2015 Supreme(Ker) 1402
IN THE HIGH COURT OF KERALA
C.T. RAVI KUMAR, J.
MARY JACOB - Appellant
Versus
ELIZABETH JACOB AND OTHERS - Respondent
Criminal R.P. No. 102 of 2014
Decided on : 02-07-2015
For the Appellant : George Thomas, Raynold Fernandez, Manu George Kuruvilla, Rinu Jose and Amal George.
For the Respondent: V. Philip Mathew and P. Maya, PP.
Headnote:
Criminal Trial - Non est - Held, No hesitation to hold that a criminal court in collateral proceedings cannot arrive at a finding that the partition effected was not in tune with the preliminary decree especially, when it is the indisputable position that after the partition deed, taking note of it, a final decree was also passed.
C.T. RAVI KUMAR, J.
1. The former revision petition is filed against the judgment in Crl. A. No. 222 of 2012 passed by the Court of the Additional Sessions Judge-V, Ernakulam whereby the order dated 21.12.2011 in CMP. No. 489 of 2011 in M.C. No. 38 of 2009 of the Court of the Judicial First Class Magistrate-1, Ernakulam was set aside. The same revision petitioner filed the latter revision petition against the judgment in Crl. A. No. 225 of 2012 of the same Court whereby the order in CMP No. 490 of 2011 in the aforesaid M.C. No. 38 of 2009 was interfered with and remanded to the trial court for fresh disposal, in accordance with law. In fact, it is a common judgment. For the sake of convenience, hereafter in this order, the parties are referred to in accordance with their status in Crl. R.P. No. 102 of 2014. Respondents 1 and 2 are respectively the estranged wife and daughter of the 3rd respondent and the revision petitioner is the sister of the 3rd respondent. A succinct narration of the facts is required for a proper disposal of these revision petitions. The marriage between the first respondent and the 3rd respondent was solemnised on 8.7.1990 and the 2nd respondent was born in their wedlock on 29.6.1991. The mother of the revision petitioner/the mother-in-law of the first respondent died on 24.1.2008 and in fact, her husband viz., the father of the revision petitioner and the third respondent predeceased her. The revision petitioner and the third respondent were having another sibling and she pre-deceased the parents. After the death of the parents the disputed house, claimed to be the shared household, and the contentment that situate in the State of Karnataka were inherited by the revision petitioner and the third respondent. The first respondent was taken to that house after the marriage on 8.7.1990 and she claimed to have resided there from 1991 to 1994 and thereafter, during 1997-1998. Subsequent to the death of the in-laws the first respondent filed M.C. No. 38 of 2009 before the Court of Judicial First Class Magistrate-1, Ernakulam under Section 12 of the Protection of Women from Domestic Violence Act (for short 'D.V. Act'). It was filed with the following prayers:--
"a. Pass an order prohibiting the respondents from alienating, encumbering charging or creating any interest over the shared household - 158, Old No. 71/1 Nandidurg Road, Bangalore-46, which will any way affect the right of the petitioners and communicate the said order to the SRO, Nandidurg Road, Bangalore and to the SHO, J.C. Nagar, Police Station, Bangalore.
b. Direct respondents to pay a sum of Rs. 10,00,000/- (Rupees Ten lakhs only) as compensation to the petitioners for the injuries caused by acts of domestic violence committed by them.
c. Direct the first respondent to pay the maintenance at the rate of Rs. 10,000/- (Rupees ten thousand only) per month to petitioners.
d. Pass an order directing respondents to make arrangements to enable the petitioners to reside peacefully in the shared household - 158. Old No. 71/1 Nandidurg Road, Bangalore-46, without any threat or harassment from respondents.
e. Pass such order or orders as this Hon'ble court deem fit and proper under the given facts and circumstances of the case for protecting the applicant from domestic violence and in the interest of justice."
2. The first respondent filed M.C. No. 38 of 2009 stating that the marriage between herself and the third respondent was solemnised as per the religious rites and ceremonies, on 8.7.1990 and thereafter they were residing together at House No. 158 (Old No. 71/1) of Nandidurg Road, Bangalore-46 (the house in question) and that it is her shared household. It was further alleged therein that she was subjected to physical and mental cruelty and that she lived there from 1991 to 1994 and also during 1997-1998. It was also stated therein that from 1998 onwards the first and third respondents were living separately and that the first and second respondents wer