IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 Crl.Rev.Pet.No. 3958 of 2008(D) ------------------------------------- (CRA.339/2008 of SESSIONS COURT, PALAKKAD CRMP.151/2008 of JUDL. FIRST CLASS MAGISTRATE COURT-III, PALAKKAD) .................... REVN. PETITIONER(S): APPELLANT/2ND RESPONDENT: ----------------------------------------------------------------- VELAYUDHAN, AGED 68 YEARS, KADAKURISSI, KANNANNUR, PALAKKAD TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.JACOB SEBASTIAN SRI.MATHEW SUNNY RESPONDENT(S): RESPONDENTS/STATE AND COMPLAINANT: ----------------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. KRISHNAKUMARI, D/O.CHELLAN, AGED 33 YEARS, ULLATTIKKAL HOUSE, ETHANUR AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT. R1 BY PUBLIC PROSECUTOR SMT. P.N.SUMANGALA R2 BY ADV. SRI.RAJESH SIVARAMANKUTTY THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.3958 of 2008 ------------------------------- Dated this the 4th day of October, 2010. O R D E R The challenge in this revision petition is against the judgment dated 15.10.2008 of the Sessions Court, Palakkad, in Crl.A.No.339/08 whereby the learned Sessions Judge, confirmed the interim order dated 12.3.2008 of the Court of Judicial First Class Magistrate-III, Palakkad, in Crl.M.P.No.151/08. 2. By the above interim order, the learned Magistrate has held that the aggrieved party is entitled for residence in the shared house and she should be provided accommodation in a room making it convenient to prepare food and for her primary needs. It is also directed that in case of difficulty, respondents can opt to provide a rented house befitting petitioner's social status. It is also observed that even the respondents can fix an amount of rent and can be paid monthly towards the rent of accommodation, provided as per the order of the court. It is also 2 Crl. R.P.No.3958 of 2008 observed that, to get the accommodation urgently, the revision petitioner is at liberty to get police help and that of protection officer. Beside the above, it is also directed the respondents to pay an amount of Rs.1,500/- each per month as rent for residential purpose of the revision petitioner as fixed in the open court. The said order is issued presumably on the basis of the consensus arrived on in the open court. 3. It is the above order challenged in the appeal by the revision petitioner herein. The revision petitioner is the father of the 1st respondent in the proceedings pending before the learned Magistrate. The 3rd respondent in the court below is the mother of the 1st respondent and wife of the revision petitioner. The 4th respondent is the brother and 5th respondent is the sister of the 1st respondent-the husband of the aggrieved party. 4. The learned counsel for the revision petitioner submitted that, the direction issued by the learned Magistrate which approved by the appellate court to provide accommodation in the house of the revision petitioner is absolutely illegal and 3 Crl. R.P.No.3958 of 2008 arbitrary, especially in the light of the decision of the Supreme Court in S.R.Batra and another Vs. Smt.Taruna Batra {2007 (1) KHC 536}, Vimlaben Ajitbhai Patel Vs. Vatslaben Ashokbhai Patel and Ors. with Ajitbhai Revandas Patel and anr. Vs. State of Gujarat & anr. {2008(4) SCC 649}. It is also the submission of the learned counsel that absolutely there was no settlement or consensus of the respondents in the court below or had agreed or consented for such an order. Therefore the orders of the courts below are liable to be set aside. 5. On the other hand Adv.Sri.Rajesh Sivaraman Kutty, the learned counsel appearing for the respondent, the aggrieved person, stoutly opposing the plea raised by the counsel for the revision petitioner submitted that, in the joint counter affidavit filed by the respondents in the trial court has admitted that the aggrieved party has resided in the house of the revision petitioner along with the 1st respondent/her husband. It is also the submission of the learned counsel that on a perusal of the order of the learned Magistrate, it is crystal clear that the 4 Crl. R.P.No.3958 of 2008 direction for rent arrangement etc. are made on the basis of the consensus or the settlement arrived on in the open court. 6. I have carefully considered the arguments advanced by both the counsels and also gone through the materials available on record and I have carefully perused the decisions of the apex Court referred above and the other decisions cited before me. 7. Admittedly, the judgment of the appellate court is arising out of an interim order issued by the learned Magistrate of the trial court and the main matter is pending consideration before the same trial court. As the main matter is pending before the trial court, I am not proposed to consider the merits and demerits of the contentions advanced by both the counsels at this stage. In the decision reported in 2007(1) KHC 536, the apex Court has held that, the claimant for alternative accommodation can only be made against the husband and not against the husband's in-laws or other relatives. In para 22 of the above decision cited, the apex court has held that, “... the wife is only entitled to claim a right to residence in a shared 5 Crl. R.P.No.3958 of 2008 household, and a 'shared household' would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member”. The said position is approved by the apex Court in the decision reported in 2008(4) SCC 649 also. The learned counsel for the revision petitioner submitted that, the house where the revision petitioner is residing is exclusively belongs to the revision petitioner himself and it is not a joint family property. The learned counsel for the respondent vehemently submitted that, such a plea was not taken by the revision petitioner at the time of considering the interlocutory application and therefore such a plea can not be raised at this revisional stage. From the order of the learned Magistrate it appears that, the learned Magistrate has not made any attempt to ascertain, whether the house of the revision petitioner residing is a joint family property or the same is exclusively belonged to the revision petitioner. So an inquiry in this regard in the light of the decision of the apex Court is absolutely necessary. 6 Crl. R.P.No.3958 of 2008 8. The learned counsel for the revision petitioner submitted that, in the trial court, none of the respondents have consented for an order to contribute rent to be paid to the aggrieved person. But as per the order, the learned Magistrate has specifically held that “on further settlement arrived in open court agreed by both sides, the respondent directed to pay an amount of Rs.1,500/- each per month as rent for residential purpose of the revision petitioner as fixed in the open court” [Emphasis supplied]. Even though the learned counsel for the revision petitioner disputed the fact that, the challenge in the above order the saying that no such consensus was arrived. In the absence of any contra materials or evidence, this court is not in a position to take any stand against the order passed by the learned Magistrate and the position stated therein. However in the manner in which I proposed to dispose of this revision petition, I am of the view that, I need not look into the correctness of all those observations and the direction made in this regard. 9. As the matter impugned is an interim order and the main 7 Crl. R.P.No.3958 of 2008 matter is pending before the learned Magistrate, I am of the view that this revision petition can be disposed of remitting the matter back to the trial court, with a direction to the learned Magistrate of the trial court to dispose of the entire matter pending before it, within a reasonable time and in the meanwhile the respondents in the interim order can be directed to pay the amount fixed by the trial court and also with a direction to keep in abeyance the direction of accommodation for the aggrieved person in the house of the revision petitioner. In the result, this revision petition is disposed of remitting the matter back to the trial court, with a direction to dispose the main matter pending before it within a reasonable time and till the disposal of the same, the respondents in the interim order is directed to pay the amount of rent fixed by the trial court and also directing the learned Magistrate to keep in abeyance the direction of accommodation for the aggrieved person in the house of the revision petitioner. It is made clear that the order to pay rent need to consider as an interim arrangement and the 8 Crl. R.P.No.3958 of 2008 right to shared house hold of the aggrieved person will be subjected to the final out come of the main matter pending before the trial court. V.K.MOHANAN, Judge. ami/