Dismissed

Biyyathu Chalil v. the Sub Inspector of Police

Kerala HC7 Jun 2019WP(C)/7604/2019

Case brief

AI extract

What is this about?

Petitioner sought writ for police protection and residence in her son's home alleging eviction. Court found collusion, noted police report of adequate shelter with daughter, and observed inconclusive marital discord. Declined writ and dismissed petition without order on costs.

What did the court decide?

Court declined police interference and directive for residence; parties to fight causes before appropriate forum.

Biyyathu Chalil Vs the Sub Inspector of Police — Civil Procedure and Limitation | 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 K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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FRIDAY, THE 07TH DAY OF JUNE 2019 / 17TH JYAISHTA, 1941

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WP(C).No. 7604 of 2019

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PETITIONER/S:

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BIYYATHU CHALIL AGED 84 YEARS W/O.LATE ABDULLA CHALIL, CHALIL HOUSE, KOZHUKKALLUR P.O., KOZHIKODE DISTRICT- 673524.

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BY ADVS. SRI.LIJU.V.STEPHEN SMT.INDU SUSAN JACOB

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RESPONDENT/S:

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1 THE SUB INSPECTOR OF POLICE, MEPPAYOUR POLICE STATION, KOZHIKKODE DISTRICT673524.

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2 THE DISTRICT COLLECTOR, KOZHIKKODE- 673575.

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3 VAHEEDA KUTTIYIL, AGED 48 YEARS W/O.ABDURAHIMAN CHALIL, KUTTIYIL HOUSE, KOZHUKKALLUR P.O., KOZHIKODE DISTRICT- 673524.

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4 SAFEENA ATHILAN CHERIYAN, ATHILAN HOUSE, VARAMBETTA P.O., PADINHARETHARA, WAYANAD DISTRICT- 673575.

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5 ABDURAHIMAN CHALIL, AGED 48 YEARS S/O.LATE ABDULLA, CHALIL HOUSE, KOZHUKKALLUR P.O., KOZHIKODE DISTRICT- 673524.

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6 SHAJAHAN KUTTIYIL, S/O.ABDULLA, KUTTIYIL HOUSE, KOZHUKKALLUR P.O., KOZHIKODE DISTRICT- 673524.

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WP(C).No. 7604 of 2019

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7 FIRZANUL JIBIN, S/O.ABDURAHIMAN CHALIL, KUTTIYIL HOUSE, KOZHUKKALLUR P.O., KOZHIKODE DISTRICT- 673524.

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8 MOHAMMED SAAHNAS (NICK NAME KICHU), S/O.SAJITHA KUTTIYIL, KUTTIYIL HOUSE, KOZHUKKALLUR P.O., KOZHIKODE DISTRICT- 673524.

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9 SAJITHA KUTTIYIL, D/O.ABDULLA, KUTTIYIL HOUSE, KOZHUKKALLUR P.O., KOZHIKODE DISTRICT- 673524.

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10 ANEESH KUMAR, S/O.C.P.SHANKARAN, CHALIL PORAYIL HOUSE, KOZHUKKALLUR P.O., KOZHIKODE DISTRICT- 673524.

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BY ADVS. SRI.BIJU ABRAHAM SRI.E.V.LIJEESH

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OTHER PRESENT:

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ADV. P.P.THAJUDHEEN (SR.PP.)

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 7604 of 2019

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JUDGMENT

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K. Vinod Chandran, J.

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The petitioner, a senior citizen and a widow, seeks police protection to her life and properties. The petitioner alleges that under cover of an order passed by the Judicial First Class Magistrate Court-I, Sulthan Bathery in an application filed by the second wife of the son of the petitioner, the petitioner was evicted from her residence.

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The petitioner's son is the 5^th respondent whose first wife is the 3^rd respondent and the second wife is the 4^th respondent. Respondents 6 to 9 are the children of the 5^th respondent and the third respondent. The 10^th respondent is said to be a supporter of the 3^rd respondent who is actively attempting to evict the petitioner from her residence. Ext.P1 is a deed of partition, by which, the petitioner and her children had partitioned some properties. The 5^th respondent is said to have built a house in the property allotted to him wherein the petitioner is asserted to have been residing. The petitioner submits that, under the guise of Ext.P2 order, the respondents are attempting to evict the petitioner from her residence in the property and house which belongs to the 5^th respondent. It is

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WP(C).No. 7604 of 2019

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alleged that at first the 3^rd respondent had evicted the petitioner allegedly on the strength of a court order and that though she attempted to reside with her other children; some of whom were not willing to look after her and others were not able to. This is the specific allegation in Ext.P3 and P4 complaints.

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Respondents 3 and 6 to 10 appeared. Respondents 4 and 5 do not appear, despite service of notice. The third respondent would submit that, in fact, the 5^th respondent, after the marriage with the 4^th respondent is totally shunning the third respondent and her children and in such circumstances alleging domestic violence for reason of abandonment and attempted eviction from the marital home, the third respondent herself had approached the Judicial First Class Magistrate Court, Payyoli within whose jurisdiction lies the property, for a protection order which was granted as per Ext.R3(a). The mother has filed the above writ petition in collusion with the son so as to negate the order passed by Ext.R3(a), is the argument of the 3^rd respondent.

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We notice that the mother had filed the above petition with the allegation that under the guise of Ext.P2 order she is sought to be evicted. However, the respondents 3 and 6 to 10

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WP(C).No. 7604 of 2019

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have absolutely no connection with Ext.P2 order. In such circumstances, it is not clear as to why the respondents 3 and 6 to 10 were impleaded. If at all an eviction was attempted in the guise of Ext.P2 order it would have been initiated by the 4^th respondent - the second wife. We hence are of the opinion that as submitted by the learned counsel, there is a collusion insofar as the above writ petition, filed for police protection. We would also again refer to Exts.P3 to P5 complaints, all of which seek police protection to enter the residence of the son, the 5^th respondent. Exts.P3 to P5 complaints are not properly dated.

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The learned Government Pleader on instruction submit that the police had conducted an enquiry and have found that the petitioner is residing with her daughter one Fathima at Koduvally and that she is being looked after very well by her daughter and family. We also notice that Ext.R3(b) order is one issued on 15.10.2018 and Ext.P2 is dated 05.02.2019. The learned counsel would also point out that the third respondent has filed an application in Sulthan Bathery showing her residential address at Sulthan Bathery for the purpose of residence in a house which is actually situated within the

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WP(C).No. 7604 of 2019

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jurisdiction of the Judicial Magistrate, Payyoli. The 4^th respondent is also said to be, as of now residing abroad. Obviously, the attempt of the 4^th respondent, armed with Ext.P2 order, is to interfere with the peaceful residence of the 3^rd respondent and her children, which she obtained by virtue of Ext.R3(b) order.

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We are not aware of the stand of the 5^th respondent, the son of the petitioner, who has not entered appearance despite service of notice. Similar is the case of the 4^th respondent who shies away from appearing here. Admittedly, the two wives of the petitioner have obtained orders of residence in the marital home from the Magistrate's Court. It is not proper for us to involve the police and direct residence of the petitioner in the marital home, especially when the 3^rd respondent asserts that the petitioner was never residing there. Further the order at Ext.R3(b) is of date 15.10.2018 and the petitioner's specific case is that she was ousted from her son's residence on 14.10.2018 (para 3 of the writ petition). She obviously took no steps at that time.

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The petitioner has other children and the police

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WP(C).No. 7604 of 2019

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enquiry has revealed that she is peacefully residing with one of her daughters. The contention raised of lack of a shelter hence is unfounded. Ext.P2 order is dated 05.02.2019 and obviously the said order has triggered the above writ petition, which was filed on 14.03.2019. The sequence of events lend credence to the assertion of the 3^rd respondent that the attempt is to induct the mother into the marital home of the 3^rd respondent. The writ petition is argued to be an attempt to get evicted the 3^rd respondent and her children from the residential house with police help and induct the petitioner there under cover of Ext.P2 order. Though the petitioner could rightfully claim to reside in her son's home, we find the marital discords in the son's family to be not conducive for the peaceful residence of the petitioner, an octogenarian, in that house. Further there is no acute necessity for the petitioner, since she is residing with her daughter.

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The learned Counsel for the petitioner has referred to a decision of the Hon'ble Supreme Court to argue the emphasis laid on the shelter for the elderly. The decision in Ashwani Kumar Vs. Union of India (2019) 2 SCC 636 is in the aspect of enforcement of social justice to destitute elderly and does not

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WP(C).No. 7604 of 2019

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deal with the right as claimed by the petitioner against her son. Though there is a claim that the other children are not looking after the petitioner; the Police tell us otherwise. Especially looking at the marital disputes pending as against the 5^th respondent, it will not be proper for us to direct the petitioner to be inducted into the house belonging to the 5^th respondent. We are also not convinced that there is any threat to the life and limb of the petitioner. In the totality of circumstances we decline exercise of discretion and leave the parties to fight their cause before the appropriate forum. The observations made by this court on the available facts are prima facie observations to decline jurisdiction and do not at all govern the adjudication of the subject disputes before the appropriate forum; which have to be independently considered. The facts as discernible from the records do not commend or warrant police interference. Writ Petition dismissed without any order on costs.

Sd/-

K.VINOD CHANDRAN

JUDGE

Sd/-

V.G.ARUN

JUDGE

SHG

WP(C).No. 7604 of 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 A TRUE COPY OF THE PARTITION DEED NO.1543/2003 DATED 08.08.2003 EXECUTED BETWEEN THE PETITIONER AND HER CHILDREN.

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EXHIBIT P2

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A TRUE COPY OF THE ORDER IN CMP. 1321/19 IN MC. 9/2019 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, SULTHANBATHERY DATED 05.02.2019.

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EXHIBIT P3 A TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 1ST RESPONDENT BY THE PETITIONER DATED NIL.

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EXHIBIT P4 A TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 2ND RESPONDENT BY THE PETITIONER DATED NIL IN JANUARY, 2019.

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EXHIBIT P5

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A TRUE COPY OF THE ACKNOWLEDGEMENT BY THE NATIONAL HUMAN RIGHTS COMMISSION, NEW DELHI IN RECEIPT OF THE COMPLAINT SENT BY THE PETITIONER.

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RESPONDENT'S/S EXHIBITS:

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EXHIBIT R3(a) A TRUE COPY OF THE PETITION FILED AS M.C. NO. 2645/2018 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PAYYOLI

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EXHIBIT R3(b) A TRUE COPY OF THE ORDER IN M.C. NO. 2645/2018 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PAYYOLI DATED 15.10.2018.

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EXHIBIT R3(c) A TRUE COPY OF MEMORANDUM OF CRL.M.C. NO. 855/2019 PENDING BEFORE THIS HON'BLE COURT.

Biyyathu Chalil v. the Sub Inspector of Police

Case brief

What is this about?

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Biyyathu Chalil v. the Sub Inspector of Police

Case brief

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