Kerala High Court
Kunjamma Wilfred vs State Of Kerala on 8 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942
WP(C).No.21297 OF 2020(J)
PETITIONER:
KUNJAMMA WILFRED
AGED 63 YEARS
W/O. WILFRED, KANIKKASSERY HOUSE, OCHAMTHURUTH,
PUTHUVYPU, KOCHI TALUK, PIN 682 508
BY ADVS.
SRI.JOHN K.GEORGE
SMT.M.B.SHYNI
SRI.DEEPAK RAJ
SHRI.PRASANTH K.T.
SHRI.RAMEES P.K.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETEARY, HOME DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001
2 THE DISTRICT POLICE CHIEF(ERNAKULAM RURAL)
OFFICE OF THE SUPERINTENDENT OF POLICE, ALUVA,
ERNAKULAM DISTRICT, PIN 683101
3 THE INSPECTOR S.H.O,
NJARAKKAL POLICE STATION, NJARAKKAL, ERNAKULAM
DISTRICT, PIN 682 505
4 THE SUB INSPECTOR OF POLICE,
NJARAKKAL POLICE STATION, NJARAKKAL, ERNAKULAM
DISTRICT, PIN 682 505
5 ALAN K. WILFRED,
AGED 30 YEARS
S/O. KUNJAMMA WILFRED, KANAKKASSERY HOUSE,
PUTHUVYPU VILLAGE, KOCHI TALUK, PIN 682 508
R1-4 BY SRI THAJUDEEN PP, GOVERNMENT PLEADER
R5 BY ADV. SRI.K.R.VINOD
R5 BY ADV. SMT.M.S.LETHA
R5 BY ADV. SRI.NABIL KHADER
R5 BY ADV. KUM.K.S.SREEREKHA
R5 BY ADV. NABIL KHADER
WP(C).No.21297 OF 2020(J) 2
R5 BY ADV. LIYA THANKACHAN
R5 BY ADV. RAHUL.S
R5 BY ADV. ARUN SEBASTIAN
R5 BY ADV. FATHIMA NARGIS
R5 BY ADV. JACQUELINE JACKSON
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.21297 OF 2020(J) 3
JUDGMENT
This Writ Petition portrays the sad plight of a mother who claims that
she is facing physical as well as mental harassment from her own son. Her
fervent prayer is to issue directions to the respondents 2 to 4 to afford
effective protection to her life and property and also to the life of her two
grandchildren.
2. Petitioner states that she retired as a headmistress of the
Santacruz Higher Secondary School, Ochamthuruth. She is now 63 years
old and suffers from various ailments. She contends that she resides in a
house which stands in her name. She has two sons, the elder one is a
driver and the younger one, the 5th respondent herein, is a chef in a ship.
The daughter of her elder son, as well as the wife and minor child of the
5th respondent are staying with her in her house.
3. The petitioner states that the 5th respondent physically
assaults her demanding money to satiate his appetite for alcohol. He even
brings his friends home and indulges in binge drinking. When the petitioner
raises objections, she is threatened with physical harm and weapons such
as knives are brandished. On more than one occasion, there has been
skirmishes with her elder son when he attempted to come to her rescue.
She had to approach the police seeking protection. This made the 5th
respondent even more aggrieved and he used to destroy the utensils and
other household articles. She states that on one occasion, she was
attacked with a beer bottle causing injuries. On another occasion, her
insulin pen was permanently damaged by the acts of the 5th respondent.
In the said circumstances, she lodged Ext.P1 complaint before the District
Police Chief. Her grievance is that no effective protection is being granted
by the police. She contends that in order to save herself from any more
physical harm, she approached the jurisdictional Magistrate and lodged a
complaint under Section 23 of the Protection of Women from Domestic
Violence Act, 2005. By order dated 13.10.2020, the learned Magistrate,
after concluding that a prima facie case was made out, issued an interim
protection order restraining the 5th respondent from physically, mentally
and economically torturing the petitioner. It is in the afore circumstances
that the petitioner is before this Court seeking a direction to the
respondents 2 to 4 to afford protection to the life and property of the
petitioner, her family members comprising her two grandchildren.
4. A counter affidavit has been filed by the 5th respondent. It is
stated that he works as a chef in a fishing vessel and most of the time he
would be in the high seas. He states that his mother as well as his brother
are inimical towards him as he married a woman against their wishes. It is
stated that he along with his wife and minor child are living with the mother
who has a habit of persistently harassing his wife demanding dowry. His
wife has approached the jurisdictional Magistrate and has filed M.C.No.49 of
2020 invoking the provisions of the Protection of Women from Domestic
Violence Act, 2005 and the learned Magistrate has passed an order on
24.11.2020 ordering the respondents to restrain from physically and
mentally torturing his wife. He would further state that his wife has
approached the learned Magistrate and has filed a complaint alleging
matrimonial cruelty and the said complaint is pending consideration. He
would deny that he is an alcoholic and that he had attempted to harm his
mother and brother.
5. The learned Government Pleader has filed a statement for and
on behalf of the 3rd respondent. It is stated that on receiving a complaint
from the mother, the 5th respondent was summoned and he was warned.
On instructions it is submitted that on 25.11.2020 Crime No.1182/2020 was
registered at the Njarakkal Police Station based on information furnished by
the petitioner. In the complaint, the mother has alleged that on 25.11.2020
at about 4 pm, the petitioner entered the house and attempted to
strangulate her and snatched the keys of the house from her nighty
pocket. She has stated in the complaint that she is living in perennial fear
and despite the orders passed by this Court and the learned Magistrate, she
was harmed by the petitioner. Based on the said information, a Crime has
been registered under Section 323, 341, 506, 188 of the IPC and under
Section 31 of the Protection of Women from Domestic Violence Act, 2005.
It is further submitted that on 28.01.2021, Crime No.69/2021 was
registered based on information furnished by the mother on the allegation
that on 27.01.2021 at about 10.45 pm, the 5th respondent along with his
wife and a friend trespassed into the house and attacked her elder son.
When the petitioner intervened she was also attacked. It is also alleged
that the 5th respondent committed mischief and caused a loss of
Rs.50,000/-. In the said Crime, the offences alleged are under Section 341,
323, 294(b), 506, 427 r/w Section 34 of the IPC and under Section 31 of
the Protection of Women from Domestic Violence Act, 2005. The learned
Government Pleader submits that the Station House Office has also
reported that on one instance when the police reached the house of the
petitioner on receiving a complaint, it was found that the mother was
locked inside a room by the 5th respondent. It was after intervention by
the police that she was freed from confinement.
6. I have heard Sri.John K George, the learned counsel appearing
for the petitioner, Sri.K.R.Vinod, the learned counsel appearing for the party
respondent and Sri.P.P.Thajudeen the learned Government Pleader.
7. By order dated 09.10.2020, this Court had ordered the
respondents 3 and 4 to strictly ensure that no physical harm is caused to
the petitioner or her grandchildren by the 5th respondent and if required to
afford adequate protection to their life and property.
8. By order dated 13.10.2020 the jurisdictional Magistrate had
granted an interim protection order restraining the respondent from
torturing the petitioner.
9. Much later, it appears that the wife of the petitioner
approached the Magistrate and lodged M.C.No.49 of 2020, and an order
was passed restraining the petitioner as well as her elder son from
physically and mentally torturing the wife.
10. When the matter had come up for hearing on earlier occasions,
the 5th respondent wanted the matter to be referred to mediation.
However, it could not be conducted as the mother was not in a position to
travel. She was also of the view that no purpose would be served as her
only request is to enable her to live peacefully in her own home without any
harm, threats or harassment by the 5th respondent.
11. When it was submitted that the mother was living in constant
fear, this Court by order dated 11.01.2021 had directed the 5th respondent
to keep himself away from the residential home.
12. From the submissions made by the learned Government
Pleader it appears that on 25.11.2020 and on 28.01.2021 two crimes have
been registered against the 5th respondent for assaulting his aged mother.
The 2nd incident occurred after the interim order was passed by this Court
on 11.01.2021.
13. From the sequence of events, what is borne out is that the
petitioner, who is a sexagenarian, has been living in her own home after
retirement. She states that both her grandchildren are staying with her.
The 5th respondent is a chef. There is no reason to doubt the statement of
the mother that she is being subjected to physical as well as mental trauma
by the 5th respondent. The registration of two crimes despite the orders
passed by this Court as well as the Magistrate gives a clear picture that the
5th respondent is a person who has no regard for law or orders passed by
the Court. In that view of the matter, I am of the considered opinion that
the directions in order dated 11.01.2021 that the 5th respondent shall keep
himself away from the residential home of the petitioner does not require
any interference.
14. Sri.K.R.Vinod, the learned counsel submits that the 5th
respondent is not having a residential home of his own and in that view of
the matter, asking him to remove himself from the home where the mother
stays would be harsh. He points out that his wife and minor child requires
his attention and care. I am not impressed with the said contention. It is
undisputed that the house where the petitioner resides stands in her own
name. The 5th respondent is an adult aged about 30 years and working in
a ship. He has to manage his family and cannot intrude into the home of
his mother and cause her mental as well as physical trauma. Records
reveal that in spite of orders issued by the courts, the 5 th respondent has
been manhandling his mother.
15. The petitioner has the right under Article 21 of the Constitution
to live a life with dignity in the confines of her own home and without
threat or apprehension of any physical harm from strangers or even from
her own family members. She contends that her right to privacy is being
infringed by the acts of the 5th respondent. Privacy of an individual has also
been held to be part of the fundamental right to life and personal liberty
guaranteed to all citizens under Article 21 of the Constitution of India.
Privacy with its attendant values assures dignity to the person and it is only
when life can be enjoyed with dignity can liberty be of true substance.
Privacy also connotes a right to be left alone. Privacy safeguards individual
autonomy and recognises the ability of the individual to control vital aspects
of his or her life. The 5th respondent is an adult and he cannot insist that
he has the right to live in the house of the petitioner without her consent or
concurrence. In the facts and circumstances, there is no guarantee that the
5th respondent will not continue to hurt the aged mother as he has been
doing all the while. If the petitioner is not desirous of letting the 5th
respondent stay with her, her decision has to be respected.
In that view of the matter, there will be a direction to the respondents
2 to 4 to afford adequate protection to the petitioner as well as her two
grandchildren from any threat from the side of the 5th respondent. The 5th
respondent shall not enter the residential home of the petitioner herein
henceforth. The respondents 2 to 4 shall ensure that the above directions
are not violated.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
sru
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE COMPLAINT DATED 04-10-
2020 SUBMITTED BY THE PETITIONER BEFORE
THE 2ND RESPONDENT.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R5(a): THE COPY OF THE ORDER IN
C.M.P.NO.984/2020 IN M.C.NO.49/2020 OF
JUDICIAL FIRST CLASS MAGISTRATE,
NJARACKAL.
