IMPORTANT POINT
The right to residence under the PWDV Act is not absolute and must be balanced with the rights of other family members, while the obligation to provide maintenance is crucial for the livelihood of the aggrieved party.

ORDER :

Respondent in M.C.No.2 of 2018 on the files of the Judicial Magistrate of the First Class-I, Changanassery is the revision petitioner. He seeks to set aside the judgment of the Additional Sessions Judge-V, Kottayam dated 28.09.2021 in Crl.Appeal No.96 of 2019. That appeal was against the order in M.C.No.2 of 2018. The petitioner also seeks to set aside the order of the learned Additional Sessions Judge, dated 07.12.2022 in Crl.M.P.No.1518 of 2022 in Crl.Appeal No.96 of 2019.

2. The 1st respondent is the wife of the petitioner. She filed M.C.No.2 of 2018 seeking reliefs under Sections 19 and 20 of the Protection of Women from Domestic Violence Act, 2005 (PWDV Act). The learned Magistrate refused to grant a residence order, however, directed the petitioner to pay a monthly maintenance of Rs.3,000/-. In the appeal, a residence order was granted by reversing the findings of the trial court. Monthly maintenance was enhanced to Rs.7,500/-. While allowing the 1st respondent to reside in the shared household, the appellate court gave an option to the petitioner of providing an alternative accommodation to the 1st respondent. The petitioner has filed Crl.M.P.No.1518 of 2022 before the appellate court in order to get an order directing the 1st respondent to shift the alternative accommodation. He had furnished the details of the building he had availed on rent for that purpose.

3. The appellate court, after deliberating upon the pleadings, materials and the submissions of the parties, refused to allow that petition. The appellate court held as follows:-

“5. Having considered the facts and circumstances of the case, especially taking note of the facts that no monthly maintenance is being provided to the wife for her livelihood, I am of the view that the husband continue to commit domestic violence by denying proper maintenance to his wife and therefore I do not find any merit in the application. Hence the petition is liable to be dismissed with a costs to the respondent/wife. In the result, this application stands dismissed with costs of Rs.5,000/- to the respondent/wife.”

4. Heard the learned counsel for the petitioner, the learned counsel for the 1st respondent and the learned Public Prosecutor.

5. As stated, the appellate court granted a residence order. The 1st respondent was allowed to reside in the shared household. The Station House Officer of the jurisdictional police station was directed to render necessary assistance to the 1st respondent to resume her residence in the shared household. Concededly, based on the said direction, the 1st respondent started residence in the shared household and she continues her residence in the shared household.

6. The learned counsel for the petitioner would submit that in O.P.(Crl.) No.430 of 2021, this Court had stayed the operation of the judgment in Crl.Appeal No.96 of 2019 and inspite of the said order of stay, the 1st respondent continues her residence in the shared household. It is seen from Annexure A9 that the order of stay, insofar as the maintenance part, has been vacated. The learned counsel submitted that in the above context continuance of the 1st respondent in the shared household is illegal and in derogation of the direction of this Court.

7. Annexure A10 is the judgment in O.P.(Crl) No.430 of 2021. The said original petition was filed by the brother of the petitioner. He claimed that the so-called shared household along with the land appurtenant thereto was assigned to him by the father as per a settlement deed in the year 2017. He had filed O.S.No.65 of 2018 before the Munsiff's Court, Changanassery against the petitioner and the 1st respondent herein. An order of injunction restraining the petitioner and the 1st respondent from trespassing into the said building or committing any mischief was granted. Since the 1st respondent entered the said building in disregard of the order of injunction and she had obtained the residence order without impleading the petitioner in O.P.(Crl.