Kerala High Court
Divya Sajikumar vs Sajikumar on 25 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 25TH DAY OF AUGUST 2021 / 3RD BHADRA, 1943
OP (FC) NO. 546 OF 2020
AGAINST THE ORDER/JUDGMENT IN OP 363/2020 OF FAMILY COURT,
THIRUVALLA, PATHANAMTHITTA
PETITIONERS:
1 DIVYA SAJIKUMAR, AGED 41 YEARS, W/O. SAJIKUMAR,
CHEMBANKUZHIYIL HOUSE, MALLAPPILLY P.O, MALLAPPILLY,
PATHANAMTHITTA, NOW RESIDING AT NANDAVANAM, MALLAPPILLY
EAST, PATHANAMTHITTA PIN 689 585
2 NANDAKRISHNA, AGED 19 YEARS, S/O. SAJIKUMAR,
CHEMBANKUZHIYIL HOUSE, MALLAPPILLY WEST P.O,
PATHANAMTHITTA, NOW RESIDING AT NANDAVANAM, MALLAPPILLY
EAST, PATHANAMTHITTA PIN 689 585
BY ADV E.D.GEORGE
RESPONDENT:
SAJIKUMAR, CHEMBANKUZHIYIL HOUSE, MALLAPPILLY WEST P.O,
PATHANAMTHITTA , PIN 689 585
BY ADV SRI.K.N.RADHAKRISHNAN(THIRUVALLA)
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
25.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (FC) NO. 546 OF 2020
2
JUDGMENT
A.Muhamed Mustaque, J
This original petition has been filed by the wife and son of the
respondent challenging the order of ex-parte temporary injunction
granted in favour of the respondent by the Family Court, Thiruvalla on
4.11.2020. The respondent filed O.P No.363 of 2020 before the Family
Court, Thiruvalla for permanent injunction against the petitioners herein.
In that an application was filed under Order XXXIX Rule 1 of the Code of
Civil Procedure for temporary injunction. Admittedly, the property
consists of a residential building.
2. The 1st petitioner herein moved the Judicial First Class
Magistrate Court, Thiruvalla under the Protection of Women from
Domestic Violence Act and Rules. A protection order has been passed in
M.C No.60 of 2020 by the Judicial First Class Magistrate Court,
Thiruvalla on 16.12.2020. By virtue of the protection order, the
petitioners were entitled to remain in the residential building , which is
the subject matter of O.P No. 363 of 2020 before the Family Court,
OP (FC) NO. 546 OF 2020
Thiruvalla.
3. The Family Court committed a grave jurisdictional error in
passing an ex-parte injunction order of this nature. When law accords
protection to a women under the Protection of Women from Domestic
Violence Act and Rules to remain in a shared house hold unmindful of
such statutory provision, the Family Court could not have passed such a
blanket ex-parte injunction order. It appears that the original petition
itself was a pre emptive action on the side of the respondent to deny her
right to occupy the residential building. Any way, we are not adverting
to these aspects at this moment for the simple reason that it is for the
Family Court to take a final decision in the matter after adverting to the
orders of the Judicial First Class Magistrate Court under the Protection of
Women from Domestic Violence Act and Rules. Merely for the reason
that the first petitioner had approached the Judicial First Class Magistrate
Court subsequent to the injunction petition does not mean that she is not
entitled for such protection under law. What is accorded under the
statutory provision cannot be taken away under the guise of the
injunction at the instance of the respondent. The Family Court ought to
OP (FC) NO. 546 OF 2020
have guarded the interest of the first petitioner herein before passing
such orders which will cause grave consequences of throwing out a
women from a residential building. Such an ex-parte order is illegal and
unsustainable. We, therefore, of the view that the ex-parte injunction
order granted as per I.A No.1 of 2020 in O.P. No.363 of 2020 has to be
set aside. Accordingly, we set aside the order. The Family Court after
adverting to the orders passed by the Judicial First Class Magistrate Court
shall pass fresh orders after hearing both sides in accordance with law.
The respondent is free to move the Judicial First Class Magistrate Court
for any modification of the order passed under the Protection of Women
from Domestic Violence Act and Rules. All the interlocutory applications
filed shall be considered afresh in the light of the observations as above.
This Original Petition is disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
PR
OP (FC) NO. 546 OF 2020
APPENDIX OF OP (FC) 546/2020
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE SETTLEMENT DEED DATED 20-02-
EXHIBIT P2 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE
1ST PETITIONER TO THE DISTRICT CHIEF POLICE
DATED 25-08-2020
EXHIBIT P3 TRUE COPY OF THE F.I.R IN CRIME NO. 1377/2020
REGISTERED BY KEEZHVAIPUR POLICE STATION
DATED 25-08-2020
EXHIBIT P4 TRUE COPY OF THE INTERIM ORDER DATED 12-10-
2020 IN W.P(C) NO. 21471/2020
EXHIBIT P5 TRUE COPY OF THE O.P 363/2020 FILED BY THE
RESPONDENT BEFORE THE FAMILY COURT,
THIRUVALLA
EXHIBIT P6 TRUE COPY OF THE INTERIM ORDER DATED 4-11-
2020 PASSED BY THE FAMILY COURT, THIRUVALLA
IN O.P NO. 363/2020, I.A NO. 1/2020
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 16-12-2020 IN
CRL.M.P NO. 2289/2020 IN M.C NO. 60/2020
PASSED BY THE JUDICIAL FIRST CLASS
MAGISTRATE, THIRUVALLA.
Exhibit P8 TRUE COPY OF THE I.A 5/2021 IN
O.P.NO.363/2020 FILED BEFORE THE FAMILY
COURT, THIRUVALLA FOR PERMITTING TO ENTER IN
THE HOUSE OF THE PETITIONER.
Exhibit P9 TRUE COPY OF THE IA 4/2021 IN OP.363/2021
FILED BEFORE THE FAMILY COURT, THIRUVALLA FOR
ADVANCING THE CASE
Exhibit P10 TRUE COPY OF THE OBJECTION IN OP NO.363/2021
FILED BEFORE THE FAMILY COURT, THIRUVALLA.
Exhibit P11 TRUE COPY OF THE COMPLAINT DATED 6/1/2021
BEFORE THE SUB INSPECTOR OF POLICE,
KEEZHVAIPUR
Exhibit P12 TRUE COPY OF THE COMPLAINT DATED 5/1/2021
BEFORE THE ASSISTANT ENGINEER, K.S.E.B.,
MALLAPPALLY
Exhibit P13 TRUE COPY OF THE COMPLAINT DATED 6/1/2021
OP (FC) NO. 546 OF 2020
SUBMITTED BEFORE THE ASSISTANT ENGINEER,
K.S.E.B, MALLAPPALLY
