Kerala High Court
Divya Sajikumar vs Sajikumar C.T on 9 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TUESDAY, THE 9TH DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943
OP (FC) NO. 512 OF 2021
AGAINST THE ORDER/JUDGMENT IN OP 363/2020 OF FAMILY COURT,
THIRUVALLA, PATHANAMTHITTA
PETITIONERS:
1 DIVYA SAJIKUMAR, AGED 41 YEARS, D/O.LATE SASIDHARAN
NAIR, CHEMPUKUZHIYIL HOUSE, MALLAPPALLY WEST P.O.,
MALLAPPALLY MURI, FROM NANDHANAM HOUSE, MALLAPPALLY
EAST P.O., MALLAPPALLY VILLAGE, MALLAPPALLY TALUK, PIN-
689 584.
2 NANDAKRISHNA C.S., AGED 20 YEARS, S/O.SAJIKUMAR C.T,
CHEMPUKUZHIYIL HOUSE, MALLAPPALLY WEST P.O.,
MALLAPPALLY MURI, FROM NANDANAM HOUSE, MALLAPPALLY EAST
P.O., MALLAPPALLY MURI, PIN-689 584.
BY ADVS.
E.D.GEORGE
LINU G. NATH
BENET SELVAN S.
BRISONE T. MATHEW
RESPONDENT:
SAJIKUMAR C.T, AGED 45 YEARS, S/O.THANKAPPAN PILLAI,
CHEMBUKUZHIYIL HOUSE, MALLAPPALLY WEST P.O.,
MALLAPPALLY VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA,
PIN-689 585.
BY ADV K.S.ARUNDAS
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
09.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (FC) NO. 512 OF 2021
2
JUDGMENT
A. Muhamed Mustaque, J
This original petition is filed challenging an order passed
by the Family Court, Thrissur in an interlocutory application in
O.P No.363 of 2020. The petitioners are the respondents in the
interlocutory application. The operative portion of the order
reads thus:
"In the result, this IA is allowed. The petitioner is permitted to enter
the plaint schedule item No.2 house and reside therein. The
respondents are hereby restrained from making any obstruction to
the petitioner's residence in the said house. The respondents are
hereby directed to give a spare key of the gate and the house to the
petitioner within two weeks. No order as to cost."
2. The 1st petitioner is the wife and the 2nd petitioner is
the son of the respondent. The original petition was filed by the
respondent for a decree of permanent prohibitory injunction
restraining the petitioners from trespassing into the petition
schedule property and not to interfere with the peaceful
possession.
3. The Family Court after adverting to the rival
OP (FC) NO. 512 OF 2021
contentions and the nature of the subject matter of the dispute
allowed the respondent also to occupy the house as noted above.
Challenging this order, the petitioners approached this Court.
4. On 25.10.2021 we passed the following order:
"We are exploring a possibility of settlement between
the parties.
2. Post on 05.11.2021.
3. In the meanwhile, we allow the respondent-
Sajikumar to stay in the house which is the subject of
dispute on following terms and conditions:
(a) He shall not cause any harm or disturbance to the
stay of petitioner-Divya and her son in the
house.
(b) He shall not take any person along with him into
the house.
(c) He will occupy only a room on the western side.
(d) Divya has agreed to handover one key of the house
to Sajikumar.
(e) Gate shall remain opened.
(f) We direct the Station House Officer, Keezhvaipur
Police Station, Pathanamthitta to ensure that no
disturbance is caused to Divya and her son from
the side of Sajikumar. A continuous supervision
shall be accorded to her. The Station House
Officer shall depute a woman police officer in
civil dress to visit the house. Station House
Officer also shall give the contact number of the
OP (FC) NO. 512 OF 2021
police officer to the petitioner-Divya to make
any urgent call.
(g) Mother of Divya is also allowed to stay with her
in the house.
We direct both parties to appear again before this
Court on 05.11.2021."
5. The residential house is located in 10 cents of land,
out of which 5 cents belongs to the 1st petitioner and the
remaining 5 cents belongs to the respondent. According to the
1st petitioner, the entire money for construction of the house was
spent by her and the house belongs to her. It is further
submitted that allowing the respondent to occupy the house will
cause severe hardship to her.
6. The petitioners cannot dispute ownership and title of
the property of the respondent at least in respect of the 5 cents of
land. The respondent's claim is that he does not have any other
house for his residence. The dispute is more of a dispute in
relation to the property rather than for a shared household
under matrimonial claim. The order passed by us on
25.10.2021 will safeguard the interest of both the parties. We
OP (FC) NO. 512 OF 2021
will not be justified in depriving the respondent from occupying
the house. The dispute regarding title, interest etc., will have to
be decided by the Family Court after the evidence. Equity cannot
be invoked to suppress the interest of the rightful claimant.
Prima facie, it is disclosed that both of them are having interest
over the land. It is appropriate that both are permitted to occupy
the residential house, in the light of the order passed by this
Court on 25.10.2021. However, we make it clear that the order
can be varied or modified by the Family Court for any cogent
reason at a later stage, if so warranted.
We dispose of this original petition in the light of the order
passed by this Court on 25.10.2021.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
SOPHY THOMAS
JUDGE
PR
OP (FC) NO. 512 OF 2021
APPENDIX OF OP (FC) 512/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE SALE DEED DATED 20.02.2015.
Exhibit P2 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE
2ND PETITIONER TO SUB INSPECTOR OF 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 BY THIS
HON'BLE COURT.
Exhibit P5 TRUE COPY OF THE INTERIM ORDER IN
I.A.NO.1/2020 IN O.P.NO.363/2020 PASSED BY
THE FAMILY COURT, THIRUVALLA DATED
04.11.2020.
Exhibit P6 TRUE COPY OF THE ORDER DATED 16.12.2020 IN
CRL.M.P.NO.2289/2020 IN M.C.NO.60/2020 BY
JUDICIAL FIRST CLASS MAGISTRATE COURT,
THIRUVALLA.
Exhibit P7 TRUE COPY OF THE I.A. IN O.P.NO.363/2020
FILED BEFORE THE FAMILY COURT, THIRUVALLA FOR
PERMITTING TO ENTER IN THE HOUSE OF THE
PETITIONER DATED 04.08.2021.
Exhibit P8 TRUE COPY OF THE I.A. IN O.P.NO.363/2020
FILED BEFORE THE FAMILY COURT, THIRUVALLA FOR
ADVANCING THE CASE DATED 04.08.2021.
Exhibit P9 TRUE COPY OF THE OBJECTION IN O.P.NO.363/2021
FILED BEFORE THE FAMILY COURT, THIRUVALLA.
Exhibit P10 TRUE COPY OF THE COMPLAINT DATED 06.01.2021
SUBMITTED BEFORE THE SUB INSPECTOR OF POLICE,
KEEZHVAIPUR.
Exhibit P11 TRUE COPY OF THE COMPLAINT DATED 05.01.2021
SUBMITTED BEFORE THE ASSISTANT ENGINEER,
K.S.E.B, MALLAPPALLY.
OP (FC) NO. 512 OF 2021
Exhibit P12 TRUE COPY OF THE COMPLAINT DATED 06.01.2021
SUBMITTED BEFORE THE ASSISTANT ENGINEER,
K.S.E.B, MALLAPPALLY.
Exhibit P13 TRUE COPY OF THE JUDGMENT DATED 25.08.2021 IN
O.P(F.C)NO.546/2020.
Exhibit P14 TRUE COPY OF THE COMMISSION REPORT DATED
22.09.2021.
Exhibit P15 TRUE COPY OF THE PETITION CRL.M.P.1943/2021
IN CRL.M.C.NO.60/2020 FOR MODIFYING THE ORDER
WITH ADVANCE PETITION.
Exhibit P16 TRUE COPY OF THE ORDER DATED 18.09.2021 IN
CRL.M.P.NO.1943/2021 IN M.C.NO.60/2021 PASSED
BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT,
THIRUVALLA.
Exhibit P17 TRUE COPY OF THE PETITION FOR AN OPPORTUNITY
FOR FILING OBJECTION TO THE PETITION
CRL.M.P.NO.1943/2021.
Exhibit P18 TRUE COPY OF THE ORDER IN I.A.NO.5/2021 IN
O.P.NO.363/2020 DATED 04.10.2021.
