Shamna vs Shafi Aziz
2022 Latest Caselaw 5310 Ker

                   IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                      &
                   THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
           Friday, the 20th day of May 2022 / 30th Vaisakha, 1944
                           TR.P(C) NO. 272 OF 2021

      M.C.No.339/2015 and OP.NO.852/2015 OF FAMILY COURT, NEDUMANGAD


NAME AND ADDRESS OF THE PETITIONERS:


1.    SHAMNA,

      28 YEARS, W/O.SHAFI AZIZ, SHAFI NIVAS,

      MARUTHUMOODU, PANTHALACODE P.O., NEDUMANGAD,

      THIRUVANANTHAPURAM 695 028

2.    RIHAN ASHIK

      MINOR AGED 5 YEARS, REP.BY 1ST PETITIONER MOTHER SHAMNA,

      S/O.SHAFI AZEEZ, SHAFI NIVAS, MARUTHUMOODU, PANTHALACODE P.O.,

      NEDUMANGAD, THIRUVANANTHAPURAM-695 028.



      BY SMT.MARIAN G.M.THARAKAN, Advocate for the petitioners

NAME AND ADDRESS OF THE RESPONDENTS:

1.    SHAFI AZIZ,

      37 YEARS, SHAFI NIVAS, MARUTHUMOODU, PANTHALACODE P.O.,

      NEDUMANGAD, THIRUVANANTHAPURAM-695 028

2.    NASEEMA BEEVI

      70 YEARS, SHAFI NIVAS, MARUTHUMOODU, PANTHALACODE P.O.,

      NEDUMANGAD, THIRUVANANTHAPURAM -695 028

3.    SHAFIJA

      30 YEARS, D/O.NASEEMA BEEVI, SHAFI NIVAS,

      MARUTHUMOODU, PANTHALACODE P.O., NEDUMANGAD,

      THIRUVANANTHAPURAM-695 028.
 4.    M.SHIHABUDEEN

      51 YEARS, S/O.MOHAMMADKANNU, HAJARA MANZIL

      PERAYATHUMUKAL, PIRAPPANCODE P.O., MANICKAL VILLAGE,

      CHIRAYINKIL TALUK, THIRUVANANTHAPURAM NORTH, KERALA-695 607.



      BY M/S.SALIM V.S. and A.M.FOUSI, Advocates for the 2nd respondent


     THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ORDERS AGAIN ON

20.05.2022, UPON PERUSING THE PETITION AND THIS COURT'S ORDER DATED

07/04/2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
     A.MUHAMED MUSTAQUE & SOPHY THOMAS, JJ.
  ------------------------------------------
            O.P (FC) No.594 of 2021,
            Tr.P.(Civil) No.272/2021
           and W.P (C) No.27068/2019
  ------------------------------------------
     Dated this the 20th day of May, 2022
                            O R D E R

A.Muhamed Mustaque, J These matters arise out of a matrimonial

dispute. Shamna, the wife of one Shafi Azeez is

before us in OP (FC) No.594 of 2021 and in Tr.P

(Civil) No.272 of 2021. Naseema Beevi, her

mother- in-law, is before us with W.P (C)

No.27068 of 2019 seeking implementation of an

order passed under the Protection of Women From

Domestic Violence Act, 2005. As seen from the

pleadings and orders produced before this Court,

Shamna also moved the Judicial First Class

Magistrate Court-I, Attingal and obtained an

order under the Domestic Violence Act in M.C

No.15 of 2016. Naseema Beevi also obtained an

order under the Domestic Violence Act to protect

her residence, from the Judicial First Class

Magistrate Court-I, Attingal in M.C No.5 of 2018.

Shamna and her husband were party to the above O.P (FC) No.594/21, Tr.P.(Civil) No.272/21 & W.P (C) No.27068/19

..2..

proceedings. Shamna challenged the above order

before the Additional Sessions Judge-II,

Thiruvananthapuram in Crl.Appeal No.102 of 2018.

The challenge was unsuccessful. Shamna has not

challenged the above order before this Court.

Naseema Beevi is before us seeking police

protection to implement the orders passed in her favour under the Domestic Violence Act. Since

Shamna also obtained an order from the Judicial

First Class Magistrate Court, Nedumangad, it

seems that the order obtained by Naseema Beevi

could not be enforced or implemented.

2. OP (FC) No.594 of 2021 was filed by

Shamna challenging the order of the Family Court,

Attingal seeking a temporary injunction against

forcibly evicting her from the residential

building which is the subject matter of the

proceedings under the Domestic Violence Act

initiated by her as well as Naseema Beevi. The

Family Court, noting the order passed in favour

of Naseema Beevi under the Domestic Violence Act,

dismissed the temporary injunction. This is how O.P (FC) No.594/21, Tr.P.(Civil) No.272/21 & W.P (C) No.27068/19

..3..

Shamna approached this Court challenging the

order of the Family Court invoking Article 227 of

the Constitution of India. Shamna also filed

Tr.P (Civil) No.272 of 2021 to transfer all the

pending cases from Family Court Nedumangad to the

Family Court, Attingal.

3. When OP (FC) No.594 of 2021 was moved before this Court, the learned counsel brought to

our attention the harassment meted out against

Shamna by Naseema Beevi and others. We,

therefore, passed an order in OP (FC) No.594 of

2021 on 7.04.2022 as follows:

The protection officer under the Domestic Violence Act which is the competent jurisdiction, shall look into the complaint of the 1st petitioner that she is being harassed and beaten up by the respondents and take necessary measures. The Protection Officer shall

file a report before this Court by next posting.

4. Thereupon, the Women Protection Officer,

filed a report. The report has been placed

before this Court by the learned Government

Pleader. The report reads thus:

As per the Order of the Hon'ble High Court, enquiry has been conducted at Shafi Nivas, Maruthamoodu, O.P (FC) No.594/21, Tr.P.(Civil) No.272/21 & W.P (C) No.27068/19

..4..

Panthalacode P.O., Potencode, Thiruvananthapuram. The respondents 1 and 2 are residing at the above address. Respondent 3 has been expired. The petitioner and her minor son along with her father and mother are residing at an adjacent incomplete building. Petitioners are living in that building since 2016. There is no water and electrical connections in that building. Also there is no toilet or bathroom. Petitioner's living condition is pathetic.

The Station House Officer, Pothencode has registered three FIR against respondents for physically abusing the petitioner. For residing peacefully, petitioner approached the Hon'ble Judicial First Class Magistrate Court-I attingal under the protection of Women from Domestic Violence Act, 2005. The Hon'ble Court as per judgment dated 18/12/2017 in MC 15/2016 issued protection Order and Maintenance Order. During the enquiry, Petitioner informed that even after getting protection Order, the respondents are physically abused them and the SHO, Pothencode registered FIR No.0266 dated 18.03.2022.

After enquiry, it is found that electric and water supply is necessary. Hence, this office communicated the matter to the KSEB and Water authority concerned. Request has also sent to Superintendent of Police (Rural), Thiruvananthapuram O.P (FC) No.594/21, Tr.P.(Civil) No.272/21 & W.P (C) No.27068/19

..5..

to provide necessary assistance to the petitioner and implementing the Protection Order.

All necessary steps are taken to provide financial assistance to the petitioner under

"ASWASANIDHI SCHEME" of Women and Child Department.

5. The above report clearly depicts the

pathetic situation under which Shamna and her

minor son are living in the said building. Her husband has abandoned her. She has no means to

support herself. Naseema Beevi's petition for

police protection for enforcement of the order

passed under the Domestic Violence Act against

Shamna and her husband. On face of the order

itself, we are of the view that such an order

cannot be passed against Shamna for the simple

reason that under the Domestic Violence Act, a

woman cannot be a respondent. Section 3 of the

Domestic Violence Act defines "domestic Violence"

with reference to the "conduct of the

respondent", and the "respondent" has been

defined under Section 2q as follows:

"respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved O.P (FC) No.594/21, Tr.P.(Civil) No.272/21 & W.P (C) No.27068/19

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person has sought any relief under this Act:

6. It is obvious that only a male can be

the respondent under the Domestic Violence Act.

Based on the situation that no challenge has been

made by Shamna, we have to exercise our suo motu

power under Section 397 of the Cr.P.C to take up

the revision as against the order passed by the Judicial First Class Margistrate as well as the

Appellate Court in MC as well as in the Crl.

Appeal. This is for the obvious reason that a

lady who belonged to a marginal section has been

ill advised by lawyers and she has no other means

and ways to challenge the above order. An

illegal order cannot be put against her to

prevent her from enjoying an order already passed

in favour of her by the Judicial First Class

Magistrate Court under the Domestic Violence Act.

Therefore, we initiate suo motu revision as

against the order passed by the Judicial First

Class Magistrate Court-I, Attingal in MC No.5 of

2018 and in Crl. Appeal No.102 of 2018 by the

Additional Sessions Judge II, Thiruvananthpuram.

The registry is directed to number the suo motu O.P (FC) No.594/21, Tr.P.(Civil) No.272/21 & W.P (C) No.27068/19

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revision and call for the records in the above

cases.

7. In the meanwhile, we grant a stay of the

operation of the above orders as against Shamna.

Let the notice be issued by Registry, meeting

necessary expenses from High Court Legal Services

Committee. Notice be issued to Naseema Beevi, Aged 70 years, W/O Abdul Aziz, Shafi Nivas,

Maruthummoodu, Panthalacode P.O., Nedumangad,

Thiruvananthapuram 695 028.

8. As reported by the Women Protection

Officer, Thiruvananthapuram there is no water and

electricity connection and also there is no

toilet and bathroom in the building where Shamna

is residing with her minor son. In such

circumstances, we are of the view that the Kerala

State Electricity Board as well as the Water

Authority have to be impleaded. Accordingly,

The Assistant Engineer, Kerala State Electricity

Board, Mangalapuram, Pothencode Section,

Thiruvananthapuram and the Assistant Engineer,

Kerala Water Authority, Kazhakkoottam Section, O.P (FC) No.594/21, Tr.P.(Civil) No.272/21 & W.P (C) No.27068/19

..8..

Thiruvananthapuram are suo motu impleaded as

additional 4th and 5th respondents in OP (FC)

No.594/2021. Notice be served on the learned

Standing Counsel concerned. They shall explore

the possibility of providing water connection and

electricity connection to Shamna. We also

implead the Station House Officer, Pothencode Police Station, Thiruvananthapuram in the party

array as additional 6th respondent in OP (FC)

No.594/2021. The Station House Officer shall

ensure safety of Shamna and she shall be

protected as against any physical harassment from

any side.

Post on 27.05.2022.

Sd/-

A.MUHAMED MUSTAQUE, JUDGE Sd/-

SOPHY THOMAS, JUDGE PR

20-05-2022 /True Copy/ Assistant Registrar