 YEARS,

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S/O.VIKRAMAN, NALLAVEETTIL THEKKETHIL, PULIMEL MURI, NOORANADU VILLAGE,

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ALAPPUZHA DISTRICT 690504

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K.RAMESH, AGED 48 YEARS,

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S/O.KOCHURAMAN, GOPA SANAM,

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EDAPPON MURI, NOORANADU VILLAGE, ALAPPUZHA DISTRICT 690504

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BY ADV. SMT..ASHA ELIZABETH MATHEW (CAVEATOR) BY ADV. SRI. RINNY STEPHEN CHAMAPARAMPIL

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 02-04-2018, THE COURT ON 10.04.2018 DELIVERED THE FOLLOWING:

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DMR/-

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A.M.SHAFFIQUE & P. SOMARAJAN, JJ.

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Mat.Appeal No.177 of 2016

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Dated this the 10^th day of April, 2018

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J U D G M E N T

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Somarajan, J.

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The first defendant/first respondent in O.P.No.312/2013 of the Family Court, Mavelikkara, came up with this appeal against the judgment dated 28.11.2015.

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A suit for permanent prohibitory injunction in O.S.No.100/2001 was filed before the Sub Court, Mavelikkara, on 19.03.2001. It was transferred to the Family Court, Alappuzha, on 20.08.2011 wherein it was renumbered as O.P.No.994/2011. Again it was transferred to the Family Court, Mavelikkara, on its establishment and renumbered as O.P.No.312/2013.

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The suit was originally filed for injunction simplicitor by the plaintiff against his wife (first defendant) and the brother of his wife (second defendant). Later on it was amended by incorporating a prayer for recovery of item No.4 plaint schedule property.

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Admittedly, item No.4 plaint schedule property is the property acquired by the petitioner/plaintiff. Earlier, an extent of 27 ½ cents of property was gifted to the first defendant,

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Mat.Appeal No.177 of 2016

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wife, by the petitioner/plaintiff. The plaintiff was employed abroad. Item Nos.1 to 3 and 5 properties were transferred under Exhibits B2, B3 and B4 documents by the plaintiff/petitioner and hence those items of properties were excluded and the relief sought was confined only to item No.4 property by the plaintiff/petitioner. Item No.4 property was purchased by the petitioner as per Exhibit A1 sale deed No.1903 dated 07.09.1998. The marriage of the petitioner and the first respondent was dissolved by granting a decree of divorce in O.P (H.M.A) No.114/2008 dated 17.08.2009 of the Family Court, Alappuzha. The claim raised by the first respondent over item No.4 property is that she is residing in the said property along with her children and the children obtained a decree against forcible eviction as per Exhibit A9 judgment in O.S.No.427/2001 of the Munsiff's Court, Mavelikkara. The lower court decreed the suit granting recovery of possession of item No.4 schedule property and also granted a decree of permanent prohibitory injunction from committing any waste in the petition schedule item No.4 property by its decree and judgment dated 28.11.2015, against which this appeal is

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Mat.Appeal No.177 of 2016

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preferred.

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In the instant case, a civil suit was filed for a decree of permanent prohibitory injunction and later on a prayer for recovery of possession of property was also incorporated. No proceedings under the provisions of the Protection of Women from Domestic Violence Act were initiated. The jurisdiction vested with the Family Court under Section 26 of the Family Courts Act, 1984, has to be understood as the jurisdiction to deal with a petition/application under the provisions of the Protection of Women from Domestic Violence Act. There cannot be any mixing up of jurisdiction in a proceeding like a civil suit initiated by one of the parties. Sections 12, 17 to 23 and 25 of the Protection of Women from Domestic Violence Act, 2005, are the statutory remedies attached to an “aggrieved person” either through him or through a Protection Officer. The expression “aggrieved person”, as incorporated in Section 12 of the Act, has to be understood in relation to Section 3 of the Act constituting “domestic violence” as its basic constituent without which there cannot be an aggrieved person as incorporated under Section 12

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Mat.Appeal No.177 of 2016

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of the Act. Section 12 of the Act mandates an application either by the aggrieved person or through the Protection Officer on his/her behalf. This would make the legal position clear that an action under Section 12 of the Protection of Women from Domestic Violence Act, 2005, can be initiated only through an application as mandated therein.

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In the instant case, no such remedy was sought/agitated before the Family Court wherein the suit was tried and no application was submitted under Section 12 of the Protection of Women from Domestic Violence Act, 2005. The first respondent (first defendant) though raised a contention that she had preferred M.C.No.46/2013 before the Judicial First Class Magistrate Court-II, Mavelikkara, it has nothing to do with the case in hand as the same has ended in dismissal, according to the defendant. No document was produced to show what actually happened to the said application. Further, it is a separate proceeding initiated before a competent forum and hence the same cannot be re-agitated in another forum viz. the Family Court wherein the suit was tried. So the question of

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Mat.Appeal No.177 of 2016

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shared household cannot be re-agitated in the instant case. But when there is an order in favour of the first respondent, wife, on an application under Section 12 of the Act the same would be operated against both the parties.

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Then the only question remains is whether the plaintiff is entitled to the grant of decree as prayed for. He is the lawful title holder of the property. It has come out in evidence that the first defendant is a trespasser to the said property after the institution of the suit which is well evident from the ownership certificate issued from Nooranadu Panchayat, which stands in the name of first respondent herein, wherein the house name is stated as Viswa Vihar No.6/499-A of Nooranadu Panchayat. In the plaint also her address is shown as Viswa Vihar, Pattoor Muri, Nooranadu Village. In all the petitions and affidavits sworn by her, her address is shown as Viswa Vihar, Pattoor Muri, Nooranadu Village. The said house is situated in the property owned by the first respondent. The house is situated in item No.4 of the plaint schedule property and its house name and address were proved through PW2, a Process Server, who served

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Mat.Appeal No.177 of 2016

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the summons on the first respondent. It has also come out in evidence that 27 ½ cents of property was settled in her name by her husband under Exhibit A11 settlement deed. Later on it was sold for an amount of Rs.32,00,000/-, which, according to the first respondent, was for the purpose of meeting the marriage expenses of her elder daughter. As discussed in earlier paragraphs, the right to shared household is not available in the present case. As such, the only question to be looked into is whether the plaintiff is entitled to the grant of relief as prayed for in the plaint based on his title over the property. Being the title holder of the property, he is entitled to the grant of decree of recovery of possession and the permanent injunction granted by the lower court in the absence of any valuable right, title or interest over the property to the first respondent.

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The suit in O.S.No.427/2001 on the file of the Munsiff's Court, Mavelikkara, and the decree passed therein have no relevancy in the present case as neither the petitioner nor the first respondent are parties to the said suit and it is not binding on them. The institution of the above said suit during the

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Mat.Appeal No.177 of 2016

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pendency of the present suit by the grand mother of the children of first respondent representing the minors ignoring the status of their mother, the first respondent herein, being the natural guardian, would prima facie tell upon what is behind it. In any view of the matter, there is no reason for any interference to the decree and judgment of the lower court and hence the appeal fails, deserves only dismissal and we do so.

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In the result, the appeal is dismissed. No costs.

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Sd/-

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A.M.SHAFFIQUE (JUDGE)

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Sd/-

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P. SOMARAJAN (JUDGE)

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DMR/-

S.Rema v. Viswanathan

Case brief

What is this about?

What did the court decide?

S.Rema v. Viswanathan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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