Disposed

Abdul Rahman v. Vaheeda Kuttiyil

Kerala HC4 Apr 2019Crl.MC/855/2019

Case brief

AI extract

What is this about?

This Court clarified that constitutional objections to the maintainability of a domestic violence complaint, including issues regarding the definition of 'respondent' and 'shared household', must be raised before the Magistrate dealing with the main matter, not in a Criminal Miscellaneous case.

What did the court decide?

The court directed the petitioners to file a petition before the Magistrate raising objections on maintainability; if not done within two weeks, the stay order on merits will be vacated.

Abdul Rahman Vs Vaheeda Kuttiyil — Pension and Retirement Benefits | Kerala HC (2019)

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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 ALEXANDER THOMAS

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THURSDAY, THE 04TH DAY OF APRIL 2019 / 14TH CHAITHRA, 1941

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Crl.MC.No. 855 of 2019

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AGAINST THE ORDER IN MC 31/2018 of JUDICIAL MAGISTRATE OF FIRST CLASS, PAYYOLI

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PETITIONER/S:

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1 ABDUL RAHMAN,AGED 48 YEARS S/O. ABDULLA,CHALIL HOUSE, KOZHUKKALLOOR P.O., MEPPAYUR AMSOM, DESOM, KOZHIKKODE DISTRICT, 673 524

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2 SAFIYA,AGED 51 YEARS D/O. ABDULLA, VADAKKIYEDATH, HOUSE, POOLADIKKUNNU P.O., KOZHIKODE, 673 303.

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3 FATHIMA.C.,AGED 60 YEARS W/O. MOIDEEN KOYA, AALUTHUMKANDIYIL, KARUVAMPOIL, KODUVALLY P.O., 673 572.

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4 MAJEED.P.P.,AGED 1 YEARS S/O. MOIDEEN, NELLIYULLATHIL HOUSE, KOZHUKKALLOOR P.O., MEPPAYUR AMSOM, DESOM KOZHIKODE DISTRICT, 673 524.

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BY ADV. SRI.C.R.SIVAKUMAR

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RESPONDENT/S:

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1 VAHEEDA KUTTIYIL,AGED 48 YEARS W/O. ABDULRAHMAN, DOOR NO. MP XI-360B , KOZHUKKALLOOR P.O., MEPPAYUR AMSOM, DESOM, KOZHIKODE DISTRICT, 673 524.

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2 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.

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BY ADV. SRI.BIJU ABRAHAM

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OTHER PRESENT:

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SRI.BIJU ABRAHAM FOR R1, SRI.SAIGI JACOB PALATY, PUBLIC PROSECUTOR FOR R2

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.M.C.No.855/2019

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ALEXANDER THOMAS, J.

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Crl.M.C.No. 855 of 2019

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Dated this the 4^th day of April, 2019

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ORDER

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The prayer in the above Criminal Miscellaneous Case filed under the enabling provisions contained in Section 482 of Cr.P.C. is as follows:

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“........pleased to quash MC No.31/2018 on the file of Judicial First Class Magistrate Court, Payyoli (Annexure-1) complaint), in the interest of justice.”

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Heard Sri. C.R. Sivakumar, the learned counsel

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appearing for the petitioners, Sri. Biju Abraham, the learned counsel appearing for R1 and Sri. Saigi Jacob Palatty, the learned Public Prosecutor appearing for R2 State of Kerala.

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It is stated that the 1^st respondent is the wife of the 1^st petitioner and the 2^nd and 3^rd petitioners are the sisters of the 1^st petitioner. The 4^th petitioner is said to be the friend of the 1^st petitioner. The 1^st respondent (wife) has filed Annexure-A1 Miscallenous Case, M.C.No.31/2018 before the Judicial First Class Magistrate Court, Payyoli under Section 12(2) of Protection of Women from Domestic Violence Act, 2005 seeking various reliefs under Section 18,19, 20 and 22 of the said D.V. Act. The case of the

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Crl.M.C.No.855/2019 3

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petitioners is that the said application is not maintainable for reasons more than one. Firstly that even going by the averments in Annexure-A1 petition, the 4^th respondent is only the friend of the 1^st petitioner and further that the 2^nd and 3^rd petitioners are the sisters of the 1^st petitioner and further that the 1^st respondent has no case in Annexure-A1 petition that the 2^nd and 3^rd petitioners are residing in the share household of the 1^st petitioner and the 1^st respondent. Further that the 1^st respondent has no case that the 4^th respondent is residing in the said share hold or that 4^th petitioner herein/4^th respondent in Annexure-A1 petition would fulfill the definition of “respondent” as understood in Section 2(q) of the D.V. Act. It is pointed out that Section 2(q)of the D.V. Act defines “respondent” to mean 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 etc. Further that Section 2 (f) of the Act defines “domestic relationship” means a 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. Further that, the 1^st respondent has no case that the

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Crl.M.C.No.855/2019 4

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2^nd and 3^rd petitioners, who are sisters of the 1^st petitioner and who are admittedly residing independently, cannot be construed to be living in a share household as understood in Section 2(s) of the Act. Section 2(s) “shared household” means a 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 respondent, 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.

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Further that as against the 1^st petitioner, it is urged that there are no specific allegations raised against him to make out a cause of action as per Annexure-A1 petition, in terms of the provisions contained in the D.V. Act.

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After having heard both sides, this Court is of the considered that it is for the petitioners to essentially raise all these objections primarily before the learned Magistrate, who is dealing

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Crl.M.C.No.855/2019

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with the main matter and if the learned Magistrate overrules the said objections of any or all of the petitioners, thereafter they can certainly work out their remedies in accordance with law by initiating appropriate civil proceedings. In the instant case, it is beyond any dispute that the petitioners have not raised these objections before the learned Magistrate, who is dealing with Annexure-A1. M.C.No.31/2018.

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Accordingly, it is ordered that it is for the petitioners to file appropriate petition comprehensively raising all or various aspects of their objections as to the maintainability and other related aspects of the above said proceedings. If such a petition is so filed by the petitioners before the learned Magistrate in M.C.No.31/2018, then the learned Magistrate shall consider the said petition and, after affording reasonable opportunity of being heard to the petitioners and the 1^st respondent, will take considered decision thereon. Thereafter, if the petitioners have any grievance, it is for them to proceed in accordance with law. Further it is ordered that it is only after deciding the above said preliminary objections, that the learned Magistrate may enter into the merits of the matter. However, it is made clear that in case the petitioners do not raise such objections by filing proper petition in that regard

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Crl.M.C.No.855/2019

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before the learned Magistrate within a period of two weeks from the date notified for receiving the certified copy of this order, then the above said direction directing the learned Magistrate not to get into the merits of the matter before deciding the above said preliminary objections etc, will stand automatically vacated without any further orders from this Court.

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With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of.

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Sd/-

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ALEXANDER THOMAS, JUDGE.

acd

Crl.M.C.No.855/2019

APPENDIX

PETITIONER'S/S EXHIBITS:

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ANNEXURE A1 THE TRUE COPY OF THE COMPLAINT DATED 15/10/2018 FILED BY THE 1ST RESPONDENT

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ANNEXURE A2 THE AGREEMENT OF THE 1ST PETITIONER DATED 22/10/2007.

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ANNEXURE A3 THE TRUE COPY OF THE DEED INFAVOUR OF THE 1ST RESPONDENT DATED 16/8/2008.

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ANNEXURE A4 THE TRUE COPY OF THE SALE DEED DATED 6/9/2000 IN FAVOUR OF THE 1ST PETITIONER

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ANNEXURE A5 THE BUILDING PERMIT DATED 2/12/2005 ISSUED IN THE NAME OF THE PETITIONER BY KUNNAMANGALAM MUNICIPALITY.

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ANNEXURE A6 THE TRUE COPY OF THE REPORT OF PHYSICAL EXAMINATION OF THE 1ST RESPONDENT DATED 2/11/2013.

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TRUE COPY

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P.S. TO JUDGE.

Abdul Rahman v. Vaheeda Kuttiyil

Case brief

What is this about?

What did the court decide?

Abdul Rahman v. Vaheeda Kuttiyil

Case brief

What is this about?

What did the court decide?

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