IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 CRL.REV.PET.NO. 2480 OF 2009() --------------------------------------------- AGAINST THE ORDER DATED 16/07/2009 IN CRMP 1527/2009 IN CRA.302/2009 OF ADDL.SESSIONS COURT, KOZHIKODE MC.38/2009 OF JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE (CRMP 1184/2009) .................... REVN. PETITIONER(S): 2ND RESPONDENT/2ND RESPONDENT --------------------------------------------------------------------------------- SHAREEFA CHERUKUNHI BEEVI, AGED 61 YEARS, W/O.SEETHIKOYA THANGAL, PALLIPPADY-PALLIPPURAM, (VIA) MANKADA, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.K.MUHAMMED SALAHUDHEEN RESPONDENT(S): APPELLANT/APPLICANT/RESPONDENTS 2 & 3/STATE ---------------------------------------------------------------------------------------------- 1. SHAREEFA SAINABHA BEEVI, D/O.ABDULLA KOYA THANGAL, 33/1366 A, PANIKKAR KANDY HOUSE, P.O.MARIKKUNNU, (VIA) MALAPARAMBA-KOZHIKODE. 2. SYED LIYAKKATH ALI POOKKOYA THANGAL, AGED 43, S/O.ABU SALIH, PALLIPPADY-PALLIPPURAM, (VIA) MANKADA, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. 3. THAHIRA BEEVI, W/O.IQBAL, D/O.SEETHIKOYA THANGAL, PALLIPPADY, PALLIPPURAM, (VIA) MANKADA, PERINTHALMANNA, MALAPPURAM DISTRICT. 4. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN SRI.P.V.KUNHIKRISHNAN FOR R1 SRI.M.S.SAJI FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/08/2009 ALONG WITH CRRP NO. 2481 OF 2009 AND CRRP NO. 2519 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2480 of 2009, CRL. R.P. NO.2481 of 2009 AND CRL. R.P. NO.2519 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 24th day of August, 2009 O R D E R -------------- These revisions are the offshoot of an interim order passed by the learned Judicial First Class Magistrate, Kozhikode on Crl. M.P. No.1184 of 2009 in M.C. No.38 of 2009. Parties are to referred as petitioner and respondents as in the trial court for convenience. 2. Petitioner claimed that she is married to respondent No.1, whose mother is respondent No.2. In the wedlock a child also is born. She had been residing in the family house at Perinthalmanna described as the 'shared household' in the proceeding but now she is staying in a rented house at Vellimadukunnu. She alleged that her landlord is attempting to evict her. Therefore she filed M.C. No.38 of 2009 under Section 12 of the Protection of Women from the Domestic Violence Act (for short, “the Act”). For interim relief she filed C.M.P. No.1184 of 2009 under Sec.23 of the Act. She prayed for an interim order to restrain the respondents from evicting her from the shared household, to prevent them from committing acts of domestic violence on her and her child and for maintenance from respondent No.1, her CRL. R.P. Nos.2480, 2481 and 2519 of 2009 -: 2 :- husband at the rate of Rs.10,000/- per month for herself and her child. Respondent No.1 contended that he had decided to pronounce talaq on 7.3.2009 and hence petitioner has no status of wife. She therefore is not entitled to file the petition or seek any relief. He denied that petitioner had ever resided in the family house. Instead she was always living at Vellimadukunnu in the rented house. He disputed his liability and capacity to maintain petitioner. Respondent No.2 contended that the house in question belonged to her. She also asserted that petitioner had not resided in that house. Learned magistrate after considering the rival contentions directed respondent No.1, husband to pay maintenance at the rate of Rs.5,000/- per month to the petitioner and her child. There was also an order prohibiting respondents from committing domestic violence. There was however, no interim residence order in favour of petitioner. Refusal to give residence order was challenged by petitioner in Crl. Appeal No.302 of 2009. Respondent No.1, husband of petitioner filed Crl. Appeal No.349 of 2009 challenging the interim order of maintenance. In Crl. Appeal No.302 of 1999 petitioner filed Crl.M.P. No.1527 of 2009 for an interim residence order. Learned Additional Sessions Judge, Kozhikode allowed that petition against which respondent No.2 filed Crl. M.C. No.1763 of 2009 before this Court. This CRL. R.P. Nos.2480, 2481 and 2519 of 2009 -: 3 :- Court directed the learned Sessions Judge to consider the contention of respondent No.2. In Crl. Appeal No.349 of 2009 learned Sessions Judge directed payment of interim maintenance to the petitioner and child at the rate of Rs.2,000/- per month till the disposal of the appeal. Criminal Appeal Nos.302 and 349 of 2009 were made over to the court of learned Additional Sessions Judge, Kozhikode. Learned Additional Sessions Judge disposed of those appeals by a common judgment as per which interim maintenance payable by respondent No.1 is fixed as Rs.5,000/- per month. Order of learned magistrate not giving residence order was set aside and a residence order was given in favour of petitioner. Aggrieved, respondent No.1 filed Crl.R.P. No.2519 of 2009. Respondent No.2 filed Crl. R.P. No.2481 of 2009 against the judgment in Crl. Appeal Nos.302 and 349 of 2009 allowing interim residence. Respondent No.2 also filed Crl.R.P. No.2480 of 2009 against the interim residence order in Crl.M.P. No.1527 of 2009 in Crl. Appeal No.302 of 2009. Thus these revisions. Learned counsel for parties reiterated their respective contentions taken in the court below. It is the contention of respondent No.2 that petitioner has a building of her own at Karuvanthuruthy, Feroke and produced certain documents. Availability of separate house for petitioner is disputed by counsel for petitioner. Whatever that be CRL. R.P. Nos.2480, 2481 and 2519 of 2009 -: 4 :- documents produced in this Court were not produced in the courts below. On going through the judgment it is seen that the learned Additional Sessions Judge found that there is dispute between the parties whether respondent No.1 had divorced petitioner by pronouncing talaq. That is a matter to be decided by the trial court. Also on the question whether petitioner has ever resided in the shared house there is dispute between the parties. While petitioner asserted that she had resided for 1½ years in the shared household respondent Nos.1 and 2 denied and contended that construction of the shared house was completed only in January, 2009. Respondent No.2 produced documents in the trial court to show that the house in question belonged to her. Appellate court observed that the documents produced does not show that the property referred to therein contained any building and the question whether those documents related to the property where the family house is situated is also a matter of evidence. Appellate court stated that respondents produced along with the counter affidavit an apology letter allegedly written by the petitioner and a reading of that apology letter shows that petitioner had actually resided in that family house for one year and two months. Since these revisions arose on interim orders the disputed questions are to be decided by the trial court. I CRL. R.P. Nos.2480, 2481 and 2519 of 2009 -: 5 :- do not consider it necessary, just or proper to pronounce verdict on the disputed issues in these revisions since the issues are to be decided by the trial court if necessary, after recording evidence. Respondent No.2 submitted that on the strength of the interim order passed by the learned Additional Sessions Judge on Crl.M.P. No.1527 of 2009 it is not merely petitioner and her child alone but a few of her relatives are also staying in the family house. Learned counsel for petitioner submitted that information given to him is that nobody other than petitioner and her child are staying in the house in question. I make it clear that the order passed by the learned Additional Sessions Judge does not enable anybody other than petitioner and her child to reside in the house in question. It is directed that respondent Nos.1 and 2 and their children can also reside in the house in question. If there is any law and order problem in the house in question on account of joint residence, it is open to the parties to seek appropriate orders in that regard from the trial court. 3. Learned counsel contended that respondent No.1 is not able to pay the maintenance to petitioner and her child at the rate of Rs.5,000/- per month. Learned counsel referred to the financial difficulties of respondent No.1. According to learned counsel for petitioner no interference is required with the interim order of CRL. R.P. Nos.2480, 2481 and 2519 of 2009 -: 6 :- maintenance. 4. It is not disputed that at least during the time the appeal was pending in the court of learned Additional Sessions Judge interim maintenance payable was only at the rate of Rs.2,000/- per month. Petitioner is aged 40 years and her child, 4½ years. Having regard to their needs and considering the cost of living I direct that until the matter is finally disposed of by the trial court respondent No.1 shall pay maintenance at the rate of Rs.2,500/- per month to the petitioner and her child from 5.6.2009 onwards. It is made clear that maintenance payable by respondent No.1 till 4.6.2009 will be as ordered by the trial court. Revision Petitions are disposed of as above. Learned Judicial First Class Magistrate, Kozhikode is directed to dispose of the main petition as expeditiously as possible. THOMAS P.JOSEPH, JUDGE. vsv