IMPORTANT POINT
The right conferred on the wife under section 17 of the P.W.D.V. cannot be defeated by granting an order of injunction restraining her from entering into shared household.

K.T. Sankaran, J.—The order dated 01.02.2012 in I.A.No.180 of 2012 in I.A. No.171 of 2012 in O.P. No. 74 of 2012 on the file of the Family Court, Malappuram is under challenge in this appeal filed by the husband of the respondent. Hereinafter, the appellant is referred to as ‘the husband’ and the respondent is referred to as ‘the wife’.

2. In the marital relationship between the appellant and the respondent, two children were born. They were staying in the house situated in the property in the name of the husband. The wife has a case that the said property was purchased utilising her funds. The relationship between the husband and the wife became strained. There are allegations of assault and cruelty against each other. On 16.01.2012, the wife filed O.P.No.61 of 2012 before the Family Court, Malappuram against the husband and others for realisation of money and ornaments belonging to the wife and which were allegedly misappropriated by the respondents. On an application filed by the wife, the immovable property belonging to the husband was attached before judgment. O.P.No.61 of 2012 is pending. The attachment was effected on 17.1.2012. On 18.01.2012, the wife filed M.C.No.25 of 2012 on the file of the Court of the Judicial Magistrate of the First Class, Malappuram against the husband claiming maintenance. In that M.C, on 18.01.2012 itself, the wife filed CM.P.No.298 of 2012 for granting a protection order as well as residence order. Notice was served on the husband on 19.01.2012. The husband entered appearance on 21.01.2012 in M.C.No. 25 of 2012 as well as in C.M.P.No.298 of 2012 and he prayed for time to file counter. He also raised a contention that an order of interim injunction was passed in his favour in O.P.No.74 of 2012 on the file of the Family Court; Malappuram, restraining the wife from entering into the residential property.

3. O.P.No.74 of 2012, Family Court, Malappuram was filed by the husband on 20.01.2012 against the wife and others for an injunction restraining them from trespassing upon the plaint schedule property or the house therein and from obstructing the husband from possessing and enjoying the said property. The property scheduled to the plaint is the residential property, in respect of which the order of residence was sought for by the wife in M.C.No.25 of 2012. The Family Court granted an ad interim order of injunction in favour of the husband in O.P.No.74 of 2012. The husband contended in C.M.P.No.298 of 2012 that in view of the ad interim order of injunction granted by the Family Court, the learned Magistrate was not justified in granting the residence order. The learned Magistrate, by the order dated 28.1.2012 in C.M.P.No.298 of 2012 (Annexure R5) held thus:

“6. It is contended by the respondents that a temporary prohibition order of the Family Court is in force restraining the petitioner from entering into the shared house. Though no document was produced before me to that effect, Mr. A.C. Shankaravarma, the learned counsel for the petitioner fairly conceded in his submission that there is such an order in force. He submitted that a petition is being filed to get that order vacated. When an order passed by a Court of law having jurisdictional competence, restraining the petitioner from entering into the shared house is in force, it is not feasible and practicable to pass another order by me contrary to such existing order. Hence, I am not inclined to entertain the prayer of the petitioner to allow her to reside in the shared house. It is clarified that this finding will not fetter the petitioner from moving an application u/s 25(2) of the Act to this Court for appropriate legal remedy, on the basis of change of circumstances.”

However, the learned Magistrate partly allowed the petition in favour of the children .

4. The wife filed I.A.No.180 of 2012 in O.P.No.74 of 2012 to vacate the order of interim injunction. The Family Court held that the husband suppressed the fact that an order o