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2025 Supreme(KER) 867
IN THE HIGH COURT OF KERALA AT ERNAKULAM
C. Jayachandran, J.
Somi Thomas – Petitioner
Versus
State Of Kerala, Represented By Public Prosecutor and ors. – Respondents
CRL.Rev.Pet No. 1174 of 2023
Decided On : 10-02-2025
Advocate Appeared:
For the Appellant : BY ADVS. ARUN ASHOKIYYANNI NEENA JAMES
For the Respondent: BY ADVS. MANU GOVIND A.JAYASANKAR(J-114) E.C.BINEESH, PUBLIC PROSECUTOR
The court upheld that prior admissions in judicial proceedings are binding, and the absence of cross-examination does not automatically favor the petitioner.
Headnote:
(A) Protection of Women from Domestic Violence Act, 2005 - Section 12 - The petitioner sought relief under the D.V. Act, claiming residence in a shared household. The M.C. was dismissed, and the appeal was also rejected. The court found no merit in the petitioner's claims regarding residence and admissions made in prior proceedings. (Paras 1, 4, 7, 11)
(B) Evidence - The absence of cross-examination does not automatically favor the petitioner, especially when other evidence has been presented. The court emphasized the importance of weighing all evidence presented. (Paras 8, 9)
(C) Adverse Inference - An adverse inference cannot be drawn against a party represented by a power of attorney holder unless the holder lacks personal knowledge of the matters. (Paras 9, 10)
Facts of the case:
The petitioner claimed residence in a flat at Aluva, but previous admissions indicated the last shared residence was at Udumbannoor. The M.C. was dismissed, and the appeal was also rejected.
Findings of Court:
The court upheld the concurrent findings of the lower courts, stating that the petitioner’s claims were not substantiated by evidence.
Issues: The main issues included the validity of the petitioner’s claim of residence and the implications of prior admissions in judicial proceedings.
Ratio Decidendi: The court ruled that the petitioner’s prior admissions regarding residence were binding and that the absence of cross-examination did not negate the evidence presented.
Result: Crl.Revision Petition dismissed.
ORDER :
(C. JAYACHANDRAN, J.).
Dated this the 10th day of February, 2025 The petitioner herein is the petitioner in M.C.No.35/2018 of the Judicial First Class Magistrate Court-I, Aluva. She sought for various reliefs under Section 12 of the Protection of Women from Domestic Violence Act, 2005 ('the D.V. Act', for short). An ex-parte residence order was granted with respect to a residential apartment at Aluva. However, after adducing evidence, the M.C. was dismissed, as per order dated 04.11.2020.
2. The petitioner/wife carried Criminal Appeal No.303/2020 before the District Court, Paravur. However, the same was also dismissed, by judgment dated 03.07.2023. The present revision impugns the said judgment.
3. Heard the learned counsel for the petitioner, the learned Public Prosecutor, on behalf of the 1st respondent and the learned counsel for the 2nd respondent. Perused the records.
4. Learned counsel for the petitioner would submit that the concurrent dismissal of the Miscellaneous Case, as also, the Appeal carried therefrom is erroneous in law, for the reason that the factum of the petitioner having resided in the subject apartment (shared household) at Aluva, though asserted in her proof affidavit, has not been challenged in cross examination by the 2nd respondent. Therefore, the petitioner’s claim over the shared household at Aluva, should be deemed to have been admitted. The second point canvassed by the learned counsel is that the 2nd respondent/husband has not chosen to mount the box. Instead, evidence was adduced through his power of attorney holder. Therefore, an adverse inference is liable to be taken against the 2nd respondent/husband. Thirdly, learned counsel would submit that, at the appellate stage, an application was filed seeking to examine a neighbour, to prove the factum of the petitioner’s residence in the shared household at Aluva. The same was disallowed by the Appellate Court. On these premise, the petitioner seeks the order in M.C., as also the judgment in the Crl.Appeal, to be set aside.
5. Refuting the above allegations, learned counsel for the 2nd respondent/husband invited the attention of this Court to the chronology of events, which finds a place in page No.6 of the counter affidavit filed. The marriage between the petitioner and the 2nd respondent took place on 25.09.2004 and they have last resided at a place called Udumbannoor, Thodupuzha on 24.11.2012. Thereafter, the petitioner and the 2nd respondent have not resided together as husband and wife. After a lapse of one year and one month, the 2nd respondent purchased a Flat at Aluva. A settlement was arrived at between the petitioner and the 2nd respondent, pursuant to which a property was transferred in the name of the petitioner by the respondent on 30.09.2016. A joint petition was filed before the Family Court, Thodupuzha by the petitioner and the 2nd respondent, wherein it is specifically stated that the parties have resided last together within the limits of the Family Court, Thodupuzha. Subsequently, the petitioner herein retracted, with the result, the join petition was dismissed. Thereafter, on 04.10.2017, the petitioner herein filed O.P.No.301/2017 seeking return of gold ornaments, wherein also there is a specific averment to the effect that the petitioner and the 2nd respondent last resided together at Udumbannoor, within the limits of the Family Court, Thodupuzha. An affidavit was also filed in connection with an Interlocutory Application in the said O.P., wherein also the contention is repeated and reiterated.
6. It is thereafter that the instant M.C. was filed in the year 2018 and an ex-parte residence order was obtained, which was later vacated. The M.C. itself was considered after adducing evidence. The Trial Court took stock of the above referred facts and dismissed the M.C. on 04.11.2020. An Appeal was carried therefrom, which was dismissed vide the impugned order, wherein also the above referred facts are considered in favour of the 2nd
