Kerala High Court
Meenu Bobby@ Meenu Baby vs Bobby Satheesan on 25 March, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
TUESDAY, THE 25TH DAY OF MARCH 2025 / 4TH CHAITHRA, 1947
OP(CRL.) NO. 719 OF 2024
AGAINST THE ORDER DATED 19.07.2024 IN MP.NO.827/2023 IN MC
NO.333 OF 2021 OF FAMILY COURT, ERNAKULAM
PETITIONER/PETITIONER/PETITIONER:
MEENU BOBBY @ MEENU BABY
AGED 34 YEARS
D/O BABY JAMES, PALAYIKKUDIYIL HOUSE, HOUSE NO. 28A,
PARAVOORTHARA, CHENDAMANGALAM VILLAGE, NORTH PARAVUR
P.O, ERNAKULAM DISTRICT, PIN - 683513
BY ADVS.
ALEXANDER JOSEPH
AKHILASREE BHASKARAN
ANTONY NIKHIL REMELO
AJITH SUNNY
RESPONDENT/RESPONDENT/RESPONDENT:
BOBBY SATHEESAN
AGED 34 YEARS
S/O SATHEESAN , GRACE VILLA , ARA III , AMBATTUKAVU ,
THAIKKATTUKARA P.O, ALUVA , ERNAKULAM DISTRICT, PIN -
683106
BY ADV M.SHYJU
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
25.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(Crl)No. 719 of 2024
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J U D G M E N T
Dated this the 25th day of March, 2025
An estranged wife in domestic relationship is the
petitioner herein. She filed Ext.P3 Miscellaneous Case
bearing no.69/2021, seeking maintenance under Section 125
of the Code of Criminal Procedure ('Cr.P.C.' for short). In
that M.C, the petitioner/wife filed Ext.P8 Miscellaneous
Petition bearing no.1052/2022 seeking various reliefs under
Sections 18, 19, 20, 21 and 22 of the Protection of Women
from Domestic Violence Act, 2005, ('D.V. Act' for short).
In Ext.P8 Miscellaneous Petition, yet another petition was
filed as M.P.No.827/2023 (Ext.P10) seeking a residence
order, enabling the petitioner/wife to reside in the house
of the respondent/husband, where the children are residing.
By virtue of the impugned Ext.P12 Order, Ext.P10 petition
seeking residence order was declined, on the premise that
the petitioner/wife was not residing in the residential
house belonging to the respondent/husband at the time of
filing the application; and also for the absence of a
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specific averment that the said residential house is the
shared household of the petitioner/wife. Ext.P12 Order is
under challenge in this Original Petition.
2. Heard the learned counsel for the petitioner and the
respondent. Perused the records.
3. Learned counsel for the petitioner placed heavy
reliance upon a recent judgment of the Hon'ble Supreme
Court in Prabha Tyagi vs. Kamlesh Devi [2022 KHC 6542 ::
2022 (8) SCC 90], to contend that it is not the requirement
of law that the aggrieved person under the D.V. Act should
be residing in the shared household at the time of filing
the petition. A 'right to live' in the shared household
would suffice in seeking relief in terms of the provisions
of the D.V. Act. On the strength of the judgment in Prabha
Tyagi (supra), it was also contended that a women who is in
domestic relationship, but living elsewhere on account of a
reasonable cause, has a right to reside in the shared
household and that there is no legal requirement to have a
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subsisting domestic relationship to enable the aggrieved
person to make an application under the D.V. Act. Thus,
according to the learned counsel for the petitioner, the
Family Court, Ernakulam, seriously erred in dismissing
Ext.P10 petition by virtue of Ext.P12 Order, only for the
reason that the petitioner was not residing in the
residential house of the respondent at the time of filing
the application and that there is no specific averment in
Ext.P10 that the residential house is the shared household
of the parties.
4. Refuting the above allegations, learned counsel for
the respondent/husband pointed out that Ext.P10 application
is not one in terms of Section 19 of the D.V. Act. In
Ext.P10, what is espoused is not the right or necessity of
the petitioner/wife to reside in the shared household;
instead, what was highlighted is that there is nobody to
take care of the children, who were residing along with the
father of the respondent/husband, especially after the
death of respondent's father. Learned counsel invited the
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attention of this Court to the various legal proceedings
pending by and between the petitioner and the respondent,
including the one seeking custody of the children.
According to the learned counsel, the attempt is to gain
the custody of the children in a circuitous manner, by
camouflaging a claim under the D.V. Act. Learned counsel
would highlight that all the matrimonial disputes have been
settled by and between the petitioner and the respondent
and a compromise agreement was, in fact, executed, based
upon which money and gold ornaments were returned to the
petitioner/wife. However, actuated by greed, the
petitioner/wife had ventured several experimental
litigations, including the instant Ext.P10 application
seeking a residence order in the alleged shared household.
5. Having heard the learned counsel for the respective
parties, this Court finds little merit in the instant
Original Petition. It is true that in Prabha Tyagi (supra),
the Supreme Court categorically declared that it is not
mandatory for an aggrieved person to actually reside in the
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shared household along with persons against whom
allegations of domestic violence have been levelled. An
expansive interpretation to the expression 'live' or 'have
at any point of time lived' as employed in Sections 2(f)
and 2(s) of the D.V. Act was given, to hold that the
expression carries with it 'the right to live' as
contemplated in Section 17(1) of the D.V. Act, as well.
Thus, it was held that an aggrieved person, who has a right
to live in the shared household and upon being a victim of
domestic violence, can enforce her right of residence under
the provisions of the D.V. Act. The Supreme Court also took
stock of the situation where a woman in domestic
relationship is constrained to reside elsewhere on account
of a reasonable cause, to hold that such residence
elsewhere would not deprive her right to reside in the
shared household, or for that matter, to seek a relief
under Section 19 of the D.V. Act.
6. In the light of the law laid down in Prabha Tyagi
(supra), it could possibly be held that the finding in
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Ext.P12 that the petitioner was not residing in the shared
household at the time of filing Ext.P10 application is
flawed by an error of law, in the sense that an error has
been committed in construing and understanding the law on
the point, as interpreted by the Hon'ble Supreme Court.
However, the issue does not end there. Section 19
contemplates residence orders only upon being satisfied
that the domestic violence has taken place. The nature of
the order to be passed under Section 19, includes an order
restraining the respondent from dispossessing or disturbing
the possession of the aggrieved person from the shared
household; one directing the respondent to remove himself
from the shared household; one restraining the respondent
or his relatives from entering any portion of the shared
household where the aggrieved person resides; and also an
order restraining the respondent from alienating or
encumbering the shared household. It also contemplates an
alternate accommodation to be provided for the aggrieved
person by the respondent. It could thus be seen that, what
is essentially protected under Section 19 is the right of
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the aggrieved person to safeguard her residence in the
shared household, albeit without a requirement that she
should be so residing in the shared household at the time
of making the application.
7. In tune with the requirements of Section 19, the
petitioner/wife had already approached the Family Court,
Ernakulam, by filing Ext.P8 M.P. (in Ext.P3 M.C.), seeking
reliefs under Sections 18, 19, 20, 21 and 22 of the D.V.
Act. It is profitable in this context to extract the
reliefs sought for in Ext.P8:
"A. Pass protection order under Section 18 of
the Act prohibiting the act of domestic violence
against the petitioner and her parents and
directing the respondents to stay away from the
petitioner and her parents, and restrain the
respondents from preventing and obstructing the
petitioner and her parents from contacting the
minor children.
B. Pass Residence order under Section 19 of the
Act allowing the petitioner to reside in House No
ARA 111 of Thaikkattukara Gram Panchayat at
Ambattukavu of Choornikara Village of Aluva of
Ernakulum District.
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C. Pass order under Section 20 of the Act
allowing monetary relief directing the respondents
to pay Rs. 1,00,00,000/- (Rupees One Crore only)
towards return of money of Rs.50,00,000/- (Rupees
Fifty lakhs only) received by the respondents from
the father of the petitioner and return of the
remuneration received by the respondents for the
work done by the petitioner of Rs. 50,00,000/-
(Rupees Fifty lakhs only)
A. Pass order under Section 20 of the Act
directing the respondents to pay monthly
maintenance of Rs. 75,000/-(Seventy-five thousand
only) to the petitioner from the date of desertion
(March 2019) with arrears.
B. Pass order under Section 22 of the Act
directing the respondents to pay compensation of
Rs. 50,00,000/- (Rupees Fifty lakhs only) to the
petitioner.
C. Pass order under Section 21 of the Act
directing the respondents to hand over custody of
the minor children to the petitioner.
D. Pass such orders that may deem fit and proper
in the circumstances of the case. Dated this the
30th day of November 2022."
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8. It could thus be seen that exhaustive reliefs, more or
less under all provisions of the D.V. Act, have been sought
for in Ext.P8. It remains a fact that Ext.P8 has not been
considered and disposed of by the Family Court, Ernakulam,
and that the same is still pending consideration.
9. It is while so, that the petitioner/wife filed Ext.P10
petition (M.P.No.1052/2022), again, seeking a residence
order, a relief which was very much sought for in Ext.P8,
the solitary difference being only in the cause of action
for seeking such a relief. The cause espoused is that the
two children of the petitioner/wife and the
respondent/husband, were in the custody of the father of
the respondent, who passed away. The respondent/husband is
working in Canada and after the death of his father, there
is nobody to take care of and protect the children, was the
contention urged. The petitioner/wife also contended in
Ext.P10 that she is living with her aged parents, without
any income, and hence not in a position to provide
residence and maintenance to her minor children. It was on
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such premise that the petitioner sought for a residence
order to reside along with the children at the shared
household, where the children are residing. To Ext.P10,
Ext.P11 objection was filed by the respondent/husband,
inter alia, contending that pursuant to the death of his
father, his mother is taking care of the children in the
most appropriate manner. It was also contended that the
petitioner can live with the children, provided the
children are willing, in the house of the petitioner. In
paragraph no.8 of the objection, it was pointed out that
the petitioner/wife is the only child of her parents,
entitled to a two storied house at Chendamangalam,
Ernakulam, besides having an apartment at Goa, and 1.89
acres of land in a prime location at Muvattupuzha. The
respondent/husband also highlighted that the petitioner is
an Engineer in Information Technology and that she is
profitably employed.
10. It is in the above backdrop of the facts and
circumstances that the prayer sought for in Ext.P10 has to
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be considered and adjudged. It is axiomatic from the above-
referred facts that the petitioner is not seeking a
residence order for the sake of herself, but only in the
context of the allegations that there is nobody to take
care of the children at her husband's residence. It remains
an admitted fact that several legal proceedings are pending
by and between the petitioner and the respondent, including
one for getting the custody of the children. In such
circumstances, the contention of the respondent/husband
that the petitioner is seeking a circuitous way of securing
the custody of the children cannot be thrown overboard, as
completely irrelevant.
11. This Court notice that the basic claim of the
petitioner, in terms of Section 19, is pending
consideration before the Family Court, Ernakulam, in Ext.P8
Miscellaneous Petition. Ext.P9 objection has already been
filed in that. The question as to the entitlement of the
petitioner's residence in the shared household is at large
and pending consideration in the proceeding. While so, a
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further petition for residence order, when the issue is at
large in Ext.P8, that too for a reason not strictly
concerning the petitioner/wife, but for the sake of the
alleged interest of the children, does not appear to be
proper in the fitness of things, especially when it has
been prima facie made out that the children are in the care
and custody of the mother of the respondent/husband.
12. This Court notice that Ext.P10 has the trappings of
dual purpose being served. The first is to secure a
residence in the shared household; the second is to reside
with the children, thus obtaining their custody. In respect
of both these purposes, separate proceedings are pending
before the Family Court, Ernakulam.
13. In the above-referred state of affairs, this Court
does not find any serious illegality or infirmity in
Ext.P12 Order, declining the relief sought for in Ext.P10,
though, the apparent reason stated in Ext.P12 is in the
teeth of the law laid down in Prabha Tyagi (supra). No case
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is made out for interference under Article 227 of the
constitution.
This Original Petition (Criminal) thus fails, and the same
will stand dismissed.
Sd/-
C. JAYACHANDRAN
JUDGE
TR
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APPENDIX OF OP(CRL.) 719/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PETITION IN OP
NO.870/2020 DATED 20/05/2020 OF THE
FAMILY COURT ERNAKULAM (RENUMBERED AS
1162/2023)
Exhibit P2 TRUE COPY OF THE JUDGEMENT DATED
22.12.2020 IN OP ( FC ) NO. 520/2020 OF
THIS HONOURABLE COURT
Exhibit P3 TRUE COPY OF THE PETITION IN MC NO
69/2021 DATED 15/12/2020 (RENUMBERED AS
MC NO. 333/2021) OF THE FAMILY COURT
ERNAKULAM
Exhibit P4 TRUE COPY OF THE OP NO 1853 /2022 DATED
01/07/2022 (RENUMBERED AS OP NO.
3773/2022) OF THE FAMILY COURT
ERNAKULAM
Exhibit P5 TRUE COPY OF OS NO 166/2022 DATED
23/07/2022 FILED BEFORE THE SUB COURT
ERNAKULAM (TRANSFERRED AND RENUMBERED
AS OP NO.1161/2023 OF THE FAMILY COURT
ERNAKULAM)
Exhibit P6 TRUE COPY OF OP NO 148/2024 OF THE
FAMILY COURT ALUVA ( TRANSFERRED AND
RENUMBERED AS OP NO. 734/2024 OF THE
FAMILY COURT ERNAKULAM)
Exhibit P7 TRUE COPY THE ORDER DATED 06.05.2023 IN
Exhibit P8 TRUE COPY OF MP NO. 1052/2022 IN MC NO.
69/2021 OF THE FAMILY COURT ERNAKULAM
Exhibit P9 TRUE COPY OF THE OBJECTION DATED
13.03.2024 OF THE RESPONDENT IN MP NO.
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Exhibit P10 TRUE COPY OF MP NO. 827/2023 IN MP NO.
Exhibit P11 TRUE COPY THE OBJECTION DATED
04.01.2024 OF THE RESPONDENT
Exhibit P12 TRUE CERTIFIED COPY OF THE ORDER DATED
19.07.2024 IN MP NO 837/2023 IN MC NO
333/2021 OF THE FAMILY COURT ERNAKULAM
Exhibit P13 TRUE COPY OF THE JUDGEMENT OF THE
HONOURABLE SUPREME COURT IN PRABHA
TYAGI V/S KAMALESH DEVI (2022 KHC 6542)
RESPONDENT EXHIBITS
Exhibit R1 true copy of interim order dated
6.8.2022 in M.C. No. 69/2021 (re-
numbered as M.C. No. 333/2021) of the
Family Court, Ernakulam
Exhibit R2 True copy of the agreement entered
between petitioner and respondent for
mutual divorce dated 16.09.2019
Exhibit R3 True copy of the receipt dated
16.9.2019
Exhibit R4 True copy of O.P. No.2166/2019, joint
petition for divorce, filed before the
Family Court, Ernakulam
Exhibit R5 true copy of Document No. 2726/12 dated
25.07.2012
Exhibit R6 true copy of building permit
application bearing No. 70/14-15 dated
23.7.2014 submitted by father of
respondent
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Exhibit R7 true copy of tax receipt dated
9.9.2013, issued from the Aluva West
Village Office
Exhibit R8 True copy of proof affidavit attested
by the Consulate General, Canada
Exhibit R9 True copy of the residence permit of
the petitioner and children of Saudi
Arabia
Exhibit R10 True copy of Electronic re-entry visa
issued in the name of petitioner and
children
Exhibit R11 True copy of Aadhar card of the
petitioner
Exhibit R12 True copy of the relevant extracts of
the passport of the petitioner
