IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 25TH MARCH 2011 / 4TH CHAITHRA 1933 Crl.Rev.Pet.No. 3502 of 2009() ------------------------------ CRA.1/2009 of SESSIONS COURT, KASARAGOD CMP.2365/2008 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... REVN. PETITIONER(S): APPELLANT/IST RESPONDENT IN CMP ---------------------------------------------------- SUBAIR.K., AGED 36 YEARS, S/O.MOIDU, PAZHAYAKADAPPURAM, POST KANHANGAD SOUTH, HOSDURG TALUK, KASARAGOD DISTRICT. REP. BY POWER OF ATTORNEY K.C.BASHEER, AGED 30 YEARS, S/O.ISMAIL PAZHAYAKADAPPURAM. BY ADV. SRI.SURESH KUMAR KODOTH SMT.V.SETHUKUTTY AMMA RESPONDENT(S): RESPONDENT/PETITIONER & STATE -------------------------------------------- 1. ASMA, AGED 34 YEARS, RESIDING AT PAZHAYAKADAPPURAM, KANHANGAD SOUTH P.O, HOSDURG TALUK, KASARAGOD DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.P.HARISH FOR R1 PUBLIC PROSECUTOR SRI.SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.3502 OF 2009 ------------------------------------------------- Dated this the 25th day of March, 2011. ORDER The respondent in a proceedings under Section 12 of the Protection of Women From Domestic Violence Act, 2005 (hereinafter referred for short as Act only) is the revision petitioner. 2. As per the order dated 29.11.2008 in C.M.P.No.2365/2008 of the court of Judicial First Class Magistrate-I, Hosdurg, which is a proceedings instituted under Section 12 of the above Act at the instance of the aggrieved person, who is the wife of the revision petitioner, the learned Magistrate issued the following orders allowing partly the above petition: “ In the result the petition is partly allowed in the following terms. 1. It is declared that the house No.KMC 24/74-E is not a shared house of petitioner and R1. 2. R1 is directed to pay monthly maintenance of Rs.3000/- to the petitioner and Rs.1,500/- to a child who is with petitioner now till the culmination of the MC before honourable family court. Crl.R.P.NO.3502 OF 2009 2 3. R1 is directed to make accommodation to the petitioner equal to the accommodation status of the 1st respondent, till that R1 is directed to pay Rs.3,000/- as house rent to the petitioner. R1 is also directed to provide her a residential accommodation according to her status and also equal to the status of R1 with out fail. 15. The interim order passed in CMP 2366/08 and CMP 2365/08 and order passed on 26.06.08 stand vacated. All other prayer mentioned in the petitioner is he r by disallowed. Furnish a copy of the order to the petitioner free of cost.” 3. Aggrieved by the above order the revision petitioner herein preferred an appeal and by judgment dated 16.10.2009 in Crl.Appeal No.1/2009 the court of Sessions, Kasargod allowed the appeal in part subject to some modification with respect to the directions issued by the learned Magistrate. It is the above findings and judgment of the courts below challenged in this revision petition. 4. I have heard Sri. Sureshkumar Kodoth and Advocate Sri. K.P.Harish counsel appearing for respondent No.1 the aggrieved person. Crl.R.P.NO.3502 OF 2009 3 5. The learned counsel for the revision petitioner invited my attention to the findings of the trial court that contained in paragraph 14 of the order which says: “The learned counsel for the appellant also submitted that in the cross examination of PW1, a suggestion was put to her, as to whether she was willing to accept the house in the property having an extent of 10 cents, PW1 has refused to accept the same, since her intention was to obtain the house which is situated in the name of the 2nd respondent, ie., mother in law of the petitioner. No evidence was adduced from the side of the petitioner, apart from her highly interested version, to reveal that she, along with the appellant herein and the children, resided in the house situated at Pazhaya Kadappuram., which stands in the name of the 2nd respondent, at any point of time”. Accordingly, in paragraph 23 of the order the learned Magistrate has further held: “Thus, it is seen that apart from the interested testimony of PW1., there is no reliable piece of evidence to establish that the house bearing No.24-74B of Kanhangad Municipality in Pazhaya Kadappuram is the “shared house” of the petitioner. Hence, as Crl.R.P.NO.3502 OF 2009 4 rightly found by the learned Magistrate, I find that there is no question of domestic violence arises here”. The appellate court has also upheld the above findings of the learned Magistrate. Learned counsel for the revision petitioner submitted that in order to issue a direction like the third one that contained in the order of the learned Magistrate, which is definitely in term of Section 19(1)(f) of the Act, the Magistrate must satisfy that domestic violence has taken place. But according to the learned counsel, as evident from the findings of the learned magistrate in the above quoted paragraph of the order, the learned Magistrate has already found that the petitioner was not residing in a shared house, as such the house is not a shared house, the question of domestic violence does not arise. So according to the learned counsel the third direction is not in accordance with the mandate that contained in Section 19 of the Act. It is also the submission of the learned counsel that as the court below has already found there is no domestic violence, the other directions are also unsustainable. Therefore, according to the learned counsel both the findings of the trial court as well as the appellate court and the judgments impugned are liable to be set aside. Crl.R.P.NO.3502 OF 2009 5 6. On the other hand the counsel appearing for the respondent/aggrieved person strenuously submitted that the domestic violence meted out against an aggrieved person necessarily need not be in a shared house so as to attract Section 19 and 20 of the Act. According to the learned counsel as evident from paragraph 24 and 26 of the appellate court judgment and from the discussion of the learned Magistrate of the trial court, it is crystal clear that domestic violence has meted out against the aggrieved person. It is also the submission of the learned counsel for the respondent/aggrieved person that the findings that contained in paragraph 14 of the trial court is basically as an answer to the first point formulated by the trial court and that does not mean no domestic violence has taken place. 7. I have carefully considered the arguments advanced by the learned counsel for the petitioner as well as the learned counsel for the respondents and I have carefully perused the order of the trial court as well as the judgment of the appellate court. 8. According to me, the submission made by the counsel for the petitioner as well as the respondents are not baseless and Crl.R.P.NO.3502 OF 2009 6 the same bearing force and substance in the light of the facts and circumstances involved in this case and especially, in view of the findings and observations made by the trial court as well as the appellate court. In the petition filed before the trial court the aggrieved person sought various reliefs under Section 18,19,20,21 and 22 of the Act and also an interim relief under Section 23 of the Act. The first prayer consists of two reliefs, i.e, an order prohibiting the respondents from committing any act of domestic violence under Section 18(a) of the Act and the second relief is for an order prohibiting the respondents from causing violence again the petitioner and the children under Section 18(f) of the Act. The second prayer is under Section 19. For the purpose of disposal of this revision petition according to me the other prayers in the petition are not relevant and therefore, I am not making any reference to those prayers. Going by the order of the trial court it can be seen that the learned Magistrate on the basis of the allegations and the claim contained in the petition and the counter and also on the basis of the rival pleadings, formulated four points for its consideration. The first point is whether the house bearing No.24/74-E is the shared house of the petitioner and 4th point is whether the Crl.R.P.NO.3502 OF 2009 7 respondents committed domestic violence against the petitioner as alleged in the petition. The above two points were considered together and after considering the evidence and the contentions, the trial court finally in answer to the above two questions it is specifically found that the house KMC 24/74-E cannot be said to be shared house. Subsequently it is further found that “since, I find the house is not a shared house, question of domestic violence does not arise”. So the findings of the courts below and the 1st and 4th points, were against the aggrieved person. 9. The point Nos.2 and 3 also considered together. The second point is whether the petitioner is entitled to monthly income under Section 20 of the Act and the third question is whether the petitioner is entitled to compensation as per Section 22 of the Act. While answering to the above points, there is no much discussion and after certain observations the learned Magistrate has found that wife is entitled to live in the same status as of her husband and that also to be awarded to her. It is thereafter on the basis of the above findings the relief Nos.1 to 3 were granted. In the light of the above findings of the learned Magistrate the contention of the counsel for the respondent that the finding of the learned Magistrate that there is no domestic Crl.R.P.NO.3502 OF 2009 8 violence against the aggrieved person, is only with respect to the shared house, cannot be accepted and liable to be rejected. In this juncture, it is also relevant to note that Section 19(1) says: 19. Residence orders:-(1) While disposing of an application under sub-section (1) of Section 12, the Magistrate may, “on being satisfied that domestic violence has taken place”, pass a residence order- [Emphasis supplied] If the contention of the learned counsel for the respondent is accepted, the findings of the learned Magistrate under point No.4 is not correct. But if the finding is correct, the learned Magistrate has no jurisdiction to pass an order of residence under Section 19(1)(f) of the Act. A close reading of the above Section, it is crystal clear that a direction to secure the same level alternate accommodation for the aggrieved person as enjoyed by her in the shared house hold or to pay rent for the same can be issued only on satisfaction that domestic violence has taken place. In the present case, the learned Magistrate has positively found under point No.4 that there is no domestic violence. If that be so, the direction issued under point No.3 cannot be sustained. 10. According to me, in order to issue an order in terms of Crl.R.P.NO.3502 OF 2009 9 Section 19(f) house in question need not necessarily be a shared house hold. Probably in a given case, if it is proved that the house in question is not shared house hold, the Magistrate court may not be justified in issuing any of the reliefs under Section 19 (1)(a) to (e). But in the present case it is crystal clear, that especially in view of the findings of the appellate court, that containing paragraph 24 that, the aggrieved person is not having any job or meanse of income. In view of Section 3 of the Act the domestic violence includes harms or injuries or endangers to the health safety, life, limb or “well-being” whether mental or physical and finally economic abuse. So the findings of the trial court as well as the appellate court that no domestic violence has taken place requires re-consideration and to clarify whether the findings of the trial court as well as the appellate court that no domestic violence has taken place is with respect to the shared house hold only or not. 11. Point Nos. 2 and 3 formulated by the trial court are not properly considered and evidence and materials on record were not referred to when the above points were considered. It appears that the direction No. 1 and 2 issued not on the basis evidence on those points rather the learned Magistrate refused Crl.R.P.NO.3502 OF 2009 10 to consider the aspects seriously for the reason that M.C was pending before the Family Court. As borne out from the judgment of the appellate court, the Family Court has now finally passed an order allowing maintenance. Therefore, on that reason also the point Nos.2 and 3 requires reconsideration by the learned Magistrate. In the light of the above facts and circumstances, the matter requires re-consideration for which the matter has to be remitted back to the trail court. 11. The learned counsel for the respondents submitted that on the basis of the order impugned substantial amount is due to the aggrieved person and except the amount paid by the revision petitioner in terms of the order passed by this Court or the Sessions court, no amount is paid. It is beyond dispute that a sum of Rs.55,000/- has already been paid to the aggrieved person in terms of the order passed by this Court and Rs.15,000/- in terms of the order passed by the appellate court. From the facts and circumstances involved in this case, it appears that the marital relationship between the revision petitioner as well as the first respondent became strained and therefore, the respondent herein the aggrieved person is free to approach the Magistrate interim relief in terms of the statutory Crl.R.P.NO.3502 OF 2009 11 provision and notwithstanding the findings and observation as indicated above, the learned Magistrate is free to consider such applications or the applications already filed in accordance with its merit and to pass appropriate orders. In the result, this revision petition is disposed of setting aside the orders of the trial court as well as the appellate court and the matter is remitted back to the trial court for the limited purpose of fresh consideration as to whether the domestic violence as defined under Section 3 of the above Act has taken place in the present case in the light of the evidence and materials on record and for a finding after clarification that while the finding under point No.4 is purely for the purpose of point No.1 or the domestic violence under as defined in Section 3 of the Act and also for fresh consideration of point No.2 and 3 in the light of the above referred order of the Family Court. The learned Magistrate is directed to pass appropriate orders in accordance with law and the facts involved in this case and untrammeled by any of the observations or findings that contained in this order. As the matter pertains to the year 2008 the learned Magistrate is directed to expedite the proceedings and pass final orders as expeditiously as possible, at any rate Crl.R.P.NO.3502 OF 2009 12 within 6 months from the date of receipt of this order and the back records from this Court. If the parties are ready to settle the matter the trial court is free to place the matter before the District Adalat, Kasargod and if possible a settlement can be arrived, notwithstanding the orders issued by the courts below or this order. V.K.MOHANAN, JUDGE pm