IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 15TH JANUARY 2008 / 25TH POUSHA 1929 WP(C).No. 1758 of 2008(H) ------------------------- AGAINST THE ORDER IN CRMP 3055/07 IN CRMP.3484/2007 of J.M.F.C.,AMBALAPUZHA .................... PETITIONER: ------------ DEVARAJAN, S/O.RAGHAVAN, KARUKACHIRA, ANAPRACHAL NORTH, THALAVADY, AMBALAPPUZHA. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P RESPONDENTS: ------------- 1. BINDU, W/O.NANDANAN, KARUKACHIRA, ANAPRACHAL NORTH, THALAVADY, AMBALAPPUZHA. 2. SUB INSPECTOR OF POLICE, EDATHUVA POLICE STATION, EDATHUVA. 3. THE DEPUTY SUPERINTENDENT OF POLICE, CHENGANNUR. 4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY PUBLIC PROSECUTOR SRI. K.S. SIVAKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J ...................................... W.P. (C) NO. 1758 OF 2008 H ...................................... Dated, 15-01-2008 JUDGMENT Petitioner who was the 3rd respondent in Ext.P1 order dated 17-11-2007 passed by the Judl. First Class Magistrate, Ambalappuzha on an application filed by the first respondent herein (Bindu) under Sec. 18 of the Protection of Women from Domestic Violence Act, 2005 (“the Act “ for short) challenges the said order and seeks a declaration that the first respondent has no manner of right to occupy or claim possession of the family house of the petitioner. Petitioner also seeks a direction to respondents 2 and 3, namely, the Sub Inspector of Police, Edathuva and Deputy Superintendent of Police, Chengannur to conduct an effective and impartial investigation into Ext.P2 F.I.R. in Crime No. 149 of 2007 of Edathuva Police, registered under the caption “unnatural death”. 2. The first respondent Bindu was married by the elder brother of the petitioner herein by name Nandanan on 26-4- 1992 and they were residing as man and wife in the house in question in Thalavady Village . Two children were born in that W.P. (C) NO. 1758 OF 2008 H -:2:- wedlock. Alleging that since February 2007 there were differences of opinion between the husband and the wife and on 10-10-2005 the husband locked up the house and left the place at a time when the wife and children had gone out and that ever since then they were residing in the house of a neighbour, the first respondent Bindu moved the J.f.C.M., Ambalappuzha by filing Crl.M.P. No. 3055 of 2007 under Sec. 12 of the Act against her husband Nandanan and six other family members of Nandanan including the respondents in this petition. Pending the said application under Sec. 18 of the Act, Bindu filed a petition as Crl.M.P. No. 3484 of 2007 . The said petition, after a contest, was allowed as per Ext.P1 order dated 17-11-2007 wherein Nandanan was restrained from alienating or disposing of the shared household or encumbering the same. Nandanan was also directed to open the locked house to enable the wife and children to have a peaceful living in that shared house. Eventhough there were seven respondents to the said petition, the relief was granted only against the first respondent- Nandanan . Nandanan, the husband of Bindu had a grievance that his wife had contracted an intrigue with a neighbour by name Sarangadharan and that she was continuing the illicit W.P. (C) NO. 1758 OF 2008 H -:3:- intimacy with her paramour to the extreme chagrin of the husband and his family members. On 31-12-2007, that is, nearly 1 ½ months of Ext.P1 order, the dead body of Nandanan, husband of Bindu was found in the compound appurtenant to their house. According to the family members of Nandanan, on a petition filed by his wife Bindu before the Edathuva Police, the Sub Inspector and Addl. Sub Inspector of Police and other police men had manhandled Nandanan who had gone to the hospital for treatment and it was on account of the humiliation that he committed suicide. 3. The learned counsel for the petitioner submitted that now Nandanan, the husband of Bindu is no more and Ext.P1 order is virtually infructous and it will be a matter of disgrace for the other members of the family if Bindu who has obtained the said order is permitted to come and reside in the shared household and that with the death of her husband she has forfeited her right to go and stay in the shared house. The petitioner is also seeks a direction to respondents 2 and 3 to conduct an impartial investigation into Ext.P2 F.I.R. originally registered under the caption “unnatural death”. 4. No doubt, the prayer for proper investigation into W.P. (C) NO. 1758 OF 2008 H -:4:- Ext.P2 F.I.R. is to be conducted by the police. If the investigation reveals that anybody including Bindu had abetted the act of committing suicide by Nandanan that also is to be brought to light. But the petitioner who was the 3rd respondent in Ext.P1 proceedings cannot avoid the directions therein without exhausting alternative statutory remedy by way of appeal available to him. Under Sec. 29 of the Act, the petitioner has undoubtedly has a right of appeal to the Court of Session. Hence, he cannot avoid the directions in Ext. P1 without availing a statutory appeal. Of course, it is open to the petitioner to contend before the appellate authority that in as much as the directions in Ext.P1 were mainly directed against the husband who has subsequently expired the petition filed by Bindu before the Magistrate has virtually become infructous. Nonetheless, as long as the order remains, the first respondent Bindu has a right to enter the house and continue to live there along with her children. That is a matter, which will have to be gone into by the appellate court in the event of an appeal. In as much as the petitioner was bona fide prosecuting his remedies by filing this Writ petition, if the petitioner files an appeal before the Sessions Court, that Court shall take a lenient W.P. (C) NO. 1758 OF 2008 H -:5:- view in the matter of condonation of delay. Accordingly, the petitioner is given two weeks' time to file an appeal before the Sessions court against Ext.P1 order. The directions in Ext. P1 order shall stand suspended till the expiry of two weeks from today unless in the meanwhile, the first respondent Bindu has already started residing in the house along with the children. This petition is disposed of as above. V. Ramkumar, Judge.