IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2480 of 2009()
1. SHAREEFA CHERUKUNHI BEEVI,
... Petitioner
Vs
1. SHAREEFA SAINABHA BEEVI,
... Respondent
2. SYED LIYAKKATH ALI POOKKOYA THANGAL,
3. THAHIRA BEEVI, W/O.IQBAL,
4. STATE OF KERALA,
For Petitioner :SRI.K.MUHAMMED SALAHUDHEEN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :24/08/2009
O R D E R
THOMAS P.JOSEPH, J.
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CRL. R.P. NO.2480 of 2009,
CRL. R.P. NO.2481 of 2009
AND
CRL. R.P. NO.2519 of 2009
= = = = = = = = = = = = = = = = = = = = = = = = =
Dated this the 24th day of August, 2009
O R D E R
————–
These revisions are the offshoot of an interim order passed by
the learned Judicial First Class Magistrate, Kozhikode on Crl. M.P.
No.1184 of 2009 in M.C. No.38 of 2009. Parties are to referred as
petitioner and respondents as in the trial court for convenience.
2. Petitioner claimed that she is married to respondent No.1,
whose mother is respondent No.2. In the wedlock a child also is
born. She had been residing in the family house at Perinthalmanna
described as the ‘shared household’ in the proceeding but now she is
staying in a rented house at Vellimadukunnu. She alleged that her
landlord is attempting to evict her. Therefore she filed M.C. No.38 of
2009 under Section 12 of the Protection of Women from the Domestic
Violence Act (for short, “the Act”). For interim relief she filed C.M.P.
No.1184 of 2009 under Sec.23 of the Act. She prayed for an interim
order to restrain the respondents from evicting her from the shared
household, to prevent them from committing acts of domestic violence
on her and her child and for maintenance from respondent No.1, her
CRL. R.P. Nos.2480, 2481
and 2519 of 2009
-: 2 :-
husband at the rate of Rs.10,000/- per month for herself and her child.
Respondent No.1 contended that he had decided to pronounce talaq
on 7.3.2009 and hence petitioner has no status of wife. She therefore
is not entitled to file the petition or seek any relief. He denied that
petitioner had ever resided in the family house. Instead she was
always living at Vellimadukunnu in the rented house. He disputed his
liability and capacity to maintain petitioner. Respondent No.2
contended that the house in question belonged to her. She also
asserted that petitioner had not resided in that house. Learned
magistrate after considering the rival contentions directed
respondent No.1, husband to pay maintenance at the rate of
Rs.5,000/- per month to the petitioner and her child. There was also
an order prohibiting respondents from committing domestic violence.
There was however, no interim residence order in favour of petitioner.
Refusal to give residence order was challenged by petitioner in Crl.
Appeal No.302 of 2009. Respondent No.1, husband of petitioner filed
Crl. Appeal No.349 of 2009 challenging the interim order of
maintenance. In Crl. Appeal No.302 of 1999 petitioner filed Crl.M.P.
No.1527 of 2009 for an interim residence order. Learned Additional
Sessions Judge, Kozhikode allowed that petition against which
respondent No.2 filed Crl. M.C. No.1763 of 2009 before this Court. This
CRL. R.P. Nos.2480, 2481
and 2519 of 2009
-: 3 :-
Court directed the learned Sessions Judge to consider the contention
of respondent No.2. In Crl. Appeal No.349 of 2009 learned Sessions
Judge directed payment of interim maintenance to the petitioner and
child at the rate of Rs.2,000/- per month till the disposal of the appeal.
Criminal Appeal Nos.302 and 349 of 2009 were made over to the
court of learned Additional Sessions Judge, Kozhikode. Learned
Additional Sessions Judge disposed of those appeals by a common
judgment as per which interim maintenance payable by respondent
No.1 is fixed as Rs.5,000/- per month. Order of learned magistrate
not giving residence order was set aside and a residence order was
given in favour of petitioner. Aggrieved, respondent No.1 filed
Crl.R.P. No.2519 of 2009. Respondent No.2 filed Crl. R.P. No.2481 of
2009 against the judgment in Crl. Appeal Nos.302 and 349 of 2009
allowing interim residence. Respondent No.2 also filed Crl.R.P.
No.2480 of 2009 against the interim residence order in Crl.M.P.
No.1527 of 2009 in Crl. Appeal No.302 of 2009. Thus these revisions.
Learned counsel for parties reiterated their respective contentions
taken in the court below. It is the contention of respondent No.2 that
petitioner has a building of her own at Karuvanthuruthy, Feroke and
produced certain documents. Availability of separate house for
petitioner is disputed by counsel for petitioner. Whatever that be
CRL. R.P. Nos.2480, 2481
and 2519 of 2009
-: 4 :-
documents produced in this Court were not produced in the courts
below. On going through the judgment it is seen that the learned
Additional Sessions Judge found that there is dispute between the
parties whether respondent No.1 had divorced petitioner by
pronouncing talaq. That is a matter to be decided by the trial court.
Also on the question whether petitioner has ever resided in the shared
house there is dispute between the parties. While petitioner asserted
that she had resided for 1= years in the shared household respondent
Nos.1 and 2 denied and contended that construction of the shared
house was completed only in January, 2009. Respondent No.2
produced documents in the trial court to show that the house in
question belonged to her. Appellate court observed that the
documents produced does not show that the property referred to
therein contained any building and the question whether those
documents related to the property where the family house is situated
is also a matter of evidence. Appellate court stated that
respondents produced along with the counter affidavit an apology
letter allegedly written by the petitioner and a reading of that apology
letter shows that petitioner had actually resided in that family house
for one year and two months. Since these revisions arose on interim
orders the disputed questions are to be decided by the trial court. I
CRL. R.P. Nos.2480, 2481
and 2519 of 2009
-: 5 :-
do not consider it necessary, just or proper to pronounce verdict on
the disputed issues in these revisions since the issues are to be
decided by the trial court if necessary, after recording evidence.
Respondent No.2 submitted that on the strength of the interim order
passed by the learned Additional Sessions Judge on Crl.M.P. No.1527
of 2009 it is not merely petitioner and her child alone but a few of her
relatives are also staying in the family house. Learned counsel for
petitioner submitted that information given to him is that nobody other
than petitioner and her child are staying in the house in question. I
make it clear that the order passed by the learned Additional Sessions
Judge does not enable anybody other than petitioner and her child to
reside in the house in question. It is directed that respondent Nos.1
and 2 and their children can also reside in the house in question. If
there is any law and order problem in the house in question on account
of joint residence, it is open to the parties to seek appropriate orders in
that regard from the trial court.
3. Learned counsel contended that respondent No.1 is not
able to pay the maintenance to petitioner and her child at the rate of
Rs.5,000/- per month. Learned counsel referred to the financial
difficulties of respondent No.1. According to learned counsel for
petitioner no interference is required with the interim order of
CRL. R.P. Nos.2480, 2481
and 2519 of 2009
-: 6 :-
maintenance.
4. It is not disputed that at least during the time the appeal
was pending in the court of learned Additional Sessions Judge interim
maintenance payable was only at the rate of Rs.2,000/- per month.
Petitioner is aged 40 years and her child, 4= years. Having regard to
their needs and considering the cost of living I direct that until the
matter is finally disposed of by the trial court respondent No.1 shall
pay maintenance at the rate of Rs.2,500/- per month to the petitioner
and her child from 5.6.2009 onwards. It is made clear that
maintenance payable by respondent No.1 till 4.6.2009 will be as
ordered by the trial court.
Revision Petitions are disposed of as above. Learned Judicial
First Class Magistrate, Kozhikode is directed to dispose of the main
petition as expeditiously as possible.
THOMAS P.JOSEPH, JUDGE.
vsv