IMPORTANT POINT
Situation of petitioner, whose husband missing since 2006, not different from deserted wife.

A.K. Jayasankaran Nambiar, J.—The petitioner in the writ petition is a lady, belonging to a scheduled caste, and living with her two daughters in a house situated on three cents of land in Sy.No.918/7/1 of Varantharappally Village in Mukundapuram Taluk. In the writ petition she impugns Ext.P2 notice, served on her under the Revenue Recovery Act, proposing a sale of the property for realisation of dues, amounting to Rs.2,84,23,722/- together with interest and collection charges thereon, owing to the Sales Tax department from her husband Sri. P.V.Shanmugham. The property, that is sought to be proceeded against, belongs to her husband, who has been missing since 22.11.2006. While the petitioner had brought this fact to the notice of the police authorities immediately, and has been pursuing the complaint ever since, the investigation done by the police authorities did not yield any result. This prompted the petitioner to approach this Court through W.P.(C). No.24057/2008 seeking an entrustment of the investigation to the Crime Branch or the CBCID. The said writ petition was disposed by judgment dated 19.11.2008, directing the Director General of Police to entrust the investigation of the petitioner’s case with the Crime Branch or CBCID and to see that effective steps are taken to find out the missing husband of the petitioner. It is the case of the petitioner that despite the said direction of this Court, the police authorities have not been able to trace out her husband till date. It has now been over eight years since the husband of the petitioner was reported missing and the present notice, proposing a sale of the property where she is staying with her two daughters, dangles over her head like a Damocles’ sword, ready to deprive her of her matrimonial home. By virtue of an interim order dated 03.09.2008 of this Court, she has been insulated from a forceful eviction till now. In the writ petition, she impugns Ext.P2 notice on grounds that are not seen traced to any legal right but are more in the nature of a plea for mercy.

2. A counter affidavit has been filed on behalf of the respondents wherein the details of the dues, owing to the Sales Tax department from her husband, are enumerated. The Revenue Recovery proceedings are sought to be justified on the contention that the property, against which the proceedings are initiated, is the only property that exists in the name of the defaulter and hence it must be brought to sale if the State is to recover at least part of its dues.

3. I have heard Sri. Mansoor, the learned counsel for the petitioner and Smt. Lilly K.T, the learned Government Pleader for the respondents.

4. On a consideration of the facts and circumstances of the case, and the submissions made across the bar, I note that this is a case that throws up a very pertinent issue regarding the right, if any, of a deserted wife, to resist a proposed sale of her matrimonial home, in proceedings initiated under the Kerala Revenue Recovery Act at the instance of creditors of her husband. The proceedings in the instant case are for realisation of sales tax arrears due from her husband, and her matrimonial home is the only item of immovable property that her husband owns and is, therefore, available to be proceeded against under the Revenue Recovery Act. While under normal circumstances, a person in permissive occupation of the property would not be entitled to deny the rights of a creditor whose claims are secured by the property in question, a deserted wife, in my opinion, stands on a different footing. It would be worth recalling that the common law in England did, for a time, recognise a right in the deserted wife to remain in the matrimonial home, which right was enforceable against all successors to the property, save purchasers for value without notice. The said right was subsequently held to be not a proprietory right, that could be enforced against others, but merely a personal right that could be enforced against