Shameena Siddique vs M.Abubekhar Siddiq
2022 Latest Caselaw 4588 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
   FRIDAY, THE 22ND DAY OF APRIL 2022 / 2ND VAISAKHA, 1944
                CRL.REV.PET NO. 1353 OF 2017
 AGAINST THE ORDER   IN MC 39/2011 OF JUDICIAL MAGISTRATE OF
                 FIRST CLASS , SASTHAMCOTTA
CRA 27/2015 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT -
                         IV, KOLLAM
REVISION PETITIONERS/RESPONDENTS 1 & W/PETITIONERS 1 & 2:

    1    SHAMEENA SIDDIQUE
         AGED 34 YEARS
         D/O.RAHEEDA BEEGUM, PUTHIYA VEEDU, PUTHENSANKETHAM
         EDAYILA, MURIYIL, THEVALAKKARA VILLAGE.

    2    AJMA SIDDIQUE
         D/O.SHAMEENA (MINOR), AGED 8 YEARS, RESIDING AT
         PUTHIYA VEEDU, PUTHENSANKETHAM EDAYILA, MURIYIL,
         THEVALAKKARA VILLAGE, REPRESENTED BY THE NEXT
         FRIEND & GUARDIAN SHAMEENA SIDDIQUE, AGED 34
         YEARS, D/O.RAHEEDA BEEGUM, PUTHIYA VEEDU,
         PUTHENSANKETHAM EDAYILA, MURIYIL, THEVALAKKARA
         VILLAGE.

         BY ADVS.
         SRI.P.HARIDAS
         SRI.RENJI GEORGE CHERIAN
         SRI.P.C.SHIJIN


RESPONDENTS/APPELLANTS 1 TO 4 & 3RD RESPONDENT/RESPONDENTS:

    1    M.ABUBEKHAR SIDDIQ
         AGED 44 YEARS, S/O.MOHAMMED KUTTY, KANDOLIL VEEDU,
         PALACKAL, THEVALAKKARA VILLAGE, KARUNAKAPPALLY
         TALUK-690524, (NAME AND FATHER'S NAME WRONGLY
         STATE IN THE LOWER COURT ORDER AS MOHAMMED
 Crl.R.P.No.1353/2017

                            -:2:-

           ABOOBAKKER SIDDIQUE AND MOHAMMED KUNJU),
           REPRESENTED BY POWER OF ATTORNEY, M.A.SALAM,
           S/O.MOHAMMED KUTTY, AGED 62 YEARS, ADVOCATE,
           RESIDING AT DARUL SALAM, -D0-

    2      M.A.SALAM
           S/O.MOHAMMED KUTTY, AGED 62 YEARS, ADVOCATE,
           RESIDING AT DARUL SALAM, -DO- 690524.(FATHERS
           NAME WRONGLY STATED AS MOHAMMED KUNJU IN THE
           ORDER)

    3      ANWAR SASDATH
           S/O.MUHAMMED KUTTY, AGED 41 YEARS, KANDOIL VEEDU,
           -DO- 690524. (FATHER'S NAME WRONGLY STATED AS
           MOHAMMED KUNJU IN THE ORDER)

    4      ASSANARU KUNJU
           AGED 61 YEARS, KATTIL PUTHEN VEEDU, VADUTHALA,
           PANMANA, PUTHENCHANTHA, KARUNAGAPPALLY TALUK-
           691583.

    5      STATE OF KERALA
           REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
           KERALA, ERNAKULAM, KOCHI-682031.

           BY ADV SRI.B.MOHANLAL
           PUBLIC PROSECUTOR SRI.SANGEETHA RAJ



     THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 6.04.2022, THE COURT ON 22.04.2022
DELIVERED THE FOLLOWING:
 Crl.R.P.No.1353/2017

                               -:3:-



                             ORDER

Dated this the 22nd day of April, 2022

This Criminal Revision Petition has been filed challenging

the judgment of the Additional Sessions Court IV Kollam in

Crl.Appeal No.27/2015 dated 9th June, 2017.

2. The first revision petitioner is the wife of the first

respondent. The second revision petitioner is their minor

daughter. The second and third respondents are the brothers,

and the fourth respondent is the maternal uncle of the first

respondent. The revision petitioners filed MC No.39/2011 at the

Judicial First-Class Magistrate Court, Sasthamcotta (for short, 'the

trial court') claiming various reliefs u/s 12(1) of the Protection of

Women from Domestic Violence Act, 2005 (for short, the DV Act).

It was alleged that at the time of marriage, the parents of the first

petitioner gave 100 sovereigns of gold ornaments to her.

Moreover, her parents entrusted `5,00,000/- to the first and

second respondents. It was further alleged that later on

15/4/2008, the father and brother of the first revision petitioner Crl.R.P.No.1353/2017

entrusted `13,00,000/- to the first respondent and his mother. It

is the case of the petitioners that utilizing the entire gold

ornaments and money given by the parents of the first petitioner,

the first respondent constructed a house on his property viz.,

Ajma Manzil. According to the petitioners, they along with the

first respondent resided in the said house and it is their shared

household. It was further alleged that on 9/12/2009 at around

9.30 p.m, the second and third respondents criminally trespassed

into the above said shared household and assaulted the first

petitioner. It was further alleged that thereafter on 28/12/2009 at

8.30 p.m., all respondents assaulted the first petitioner as well as

her father and brother at Ajma Manzil and the first respondent

stabbed the first petitioner with a knife on her head. It was also

alleged that the respondents disconnected the electrical

connection of the house and removed household articles from the

house. It was in these circumstances the petitioners approached

the trial court invoking the provisions of the DV Act claiming

protection, residential and monetary orders. The petitioners have

also sought for the return of gold ornaments and money

entrusted to respondents and for reinstating the electricity Crl.R.P.No.1353/2017

connection.

3. The first and second respondents entered appearance.

The third and fourth respondents were set ex parte. The first

respondent alone filed objection statement. The marriage

between the first petitioner and first respondent and the paternity

of the child was admitted by the first respondent. However, he

contended that he divorced the first petitioner on 28/12/2009 by

pronouncing triple talaq. The allegations in the petition that the

parents of the petitioners entrusted gold ornaments and money

to him and utilizing the same he constructed the house were

denied by the first respondent. He has also denied the various

instances of domestic violence allegedly exercised by him and

the remaining respondents on the first petitioner pleaded in the

petition. He contended that Ajma Manzil is a house constructed

by him with his own funds and it is not a shared household.

According to him, the petitioners never resided in the house

along with him. It is his case that in fact the first petitioner along

with her father and brother trespassed into the house of the

second respondent on 8/12/2009 and attacked him. It was

further contended that the matrimonial relationship between the Crl.R.P.No.1353/2017

first petitioner and first respondent existed for just one week and

they never lived together in the shared household. He sought the

dismissal of the petition.

4. PWs1 to 4 were examined on the side of the

petitioners and Exts.P1 to P9 were marked. DW1 to DW8 were

examined and Exts.D1 to D22 were marked on the side of the

respondents. Exts.C1 and X1 were marked as court exhibits.

After trial, the trial court passed the following order in favour of

the petitioners.

"In the result,

a) This M.C. is allowed in part.

b) The respondents are restrained from committing any act of domestic violence against the petitioners under section 18(a) of the Act.

c) The petitioners are entitled to get residential order in Kandolil Puthanveedu alias Ajma Manzil bearing house No.XVII/903 of the Chevalakkara Grama Panchayat. The petitioners can reside in that house until the first respondent secures a same level of alternative accommodation to the petitioners.

d) The first respondent shall pay Rs.25,000/- to the first petitioner as compensation u/s 22 for the mental torture and emotional distress.

e) The first respondent u/s 20(3) of the Act shall pay Rs.3,000/- each as monthly maintenance to the first and the

second petitioner on or before the 5th day of each month.

Crl.R.P.No.1353/2017

f) The prayer for return of gold ornaments and money, and the prayer for reinstating electricity connection are not allowed.

g) The first respondent shall also execute bond for Rs.2 lakhs for not committing the domestic violence in future."

5. The respondents herein challenged the above order at

the Additional Sessions Court IV, Kollam (for short, 'the appellate

court'). The appellate court allowed the appeal and dismissed the

MC. Aggrieved by the said judgment, this revision petition has

been preferred.

6. I have heard Sri.Shijin P.C., the learned counsel for the

revision petitioners, Sri.B.Mohanlal, the learned counsel for

respondents 1 to 4 and Sri.Sangeetha Raj, the learned Public

Prosecutor.

7. The parties are Muslims. It is not in dispute that the

first respondent married the first petitioner on 10/7/2006 and the

second petitioner was born in the said wedlock. The first

respondent took a contention that he divorced the first petitioner

on 28/12/2009 by pronouncing talaq. The trial court found that

the first respondent failed to prove the pronouncement of talaq.

However, the appellate court found that the Magistrate under the

exercise of the power under the provisions of the DV Act cannot Crl.R.P.No.1353/2017

decide the validity of the talaq pronounced by the first

respondent. It was further held that prima facie there is

material to show that the first respondent pronounced talaq and

as such the status of the petitioner is that of a divorced woman

and she is not entitled to claim maintenance. The appellate court

further found that the first petitioner miserably failed to prove

that the first respondent committed acts of domestic violence

and that the house in question is a shared household.

Accordingly, all the reliefs granted by the trial court were set

aside.

8. As per S.18 of the DV Act, the Magistrate is

empowered to pass a protection order in favour of the aggrieved

person and prohibit the respondents from committing any act of

domestic violence on being prima facie satisfied that the

domestic violence has taken place or is likely to take place. The

term 'domestic violence' has been defined u/s 3 of the Act. It

includes physical abuse as well as verbal emotional abuse and

economic abuse. The specific instances of various domestic

violence on the part of the respondents have been clearly

pleaded in the petition. The first petitioner was examined as Crl.R.P.No.1353/2017

PW1. She deposed before the trial court about the said specific

instances of domestic violence. There was no successful cross-

examination on those aspects. On the side of the petitioners,

Exts.P5 and P5(a), the copy of the FIR and FIS in Crime

No.586/2019 of Thekkumbhagam Police Station were produced in

order to substantiate their contention that the respondents

assaulted the first petitioner on 28/12/2009. In order to prove the

injury sustained in the said incident, the petitioners have also

produced a wound certificate dated 28/12/2009 issued by the

Taluk Headquarters Hospital, Sasthamcotta as Ext.P6. As against

this positive evidence given by the petitioners, no rebuttal

evidence has been adduced by the respondents. The first

respondent did not mount the box. It has come out in evidence

that the first respondent failed to maintain the petitioners. The

term 'domestic violence' as defined u/s 3 does not mean any

physical harassment alone. As already stated, it includes

emotional or economic abuse as well. The term 'economic abuse'

has been defined u/s 3(iv) of the Act. It includes deprivation of all

or any economic or financial resources to which the aggrieved

person is entitled under any law or custom and maintenance. Crl.R.P.No.1353/2017

Thus, the non-payment of maintenance alone would constitute

domestic violence. The appellate court without considering this

positive evidence adduced on the side of the petitioners relying

on a flimsy ground that in Ext.P4 petition filed by the petitioners

there was no averment of domestic violence held that the

petitioners failed to prove that the first respondent has

committed domestic violence. The said finding of the appellate

court, no doubt, is perverse and cannot be sustained.

9. The first respondent for the first time in the objection

statement took a contention that he divorced the petitioner by

pronouncing talaq on 28/12/2009. He relied on Exts.D2, D12 and

D13 to prove the factum of talaq. Ext.D2 is the copy of

talaqnama. Ext.D12 is the certificate dated 7/5/2010 issued by

Kottukadu Jamaath and Ext.D13 is the certificate dated 21/1/2010

issued from the said Jamaath. It has been produced to prove that

the fact that the first respondent pronounced talaq was

communicated to the local Jamaath. Apart from the said

document, no evidence has been produced. Exts.D12 and D13

were not proved in accordance with law by examining their

authors. The first respondent did not mount the box to prove that Crl.R.P.No.1353/2017

he pronounced talaq. Ext.D2 is only a copy, the original has not

been produced. The first petitioner has even denied the

signature of the first respondent in Ext.D2. Admittedly the first

respondent pronounced triple talaq. The Apex Court in Shamim

Ara v. State of U.P. (2002 KHC 829) has held that a mere plea

taken in the written statement of a divorce having been

pronounced sometime in the past cannot by itself at all be

treated as a pronouncement of talaq by the husband on the wife

and talaq to be effective must be for a reasonable cause and be

preceded by attempts of reconciliation between the husband and

wife by two arbitrators, one chosen by the wife from her family

and the other by the husband from his family. The valid forms of

talaq recognized in Muslim law viz talaq ahsan and talaq hasan,

both contemplated a period (iddat), immediately after the

pronouncement of talaq, whether such pronouncement is only

once or thrice over three successive lunar months, when the

husband can revoke the talaq. It comes into effect only after the

said period. Talaq-i-biddat or triple talaq which instantaneously

severs the marital tie is not valid or legal under Muslim Personal

Law. The Constitution Bench of the Apex Court in Shayara Crl.R.P.No.1353/2017

Banu and Others v. Union of India and Others [(2017) 9 SCC

1] examined the constitutional validity of the triple talaq and held

that the said form of talaq is violative of fundamental right under

Article 15 and declared as unconstitutional. Even according to the

first respondent, he pronounced triple talaq at a go without

following any of the procedures mentioned above. Hence, it is

invalid. In a petition filed by the wife under the DV Act, if the

husband disputes the marital status on the ground that he has

divorced the wife by the pronouncement of talaq, the Magistrate

has every power to decide whether the said plea is valid or not.

The finding of the appellate court that the Magistrate has no

power to decide the validity of the talaq is wrong and only to be

set aside.

10. That apart, the wording 'aggrieved person' as laid

down in S.2(a) of the DV Act clearly provided any woman, who is

or has been in a domestic relationship with the respondent. The

definition of 'domestic relationship' [S.2(f)] also means the

relationship between two persons, who live or have, at any point

of time, lived together in the shared household. The definition of

'shared household' [S.2(s)] also means where the person Crl.R.P.No.1353/2017

aggrieved lives or at any stage has lived in a domestic

relationship. Therefore, none of the definitions contemplate that

on the date of filing such application, for the reliefs under the DV

Act, the party should be actually residing or living together. The

very word, 'has lived together at any point of time' necessarily

covers even the past cohabitation or past living together. This

court in Priya v. Shibu and Others (2008 (3) KHC 125) has held

that even if there is a past relationship or experience with the

parties concerned, the applicant will have locus standi to invoke

the jurisdiction of the Magistrate under the DV Act. It was

specifically held that even a divorced wife is entitled to file a

petition u/s 12(1) of the DV Act claiming the return of dowry and

ornaments and for maintenance payable u/s 125 of Cr.P.C. The

said decision was followed in Bipin v. Meera D.S. and Others

(2016 (5) KHC 367), and held that to obtain relief under the Act, it

is not required that the domestic relationship should continue as

on the date of the application. The Apex Court in Juveria Abdul

Majid Patni v. Atif Iqbal Mansoori and Another (2014 KHC

4645) has held that an act of domestic violence once committed,

the subsequent decree of divorce will not absolve the liability of Crl.R.P.No.1353/2017

the respondent from the offence committed or to deny the

benefit to which the aggrieved person is entitled under the DV

Act. Here is a case where even according to the first respondent,

the alleged talaq was on 28/12/2009. All the allegations of

domestic violence pertain to the period prior to the said date.

Admittedly in those days, the matrimonial relationship was in

existence.

11. The definite case of the petitioners is that Ajma Manzil

is a shared household and they along with the first respondent

resided therein. In order to prove the same, the 1 st petitioner

herself gave evidence as PW1. To corroborate the evidence of

PW1, PW3 who is the neighbour of PW1 also gave evidence. The

evidence of PWs1 and 3 clearly prove that the petitioners resided

in the said house. There is no contra evidence. The 1st

respondent did not mount the box. The appellate court went

wrong in holding that Ajma Manzil is not a shared household

relying on electricity bills showing trivial consumption. The

appellate court failed to take note of the fact that the specific

case put forward by the petitioners is that they were forcefully

evicted from the shared household by the respondents and the Crl.R.P.No.1353/2017

electricity connection was disconnected. Whether the electricity

was consumed or not is not relevant in deciding the right of

residence in the shared household. Even the continued residence

or occupation of the shared household is not all required for the

entitlement of a wife to get a residential order.

12. The petitioners have satisfactorily proved that they

were entitled for protection, residence, monetary and

compensation orders which were rightly granted by the trial

court. The first appellate court on flimsy reasons set aside the

reasoned order of the trial court. It is true that this court is not

supposed to reappreciate the evidence in a revision petition. But

this is not a case of reappreciation of evidence. It is a case where

the appellate court without appreciating the evidence in the

correct perspective set aside the well-reasoned order of the trial

court. The powers vested with this court u/s 397 r/w 401 of Cr. P.C

are inherent in nature to correct the judgments of the courts

below which suffers from gross illegality. The findings in the

impugned judgment of the appellate court have been arrived at

by ignoring the relevant materials and evidence on record. The

entire approach of the appellate court in dealing with evidence Crl.R.P.No.1353/2017

and law on the point was patently wrong. The appellate court

has committed gross illegality in reversing the order of the trial

court and dismissing the petition. For these reasons, I hold that it

is a fit case where the discretionary power vested with this court

u/s 397 r/w 401 of Cr.P.C could be exercised.

In the result, the criminal revision petition is allowed. The

impugned judgment of the appellate court is set aside, and the

order of the trial court is restored.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE Rp