IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 9TH MARCH 2011 / 18TH PHALGUNA 1932 WP(C).No. 2374 of 2011(V) -------------------------------------- PETITIONER(S): ------------------------ KARTHIKEYAN S., S/O.SANKARAN, 'SANTHALAYAM', KANNANKODE, ADOOR P.O., PATHANAMTHITTA DISTRICT, PIN-691523. BY ADVS. SRI.N.NARAYANAN NAIR SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.RAJAN VELLOTH SRI.PRATHAP PILLAI SRI.BENOJ C AUGUSTIN SRI.SEBIN THOMAS RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REP. BY THE HOME SECRETARY, HOME DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SUPERINTENDENT OF POLICE, PATHANAMTHITTA-690 426. 3. THE DEPUTY SUPERINTENDENT OF POLICE, OFFICE OF THE DEPUTY SUPERINTENDENT OF POLICE, ADOOR-691 523. 4. THE CIRCLE INSPECTOR OF POLICE, ADOOR POLICE STATION, ADOOR-691 523. 5. MOHANAN, S/O.GOPALAN, SANTHALAYAM, KANNANKODE, ADOOR P.O., PATHANAMTHITTA DISTRICT, PIN-691523. R1 TO R4 BY GOVERNMENT PLEADER SMT.C.M.CHARISMA R5 BY ADV. SRI.S.SUBHASH CHAND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.2374/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE DISABILITY CERTIFICATE OF CHITHRALEKHA ISSUED FROM THE GENERAL HOSPITAL, PATHANAMTHITTA. P2 COPY OF THE PETITION BEFORE THE 3RD RESPONDENT AGAINST THE 5TH RESPONDENT DATED 13/8/2010. P3 COPY OF THE PETITION ALONG WITH AFFIDAVIT FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE AS MC.47/2010 DATED 15/10/2010. P4 COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE CIRCLE INSPECTOR OF POLICE, ADOOR DATED 5/01/2011. P5 COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE DEPUTY SUPERINTENDENT OF POLICE , ADOOR DATED 5/01/2011. P6 COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE,DISTRICT SUPERINTENDENT OF POLICE DATED 5/01/2011. P7 COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE SUPERINTENDENT OF POLICE, PATHANAMTHITTA DISTRICT DATED 10/01/2011. RESPONDENT'S EXHIBITS: R5(A) COPY OF THE RELEVANT PAGES OF THE RATION CARD INDICATING THE NAMES OF RESIDENTS. R5(B) COPY OF THE OBJECTION DATED 12/11/2010 THUS SUBMITTED BY ME IN MC NO.47/2010 BEFORE THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, ADOOR. /TRUE COPY/ P.A.TO.JUDGE sts R.BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------------------ W.P(C) NO:2374 OF 2011 ----------------------------------------------------------- Dated this the 9th March, 2011. JUDGMENT Basant, J. The petitioner has come to this Court with this petition for issue of directions under Art.226 of the Constitution to respondents 2 to 4 to afford police protection to the petitioner against alleged illegal, violent and culpable conduct indulged in and apprehended from the fifth respondent. 2. Petitioner is a retired Chief Engineer. He admittedly has another residence. According to him he along with his wife and two children are now residing in the family house of the wife. The fifth respondent is the brother of the wife of the petitioner. There is a suit pending for partition of property belonging to the wife of the petitioner and her siblings. That suit is pending before the civil court. No interim direction regarding the right of residence of the petitioner in the property has been passed in the said civil suit. According to the petitioner the fifth respondent is indulging in contumacious, culpable and violent conduct against the petitioner, his wife and children. It is this WPC 2374/2011 2 that has prompted him to come to this Court with this petition claiming issue of directions under Art.226. According to the petitioner there have been specific instances wherein the fifth respondent has indulged in such contumacious conduct. About that complaints were made to respondents 2 to 4 but no effective action was taken by them. 3. Fifth respondent has entered appearance. The learned counsel for the fifth respondent submits that the truth is far away from the assertions made by the petitioner in this petition. According to the fifth respondent the petitioner's wife as also another well settled sister of the fifth respondent have been provided adequately and they are not entitled for any share in the family house. The petitioner is attempting to establish a claim for rights in the family house. For this purpose petitioner who has another palatial house elsewhere and was residing in that house has come to the family house. There is no need for the petitioner to reside in the family house of his wife. 4. The petitioner according to the fifth respondent is interested in coercing the fifth respondent and other brothers-in- law to yield to terms dictated by the petitioner in respect of the family partition claim. It is for this purpose that totally false WPC 2374/2011 3 allegations have been made. According to the fifth respondent, petitioner is guilty of making totally false allegations through a visually challenged daughter of the petitioner. It is alleged that the daughter of the petitioner (that is the niece of the fifth respondent) was indecently assaulted by the fifth respondent. On that assertion a claim has been filed before the Magistrate under the provisions of the Protection of Women from Domestic Violence Act. Cruel allegations are made in that petition solely for the purpose of stealing a march over the fifth respondent and his brothers. No orders have been passed in that petition. Objections have been raised by the fifth respondent in that petition. Learned Magistrate has made attempts for a harmonious settlement. Learned counsel for the fifth respondent submits that bonafides is not a virtue that can be invented in the hands of the petitioner. Relief under Art.226 of the Constitution may not in these circumstances be granted to the petitioner contends the learned counsel for the fifth respondent. 5. The learned Govt. Pleader after taking instructions submits that at the moment the petitioner is residing in the family house of his wife. There is a suit for partition and there WPC 2374/2011 4 are civil disputes between the parties in relation to that claim for partition. In the perception of the police officials there is no threat to the life of the petitioner. Police do not want to intervene in the civil dispute between the parties. Threat to the life of the petitioner if any from the fifth respondent shall be effectively responded. There is no necessity at the moment to issue any directions for the protection of life of the petitioner. 6. We have heard the counsel. We have perused the available records. To us it appears that it is for the parties to go before the Civil Court where the partition suit is pending and claim appropriate directions regarding the enjoyment of the family house pending disposal of the family suit. We do not think it necessary to express any opinion on the rights of the petitioner to reside in the family house. We need only observe that the wife of the petitioner or the fifth respondent as the case may be must if they are so advised choose to approach the civil court and seek appropriate directions regarding residence in the family house pending disposal of the partition suit. We make it clear that we do not intend to express any opinion on such right of the petitioner to reside in the family house. 7. Coming to the apprehended threat to the life of the WPC 2374/2011 5 petitioner the threat is only when the petitioner chooses to reside in the family house. The learned Govt. Pleader undertakes that crimes if any committed or threat of commission of crimes shall be appropriately responded to by respondents 2 to 4. 8. In the circumstances of the case we are of the opinion that no directions under Art.226 of the Constitution are warranted from this Court. We accept the submission of the learned Govt. Pleader that crimes if any committed and threat of commission of crimes shall be appropriately responded to. We make it clear that we expect the petitioner or the fifth respondent to approach the court before which the partition suit is pending and seek appropriate directions regarding residence of the parties in the family house. 9. With the above observations this writ petition is dismissed. R.BASANT Judge K. SURENDRA MOHAN Judge jj WPC 2374/2011 6 WPC 2374/2011 7