Kerala High Court
D. Sudheer vs Anusha.R. Nair on 13 January, 2025
Author: K.Babu
Bench: K. Babu
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Crl.R.P Nos.1173 & 1577 of 2013
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
MONDAY, THE 13TH DAY OF JANUARY 2025 / 23RD POUSHA, 1946
CRL.REV.PET NO. 1173 OF 2013
AGAINST THE ORDER/JUDGMENT DATED 30.04.2013 IN Crl.A
NO.323 OF 2011 OF ADDITIONAL DISTRICT AND SESSIONS COURT,
PALA ARISING OUT OF THE ORDER/JUDGMENT DATED 16.06.2011 IN
MC NO.35 OF 2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS,
PALA
REVISION PETITIONER/APPELLANT/COUNTER PETITIONER:
D. SUDHEER,
AGED 38 YEARS,
S/O.DIVAKARAN NAIR, UNEMPLOYED HINDU (NAIR),
CHARULATHA HOUSE, VAIKOM PO, PADINJATTINKARA,
CHERIYAVADAKKEMURI KARA, NADUVILE VILLAGE,
VAIKOM TALUK, KOTTAYAM DISTRICT.
BY ADV SRI.P.CHANDRASEKHAR
RESPONDENTS/COMPLAINANT:
1 ANUSHA.R. NAIR,
AGED 32 YEARS,
W/O.D.SUDHEER,
PUTHUCHIRAMATTATHIL VEEDU,
VALAVOOR KARA, NECHIPUZHOOR PO,
VALLICHIRA VILLAGE, MEENACHIL TALUK,
KOTTAYAM DISTRICT.
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2
2 THE STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADVS.
Dr. SEBASTIAN CHAMPAPPILLY
SRI.K.A.ABDUL NISTAR
SRI.P.T.DINESH
ABRAHAM P.MEACHINKARA(K/1234/1995)
GEORGE CLEETUS(K/000704/2002)
MARGARET MAUREEN DROSE(K/1328/2019)
SWATHI KRISHNA P.H.(K/000791/2024)
SRI.G.SUDHEER, PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 13.01.2025, ALONG WITH Crl.Rev.Pet.1577/2013, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Crl.R.P Nos.1173 & 1577 of 2013
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
MONDAY, THE 13TH DAY OF JANUARY 2025 / 23RD POUSHA, 1946
CRL.REV.PET NO. 1577 OF 2013
AGAINST THE ORDER/JUDGMENT DATED 30.04.2013 IN Crl.A
NO.323 OF 2011 OF ADDITIONAL DISTRICT AND SESSIONS COURT,
PALA ARISING OUT OF THE ORDER/JUDGMENT DATED 16.06.2011 IN
MC NO.35 OF 2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS
,PALA
REVISION PETITIONER/RESPONDENT/COMPLAINANT:
ANUSHA R.NAIR,
AGED 32 YEARS,
W/O D.SUDHEER,
PUTHUCHIRAMATTATHIL VEED,
VALAVOOR KARA, NECHIPUZHOOR P.O.,
VALLICHIRA VILLAGE,
MEENACHIL TALUK,
KOTTAYAM DISTRICT,
PIN:686 574.
BY ADVS.
DR.SEBASTIAN CHAMPAPPILLY
SRI.P.T.DINESH
SRI.GEORGE CLEETUS
SRI.KURIAN ANTONY EDASSERY
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Crl.R.P Nos.1173 & 1577 of 2013
4
RESPONDENT/APPELLANT/ACCUSED:
D.SUDHEER,
AGED 38 YEARS,
S/O DIVAKARAN NAIR, UNEMPLOYED HINDU (NAIR),
CHARULATHA HOUSE, VAIKOM P.O.,
PADINJATTINKARA, CHERIYAVADAKKEMURI KARA,
NADUVILE VILLAGE, VAIKOM TALUK,
KOTTAYAM DISTRICT, PIN:686141.
BY ADV SRI.P.CHANDRASEKHAR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 13.01.2025, ALONG WITH Crl.Rev.Pet.1173/2013, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Crl.R.P Nos.1173 & 1577 of 2013
5
'C.R'
K.BABU, J.
--------------------------------------
Crl.R.P Nos.1173 & 1577 of 2013
---------------------------------------
Dated this the 13th day of January, 2025
ORDER
These Criminal Revision Petitions arise from the order dated
16.06.2011 in M.C No.35/2010 passed by the Judicial First Class
Magistrate, Pala, in a petition under Section 12 of the Protection of
Women from Domestic Violence Act, 2005 (hereinafter referred to
as 'the DV Act'), which was modified by the Sessions Court,
Kottayam, in Crl.A No.323/2011.
2. The petitioner in M.C No.35/2010 is the revision petitioner in
Crl.R.P No.1577/2013. Respondent No.1, her former husband, is the
revision petitioner in Crl.R.P No.1173/2013.
3. The parties will be referred to in terms of their status in
the Trial Court.
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Revision Petition No.1577/2013
4. The petitioner filed an application seeking protection order,
residence order and monetary reliefs as per the provisions of the
DV Act.
5. The petitioner set up the following pleadings:
Respondent No.1 is the husband of the petitioner.
Respondent Nos. 2 and 3 are his parents. Respondent No.4 is his
brother. The marriage between respondent No.1 and the petitioner
was solemnised on 06.07.2003. Two children were born in their
relationship. The petitioner had 115 sovereigns of gold ornaments
at the time of marriage. Her father had also purchased a building
at Kochukavala at Vaikom to facilitate the petitioner, who is a
homeo doctor, to run a clinic. Her father had deposited a sum of
Rs.5 Lakhs in her name at Valavoor Co-operative Bank. The
respondents misappropriated the entire assets of the petitioner.
From the very beginning of the marital relationship, they harassed
her mentally and physically, demanding more money as dowry.
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Due to the ill-treatment on the part of the respondents, the
petitioner had to stop her practice in the clinic. On 02.05.2007, she
was driven out of the matrimonial home while she was pregnant.
She took asylum in her parental house . Thereafter, the petitioner
filed O.P No.449/2008 before the Family Court, Kottayam, seeking
restitution of conjugal rights under Section 9 of the Hindu Marriage
Act. The petitioner filed the present case on 18.12.2008.
6. The respondents set up the following pleadings:
The petitioner is the legally wedded wife of respondent
No.1. Two children were born in their relationship. The
respondents have not ill-treated the petitioner as pleaded. The
petitioner left the matrimonial home without any reasonable
excuse. The petitioner is working as a homeo doctor in the
Government service. She draws a salary at the basic pay of
Rs.11,070/-. She is not entitled to any of the reliefs prayed for.
7. The evidence on the side of the petitioner consists of the
oral evidence of PW1 and Exts.P1 series and P2. CPWs 1 and 2 were
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examined and Exts.D1 to D12 were marked on the side of the
respondents.
8. The Trial Court allowed the application in part and granted
the following reliefs:
"(i) The respondents are restrained from committing any
acts which harm, or injure or endanger the health,
safety, life, limb or well-being of the aggrieved
person/petitioner and also aiding or abetting in the
commission of the above acts of domestic violence,
u/s 18 of the Protection of Women from Domestic
Violence Act.
(ii) R1 is directed to secure an alternate
accommodation/house having the same level of
facilities in the shared house hold for the petitioner
within one month from today or to pay Rs.5,000/- per
month to the petitioner towards the rent for
arranging a rented house for the residence of the
petitioner, u/s 19 of the Protection of Women from
Domestic Violence Act.
(iii) R1 is directed to pay Rs.23,000/- to the petitioner
towards the medical expenses incurred by her, u/s
20(i)(b) of the Protection of Women from Domestic
Violence Act.
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(iv) R1 is directed to pay Rs.2,500/- per month each to
the minor children of the petitioner and R1 from the
date of this petition as maintenance, u/s 20(1)(d) of
the Protection of Women from Domestic Violence Act
and
(v) Considering the facts and circumstances of this
case, the parties are directed to bear their
respective costs."
9. Respondent No.1 challenged the order passed by the
learned Magistrate by filing Crl.A No.323/2011 before the Sessions
Court, Kottayam. The Sessions Judge partly allowed the appeal.
The operative portion of the judgment passed by the Sessions Court
is as follows:
"In the result, appeal is allowed in part as follows:
(a) Original respondents are prohibited from entering the
place of employment of the aggrieved person or
aiding or abetting in the commission of any acts of
domestic violence U/s 18 of the Protection of Women
from Domestic Violence Act.
(b) The appellant shall send an amount of Rs.5,000/- per
month in the correct name and postal address of the
aggrieved person towards the rent for the suitable
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accommodation, be selected by the aggrieved person
U/s 19 of the Act.
(c) Payment shall be effected from May of 2013 onwards.
(d) Appellant is directed to pay the balance amount of
Rs.7,600/- towards the medical expenses incurred by
the aggrieved person within 45 days from the date of
this order.
(e) Appellant is also directed to pay Rs.2,500/- each per
month as the maintenance for his two minor children
from May of 2013 onwards without any failure.
(f) He shall deposit the arrears of the maintenance
amount from the date of passing of the order dated
16.06.2011.
(g) Considering the relations, parties are directed to
suffer their respective costs.
(h) Registry shall transmit the records to the lower court
as early as possible."
10. I have heard the learned counsel for the revision
petitioner/petitioner and the learned counsel for
respondent/respondent No.1.
11. The learned counsel for the revision petitioner/petitioner
in Crl.R.P No.1577/2013 challenges the judgment of the Sessions
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Court to the extent it restricted the maintenance awarded to the
minor children from the date of order. The learned counsel for the
petitioner submitted that the children are entitled to get
maintenance from the date of the petition.
12. The learned counsel relied on Rajnesh v. Neha [(2021) 2
SCC 324] in support of his contention. In Rajnesh the Supreme
Court observed that the rationale of granting maintenance from the
date of application finds its roots in the object of enacting
maintenance legislations so as to enable the wife to overcome the
financial crunch which occurs on separation from the husband. In
paragraph 113 of the judgment, the Supreme Court held thus:
"113. It has therefore become necessary to issue directions
to bring about uniformity and consistency in the orders
passed by all courts, by directing that maintenance be
awarded from the date on which the application was made
before the court concerned. The right to claim maintenance
must date back to the date of filing the application, since
the period during which the maintenance proceedings
remained pending is not within the control of the applicant."
13. Therefore, the order passed by the Sessions Court
restricting the maintenance from the date of the order is liable to
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be set aside. I order so. The order directing maintenance to the
minor children from the date of petition, that is, 18.12.2008, passed
by the learned Magistrate, stands restored. The revision petition
No.1577/2013 stands allowed as above.
Revision Petition No.1173 of 2013
14. The challenge in this Criminal Revision Petition is on two
grounds:
(i) The learned Magistrate and the Sessions Court
passed the residence order on a prima facie
satisfaction that the respondents committed
acts of domestic violence against the petitioner.
(ii) Even if the residence order is confirmed, she is
not entitled to the benefit after 08.04.2014, the
date on which the High Court dissolved the
marital tie between the parties.
15. The learned counsel for the revision petitioner/respondent
No.1 highlighted the observation of the learned Magistrate in the
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impugned order while answering the point whether the petitioner is
entitled to protection order under Section 18 of the DV Act. The
relevant paragraph in the order highlighted by the learned counsel
for the revision petitioner is extracted below:
"As seen from Ext.D1 to D4 and admitted by the parties, many
other litigations including divorce proceedings are pending
before the Hon'ble Family Court, Ettumanoor. PW1 gave
evidence that the respondents have committed physical,
sexual, verbal, emotional, and economic abuses against her.
But the learned counsel appearing for the respondents
pointed out that the petitioner has no case that she had gone
to any hospital or taken any treatment because of the
alleged physical abuse committed by the respondents. It
was also pointed out that all the belongings of the petitioner
was taken by her from the house of the respondents after
giving written acknowledgments, certified copies of which
are marked as Ext.D5 and D6. It was submitted on behalf of
the respondents that, in the absence of any evidence to show
that the respondents have committed any act of domestic
violence against the petitioner, the petitioner is entitled for a
protection order. PW1 gave evidence that when there was
delay for the birth of first child after the marriage R2 abused
her calling "മചച" (Barren). She further gave evidence that
on 25.05.2007 all the respondents physically attacked her
and sent her out of the house demanding her to bring 10
lakhs rupees more from her house. At that time she was
pregnant and her father came to the house of the
respondents, knowing the above incident and took her to her
own house with child. It is true that there is no medical
evidence or any other eye witnesses to the incident. But
from the available materials including Ext.D1 to D4 it is prima
facie proved that the respondents were committing acts of
domestic violence against the petitioner." (sic)
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16. The learned counsel for the revision petitioner submitted
that the learned Magistrate, only upon a prima facie satisfaction of
the material placed before it, came to the conclusion that the
respondents committed the acts of domestic violence, which is not
the mandate of Section 19 of the DV Act. The learned counsel
submitted that only for passing protection order under Section 18 of
the DV Act and granting ex parte interim order as provided under
Section 23 of the DV Act the Court can act upon a prima facie
satisfaction.
17. The relevant statutory provisions are extracted below:
"18. Protection orders.- The Magistrate may, after
giving the aggrieved person and the respondent an
opportunity of being heard and on being prima facie
satisfied that domestic violence has taken place or is
likely to take place, pass a protection order in favour of
the aggrieved person and prohibit the respondent from-
xxx xxx xxx
19. Residence orders.- (1) While disposing of an
application under sub-section (1) of section 12, the
Magistrate may, on being satisfied that domestic violence
has taken place, pass a residence order -
xxx xxx xxx
23. Power to grant interim and ex parte orders.-(1) In any
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proceeding before him under this Act, the Magistrate may
pass such interim order as he deems just and proper.
(2) If the Magistrate is satisfied that an application prima
facie discloses that the respondent is committing, or has
committed an act of domestic violence or that there is a
likelihood that the respondent may commit an act of
domestic violence, he may grant an ex parte order on the
basis of the affidavit in such form, as may be prescribed,
of the aggrieved person under section 18, section 19,
section 20, section 21 or, as the case may be, section 22
against the respondent."
18. The learned counsel for respondent No.1 submitted that
the Trial Court acted upon a prima facie satisfaction as to the
question of whether the respondents committed domestic violence
or not, only while dealing with the question of granting protection
order under Section 18 of the DV Act. The learned counsel
submitted that while considering the question of whether the
petitioner is entitled to residence order under Section 19 of the DV
Act, the learned Trial Magistrate satisfied himself that the
respondents committed domestic violence as required in the
statutory provision.
19. The proceedings under the DV Act are of a summary
nature. The kinds of reliefs which can be obtained by the aggrieved
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person under the DV Act are of civil nature. {Vide: Shalu Ojha v.
Prashant Ojha (AIR 2018 SC 3693) and Mathew Daniel v. Leena
Mathew [2022 (5) KHC 433]}.
20. The standard of proof evidently is preponderance of
probabilities. While considering the question of whether an
applicant is entitled to protection order under Section 18 or an ex
parte interim order under Section 23, a prima facie satisfaction that
the opposite party committed domestic violence is the requirement
whereas, while passing residence order under Section 19 of the DV
Act, the Magistrate has to go beyond prima facie satisfaction and
has to satisfy that domestic violence has taken place. However, the
satisfaction as contemplated in Section 19 of the DV Act is not a
satisfaction beyond reasonable doubt. A prima facie satisfaction is
not necessary for granting relief under Section 19 of the DV Act.
21. In the present case, the learned Magistrate has found that
the evidence of the petitioner is to the effect that the respondents
committed physical, sexual, verbal, emotional and economic abuses
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against her. The learned Magistrate considered the statement of
the petitioner that respondent No.2 abused her calling "barren"
when there was delay for the petitioner to get pregnant after the
marriage. The Court also took note of the evidence that on
02.05.2007, all the respondents physically attacked her and drove
her out of the matrimonial home, demanding money. Her father
was compelled to take her when the ill-treatment towards her
aggravated. There was credible oral evidence within the meaning
of Sections 59 and 60 of the Indian Evidence Act to establish
domestic violence. Referring to the lack of medical evidence, the
learned Magistrate observed that the petitioner prima facie proved
the acts of domestic violence. Though the learned Magistrate used
the phrase "prima facie" he came to the conclusion that the
respondents committed domestic violence on being satisfied by the
evidence adduced. Moreover, the learned Sessions Judge re-
appreciated the evidence and came to the conclusion that the
respondents committed domestic violence. Therefore, the
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challenge of respondent No.1 that there was only a prima facie
satisfaction by the Trial Court while granting reliefs under Section
19 of the DV Act is not sustainable.
22. The learned counsel for the petitioner submitted that the
term domestic violence has wider meaning, as is evident from
Section 3 of the DV Act. The oral evidence tendered by PW1, the
credibility of which is not successfully refuted, establishes the
ingredients of domestic violence as defined in Section 3 of the DV
Act.
23. The learned counsel for respondent No.1 submitted that
as the marital tie between the parties was dissolved on 08.04.2014,
as per a decree of divorce passed by this Court in Mat Appeal No.
No.360/2009, the petitioner is not entitled to the benefit of the
residence order after 08.04.2014. The learned counsel submitted
that after divorce, a woman cannot be in domestic relationship with
her husband and relatives as per Section 17 of the DV Act.
24. The learned counsel for the petitioner submitted that the
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course open to the respondent is to make an application under
Section 25 of the DV Act for alteration of the residence order
passed.
25. The learned counsel for the revision
petitioner/respondent No.1 relied on Ramachandra Warrior v.
Jayasree and Another [2021 (2) KHC 504] in support of his
contentions. In Ramachandra Warrior, while answering a reference
with respect to the rights of the divorced woman to invoke the
provisions of the DV Act, the Division Bench held thus:
"23. On the above reasoning, we answer the
reference as follows:
(i) A divorced wife would not be entitled to the right of
residence conferred under S.17 under the Protection of
Women from Domestic Violence Act, 2005, for reason of
that right being available only to a woman in a domestic
relationship.
(ii) A divorced wife would be included under the
definition 'aggrieved person'. A divorced wife occupying
a shared household can be evicted only in accordance
with law. A divorced wife can approach the Magistrate's
Court for an order under S.19 if she is residing in the
shared household. The residence orders passed in such
cases, would be subject to any proceeding for eviction
in accordance with law, initiated by the husband, as
contemplated under S.17(2).
(iii) There can be no order to put a divorced woman in
possession of a shared household, from where she had
separated long back, and the relief can only be of
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restraining dispossession."
26. In the present case, the petitioner is not residing in a
shared household. The Court directed respondent No.1 to provide
an alternative accommodation. Therefore, though she can be an
'aggrieved person' under the DV Act, she is not entitled to the
benefit provided in this case after 08.04.2014.
27. The submission of the learned counsel for the petitioner
is that this Court cannot take note of the subsequent events in the
revisional jurisdiction, and the remedy of the parties is to approach
the Trial Court by invoking Section 25 of the DV Act.
28. It is basic to our processual jurisprudence that the right
to relief must be judged to exist as on the date a suitor institutes
the legal proceeding. Equally clear is the principle that procedure is
the handmaid and not the mistress of the judicial process. If a fact,
arising after the lis has come to court and has a fundamental
impact on the right to relief or the manner of moulding it, is brought
diligently to the notice of the tribunal, it cannot blink at it or be blind
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to events which stultify or render inept the decretal remedy. Equity
justifies bending the rules of procedure, where no specific
provision or fairplay is violated, with a view to promote substantial
justice -- subject, of course, to the absence of other disentitling
factors or just circumstances. Nor can we contemplate any
limitation on this power to take note of updated facts to confine it to
the trial court. If the litigation pends, the power exists, absent other
special circumstances repelling resort to that course in law or
justice. Rulings on this point are legion, even as situations for
applications of this equitable rule are myriad. For making the right
or remedy claimed by the party just and meaningful as also legally
and factually in accord with the current realities, the Court can, and
in many cases must, take cautious cognisance of events and
developments subsequent to the institution of the proceeding
provided the rules of fairness to both sides are scrupulously
obeyed {Vide: Pasupuleti Venkateswarlu v. Motor and General
Traders [(1975) 1 SCC 770]} .
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29. Unless the order passed by the Magistrate is perverse or
the view taken by the court is wholly unreasonable, or there is
nonconsideration of any relevant material, or there is palpable
misreading of records, the Revisional Court is not justified in
setting aside the order, merely because another view is possible.
The Revisional Court is not meant to act as an appellate court. The
whole purpose of the revisional jurisdiction is to preserve the
power in the court to do justice in accordance with the principles of
criminal jurisprudence. The revisional power of the court under
Sections 397 to 401 Cr.P.C is not to be equated with that of an
appeal. Unless the finding of the court, whose decision is sought to
be revised, is shown to be perverse or untenable in law or is
grossly erroneous or glaringly unreasonable or where the decision
is based on no material or where the material facts are wholly
ignored or where the judicial discretion is exercised arbitrarily or
capriciously, the courts may not interfere with decision in exercise
of their revisional jurisdiction. {Vide: Sanjaysinh Ramrao Chavan v.
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Dattatray Gulabrao Phalke [(2015) 3 SCC 123], Munna Devi v. State of
Rajasthan & Anr [(2001) 9 SCC 631)] and Asian Resurfacing of Road
Agency Pvt. Ltd. v. Central Bureau of Investigation [(2018) 16 SCC
299)]}.
30. In the present case, admittedly as per judgment dated
08.04.2014 in Mat. Appeal No.360/2009 a Division Bench of this
Court dissolved the marital tie between the parties. There are no
special circumstances that prevent this Court from taking
cognizance of the divorce effected in determining the rights of the
parties. Therefore, I hold that the petitioner is not entitled to the
benefit of the residence order under Section 19 of the DV Act after
08.04.2014.
31. The findings of the Trial Court require no interference in
revisional jurisdiction.
32. This Court is of the view that the order impugned is not
affected by any patent error of jurisdiction.
33. Taking into account the subsequent event that the
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marriage between the parties has been dissolved, the petitioner is
entitled to the benefit of the residence order only till 08.04.2014.
The Criminal Revision Petition is disposed of as above.
Sd/-
K.BABU,
JUDGE
KAS
