K.K.John vs Rosy John @ Rosily
2021 Latest Caselaw 17344 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                  THE HONOURABLE MRS. JUSTICE SHIRCY V.
         WEDNESDAY, THE 25TH DAY OF AUGUST 2021 / 3RD BHADRA, 1943
                       CRL.REV.PET NO. 1553 OF 2018
 JUDGMENT IN CRA 141/2018 OF III ADDITIONAL SESSIONS COURT, THRISSUR
                    CRL.M.C. 29/217 OF JFCM, CHALAKUDY
REVISION PETITIONER/RESPONDENT/RESPONDENT:

             K.K.JOHN, AGED 54 YEARS
             S/O KUNJUVAREETH, KAVUNGAL HOUSE, CHETTIKULAM DESOM,
             KODASSERY VILLAGE, CHALAKKUDY TALUK, THRISSUR DISTRICT,
             RESIDING AT P.B. NO. 19609, AL AIN, U.A.E.

             BY ADVS.
             P.MARTIN JOSE
             SRI.P.PRIJITH
             SRI.THOMAS P.KURUVILLA



RESPONDENTS/APPELLANT/APPLICANT:

     1       ROSY JOHN @ ROSILY
             AGED 54 YEARS
             W/O JOHN, KAVUNGAL HOUSE, RAILWAY STATION ROAD,
             CHALAKKUDY, THRISSUR DISTRICT 680 307

     2       THE STATE OF KERALA,
             REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA,
             ERNAKULAM, PIN-682 031

             BY ADVS.
             SRI.N.T.SASI
             SRI.T.MADHU
             SMT.C.R.SARADAMANI



OTHER PRESENT:

             C.N.PRABHAKARAN- SR.P.P




    THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON
13.07.2021, THE COURT ON 25.08.2021 DELIVERED THE FOLLOWING:
 Crl.R.P. 1553/2018
                                            2


                                            ORDER

DATED THIS THE 25TH DAY OF AUGUST, 2021

This revision petition is filed by the

petitioner, who is the respondent in M.C. No. 29

of 2017 filed by the respondent herein under

Section 12 of the Protection of Women from

Domestic Violence Act, 2005 (hereinafter referred

to as 'Act of 2005').

2. The respondent herein, who is the

wife of this revision petitioner has filed the

petition before the Judicial First Class

Magistrate, Chalakudy inter alia to restrain him

from alienating or encumbering his property.

Admittedly, she is the legally wedded wife of the

petitioner. Certain facts are not in dispute.

Their marriage was solemnized on 19.05.1985 and

four children were born to them in the wedlock.

This petitioner was employed abroad at the time

of their marriage and they started to reside Crl.R.P. 1553/2018

together abroad with their children. The

petitioner husband has purchased property at

Chalakudy and constructed a house and it is her

shared house. While they were residing together,

their relationship strained and thus she filed a

petition under Section 12 of the Act of 2005

against the petitioner. The Judicial First Class

Magistrate, Chalakudy admittedly disposed of the

petition with a direction to provide his

apartment situated at Thrissur for the

accommodation of the respondent herein. Till

that time, she was permitted to reside in the

house situated in the petition schedule property.

The said order was passed by the learned Judicial

First Class Magistrate, Chalakudy on 18.04.2018.

Challenging the said order, Criminal Appeal No.

141 of 2018 has been preferred by the respondent

contending that the building at Chalakudy is her

shared household and she has been residing there

from 2011 onwards and only occasionally she used Crl.R.P. 1553/2018

to go abroad to see her daughters. So, she had

challenged the order mainly on the ground that

the alternate accommodation provided by the

petitioner is not sufficient for her

accommodation and so the order of the learned

Magistrate has to be set aside. The learned

Sessions Judge, after hearing both sides, set

aside the order of the Judicial First Class

Magistrate and restrained this petitioner from

dispossessing her from the building at Chalakudy

and also restrained from alienating the shared

household.

3. So, a residence order is passed by

the learned Sessions Judge permitting the

respondent herein to reside in the shared

household at Chalakudy and at the same time

restraining the petitioner from alienating or

dispossessing her from the said residence. The

said order is under challenge before this Court.

 Crl.R.P. 1553/2018


                     4.      It     is    not    in     dispute       that       the

petitioner herein is having properties in Dubai

as well in Kerala. The couple were residing in

Dubai for quite sometime. The question to be

looked into in this case is whether the

respondent is having any right under Section 17

of the Act of 2005 so as to claim right of

residence over the building which is situated at

Chalakudy. Under Section 17(2) of the Act of

2005, the aggrieved person 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. So, according

to the learned counsel for the respondent, under

Section 17(2) of the Act, she is having a right

not to be evicted from the shared household at

Chalakudy. But the learned counsel for the

petitioner would contend that as per Section

19(f), if the petitioner is able to provide the

same level of alternate accommodation, then she Crl.R.P. 1553/2018

can be dispossessed from the shared household and

the liability of the husband is to provide

alternate accommodation for the aggrieved person

as enjoyed by her in the shared household if the

circumstances so require.

5. Here, the definite contention raised

by the learned counsel for the petitioner is

that, his younger daughters are yet to be

married and he is in need of money to meet the

expenses in connection with their marriage. So,

in order to ensure that his children are given

away in marriage properly, he wants to sell the

property and the building therein and therefore,

as an alternate accommodation for her, he had

offered a fully furnished flat in Thrissur Town.

It is also pointed out that, he had an apartment

in Abu Dubai where she used to reside and she is

also receiving the maintenance allowance ordered

by the Dubai Court. So, she is not always

residing in Kerala, but her accommodation is only Crl.R.P. 1553/2018

temporary and for that the fully furnished flat

is available and he is ready to provide the same.

When such an argument was advanced before this

court, as per the order dated 23.09.2020, this

court has directed him to furnish the details of

the alternate residential accommodation offered

by him, one of which is said to be a flat in

Thrissur and the other residential house at

Chalakudy and also about the square feet area of

the residential units with all other details.

6. In compliance of the said order, a

statement has been filed on behalf of the

petitioner. In the statement in paragraph 3, the

petitioner has stated that the subject matter in

the revision petition is a residential building

of East Chalakudy Village which was purchased on

26.08.1997 and the carpet area of the building

constructed is 3000 sq. feet and the building has

four bed rooms. Another property with a building Crl.R.P. 1553/2018

is there in Kodassery Grama Panchayat and that is

the family house of the petitioner having a

carpet area of 1800 sq. feet with 3 bed rooms.

The building is kept locked. Then further, it is

submitted that a flat in the 6th floor of Skyline

Apartment, namely Skyline Villa Heights situated

near to Sakthan Thampuram Market having a carpet

area of 1400 sq. feet with three bed rooms fully

furnished lying vacant is owned by the

petitioner, and the another flat is also there

in his possession in Skyline Sylvania, Kakkanad

with No. 16C having a carpet area of 1650 sq.ft.

Both the flats in Thrissur as well in Ernakulam

are lying vacant.

7. So, according to the revision

petitioner, these two flats are lying vacant, one

is fully furnished, and available for the

respondent and he is offering the flat at

Thrissur which is fully furnished as the

alternate accommodation which has been granted by Crl.R.P. 1553/2018

the learned Magistrate while disposing the

application filed by her.

8. As mentioned earlier, in the

application filed under Section 12 of the Act

inter alia, she sought for permission to reside

in the shared household which is having a carpet

area of 3000 sq.ft. But it is situated in

Chalakudy Municipality. Admittedly, the

respondent is residing all alone as her children,

that too the unmarried children, are residing

abroad. The learned Magistrate had directed the

petitioner to provide the flat at Thrissur for

her accommodation mainly taking into

consideration of her safety, as she is supposed

to reside all alone. It has also come out in

evidence that she occasionally resides in Kerala

and most of the time she used to reside with her

married daughter working abroad or in Dubai. So,

it is clear that she is not permanently residing

in Kerala. In Sathish Chander Ahuja v. Neha Crl.R.P. 1553/2018

Ahuja (2020 SCC Online SC 841) it has been held

by the Supreme Court that the living of a woman

in the household has to refer to a living which

has some permanency. Mere fleeting or casual

living at different places shall not make a

shared household. So, no doubt the court has to

balance the right of both parties while granting

the relief both in appeal or under Section 12 of

the Act.

9. Here, as mentioned earlier, it has

come out in evidence that she is not a permanent

resident of Kerala. Moreover, as rightly held by

the learned Judicial First Class Magistrate, her

safety would be more assured when she is residing

in the apartment at Thrissur in the heart of

the city rather than in a building at Chalakudy.

She used to come to Kerala only during vacation

and she requires the accommodation only during

that period. The court below has also observed

that since the revision petitioner wants to Crl.R.P. 1553/2018

mobilize funds to meet the expenses for the

marriage of their unmarried daughter who is now

aged 29 years, it is not fair and justifiable to

restrain him from alienating the property at

Chalakudy. Considering the entire facts and

circumstances involved in this case in a fair

and reasonable manner the fully furnished flat

at Thrissur will definitely, serve the purpose,

as an alternate accommodation with same level of

the accommodation and facilities she enjoyed.

Therefore, the finding of the learned Magistrate

that the petitioner has to provide the flat to

the respondent herein as alternate accommodation

appears to be quite a reasonable and appropriate

decision which requires no interference. Hence,

I am also of opinion that as the accommodation is

having the very same level of facilities that she

enjoyed and her residence at Kerala is not of a

permanent nature and is only a casual living

once in a while she visits Kerala for vacation, Crl.R.P. 1553/2018

the apartment, i.e., Skyline Apartment near

Sakthan Thampuran Market will be more safe and

convenient for her. Hence, I find that the

Judgment of the learned Additional Sessions

Judge is liable to be set aside and the order of

the learned Judicial First Class Magistrate is

only to be confirmed.

Therefore, this revision petition is

allowed and the Judgment of the learned Sessions

Judge under challenge is set aside and the order

passed by the learned Judicial First Class

Magistrate is confirmed. The respondent is

provided with an alternate accommodation in the

flat owned by this petitioner in the 6th floor of

Skyline Apartment, Skyline Villa Heights,

Thrissur.

Sd/-

SHIRCY V JUDGE

sb