Kerala High Court
Fathima vs Vappinu on 11 February, 2025
Author: Devan Ramachandran
Bench: Devan Ramachandran
OP (FC) NO. 22 OF 2025 1 2025:KER:11323
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
TUESDAY, THE 11TH DAY OF FEBRUARY 2025 / 22ND MAGHA, 1946
OP (FC) NO. 22 OF 2025
AGAINST THE JUDGMENT DATED 10.09.2024 IN I.A.NO.4/2024
IN OP NO.1187 OF 2023 OF FAMILY COURT, KUNNAMKULAM
PETITIONER/PETITIONER:
FATHIMA, AGED 56 YEARS
W/O. VAPPINU, PARUVANATHU HOUSE, ANDATHODU P.O.,
KADIKKADDESOM, PUNNAYURKKULAM VILLAGE, CHAVAKKAD TALUK,
THRISSUR DISTRICT, PIN - 680506
BY ADVS.
K.N.ABHILASH
SUNIL NAIR PALAKKAT
RISHI VARMA T.R.
RITHIK S.ANAND
SREELAKSHMI MENON P.
K.M.TINTU
ANU PAUL
SREEJITH A.
V.SREEJITH
RESPONDENT/RESPONDENT:
VAPPINU, AGED 63 YEARS
S/O. AMMUNNI, PARUVANATHU HOUSE, ANDATHODU P.O.,
NOW RESIDING AT C/O. MUSTHAFA, PULLIKAL HOUSE,
MULLIYAMKURISHI, MELMURIDESOM, PATTIKKAD P.O.,
PERINTHALMANNA, MALAPPURAM DISTRICT, PIN - 679325
BY ADVS.
JAGADEESH K
V.RENJU(K/2317/1999)
NIKHEL K GOPINATH(K/000352/2016)
THIS OP (FAMILY COURT) HAVING COME UP FOR HEARING ON
10.02.2025, THE COURT ON 11.2.2025 DELIVERED THE FOLLOWING:
OP (FC) NO. 22 OF 2025 2 2025:KER:11323
CR
DEVAN RAMACHANDRAN & M.B.SNEHALATHA, JJ.
-------------------------------------------
O.P (FC) No.22 OF 2025
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Dated, this the 11th February, 2025
JUDGMENT
M.B.Snehalatha, J.
The petitioner/the estranged wife of the respondent has
filed this Original Petition challenging Ext.P6 order of the learned
Family Court, Kunnamkulam, by which her petition filed under
Order VI Rule 17 of Code of Civil Procedure to incorporate reliefs
under Sections 18 and 19 of the Protection of Women from
Domestic Violence Act, 2005 (hereinafter referred to as 'DV Act,
2005') was dismissed by the Family Court.
2. The Original Petition was filed by the petitioner before
the Family Court under Section 7(1) Explanation (c) and (d) of
the Family Courts Act seeking permanent prohibitory injunction
restraining the respondent from trespassing into the petition
schedule property and from forcibly evicting her from the said
property.
OP (FC) NO. 22 OF 2025 3 2025:KER:11323
3. During the pendency of the Original Petition, petitioner
filed I.A.No.4/2024 seeking amendment of the Original Petition to
incorporate reliefs under Sections 18 and 19 of the DV Act, 2005
also.
4. Respondent resisted the said petition for amendment
and sought dismissal of the said petition contending that there
was no domestic violence against the petitioner; that till the filing
of the petition seeking amendment, she had not filed any petition
seeking reliefs under the DV Act; that in O.P.No.1716/2015 filed
by her she had claimed ownership over the property which was
found against her and therefore her petition to amend the Original
Petition seeking reliefs under the DV Act has been filed only as a
counterblast to O.P.No.262/2023 filed by the respondent against
her seeking eviction from the petition schedule property.
5. By order dated 10.9.2024, the learned Family Court
dismissed I.A.No.4/2024 which is impugned herein.
6. Heard both sides.
7. The learned counsel for the petitioner vehemently
contended that Section 26 of the DV Act entitles the petitioner to
seek reliefs under Sections 18 to 22 of the DV Act and therefore
the learned Family Court is in error in dismissing the petition
OP (FC) NO. 22 OF 2025 4 2025:KER:11323
seeking amendment filed by the petitioner to incorporate the
reliefs under Sections 18 and 19 of DV Act, 2005.
8. The learned Counsel for the respondent on the other
hand contended that an Original Petition filed under Section 7 of
the Family Courts Act cannot be permitted to amend to
incorporate reliefs under the DV Act and if the amendments
sought by the petitioner is allowed, it would change the very
nature and character of the Original Petition as rightly held by the
learned Family Court and therefore the amendment sought
for is not to be allowed and the order impugned be left
uninterdict.
9. Petitioner/the estranged wife of the respondent filed
the Original Petition before the Family Court under Section 7(1)(c)
and (d) of the Family Courts Act seeking a decree of permanent
prohibitory injunction restraining the respondent and his men
from trespassing into petition A schedule property and from
forcibly evicting her and her children from the house situated
therein. The case of the petitioner is that after the marriage with
the respondent, her mother transferred 25 cents of land for the
construction of the house; that the house therein was
constructed by utilising the sale proceeds of her gold ornaments;
OP (FC) NO. 22 OF 2025 5 2025:KER:11323
that she and her children are residing in the said residential
property. Her grievance in O.P.No.1187/2023 is that the
respondent/husband ill-treated her and her children and he
married another lady and he is now trying to evict her forcibly
from the petition schedule property and also trying to alienate the
said property. According to her, the petition schedule house
wherein she now resides is her 'shared household' as defined in
the DV Act and therefore she has every right to continue her
residence in the said house; that the respondent has no right to
evict her or to alienate the said property and therefore she is
entitled to get the reliefs under Sections 18 and 19 of the DV Act
for which she filed the petition under Order VI Rule 17 of CPC to
amend the Original Petition to incorporate the said reliefs also.
10. The moot question for consideration is whether a
petition for amendment under Order VI Rule 17 CPC to
incorporate reliefs under Sections 18 to 22 of the DV Act, 2005 is
maintainable in an Original Petition filed before the Family Court
under Section 7 of the Family Courts Act, 1984.
11. The Protection of Women from Domestic Violence
Act, 2005 has been enacted to provide for more effective
protection of the rights of women guaranteed under the
OP (FC) NO. 22 OF 2025 6 2025:KER:11323
Constitution who are victims of violence of any kind occurring
within the family and for the matters connected therewith or
incidental thereto. DV Act, 2005 was enacted by the parliament
to give effect to various international conventions.
12. The provisions of Act being beneficial and social
legislation, the approach of the court always has to uphold the
parliamentary intention and give it liberal interpretation rather
than avoiding it which would certainly lead to defeating the
objectives of the law.
13. Chapter IV of the Protection of Women from
Domestic Violence Act, 2005 deals with the procedure for
obtaining orders of reliefs under the said Act.
14. Section 12 of the DV Act provides that an aggrieved
person or a protection officer or any other person on behalf of the
aggrieved person may present an application to the Magistrate
seeking one or more reliefs under the said Act.
15. Before adverting to the question as to whether
amendment sought by the petitioner is allowable or not, we can
have a look at Section 26 of the DV Act, 2005.
"26. Relief in other suits and legal proceedings:-
(1)Any relief available under sections 18, 19, 20, 21
and 22 may also be sought in any legal proceeding,
OP (FC) NO. 22 OF 2025 7 2025:KER:11323
before a civil Court, family Court or a criminal Court,
affecting the aggrieved person and the respondent
whether such proceeding was initiated before or after
the commencement of this Act.
(2)Any relief referred to in sub-section (1) may be
sought for in addition to and alongwith any other relief
that the aggrieved person may seek in such suit or legal
proceeding before a civil or criminal Court.
(3)In case any relief has been obtained by the
aggrieved person in any proceedings other than a
proceeding under this Act, she shall be bound to inform
the Magistrate of the grant of such relief."
16. Section 36 of the DV Act states that the provisions of
the said Act shall be in addition to, and not in derogation of the
provisions of any other law, for the time being in force.
17. Section 26 of the DV Act provides that any relief
available under Sections 18 to 22 may also be sought in any legal
proceeding, before a civil Court, family Court or a criminal Court,
affecting the aggrieved person and the respondent. Any relief
available under Sections 18 to 22 can also be sought by the
aggrieved person in a legal proceeding before the Family Court.
18. Section 26 of the DV Act is a special provision which
empowers the Civil Court, Family Court or a Criminal Court to
grant reliefs mentioned in Sections 18 to 22 of the DV Act.
19. Section 18 of the DV Act empowers the court to pass
protection orders of the categories enumerated therein. Section
OP (FC) NO. 22 OF 2025 8 2025:KER:11323
19 of the DV Act empowers the court to pass residence orders in
favour of an aggrieved person who is subjected to domestic
violence.
20. A reading of Section 26(1) of the DV Act would show
that it entitles the aggrieved person to seek remedy under
Sections 18 to 22 of the said Act in any legal proceeding before a
civil Court, family Court or a criminal Court, affecting the
aggrieved person and the respondent.
21. In Hiral P. Harsora and Ors. Vs. Kusum Narottamdas
Harsora and Ors. [(2016) 10 SCC 165], the Apex Court
considered the ambit and scope of DV Act, 2005 and in para 23 of
the said judgment the Apex Court stated as follows:
"23. When we come to Section 26 of the Act, the sweep of
the Act is such that all the innovative reliefs available Under
Sections 18 to 22 may also be sought in any legal
proceeding before a civil court, family court or criminal
court affecting the aggrieved person and the Respondent.
The proceeding in the civil court, family court or criminal
court may well include female members of a family, and
reliefs sought in those legal proceedings would not be
restricted by the definition of "Respondent" in the 2005 Act.
Thus, an invidious discrimination will result, depending
upon whether the aggrieved person chooses to institute
proceedings under the 2005 Act or chooses to add to the
reliefs available in either a pending proceeding or a later
proceeding in a civil court, family court or criminal court. It
is clear that there is no intelligible differentia between a
proceeding initiated under the 2005 Act and proceeding
initiated in other fora under other Acts, in which the self-
same reliefs grantable under this Act, which are restricted
to an adult male person, are grantable by the other fora
also against female members of a family."
OP (FC) NO. 22 OF 2025 9 2025:KER:11323
22. In Vaishali Abhimanyu Joshi v. Nanasaheb Gopal
Joshi (MANU/SC/0626/2017), wherein the question was whether
in a suit filed under Section 26 of Provincial Small Cause Courts
Act, 1887 a counterclaim by the aggrieved person seeking right
under Section 19 of the DV Act can be entertained, the Hon'ble
Supreme Court answered in the affirmative and held as follows:
"Section 26 of the DV Act, 2005 has to be interpreted
in a manner to effectuate the very purpose and object of
the Act. Unless the determination of claim by an
aggrieved person seeking any order as contemplated by
Act 2005 is expressly barred from consideration by a
civil court, this Court shall be loath to read in bar in
consideration of any such claim in any legal proceeding
before the Civil Court."
23. In the decision cited supra, the Hon'ble Supreme
Court held that the counterclaim filed by the appellant therein
seeking right under Section 19 of the DV Act, 2005 has to be
considered by the Small Causes Court.
24. In Satish Chander Ahuja v Sneha Ahuja
[MANU/SC/0767/2020], Apex Court held as follows:
"Therefore, on conjoint reading of Sections 12(2),
17, 19, 20, 22, 23, 25, 26 and 28 of the D.V. Act, it can
safely be said that the proceedings under the D.V. Act
and proceedings before a civil court, family court or a
criminal court, as mentioned in Section 26 of the D.V.
Act are independent proceedings, like the proceedings
Under Section 125 of the Code of Criminal Procedure for
maintenance before the Magistrate and/or family court
and the proceedings for maintenance before a civil
court/family court for the reliefs under the Hindu
OP (FC) NO. 22 OF 2025 10 2025:KER:11323
Adoption and Maintenance Act. However, as observed
hereinabove, the findings/orders passed by the one
forum has to be considered by another forum".
25. Undoubtedly, Section 26 of the DV Act empowers the
Family Court to grant reliefs under Sections 18 to 22 of the DV
Act.
26. It is true that a petition under Section 12 of the DV
Act 2005 is to be filed before the Magistrate.
27. The reliefs which can be claimed under Sections 18 to
22 of the DV Act, may also fall in any of the categories envisaged
under Section 7 of the Family Court Act. Family Courts can
provide reliefs under DV Act to ensure comprehensive protection
and justice to the aggrieved person. The reliefs under Section 18
to 22 of the DV Act, 2005 align with the categories under Section
7 of the Family Courts Act. Therefore, if an Original Petition filed
under Section 7 of the Family Court Act seeking various reliefs is
permitted to be amended, for incorporating certain reliefs as
provided under Sections 18 to 22 of the DV Act, it will not change
the nature and character of the Original Petition pending before
the Family Court.
28. Undoubtedly, in view of the express provision of
OP (FC) NO. 22 OF 2025 11 2025:KER:11323
Section 26 of the DV Act, 2005, which empowers a civil Court,
family Court or a criminal Court to grant reliefs under Sections 18
to 22 of the DV Act, an amendment of the Original Petition filed
under Section 7 of the Family Court Act to incorporate certain
additional reliefs under Sections 18 to 22 of the DV Act 2005 is
permissible in law.
29. In the case at hand, in the Original Petition filed
before the Family Court, Kunnamkulam, petitioner has pleaded
the factual foundations of her case regarding domestic violence
meted out by her at the hands of the respondent. Therefore, the
argument advanced by the learned counsel for the respondent
that the amendment sought by the petitioner would change the
nature and character of the Original Petition, is untenable.
Whether the petitioner is entitled to the reliefs sought by her
under the DV Act, 2005 is a matter which has to be decided by
the Family Court after trial and we are not entering into the
merits of the said issue at this juncture. The amendment sought
by the petitioner will not change the nature and character of the
Original petition and it would not cause any prejudice to the
respondent. Therefore, the amendment petition has to be
allowed.
OP (FC) NO. 22 OF 2025 12 2025:KER:11323
Accordingly, this Original Petition is allowed; the
impugned order in I.A.No.4/2024 in O.P.No.1187/2023 of Family
Court, Kunnamkulam stands set aside and I.A.No.4/2024 stands
allowed.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B.SNEHALATHA
JUDGE
ab
OP (FC) NO. 22 OF 2025 13 2025:KER:11323
APPENDIX OF OP (FC) 22/2025
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE ORIGINAL PETITION
IN OP-110/2021 FILED BY THE RESPONDENT
HUSBAND DATED 18/1/2021
Exhibit P2 A TRUE COPY OF O.P. NO. 1187/2023 DATED
28.09.2022 BEFORE THE FAMILY COURT,
THRISSUR
Exhibit P3 A TRUE COPY OF THE STATEMENT DATED
03.02.2023 SUBMITTED BY THE RESPONDENT
IN O.P. NO. 1187/2023 ON THE FILES OF
FAMILY COURT, KUNNAMKULAM
Exhibit P4 A TRUE COPY OF I.A. NO. 4/2024 IN O.P.
NO. 1187/2023 DATED 15.01.2024 ON THE
FILES OF THE FAMILY COURT, KUNNAMKULAM
Exhibit P5 A TRUE COPY OF THE COUNTER IN I.A. NO.
4/2024 IN O.P. NO. 1187/2023 DATED
26.02.2023 FILED BY THE RESPONDENT ON
THE FILES OF THE FAMILY COURT,
KUNNAMKULAM
Exhibit P6 A TRUE COPY OF THE ORDER DATED
10.09.2024 IN I.A. NO. 4/2024 IN O.P.
NO. 1187/2023 ON THE FILES OF FAMILY
COURT, KUNNAMKULAM
RESPONDENTS EXHIBITS: NIL
