Back
2017 Supreme(Ker) 315
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RAJA VIJAYARAGHAVAN.V, J.
B.SURESH – PETITIONER
Versus
AHALYA, D/O MURALEEDHARAN AND ORS. – RESPONDENTS
O.P.(Crl.) No.596 of 2016
Decided On : 13-02-2017
For the Petitioner: SRI. V. PHILIP MATHEW
For the Respondent: SRI. K. SHAJ, SRI. RENJIT GEORGE, SRI. C.N. PRABHAKARAN
The main legal point established in the judgment is the interpretation of the powers of the court under the Domestic Violence Act, specifically regarding the issuance of interim orders, alteration or revocation of orders, and the principle of doing right and undoing wrong in the administration of justice.
Headnote:
Domestic Violence Act - Residence Order - Section 12, 23, 25, 28 - The court discussed the powers of the court under section 23 and 25 of the Act to pass interim orders, alter, modify, or revoke the order already passed. It also considered the principle of doing right and undoing wrong in the administration of justice. The court relied on section 28 of the Act and adopted its own procedure to dispose of the application. Furthermore, the court referred to the decision in Hashir A.R. v. Shima, emphasizing that the residence belonging to the mother-in-law or father-in-law would not be a shared household, and the respondents would not be entitled to a right of residence.
Fact of the Case:
The petitioner is the 2nd respondent in a case initiated under section 12 of the Protection of Women from Domestic Violence Act, 2005 by the wife and minor child of the petitioner. The respondents sought a residence order and maintenance, claiming harassment and seeking to reside in the petitioner's property.
Finding of the Court:
The court found that the original petition invoked the supervisory jurisdiction under Article 227 of the Constitution. It held that unless the lower court had committed a grave error of jurisdiction or passed a totally perverse order, no interference was warranted. The court concluded that the stand taken by the lower court was not perverse and that the matter should proceed with the taking of evidence.
Issues: The issues revolved around the petitioner's challenge to the order passed by the lower court, the interpretation of the Domestic Violence Act, and the rights of the respondents to a shared household.
Ratio Decidendi: The court's decision was based on the interpretation of the powers of the court under the Domestic Violence Act, the principle of doing right and undoing wrong in the administration of justice, and the specific provision that the aggrieved person shall not be evicted or excluded from the shared household save in accordance with the procedure established by law.
Final Decision: The petition was disposed of, and the court upheld the view taken by the lower court, allowing the matter to proceed with the taking of evidence.
1. The petitioner herein is the 2nd respondent in M.C. No.97 of 2016 pending on the files of the Judicial Magistrate of First Class-II, Kollam. The aforesaid proceeding was initiated by the respondents 1 and 2 herein who are the wife and minor child of the son of the petitioner under section 12 of the Protection of Women from Domestic Violence Act, 2005.
2. The 3rd respondent, who is the son of the petitioner herein had married the respondent No 1 on 27.11.2005. The 2nd respondent was born in the wedlock. The petitioner is the absolute owner of 3.50 Ares of property and a residential building therein where he is residing with his family. It is specifically contended that the marital relationship between the 1st respondent and the 3rd respondent fell into rough weather. For the past several years, the respondents 1 to 3 were residing separately.
3. While so, in the year 2014, M.C. No.97 of 2016 was preferred by respondents 1 and 2 against the petitioner, and respondents 3 and 4 under section 12 of the Protection of Women from Domestic Violence Act (Hereinafter referred to as 'the Act' for brevity) praying for a residence order claiming that she was driven away by the 4th respondent. Maintenance was also sought from the 3rd respondent. In the petition, it was stated that the respondents 1 and 2 were staying in a house at Mulluvila, Kollam. The learned Magistrate by order dated 16.3.2016 restrained the petitioner and respondents 3 and 4 from committing any type of harassment against respondents 1 and 2 and the 3rd respondent was directed to pay a monthly maintenance of Rs.2,000/- each per month to respondents 1 and 2. However, the learned Magistrate had refused to grant residence order to respondents 1 and 2. However, on 28.7.2016, respondents 1 and 2 along with their henchmen and lawyer are alleged to have criminally trespassed into the house of the petitioner claiming that she had obtained residence order from the learned Magistrate. They have no right to enter the premises or to reside there as it was not a shared household according to the petitioner.
4. The petitioner initially preferred a complaint before the Police seeking action. Later, he preferred Ext.P7 petition before the learned Magistrate wherein it was contended that the house is not a shared household and that the 1st respondent cannot claim any residence in the said house. The respondents 1 and 2 filed detailed objection to the same as well. In the objection filed, the 1st respondent has stated that she had entered the shared household after obtaining the permission from the learned Magistrate. By Ext.P9 order, the Court below holding that the contentions advanced are in the realm of evidence took the view that forcible eviction cannot be ordered. It was also observed that the matter could be taken up for detailed consideration and a meritorious order can be passed after taking evidence. The said order is under challenge.
5. The learned counsel appearing for the petitioner as well as the respondents were heard.
6. The learned counsel appearing for the petitioner would vehemently contend that the order passed by the learned Magistrate cannot be justified. According to the learned counsel, the court has ample powers under section 23 and 25 of the Act to pass any interim order or to alter, modify or revoke the order already passed. It was also urged by the learned counsel relying on the decision of the Apex Court in Minu Kumari V State of Bihar (2006 (4) SCC 359) that the courts would possess in the absence of any express provision to such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest. The learned counsel would also rely on section 28 of the Act and would contend that the courts can adopt its own procedure to dispose of an application and nothing prevented the court from considering the petition filed b
