Wife obtained interim orders in a domestic violence case, including repossession of her car taken by the husband. The husband's revision challenged maintainability and the Magistrate's power to pass a second Section 18 order. The High Court held revision maintainable and that distinct reliefs need not follow Section 25(2).
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 1ST DAY OF AUGUST 2024 / 10TH SRAVANA, 1946
CRL.REV.PET NO. 689 OF 2024
AGAINST THE JUDGMENT DATED 15.06.2024 IN CA NO.99/2024 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT-V, THIRUVANANTHAPURAM/II ADDITIONAL MACT ARISING OUT OF THE ORDER DATED 03.05.2024 IN CMP NO.1536/2023 IN M.C.NO.11/2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS IV (MOBILE), THIRUVANANTHAPURAM.
REVISION PETITIONER/APPELLANT/RESPONDENT/RESPONDENT IN M.C.:
SABARI S.NAIR, AGED 39 YEARS, SON OF LATE P.SASIDHARAN NAIR, HARISREE, KAILAS NAGAR, PALLICHAL, PUNNAMOODU, KALLIYOOR P.O., THIRUVANANTHAPURAM, PIN-695020.
BY ADVS.T.RAMPRASAD UNNI K.RAMAKUMAR (SR.) S.M.PRASANTH ASWINI SANKAR R.S. SHEHIN S.
RESPONDENTS/RESPONDENTS & STATE/PETITIONER/1ST APPLICANT IN M.C.:
1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN-682031.
2 DIVYA G.G., D/O. GIRIJAKUMARI P., FLAT NO. 5C, LE ROYALE, KUNNUKUZHY, THIRUVANANTHAPURAM AND ALSO HAVING ADDRESS AT T.C. 28/1044, KARTHIKA, PUNNAPURAM FORT P.O., THIRUVANANTHAPURAM, PIN-695023.
R1 SRI.M.P.PRASANTH, PUBLIC PROSECUTOR
R2 ADVS.KISHORE D MEERA GOPINATH(K/001803/1999.) R.MURALEEKRISHNAN (MALAKKARA)(K/000583/2008)
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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'C.R.'
ORDER
Dated this the 1st day of August, 2024
This Criminal Revision Petition has been filed by the petitioner under Section 438 of the Bhartiya Nagrik Suraksha Sanhita, 2023 challenging judgment in Crl. Appeal No.99/2024 dated 15.06.2024 on the files of the Additional Sessions Court, Thiruvananthapuram and order in CMP No.1536/2023 in M.C.No.11/2023 on the files of the Judicial First Class Magistrate-
IV/Mobile Court, Thiruvananthapuram.
M.C. No.11/2023 was filed by the wife as the petitioner,
seeking reliefs under the Protection of Women from Domestic
Violence Act (‘DV Act’ for short hereinafter), where the revision
petitioner herein got arrayed as the respondent.
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respondent/revision petitioner herein is the husband of the 1st petitioner/respondent herein. The 1st petitioner, who is aggrieved by the acts of domestic violence at the instance of the respondent, had filed the M.C. Along with the M.C., she sought for an interim order and obtained an interim protection order against the respondent. The petitioner is now residing at the shared household, viz., Flat No.5C, Le Royale, Kunnukuzhy, Thiruvananthapuram, which is jointly owned by the petitioner and respondent. It is her specific allegation that the respondent, in order to alienate their shared household, had threatened her and her daughter, warning them to evict from the house at the earliest. On 20.08.2023, the respondent forcefully took away her Toyota Fortuner Car (White Pearl Crystal colour) bearing registration No.KL-01-CG-7777 which was parked at the parking space of the shared household. She informed this matter to the nearby police station and the police had directed the 1st
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petitioner to get an order from the court. According the 1st petitioner, the vehicle was used to pick up and drop the 2nd petitioner from her school and the respondent was doing all the above said alleged acts only to harass the petitioner. Accordingly, she sought for the custody of the car.
husband made payment for the vehicle. Therefore, the absolute ownership claimed by the wife, though she is the registered owner is not sustainable.
car, which was admitted to be in possession of the respondent, within one week from the date of the order. Challenging the said
order, Crl. Appeal No.99/2024 was filed before the Sessions Court and the Additional Sessions Court confirmed the order.
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No.2283/2023 seeking interim reliefs, and thereby the
Magistrate granted two reliefs as per order dated 10.08.2023.
i) The respondent is hereby restrained from committing any act of physical violence against the petitioners.
ii) The respondent is restrained from evicting the petitioners from the petitioner's shared household of Flat No.5C, Le Royale, Kunnukuzhy, Thiruvananthapuram until further orders.
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reported to him.
a) of her right to make an application for obtaining a relief by way of a protection order, an order for monetary relief, a custody order, a residence order, a compensation order or more than one such order under this Act;
(b) of the availability of services of service providers;
(c) of the availability of services of the Protection Officers;
(d) of her right to free legal services under the Legal Services Authorities Act, 1987 (39 of 1987);
(e) of her right to file a complaint under section 498A of the Indian Penal Code (45 of 1860), wherever relevant:
Provided that nothing in this Act shall be construed in any manner as to relieve a police officer from his duty to proceed in accordance with law upon receipt of information as to the commission of a cognisable offence.
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regarding the question of maintainability of the revision petition, as early in Harshakumar and another v. State of Kerala and others [2011 (3) KHC 15], this Court considered the question and answered as under:-
The next question is whether the judgment of the Court of Sessions in an appeal under Sec.29 of the Act is amenable to the revisional jurisdiction of the High Court under Secs.397(1) and 401 of the Code. I stated that the appeal is governed by the provisions of the Code though right of appeal is provided by Sec.29 of the Act. The Act does not say that judgment of the Court of Sessions is subject to challenge before any other court. Under Sec.397(1) of the Code, High Court may call for and examine the records of any proceeding before any inferior Criminal Court. A Court of Sessions is a criminal court inferior to the High Court for the purpose of exercise of revisional power under Sec.397(1) and 401 of the Code. Sec.397(1) of the Code empowers the courts specified therein to call for records of the inferior Criminal Court and examine them for the
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purpose of satisfying themselves as to whether a sentence, finding or order of such inferior Court is legal, correct or proper or whether the proceedings of such inferior Court is regular. The object of conferring revisional power is to give the superior Criminal Courts supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment which has resulted on the one hand in some injury in the due maintenance of law and order, or on the other hand in some undeserved hardship to individuals. The power of revision is supervisory in character enabling the superior Courts to call for records of the inferior Criminal Courts and examine them for the purpose of satisfying themselves that the sentence, finding, order or proceeding of such inferior Court is legal, correct or proper. Judgment of the Court of Sessions in an appeal though preferred under S.29 of the Act being of an inferior Criminal Court, is revisable by the High Court in exercise of its power under S.397(1) and 401 of the Code. Petitioners have to
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take recourse to that remedy. In the circumstances, I am not inclined to exercise the extraordinary jurisdiction conferred on this Court under S.482 of the Code.
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“i) Whether a revision under S.397/401 of the Code of Criminal Procedure, 1973 is maintainable before the High Court challenging an order passed by the Court of Sessions under S.39 of the Act 2005?
ii) Whether the decisions in the case of Nishant Krishna Yadav (Criminal Revision No.4016 of 2015) and Manju Shree Robinson and Ors. Vs State of U.P. and Ors. (Writ Petition No.7926 (MS) of 2015) lay down correctly on the question of maintainability of a Revision under S.397/401 of the Code of Criminal Procedure before the High Court against an order passed by the Court of Sessions under S.29 of the Act 2005 in view of the earlier decisions of the Supreme Court in the case of Thakur Das Vs State of Madhya Pradesh and Anr., [(1978) 1 SCC 27]; National Sewing Thread Co. Ltd., Chidambaram Vs James Chadwaick and Bros., AIR (1953) SC 357]; Maharashtra State Financial Corporation Vs Jayee Drugs & Pharm, [(1991) 2 SCC 637]; and ITI Ltd. Vs Siemens Public Communications Networks Ltd., [(2002) 5 SCC 510]?”
“In the result, we answer the first question in the
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affirmative holding that the decisions in Nishant Krishna Yadav (supra) and Manju Shree Robinso (supra) do not lay down the law correctly. In other words, we hold that a revision under S.397/104 of Cr.P.C. against a judgment and order passed by the Court of Sessions under S.29 of the Act, 2005 is maintainable and that the decisions in Nishant Krishna Yadav (supra) and Manju Shree Robinson (supra) do not lay down the law correctly.”
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Section 29 of DV Act. But Section 28 of the DV Act deals with the
procedure to go under the DV Act. Section 28 (1) and (2) of the DV Act provide as under:-
(1) Save as otherwise provided in this Act, all proceedings under sections 12,18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).
(2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.
Procedure ('Cr.P.C.' for short hereinafter) empowers the High
Court to exercise power of revision. Section 401 of Cr.P.C. provides as under:-
(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389,
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390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.
(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.
(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.
(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for
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revision as a petition of appeal and deal with the same accordingly.
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was filed before the Magistrate Court and the petitioner sought two reliefs, the same were granted. Again, a fresh petition filed seeking an interim order, to handover the vehicle bearing Registration No.KL-01-CG-7777 to the petitioner. The said relief was sought for, mainly contending as stated in paragraphs 5 and
7 as under:
“5. Now the respondent is trying to alienate his share over the sharehold house and is spreading the message to his men that he is going to sell this flat. As a result, nowadays, so many people were coming to out residence with the intention of inspecting the house before purchase and causing nuisance to me and my daughter. The respondent is also visiting the sharehold house with proposed purchasers and causing disturbances and nuisance to out peaceful living. He is also threatening me and my daughter and warning us to evict from the house at the earliest.
xxxx xxxx xxxx
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and the police directed the petitioner to get an order from hon'ble court. It is the vehicle which the petitioner used for their travelling purpose and use to pickup and drop the 2nd petitioner from her school. The respondent did all these things only to harass and to give fortune to the petitioner.”
as under:-
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(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;
(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;
(f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;
(g) committing any other act as specified in the protection order.
(iv) "economic abuse" includes- (a) “deprivation of all” or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of
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a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, house hold necessities for the aggrieved person and her children, if any, stridhan , property, jointly or separately owned by the aggrieved person, payment of rental related to the shared house hold and maintenance.
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reasons to be recorded in writing pass such order, as he may deem appropriate.
the petitioner herein is sought to be repossessed by an interim order passed under Section 18 of the DV Act. Naturally, the question would arise as to whether such a relief is contemplated under Section 18. Section 18 (a) to (g) deals with different types of protection orders on alleging act of domestic violence and Section 18 (e) provides that alienating any assets, operating
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bank lockers or bank accounts used to held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate. Similarly, Section 18(g) provides that committing any other act as specified in the protection order. So grant of relief under Section 18 is to protect the aggrieved person from the acts of domestic violence.
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exhaustive and wide enough to address the grievance of the aggrieved person, including any element of economic or financial resources to which the aggrieved person is entitled. If so, a Magistrate dealing with a petition under Section 12 could very well order the repossession of a vehicle owned and registered in the name of the aggrieved person to protect her financial resource without being misused or destroyed, resorting to Section 18 of the DV Act.
Registry shall forward a copy of this order to the trial court for information and compliance.
Sd/- A. BADHARUDEEN
bpr
3 issues framed by the court
Whether a High Court revision lies against a Sessions Court judgment in appeal under Section 29 of the DV Act.
Whether a fresh interim order under Section 18 can be passed without resort to Section 25(2) of the DV Act.
Whether a Magistrate can order repossession of a vehicle owned by the aggrieved person as interim relief under Section 18.
Colour shows how this judgement treated each authority
Harshakumar and another v. State of Kerala and othersRelied on¶13
2011 (3) KHC 15
Dinesh Kumar Yadav v. State of U.P. and anotherRelied on¶14
2017 KHC 2210
Shalu Ojha v. Prashant OjhaExplained¶15
(2015) 2 SCC 99 · Who else cites this
10 provisions across 3 enactments
Sabari S.Nair
State of Kerala
Divya G.G.
A. BADHARUDEEN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
