IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
Friday, the 20th day of May 2022 / 30th Vaisakha, 1944
WP(C) NO. 27068 OF 2019(G)
PETITIONER:
NASEEMA BEEVI AGED 70 YEARS W/O. ABDUL AZIZ, SHAFI NIVAS,
MARUTHUMMOODU, PANTHALACODE. P.O., NEDUMANGAD, THIRUVANANTHAPURAM -
695 028.
RESPONDENTS:
1. STATE OF KERALA MINISTRY OF HOME AFFAIRS, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001. REPRESENTED BY ITS SECRETARY.
2. THE STATE POLICE CHIEF POLICE HEAD QUARTERS, VAZHUTHACADU,
THIRUVANANTHAPURAM - 695 010
3. THE SUPERINTENDENT OF POLICE, OFFICE OF THE SUPERINTENDENT OF POLICE
(RURAL), PMG, THIRUVANANTHAPURAM - 695 004.
4. THE STATION HOUSE OFFICER POTHENCODE POLICE
STATION,POTHENCODE,THIRUVANANTHAPURAM-695584.
5. SHAMNA D/O. NASEEMA BEEVI, SHAFI NIVAS, MARUTHAMMOODU, PANTHALACODE
P.O., NEDUMANGAD, THIRUVANANTHAPURAM - 695 028.
Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to direct Respondent's No.2 to 4 forthwith remove respondent No.5
and her people for continued criminal trespass in the property having an
extent of 02.02 Ares of land along with uncompleted building in Re-Survey
No-66/5 in Block No-14, Uliyazhthura Village, Thiruvananthapuram Taluk,
Thiruvananthapuram District pending final disposal of Writ Petition.
This petition again coming on for orders upon perusing the petition
and the affidavit filed in support of WP(C) and this court's order dated
11-10-2019 and upon hearing the arguments of M/S SALIM V.S., A.M.FOUSI
Advocates for the petitioners, GOVERNMENT PLEADER for R1 to R4
and SMT.MARIAN G.M.THARAKAN Advocate for R5, the court passed the
following:
A.MUHAMED MUSTAQUE & SOPHY THOMAS, JJ.
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O.P (FC) No.594 of 2021,
Tr.P.(Civil) No.272/2021
and W.P (C) No.27068/2019
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Dated this the 20th day of May, 2022
O R D E R
A.Muhamed Mustaque, J These matters arise out of a matrimonial dispute. Shamna, the wife of one Shafi Azeez is before us in OP (FC) No.594 of 2021 and in Tr.P (Civil) No.272 of 2021. Naseema Beevi, her mother- in-law, is before us with W.P (C) No.27068 of 2019 seeking implementation of an order passed under the Protection of Women From Domestic Violence Act, 2005. As seen from the pleadings and orders produced before this Court, Shamna also moved the Judicial First Class Magistrate Court-I, Attingal and obtained an order under the Domestic Violence Act in M.C No.15 of 2016. Naseema Beevi also obtained an order under the Domestic Violence Act to protect her residence, from the Judicial First Class Magistrate Court-I, Attingal in M.C No.5 of 2018. Shamna and her husband were party to the above O.P (FC) No.594/21, Tr.P.(Civil) No.272/21 & W.P (C) No.27068/19 ..2..
proceedings. Shamna challenged the above order before the Additional Sessions Judge-II, Thiruvananthapuram in Crl.Appeal No.102 of 2018. The challenge was unsuccessful. Shamna has not challenged the above order before this Court. Naseema Beevi is before us seeking police protection to implement the orders passed in her favour under the Domestic Violence Act. Since Shamna also obtained an order from the Judicial First Class Magistrate Court, Nedumangad, it seems that the order obtained by Naseema Beevi could not be enforced or implemented.
2. OP (FC) No.594 of 2021 was filed by Shamna challenging the order of the Family Court, Attingal seeking a temporary injunction against forcibly evicting her from the residential building which is the subject matter of the proceedings under the Domestic Violence Act initiated by her as well as Naseema Beevi. The Family Court, noting the order passed in favour of Naseema Beevi under the Domestic Violence Act, dismissed the temporary injunction. This is how O.P (FC) No.594/21, Tr.P.(Civil) No.272/21 & W.P (C) No.27068/19 ..3..
Shamna approached this Court challenging the order of the Family Court invoking Article 227 of the Constitution of India. Shamna also filed Tr.P (Civil) No.272 of 2021 to transfer all the pending cases from Family Court Nedumangad to the Family Court, Attingal.
3. When OP (FC) No.594 of 2021 was moved before this Court, the learned counsel brought to our attention the harassment meted out against Shamna by Naseema Beevi and others. We, therefore, passed an order in OP (FC) No.594 of 2021 on 7.04.2022 as follows:
The protection officer under the Domestic Violence Act which is the competent jurisdiction, shall look into the complaint of the 1st petitioner that she is being harassed and beaten up by the respondents and take necessary measures. The Protection Officer shall file a report before this Court by next posting.
4. Thereupon, the Women Protection Officer, filed a report. The report has been placed before this Court by the learned Government Pleader. The report reads thus:
As per the Order of the Hon'ble High Court, enquiry has been conducted at Shafi Nivas, Maruthamoodu, O.P (FC) No.594/21, Tr.P.(Civil) No.272/21 & W.P (C) No.27068/19 ..4..
Panthalacode P.O., Potencode, Thiruvananthapuram. The respondents 1 and 2 are residing at the above address. Respondent 3 has been expired. The petitioner and her minor son along with her father and mother are residing at an adjacent incomplete building. Petitioners are living in that building since 2016. There is no water and electrical connections in that building. Also there is no toilet or bathroom. Petitioner's living condition is pathetic.
The Station House Officer, Pothencode has registered three FIR against respondents for physically abusing the petitioner. For residing peacefully, petitioner approached the Hon'ble Judicial First Class Magistrate Court-I attingal under the protection of Women from Domestic Violence Act, 2005. The Hon'ble Court as per judgment dated 18/12/2017 in MC 15/2016 issued protection Order and Maintenance Order. During the enquiry, Petitioner informed that even after getting protection Order, the respondents are physically abused them and the SHO, Pothencode registered FIR No.0266 dated 18.03.2022.
After enquiry, it is found that electric and water supply is necessary. Hence, this office communicated the matter to the KSEB and Water authority concerned. Request has also sent to Superintendent of Police (Rural), Thiruvananthapuram O.P (FC) No.594/21, Tr.P.(Civil) No.272/21 & W.P (C) No.27068/19 ..5..
to provide necessary assistance to the petitioner and implementing the Protection Order.
All necessary steps are taken to provide financial assistance to the petitioner under "ASWASANIDHI SCHEME" of Women and Child Department.
5. The above report clearly depicts the pathetic situation under which Shamna and her minor son are living in the said building. Her husband has abandoned her. She has no means to support herself. Naseema Beevi's petition for police protection for enforcement of the order passed under the Domestic Violence Act against Shamna and her husband. On face of the order itself, we are of the view that such an order cannot be passed against Shamna for the simple reason that under the Domestic Violence Act, a woman cannot be a respondent. Section 3 of the Domestic Violence Act defines "domestic Violence" with reference to the "conduct of the respondent", and the "respondent" has been defined under Section 2q as follows:
"respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved O.P (FC) No.594/21, Tr.P.(Civil) No.272/21 & W.P (C) No.27068/19 ..6..
person has sought any relief under this Act:
6. It is obvious that only a male can be the respondent under the Domestic Violence Act. Based on the situation that no challenge has been made by Shamna, we have to exercise our suo motu power under Section 397 of the Cr.P.C to take up the revision as against the order passed by the Judicial First Class Margistrate as well as the Appellate Court in MC as well as in the Crl. Appeal. This is for the obvious reason that a lady who belonged to a marginal section has been ill advised by lawyers and she has no other means and ways to challenge the above order. An illegal order cannot be put against her to prevent her from enjoying an order already passed in favour of her by the Judicial First Class Magistrate Court under the Domestic Violence Act. Therefore, we initiate suo motu revision as against the order passed by the Judicial First Class Magistrate Court-I, Attingal in MC No.5 of 2018 and in Crl. Appeal No.102 of 2018 by the Additional Sessions Judge II, Thiruvananthpuram. The registry is directed to number the suo motu O.P (FC) No.594/21, Tr.P.(Civil) No.272/21 & W.P (C) No.27068/19 ..7..
revision and call for the records in the above cases.
7. In the meanwhile, we grant a stay of the operation of the above orders as against Shamna. Let the notice be issued by Registry, meeting necessary expenses from High Court Legal Services Committee. Notice be issued to Naseema Beevi, Aged 70 years, W/O Abdul Aziz, Shafi Nivas, Maruthummoodu, Panthalacode P.O., Nedumangad, Thiruvananthapuram 695 028.
8. As reported by the Women Protection Officer, Thiruvananthapuram there is no water and electricity connection and also there is no toilet and bathroom in the building where Shamna is residing with her minor son. In such circumstances, we are of the view that the Kerala State Electricity Board as well as the Water Authority have to be impleaded. Accordingly, The Assistant Engineer, Kerala State Electricity Board, Mangalapuram, Pothencode Section, Thiruvananthapuram and the Assistant Engineer, Kerala Water Authority, Kazhakkoottam Section, O.P (FC) No.594/21, Tr.P.(Civil) No.272/21 & W.P (C) No.27068/19 ..8..
Thiruvananthapuram are suo motu impleaded as additional 4th and 5th respondents in OP (FC) No.594/2021. Notice be served on the learned Standing Counsel concerned. They shall explore the possibility of providing water connection and electricity connection to Shamna. We also implead the Station House Officer, Pothencode Police Station, Thiruvananthapuram in the party array as additional 6th respondent in OP (FC) No.594/2021. The Station House Officer shall ensure safety of Shamna and she shall be protected as against any physical harassment from any side.
Post on 27.05.2022.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE Sd/-
SOPHY THOMAS, JUDGE PR 20-05-2022 /True Copy/ Assistant Registrar