Partly allowed

Soni John Mathew v. Jacob P Mathew

Kerala HC2 Mar 2023OP(Crl.)/430/2021

Case brief

AI extract

What is this about?

The High Court modified a residence order granted in a domestic violence appeal, directing the husband to provide alternative accommodation to the wife since the shared household belongs to a third party (the petitioner) contesting the order under Article 226.

What did the court decide?

Residence order is modified; 1st respondent directed to provide suitable alternative accommodation to 2nd respondent within two months.

Soni John Mathew Vs Jacob P Mathew — Domestic Violence | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

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THURSDAY, THE 2^ND DAY OF MARCH 2023 / 11TH PHALGUNA, 1944

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OP(CRL.) NO. 430 OF 2021

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OS 65/2018 OF MUNSIFF COURT, CHANGANACHERRY, JUDGMENT IN CRLA 96/19

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OF ADDL.SESSIONS JUDGE V, KOTTAYAM, MC 2/2018 IN JFCM-I,

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CHANGANACHERRY

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PETITIONER/PLAINTIFF:

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SONI JOHN MATHEW, AGED 49 YEARS, S/O.P.K.MATHEW, PLAPPARAMBIL HOUSE, VAKATHANAM.P.O, VAKATHANAM VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, REPRESENTED BY HIS POWER ATTORNEY HOLDER, VARGHESE CHANDY, S/O CHANDY, MANGALAPPALLY(H), AGED 72 YEARS, KUZHIMATTAM.P.O, PANACHIKKAD VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, PIN-686533.

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BY ADVS.ALEXANDER JOSEPH AKHILASREE BHASKARAN

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RESPONDENTS/DEFENDANTS:

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1 JACOB P MATHEW, S/O.P.K.MATHEW, PLAPPARAMBIL HOUSE, VAKATHANAM.P.O, VAKATHANAM VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT,PIN-686538.

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2 MINI.K.V,AGED 48 YEARS, W/O JACOB P.MATHEW, .PLAPPARAMBIL HOUSE, VAKATHANAM.P.O, VAKATHANAM VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DIST,PIN-686538.

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3 THE INSPECTOR OF POLICE,VAKATHANAM POLICE STATION, CHANGANACHERRY, KOTTAYAM DISTRICT,PIN-686538.

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BY ADVS.P.V.ANILKUMAR

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D.SARITHA, E.D.GEORGE, KEERTHI PRIYA A.

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SRI. S. REKHA SR. PP

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THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 02.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(Crl).No.430/2021

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-:2:-

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J U D G M E N T

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Dated this the 2^nd day of March, 2023

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This original petition has been filed challenging Ext.P7 order passed by the Additional Sessions Judge-V, Kottayam (for short 'the appellate court').

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The petitioner is the brother of the 1^st respondent. The 1^st respondent and the 2^nd respondent are husband and wife. The 2^nd respondent filed MC.No.2/2018 against the 1^st respondent before the Judicial First Class Magistrate Court-I, Changanacherry (for short 'the trial court') claiming various reliefs under Section 12 of the Protection of Women from Domestic Violence Act (for short 'the DV Act'). The petitioner herein was not a party to the said proceedings. The 2^nd respondent claimed various reliefs including residential order in respect of the shared household also, which at present, admittedly, belongs to the petitioner herein. The trial court allowed the MC in part granting maintenance alone. The prayer for residential order was disallowed holding that the shared house in question belongs

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O.P.(Crl).No.430/2021

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-:3:-

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exclusively to the petitioner herein. However, the appellate court in appeal (Cr.A.No.96/2019) granted residential order as well, in favour of the 2^nd respondent. The 2^nd respondent was allowed to reside in the shared household. The said order is under challenge in this original petition.

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The shared household in question originally belonged to the father of the petitioner. According to the 2^nd respondent, after the marriage, she along with the 1^st respondent resided in the said building and hence it is a shared household. However, thereafter in 2017, as per Ext.P1 settlement deed, the father of the petitioner settled the shared household and the property where it stood in the name of the petitioner. It appears that, thereafter, the petitioner instituted a suit against the 1^st and 2^nd respondents to restrain them from trespassing into the shared household as O.S.No.65/2018 at the Munsiff Court, Changanacherry. Ext.P4 is the plaint. As per Ext.P5 order, an interim injunction was granted by the Munsiff's Court, Changanacherry restraining the respondent Nos. 1 and 2 from trespassing into the shared household and committing mischief in

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O.P.(Crl).No.430/2021

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the property. It was thereafter the residence order was passed by the appellate court. Now the petitioner is aggrieved by the residence order passed by the appellate court in respect of the shared household which belongs to him. True, the petitioner was not a party to the proceedings before the trial court or appellate court. But, the petitioner being the person aggrieved by the residence order passed, he has every right to challenge the order in this proceedings.

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It is evident from Ext.P1 that the property was settled by the father of the petitioner in favour of the petitioner as early as in the year 2017. The MC was instituted thereafter, in the year 2018. The residence order was passed only in the year 2021. Even though the shared household stood in the name of the petitioner, in the MC, the petitioner was not impleaded.

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The learned counsel for the petitioner submitted that the 1^st respondent has already filed a petition before the trial court expressing his willingness to provide alternative accommodation to the 2^nd respondent. Since the shared household in question at present belongs to the petitioner, I am

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O.P.(Crl).No.430/2021

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of the view that the residential order passed by the appellate court can be modified and the 1^st respondent can be directed to provide alternative accommodation to the 2^nd respondent.

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In the result, Ext.P7 residence order passed by the appellate court is modified and the 1^st respondent is directed to provide suitable alternative accommodation to the 2^nd respondent within two months from today. Till that period, the 2^nd respondent is allowed to continue to reside in the shared household. The original petition is disposed of.

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DR. KAUSER EDAPPAGATH

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JUDGE

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O.P.(Crl).No.430/2021

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-:6:-

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APPENDIX OF OP(CRL.) 430/2021

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PETITIONER EXHIBITS

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Exhibit P1	TRUE COPY OF THE SETTLEMENT DEED NO.1660/2017 DATED 26.09.2017 OF THENGANA SRO.
Exhibit P2	TRUE COPY OF THE TAX RECEIPT DATED 08.10.2021 ISSUED BY THE VILLAGE OFFICER, VAKATHANAM VILLAGE.
Exhibit P3	TRU COPY OF THE RATION CARD OF THE 1ST RESPONDENT
Exhibit P4	TRUE COPY OF THE PLAINT IN O.S.65/2018 DATED 20.02.2018 OF CHANGANACHERRY MUNSIFF'S COURT
Exhibit P5	TRUE COPY OF THE INJUNCTION ORDER DATED 20.02.2018 OF MUNSIFF'S COURT, CHANGANACHERRY IN IA NO.399/18 IN O.S.NO.65/2018.
Exhibit P6	TRUE COPY OF THE ORDER DATED 05.04.2019 IN M.C.NO.2/2018 OF THE JUDICIAL 1ST CLASS MAGISTRATE COURT-1, CHANGANACHERRY
Exhibit P7	TRUE COPY OF THE ORDER DATED 28.09.2022 IN CRIMINAL APPEAL NO.96/2019 OF THE ADDITIONAL SESSIONS COURT-V, KOTTAYAM

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RESPONDENT EXHIBITS Exhibit-R2(a) True copy of the Judgment dated 7/12/2021 in O.S.65/2018 on the file of Munsiff Court, Changanacherry.

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O.P.(Crl).No.430/2021

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Exhibit-R2(b) True copy of the agreement dated 31/12/2015 by the 1st respondent Exhibit-R2(c) True copy of the Copy of the rent agreement dated 24/2/2018 Exhibit-R2(d) True copy of the order dated 23.11.2021 in O.P.(Crl.)430 of 2021 of this Hon'ble Court. PETITIONER EXHIBITS Exhibit P8 TRUE COPY OF THE ORDER DATED 27/08/2022 OF THE MUNSIFFS COURT CHANGANASERY IN RP NO 91/2021 IN OS NO 65/2018

Soni John Mathew v. Jacob P Mathew

Case brief

What is this about?

What did the court decide?

Soni John Mathew v. Jacob P Mathew

Case brief

What is this about?

What did the court decide?

What the court decided

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