Kerala High Court
Omana Somanadhan vs Deepu Soman on 4 July, 2024
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 4TH DAY OF JULY 2024 / 13TH ASHADHA, 1946
CRL.REV.PET NO. 1039 OF 2023
AGAINST THE JUDGMENT DATED 11.09.2023 IN CRA NO.197 OF
2023 OF THE SESSIONS COURT,THALASSERY ARISING OUT OF THE
ORDER DATED 27.03.2023 IN MC NO.43 OF 2022 OF THE
JUDICIAL MAGISTRATE OF FIRST CLASS, KUTHUPARAMBA
REVISION PETITIONER/RESPONDENT/PETITIONER:
OMANA SOMANADHAN,
AGED 67 YEARS
W/O. SOMANADHAN, OTTUKKUNNEL VEEDU,
PERUMBUNNA P.O., PERAVOOR, IRITTY TALUK,
KANNUR, PIN - 670673.
BY ADVS.
GEORGE SEBASTIAN
RAJESH RAJAN
RESPONDENTS/APPELLANTS/RESPONDENTS & STATE:
1 DEEPU SOMAN,
AGED 45 YEARS
S/O. SOMAN,EMPLOYED IN GULF, OTTUKUNNEL VEEDU,
PERUMBUNNA P.O., PERAVOOR, IRITTY TALUK KANNUR,
REP. BY DEVI ASHOK, AGED 73 YEARS, W/O. ASHOK,
PENSIONER, RESIDING AT MARAKKAT THARAMMEL
VEEDU, NEAR KANAM SHIVA KSHETHRAM, THALIPARAMBA
P.O., PIN - 670141.
2 ASHMITHA.M.T.,
AGED 42 YEARS,
W/O. DEEPU SOMAN, EMPLOYED IN GULF, OTTUKUNNEL
VEEDU, PERUMBUNNA P.O., PERAVOOR, IRITTY TALUK
KANNUR, REP. BY DEVI ASHOK, AGED 73 YEARS, W/O.
ASHOK, PENSIONER, RESIDING AT MARAKKAT
THARAMMEL VEEDU, NEAR KANAM SHIVA KSHETHRAM,
THALIPARAMBA P.O., PIN - 670141.
2
Crl.Revision Petition No.1039 of 2023
3 DEVI ASHOK,
AGED 73 YEARS,
W/O. ASHOK, PENSIONER, RESIDING AT MARAKKAT
THARAMMEL VEEDU, NEAR KANAM SHIVA KSHETHRAM,
THALIPARAMBA P.O., PIN - 670141.
4 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031.
R1 TO R3 BY ADV R SURENDRAN
R4 BY SMT. SHEEBA THOMAS, PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
FINAL HEARING ON 25.06.2024, THE COURT ON 04.07.2024
DELIVERED THE FOLLOWING:
3
Crl.Revision Petition No.1039 of 2023
P.G. AJITHKUMAR, J. "C.R."
-----------------------------------------------------------
Crl.Revision Petition No.1039 of 2023
-----------------------------------------------------------
Dated this the 4th day of July, 2024
ORDER
In this revision petition filed under Section 397 read with
Section 401 of the Code of Criminal Procedure, 1973 (Code),
the petitioner challenges the judgment in Crl.A.197 of 2023
on the files of the Sessions Court, Thalassery. In the appeal,
order of the Judicial Magistrate of the First Class,,
Koothuparamba granting a residence order in favour of the
petitioner was set aside. However, the respondents No.1 to 3
were directed to provide an alternative accommodation to the
petitioner.
2. Heard the learned counsel for the petitioner, the
learned counsel for respondents No.1 to 3 and the learned
Public Prosecutor.
3. The petitioner filed M.C.No.43 of 2022 invoking the
provisions of Section 12 of the PWDV Act withe the following
contentions:
Crl.Revision Petition No.1039 of 2023
The petitioner had been residing in the building in question
along with her husband and respondent Nos.1 and 2. Her
husband expired. She continued her residence there. That
building and the property appurtenant thereto were purchased
using the sale proceeds obtained by sale of residential
property of her husband. On the assurance by respondents
No.1 and 2, who are the petitioner's son and daughter-in-law,
to protect and maintain the petitioner and her husband, new
residential building was purchased in their name. The 3 rd
respondent is the mother of the 2nd respondent. She now tries
to evict the petitioner from that building. Hence, she sought
for a residence order.
4. Respondents No.1 to 3 filed an objection
controverting the claims in the petition. The relationship was
not disputed and the right of residence of the petitioner was
not specifically denied. Respondent Nos.1 to 3 maintain that
continuance of the petitioner in the shared household is
against the interest of respondent Nos.1 and 2. Respondent
Nos.1 and 2 are now in Qatar. The 1st respondent owes money
Crl.Revision Petition No.1039 of 2023
to several persons on account of the collapse of his business
and the Supreme Judicial Council, State of Qatar ordered the
1st respondent to pay various amounts to his creditors. Owing
to that there is travel ban for him. The shared household
along with 92.05 cents of property was purchased by
respondent Nos.1 and 2 using their own money. For that
purchase they availed a loan of Rs.30 lakhs. Now, the said
loan amount has become overdue and the bank has been
taking steps for the attachment of the property. 30 cents of
property was already sold for clearing debts owed by the 1 st
respondent's father. Unless the shared household and
remaining property is sold, the 1 st respondent would not be
able to clear his debts and get the travel ban lifted. The
petitioner has two daughters, who have ability to maintain
her. It is at the instigation of her daughters, the petitioner has
filed this petition. She filed a similar petition before the
Maintenance Tribunal, Thalassery. A settlement was arrived at
and accordingly the Tribunal ordered as per Ext.R7 to provide
an alternative accommodation to the petitioner. Since there is
Crl.Revision Petition No.1039 of 2023
such a settlement and consequent order the petitioner is
obliged to act in accordance with that order. The building for
alternative accommodation has already been availed. The 1 st
respondent is prepared to pay the rent and amount required
for the maintenance of the petitioner. Accordingly the
petitioner sought to dismiss the petition.
5. After recording evidence, which consists of oral
testimonies of PW1 and RWs.1 to 3 and Exts.P1, P2, R1 to R7,
C1 and X1 to X3, the learned Magistrate granted an order of
residence. Respondents No.1 to 3 were directed not to disturb
petitioner's possession of the shared house in any manner.
Alienation of the shared house was also prohibited.
6. The appellate court did not concur with the views
taken by the learned Magistrate. The appellate court after
considering the law laid down in Vanitha S. v. Deputy
Commissioner, Bengaluru Urban District [2020 (6) KHC
749] took the view that the provisions of Maintenance and
Welfare of Parents and Senior Citizens Act, 2007 and the
Protection of Women from Domestic Violence Act, 2005, shall,
Crl.Revision Petition No.1039 of 2023
so far as possible, be interpreted harmoniously. The learned
Sessions Judge considered the evidence brought on record in
detail. It was observed that if respondent Nos.1 and 2 are not
able to sell the house and the property appurtenant thereto
and clear the debt, there is every possibility for the Federal
Bank taking over and selling the same. It was accordingly
held that respondent Nos.1 and 2 are liable to be permitted to
sell the house and property, and to direct respondent Nos.1
and 2 to provide an alternative accommodation to the
petitioner. The order in Ext.R7 of the Maintenance Tribunal in
that regard was held to be workable and the order of the
learned Magistrate was liable to be set aside.
7. The learned counsel for the petitioner would submit
that when a shared household is available, the appellate court
ought not have opted for an alternative accommodation. It is
submitted that such an order is against the principle laid down
by the Apex Court in Prabha Tyagi v. Kamlesh Devi
[(2020) 8 SCC 90]. True, the Maintenance Tribunal ordered
as per Ext.R7 to provide an alternative accommodation to the
Crl.Revision Petition No.1039 of 2023
petitioner. The settlement, based on which Ext.R7 order was
passed, is vitiated by coercion exerted by respondent Nos.1
and 2. In Spite of such an order, the Sessions Court could not
abdicate from exercising its jurisdiction under Section 19 of
the PWDV Act. An alternative accommodation can be ordered
to be provided only in a case where the shared household is
not available and submission of the learned counsel for the
petitioner in this regard is that Section 19(1)(f) of the PWDV
Act cannot be invoked in cases where the preceding clauses
therein are workable.
8. The learned counsel for respondents No.1 to 3
would submit that those respondents do not have any
reservation in allowing the petitioner to continue in the shared
household. But, in the circumstances of this case, continuance
of the petitioner in the shared household will soon become
impossible. That apart, unless the said house and property
are sold and funds are raised, the 1 st respondent will end up in
jail abroad, for not being able to satisfy the orders of the
Supreme Judicial Council, Qatar. It was after taking into
Crl.Revision Petition No.1039 of 2023
account those facts, a compromise was arrived at in the
proceedings before the Maintenance Tribunal. The compromise
was at the intervention of the officials attached to the office of
that Tribunal and there is no scope for an allegation that it is
tainted. It was accordingly submitted that Ext.R7 order is
legal, just and appropriate; besides being essential to save
the 1st respondent from incarceration.
9. In Prabha Tyagi (supra) the Apex Court explained
the extent of right of an aggrieved woman to have the right of
residence under Section 17 of the PWDV Act. It was held that
sub-section (1) of Section 17, which begins with a non-obstante
clause states that notwithstanding anything contained in any
other law for the time being in force, every woman in a
domestic relationship shall have the right to reside in the
shared household, whether or not she has any right, title or
beneficial interest in the same. Sub- Section (2) states that an
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.
Crl.Revision Petition No.1039 of 2023
10. The said proposition certainly elucidates and
explains the right of an aggrieved person not to be evicted or
excluded from the shared household, except as per the
procedure established by law. The Apex Court did not
contemplate or enumerate the situations where an alternative
accommodation can be ordered. When clause (f) of Sub-
section (1) of Section 19 of the PWDV Act contemplates an
alternative to the previous clauses, it cannot be said that
clause (f) can be invoked only in a case where a shared
household is not available. Depending upon the facts and
circumstances of the case, the court can certainly decide
whether protecting the right of the aggrieved person to reside
in the shared household or providing her an alternative
accommodation will meet the ends of justice.
11. No doubt, the provisions in the PWDV Act are
benevolent and intending to protect the interest of aggrieved
persons. That does not mean that while granting an order
under the PWDV Act, the right and interest of the respondents
do not require consideration at all. If an order of residence
Crl.Revision Petition No.1039 of 2023
would result in total negation and annihilation of the rights of
the respondents and an alternative arrangement would
reasonably protect the right of residence and interest of both
parties, the court shall lean in favour of such an alternative
arrangement.
12. The learned counsel for the petitioner in the above
context submitted that the bank did not attach the building
and the property in question yet and therefore the contentions
of respondent Nos.1 to 3 cannot be countenanced. From
Ext.X2 statement, it is evident that the loan availed by the
respondents is overdue. Much time has elapsed even after
production of Ext.X2 in court. When it is obvious that the
amount of loan remains overdue, the action by the bank for
recovery of the same is imminent. Similar is in the case of the
amount allegedly due to various creditors from the 1st
respondent in Oman. There is not much reason to disbelieve
the version of RW1 in that regard.
13. It is submitted by the learned counsel for the
petitioner that in order to clear the debt, sale of the property,
Crl.Revision Petition No.1039 of 2023
excluding the building is enough. The said contention also
appears not sound for, the whole property appears to be
under mortgage. The appellate court after taking into account
all the aforesaid aspects held that it was just and appropriate
to order respondent Nos.1 and 2 to provide alternative
accommodation and to vacate the residence order. That is a
view not giving primacy to Ext.R7 order. It is only that the
order contained in Ext.R7, which was rendered in terms of the
compromise entered into between the parties, is operational.
From Ext.C1 commission report it is seen that a building
abutting public road was availed on rent. Although it is small
in size compared with the shared household, it has all the
necessary facilities. Therefore providing such an alternative
accommodation cannot be prejudicial to the interest of the
petitioner.
14. It is certainly a concern that the rent of the
building and maintenance of the petitioner are paid in time.
The provision for maintenance is there in Ext.R7. By ensuring
that the rent for the alternative accommodation could be paid
Crl.Revision Petition No.1039 of 2023
without any default, the directions in the judgment of the
appellate court are liable, in the circumstances of this case, to
be affirmed. Having due regard to all the circumstances
emerging from the materials on record, including Ext.C1,
respondent Nos.1 to 3 can be directed to make a deposit of an
amount of Rs.3 lakhs in a bank in the name of the petitioner
from which the monthly rent can be depleted. The petitioner
shall be liable to make similar deposits when the said deposit
amount is about to be exhausted. With that modification, the
judgment of the Sessions Court in Crl.Appeal No.197 of 2023
is confirmed.
This Crl.R.P. is disposed of accordingly.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
