P.G. Ajithkumar, J
1. The petitioner challenges in this revision preferred under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Code), the
legality, propriety and correctness of the judgment in Crl.Appeal No.751 of 2010 of the Sessions Court, Thrissur. The appellate court refused to
interfere with the order of the Judicial Magistrate of the First Class-I, Thrissur in M.C.No.12 of 2008. The petitioner is aggrieved of the said judgment
and the order.
2. The petitioner is the wife of the 1st respondent. He expired on 17.03.2014. Additional respondents No.3 and 4 were impleaded to represent the
estate of the 1st respondent.
3. Heard the petitioner, who appeared in person, the learned Public Prosecutor and the learned counsel appearing for the 3rd respondent. When the
learned counsel of the petitioner relinquished vakalath, a counsel was appointed for her from the High Court Legal Services Committee. Later the
petitioner put in a request to exclude the Legal Aid Counsel and allow her to conduct the case herself.
4. Marriage of the petitioner and the 1st respondent was solemnised on 27.10.1996. They have two children. They resided together in the shared
household. The 1st respondent used to torture the petitioner. She was expelled from the house and hence she along with the children took shelter in
the Divine Retreat Centre, Chalakudy. The 1st respondent, however, took the children in custody. In a petition filed by the petitioner, the Family Court
ordered the 1st respondent to pay Rs.500/- as monthly maintenance to her. In the said factual background, the petitioner filed M.C.No.12 of 2008
seeking protection order, residence order and monetary reliefs.
5. The 1st respondent filed objection controverting the contentions in the petition. It was alleged that the petitioner had mental ailment and she used to
torture and manhandle not only the 1st respondent, but his mother also. She left the company of the 1st respondent and filed petitions before the
Family Court, which are O.P.No.638 of 2007 and GOP No.774 of 2007. As ordered by the Family Court, the 1st respondent had been paying Rs.500/-
every month. The petitioner had manhandled the 1st respondent’s mother, causing a fracture at her hand. If the petitioner is allowed to reside
along with the 1st respondent that would cost his life. Accordingly, she sought to dismiss the petition.
6. Admittedly the petitioner at the time of filing the M.C. was not residing in the shared household, which is the family house where the 1st respondent
and her mother were residing. As per the order dated 23.02.2010 in C.M.P.No.264 of 2010, which was filed by the petitioner, she was permitted to
reside in the shared household. She later filed C.M.P.No.653 of 2010 to get that order implemented. Pursuant to an order in that petition, the petitioner
started her residence in the disputed building. While so, the 3rd respondent, who is the brother of the 1st respondent, filed C.M.P.No.625 of 2010
claiming that the said building and the land appurtenant thereto belonged to him. He sought to exclude the petitioner from that building. While the said
petitions were pending, the 3rd respondent filed Crl.R.P.No.949 of 2010 before this Court challenging the order in C.M.P.Nos.522 and 653 of 2010.
This Court allowed the said revision petition and ordered as follows:
In the result, this Cr.R.P. is disposed of setting aside the orders dated 02.03.2010 in M.P.No.522/2010 and order dated 06.03.2010 in M.P.653/2010 in M.C. No. 12/2008
of the Judicial First Class Magistrate-I, Thrissur, so as to enable the learned Magistrate to pass appropriate fresh interim order after giving an opportunity to the
revision petitioner as well as all other concerned parties. The learned Magistrate is directed to dispose of M.P. No.264/2010 within 45 days from the date of receipt of
a copy of order and the first respondent is permitted to reside in the house in question till a fresh decision is taken by the learned Magistrate in the above
interlocutory application and her future residing in the said house is subjected to the further order that may be passed in the above petition"".
7. In terms of the said direction, the learned Magistrate proceeded to consider the matter. As agreed to between the parties, the learned Magistrate
held inquiry in the main case and proceeded to dispose of all the matters together. The petitioner was examined as PW1, Exts.P1 to P3 were received
in evidence on her side. On the respondent’s side Ext.R1 was proved. The learned Magistrate after considering the said evidence held that the
petitioner was not entitled to get a residence order in respect of the building in question. Orders of protection and maintenance were granted. Further
the 1st respondent was directed to provide an alternative accommodation to the petitioner.
8. The petitioner filed Crl.Appeal No.751 of 2010 challenging the said order to the extent it denied her the right of residence in respect of the tharavad
house. The petitioner did not appear before the appellate court. The appeal was not considered in detail, but observing that there was no sufficient
reason to interfere with the order of the learned Magistrate, the same was dismissed.
9. The petitioner very strenuously submitted that she had been residing along with the 1st respondent in the shared household and as she was expelled,
she had to take asylum first in the Divine Retreat Centre and then in a hut erected in a poramboke land. It is her contention that she along with the
children was earlier residing in the shared household. Therefore, her expulsion from that building did not loose the house its character of a shared
household. Considering that stand taken by the petitioner before the learned Magistrate and in consideration of the fact that the petitioner had no other
place of abode, she was allowed to resume her residence in the building as per the order dated 23.02.2010.
10. The fact that the building in question belonged to the mother of the 1st respondent is beyond dispute. However, she was granted permission by the
trial court to set up her residence in that building. Dehors that order, the trial court proceeded to consider her claim for a residence order. The stand
taken by the petitioner is that in order to defeat her right only, the 1st respondent and others transferred their right obtained after the death of his
mother in the building and the land appurtenant thereto in favour of additional 3rd respondent. Therefore, the said transfer would not affect her right to
have residence.
11. The learned counsel for the additional 3rd respondent would submit that much before the demise of the 1st respondent, the fractional right he had
in the building in question was transferred in favour of the additional 3rd respondent. At the time of filing of M.C.No.12 of 2008, the petitioner was not
residing in that building. It was as per an order of the trial court only she started residence in that building and therefore she has no right to claim a
residence order in respect of that building. It is his further submission that the building belonged to the petitioner’s mother-in-law and after her
death only a fractional right was obtained by the 1st respondent. That right was also transferred in favour of the additional 3rd respondent. Also, it is
submitted that the right of the additional 3rd respondent was upheld by the learned Magistrate as per the order in a petition filed by him. Therefore, the
petitioner cannot claim any right of residence in that building. Accordingly, the learned counsel would submit that whatever entitled by the petitioner
has been allowed as per the impugned order and this revision petition does not deserve any consideration.
12. The claims of the respective parties have been decided by the trial court. The observations of the learned Magistrate in that regard are extracted
below:
“As stated above, the brother of the respondent claims exclusive right and title over the house which is claimed to be the tharawad house and he has filed an
application to get the possession of the same. As discussed above, during the pendency of this petition an application was filed by the petitioner for an interim
residence order and on the basis of the order dated 23.2.10, the petitioner was inducted into the house with Police aid as per order dated 6.3.10. Today, I am disposing
the petitions filed by Shibu, the brother of the respondent herein by a separate order and I have found that Mr.Shibu has got exclusive right over the house claimed
to be the Tharawad house or the shared household. It is an admitted case of both parties that the house belonged to the mother of the respondent and after the death
of the mother, the respondent got a fractional right over the same. The respondent and all other co-sharers have assigned their right over the property in favour of
the brother of the respondent. It is the case of the respondent that at the time of the death of the mother, PW1 was not residing in the Tharawad house. Only if it is
found that both parties were residing in the Tharawad house, an order under Section 19 of the Act can be issued restraining the respondent from dispossessing the
petitioner from the house or interfering peaceful possession. When it is admitted that the petitioner is not residing in the house and that she is not in possession of
the house, an order under Section 19 of the Act cannot be issued in her favour. In this case, admittedly the petitioner was living away from the shared household
claimed by her, even at the time of filing the petition. So, she cannot be said to be in possession or she is residing in the shared household claimed by her. So an
order under Section 19 cannot be issued in favour of the petitioner.â€
(underline added)
13. There is nothing on record to show that the said findings suffer from any infirmity. At the time of filing of the M.C., the petitioner was not residing
in the building. Before filing of the petition itself the fractional right of the 1st respondent was transferred in favour of the additional 3rd respondent.
The application of the 3rd respondent to establish his right and exclude the petitioner from the building was allowed by the learned Magistrate. The
said order was not seen challenged by the petitioner.
14. The 1st respondent expired as early as on 17.03.2014. The right of the additional 3rd respondent in the disputed building has been upheld by the
trial court and that order has become final. In the light of the said facts and the circumstances, the petitioner has no right to get an order of residence
in respect of the building in question. The view taken by the learned Magistrate in that regard does not suffer from any infirmity. True, the appellate
court did not consider the challenge to the said findings on merits. In the facts and circumstances of this case, I find no reason to ask the appellate
court to decide the appeal once again.
15. The maxim actus curiae neminem gravabit, which means that the act of the Court shall prejudice no-one, becomes applicable in this case.
Although the petitioner has no right to get an order of residence, this Court as per the order dated 23.12.2010 inducted her to the building in question.
When it is found that the building belonged to the additional 3rd respondent and that right is upheld, the Court is under an obligation to undo the wrong
done in the matter. Viewed so, the order of the trial court directing the 1st respondent to provide alternative accommodation to the petitioner cannot be
said to be incorrect.
16. The question is whether after the death of the 1st respondent, can the additional 3rd respondent be burdened with that obligation. The order of the
learned Magistrate in that regard stands confirmed by the appellate court and additional respondents No.3 and 4, who came forward to represent the
estate of the 1st respondent, did not challenge that order. They being the persons now representing the estate not only of the 1st respondent, but also
his mother, concerning the building in question, they are obliged to honour the directions in the order of the trial court.
17. The order is to provide an alternative accommodation to the petitioner to pay the amount required for the advance rent deposit and at the rate of
Rs.2,500/-towards monthly rent with 10% increase every two years. An amount of Rs.50,000/- was also directed to be paid to set up necessary
infrastructure in the rented house. Periodical payment of rent may not be feasible for, any default may result in eviction of the petitioner from the
rented house. In order to avoid such a contingency, I am of the view that an amount which would enure monthly interest sufficient to meet the rent
can be ordered to be deposited in the name of the petitioner. I am of the view that depositing an amount of Rs.3 lakhs in the name of the petition with
a rider that she cannot withdraw the same, except with the permission of the trial court will take care of the situation. The additional respondents 3
and 4 should make the said deposit and produce the receipt before the learned Magistrate within a period of two months and thereupon the said court
shall ensure implementation of its order, which is hereby confirmed with the aforementioned modification. In regard to the other reliefs the petitioner
did not raise any contention.
18. Accordingly, this revision petition is disposed of by confirming the order of the learned Magistrate with the modification that additional respondents
No.3 and 4 shall deposit an amount of Rs.3,00,000/- (Rupees three lakhs only) in the name of the petitioner in a nationalised bank, which she cannot
withdraw without the permission of the learned Magistrate. It is made clear that the said deposit is in lieu of payment of monthly rent for the
alternative accommodation.
The Registry shall issue a certified copy of the order to the petitioner free of cost.
