IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 Crl.MC.No. 1763 of 2009(C) -------------------------------------- (AGAINST THE ORDER IN CRL.M.P. NO. 1527/09 IN CRL.APPEAL NO.302/09 OF SESSIONS COURT, KOZHIKODE IN C.M.P. NO. 1184/09 IN M.C. NO.38/09 OF JUDICIAL FIRST CLASS MAGISTRATE – I KOZHIKODE) PETITIONER/ 2ND RESPONDENT/ 2ND RESPONDENT: ----------------------------------------------------------------------------- SHAREEFA CHERUKUNHI BEEVI, W/O.SEETHIKOYA THANGAL, AGED 63 YEARS, PALLIPPADY-PALLIPPURAM, POST MANKADA PALLIPPURAM, VIA. KOOTTILANGADI, MALAPPURAM DISTRICT. BY ADV. MR.MUHAMMED SALAHUDHEEN. RESPONDENTS/PETITIONER/APPELLANT RESPONDENTS 1,3 & 4: ----------------------------------------------------------------------------------------------- 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 POOKOYA THANGAL, S/O.ABOO-SALIH PALLIPPURAM-PALLIPPADI, P.O.MANKADA PALLIPPURAM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. 3. THAHIRA BEEVI, W/O.IQUBAL, D/O.SEETHIKOYA THANGAL, PALLIPPURAM-PALLIPPADY, P.O.MANKADA PALLIPPURAM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. 4. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 & R3 BY ADV. MR.K.K.MOHAMED RAVUF, R4 BY PUBLIC PROSECUTOR MR. GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04/06/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.1763 OF 2009 ------------------------------------------ Dated 4th June 2009 O R D E R Petitioner is the second respondent in Crl.A.302/2009 on the file of Sessions court, Kozhikode. That appeal was filed against the order passed by the Magistrate under Section 12 of Domestic Violence Act. In the appeal first respondent/appellant filed Crl.M.P.1527/2009 for an order for permission to the first respondent to reside in the permanent residence of second respondent. Under Annexure-A10 order learned Sessions Judge passed an order that in view of the apprehension of first respondent that if she is evicted from the present residence, she and her children will have no shelter and respondents have permanent residence at Pallippuram, if first respondent is to be evicted from the tenant premises she is entitled to reside in the house of respondents at Pallippuram till the disposal of the appeal. This petition is filed challenging the said order. 2. Learned counsel appearing for petitioner and CRMC 1763/09 2 first respondent and second respondent were heard. 3. Learned counsel appearing for petitioner pointed out that the residential house at Pallipuram is not the matrimonial home and is not the house of the second respondent, husband and therefore, a direction cannot be granted to the wife to reside in that house. Reliance was placed on the decision of the Apex court in S.R.Batra and another v. Taruna Batra (2007 (3) SCC 169) and argued that for that sole reason the order is to be quashed. Learned counsel appearing for second respondent pointed out that building where first respondent is residing is obtained by second respondent under the original of Annexure-A1 mortgage and the mortgagee is subsisting and therefore there is no reason for any apprehension of eviction and on that basis also the order is bad. 4. It was also argued that there was no case for the first respondent before the trial court that she is residing in the house at Pallippuram at the time when the petition was filed. Learned counsel appearing for first respondent pointed out that in Annexure-A7 joint counter statement submitted to the CRMC 1763/09 3 Magistrate by the petitioner as well as second respondent, it is stated in paragraph 6 that first respondent never resided at Pallippuram where the residence of the petitioner and second respondent is situated and it was not contended that it is a house which exclusively belongs to the petitioner and therefore such a contention cannot be raised in this petition. 5. On going through Annexure-A10 order it is clear that the said order was passed without hearing the respondents in that petition. Order does not provide that first respondent is entitled to reside in the permanent house at Pallippuram. It is only an interim arrangement till the disposal of the appeal and that too in case first respondent is evicted from her present residence. Question whether the house at Pallippuram, where she was permitted to reside by Annexure-A10 order as interim arrangement till disposal of the appeal, is a house, which exclusively belong to the petitioner or jointly belong to the petitioner and second respondent cannot be decided in this petition. 6. As Annexure-A10 order was passed CRMC 1763/09 4 without hearing the respondents, learned Sessions Judge is directed to pass final order in the application after hearing the respondents also, if respondents in that application files an objection and seek to pass final order in that application on merits. If such an objection is filed and respondents seek the final order in that application, learned Sessions Judge to pass the orders without delay. M.SASIDHARAN NAMBIAR, JUDGE. uj.