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HIGH COURT OF KERALA
A. BADHARUDEEN, J
JAYASREE – Appellant
Versus
INDRAPALAN – Respondent
Crl.Rev.Pet 463/2024
Domestic Violence Act - Shared Household - Right to Reside - Divorced Woman
Fact of the Case:
The case revolves around an interim order passed by the Magistrate in an application filed by the petitioner under the Protection of Women from Domestic Violence Act, 2005 (D.V Act) in M.C.No.59/2023, pending before the Judicial Magistrate of First Class-II, Palakkad. The petitioner filed Crl.M.P.No.4006/2023 along with M.C.No.59/2023 under Section 12 of the D.V Act seeking interim reliefs: '(i) prohibiting the respondent from committing domestic violence; and (ii) prohibiting the respondent from evicting the house by the petitioner and minor child'. The petitioner and the respondent got married on 27.08.2009 and they resided at the respondent's house. The respondent filed O.P.No.70/2017 before the Family Court seeking divorce, which was allowed on 31.12.2022 and the appeal challenging the order in O.P.No.70/2017 was dismissed by a Division Bench of the High Court in Mat.Appeal No.263/2023 dated 03.10.2023. During the pendency of the Mat.Appeal, on 11.07.2023, M.C.No.59/2023 was filed by the petitioner with ulterior motives, though there was no shared household at any point of time.
Finding of the Court:
The High Court held that a divorced woman cannot claim right of residence in a shared household. However, divorced women staying in a shared household at the time of divorce or after divorce shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law. The order of the Magistrate directing the petitioner to vacate the house of the respondent within one month is not legally sustainable as the petitioner and her minor child have been residing there, and they could not be evicted without due procedure of law.
Issues: 1. Whether a divorced woman can seek residence in a shared household on the basis of an earlier domestic relationship with the husband? 2. Whether a Magistrate is competent to direct the petitioner to vacate the building in a case where the petitioner sought a prohibitory order against eviction?
Ratio Decidendi: 1. There should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed, vis-à-vis, allegation of domestic violence. However, it is not necessary that at the time of filing of an application by an aggrieved person, the domestic relationship should be subsisting. Even if an aggrieved person is not in a domestic relationship with the respondent in a shared household at the time of filing of an application under Section 12 of the D.V. Act, but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, that aggrieved person is entitled to file an application under Section 12 of the D.V. Act. 2. A divorced woman cannot claim right of residence in a shared household. However, divorced women staying in a shared household at the time of divorce or after divorce shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.
Final Decision: The High Court allowed the revision petition, permitting the petitioner and minor to continue their residence in the shared household subject to the final decision in M.C.No.59/2023, pending before the Judicial Magistrate of First Class-II, Palakkad. The High Court also clarified that the respondent is at liberty to evict the petitioner from the so-called shared household as per law, and the mere pendency of M.C.No.59/2023 shall not be a bar for doing the same.
This Revision Petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure . The challenge in this revision petition is judgment in Crl.Appeal No.18/2024 on the files of the Sessions Court, Palakkad, arising out of order in Crl.M.P.No.4006/2023 in M.C.No.59/2023 on the files of the Judicial First Class Magistrate Court-II, Palakkad.
2. Heard the learned counsel for the petitioner and the learned counsel for the 1st respondent in detail. The learned Public Prosecutor appearing for the 2nd respondent, State of Kerala also was heard. Perused the order and judgment under challenge as well as the relevant records which led to the impugned verdicts.
3. I shall refer the parties in this Revision Petition as to their status before the trial court.
4. The case revolves around an interim order passed by the Magistrate in an application filed by the petitioner under the Protection of Women from Domestic Violence Act, 2005 (`D.V Act’ for short) in M.C.No.59/2023, pending before the Judicial Magistrate of First Class-II, Palakkad.
5. The petitioner filed Crl.M.P.No.4006/2023 along with M.C.No.59/2023 under Section 12 of the D.V Act seeking interim reliefs: “(i) prohibiting the respondent from committing domestic violence; and (ii) prohibiting the respondent from evicting the house by the petitioner and minor child”. According to the learned counsel for the petitioner, the petitioner and the respondent got married on 27.08.2009 as per customary rites at Sidhapudur Sri Ayyappan temple, Coimbatore, and they resided at the respondent’s house. A female child born to them on 20.01.2011. The respondent never considered the petitioner and the minor child and never gave any amount for their livelihood. The petitioner filed O.P.No.1035/2022 for maintenance and the respondent filed O.P.No.70/2017 before the Family Court seeking divorce. According to the petitioner, the petitioner maintained domestic relationship and the petitioner and the minor child apprehend commission of domestic violence again by the respondent by evicting them from the shared household. Thus the interim reliefs sought for. Opposing the interim reliefs, a detailed objection was filed by the respondent and resisted grant of interim reliefs sought for.
6. The specific contention raised by the respondent before the trial court is that the petitioner deserted the respondent and continued her cruel attitude towards the respondent from 03.06.2010 onwards and she denied conjugal obligation also. O.P.No.70/2017 filed by the respondent before the Family Court on the ground of desertion was allowed on 31.12.2022 and the appeal challenging the order in O.P.No.70/2017 was dismissed by a Division Bench of this Court in Mat.Appeal No.263/2023 dated 03.10.2023. It was during the pendency of the Mat.Appeal, on 11.07.2023, M.C.No.59/2023 was filed with ulterior motives, though there was no shared household at any point of time. The learned Magistrate as per order dated 04.01.2024 in Crl.M.P.No.4006/2023 allowed the first relief and also passed an order that “the petitioner shall vacate the house of the respondent within one month of this order”.
7. Impugning the said interim order, Crl.Appeal No.18/2024 was filed before the Sessions Court. But the learned Sessions Judge also concurred the finding of the trial court.
8. While assailing the concurrent verdicts of the trial court as well as the appellate court, the learned counsel for the respondent/revision petitioner herein argued that the verdicts of the trial court as well as the appellate court are illegal and the same were passed as against the ratio of the decision of the Apex Court reported in [2022 AIR (SC) 2331 : 2022 KHC 6542 : 2022 KLT SN 37], Prabha Tyagi v. Kamlesh Devi . The point argued by the learned counsel for the petitioner is that as per the ratio in Prabha Tyagi’s case (supra), Section 17 of the D.V Act is referred, which provides that every woman in a domestic relationship shall have the right to re
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