IMPORTANT POINT
Right to residence – If an order of residence would result in total negation and annihilation of rights of respondents and an alternative arrangement would reasonably protect right of residence and interest of both parties, court shall lean in favour of such an alternative arrangement.

ORDER

In this revision petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Code), the petitioner challenges the judgment in Crl.A.197 of 2023 on the files of the Sessions Court, Thalassery. In the appeal, order of the Judicial Magistrate of the First Class, Koothuparamba granting a residence order in favour of the petitioner was set aside. However, the respondents No.1 to 3 were directed to provide an alternative accommodation to the petitioner.

2. Heard the learned counsel for the petitioner, the learned counsel for respondents No.1 to 3 and the learned Public Prosecutor.

3. The petitioner filed M.C.No.43 of 2022 invoking the provisions of Section 12 of the PWDV Act with the following contentions:—

The petitioner had been residing in the building in question along with her husband and respondent Nos.1 and 2. Her husband expired. She continued her residence there. That building and the property appurtenant thereto were purchased using the sale proceeds obtained by sale of residential property of her husband. On the assurance by respondents No.1 and 2, who are the petitioner’s son and daughter-in-law, to protect and maintain the petitioner and her husband, new residential building was purchased in their name. The 3rd respondent is the mother of the 2nd respondent. She now tries to evict the petitioner from that building. Hence, she sought for a residence order.

4. Respondents No.1 to 3 filed an objection controverting the claims in the petition. The relationship was not disputed and the right of residence of the petitioner was not specifically denied. Respondent Nos.1 to 3 maintain that continuance of the petitioner in the shared household is against the interest of respondent Nos.1 and 2. Respondent Nos.1 and 2 are now in Qatar. The 1st respondent owes money to several persons on account of the collapse of his business and the Supreme Judicial Council, State of Qatar ordered the 1st respondent to pay various amounts to his creditors. Owing to that there is travel ban for him. The shared household along with 92.05 cents of property was purchased by respondent Nos.1 and 2 using their own money. For that purchase they availed a loan of Rs.30 lakhs. Now, the said loan amount has become overdue and the bank has been taking steps for the attachment of the property. 30 cents of property was already sold for clearing debts owed by the 1st respondent’s father. Unless the shared household and remaining property is sold, the 1st respondent would not be able to clear his debts and get the travel ban lifted. The petitioner has two daughters, who have ability to maintain her. It is at the instigation of her daughters, the petitioner has filed this petition. She filed a similar petition before the Maintenance Tribunal, Thalassery. A settlement was arrived at and accordingly the Tribunal ordered as per Ext.R7 to provide an alternative accommodation to the petitioner. Since there is such a settlement and consequent order the petitioner is obliged to act in accordance with that order. The building for alternative accommodation has already been availed. The 1st respondent is prepared to pay the rent and amount required for the maintenance of the petitioner. Accordingly the petitioner sought to dismiss the petition.

5. After recording evidence, which consists of oral testimonies of PW1 and RWs.1 to 3 and Exts.P1, P2, R1 to R7, C1 and X1 to X3, the learned Magistrate granted an order of residence. Respondents No.1 to 3 were directed not to disturb petitioner’s possession of the shared house in any manner. Alienation of the shared house was also prohibited.

6. The appellate court did not concur with the views taken by the learned Magistrate. The appellate court after considering the law laid down in Vanitha S. v. Deputy Commissioner, Bengaluru Urban District [2020 (6) KHC 749] took the view that the provisions of Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and the Protection of Women