Daily Archives: March 29, 2015

Husband can sell his house when he wants!! DV can’t stop that. Kerala HC

Husband cannot be prohibited or restrained from alienating his property because it is his civil right!! Classic Kerala HC

* wife has filed DV on husband

* wife obtains maintenance order even though husband has tried to prove that he is incapacitated

* over and above that wife tries to stop husband from selling HIS ANCESTRAL (late mother’s) property

* court REFUSES wife’s plea and allows husbands revision petition

The Hon HC order as follows

"….she can continue in the shared household along with the husband so long as the shared house hold continues in the possession of the husband. The husband cannot be prohibited or restrained from alienating his property because it is his civil right. However, in case the husband proceeds to alienate the shared house hold, she can approach the court below for appropriate relief like alternative accommodation, and when such a claim comes, it will have to be decided by the trial court on merits. Subject to this, the second part of the order will have to be set aside……."

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR. JUSTICE P.UBAID

THURSDAY, THE 24TH DAY OF JULY 2014/2ND SRAVANA, 1936

Crl.Rev.Pet.No. 366 of 2014 ()

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AGAINST THE JUDGMENT IN Crl.A 454/2010 of ADDL.SESSIONS COURT, NOTH PARAVUR

AGAINST THE ORDER IN MC 103/2009 of JUDICIAL FIRST CLASS MAGISTRATE COURT, PERUMBAVOOR

REVISION PETITIONER(S)/REVISION PETITIONER/APPELLANT/ACCUSED:

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RAJAN, S/O.SUBRAMANIYAN, VILANGATTIL HOUSE, NEELESWARAM KARA

KALADY VILLAGE, ERNAKULAM DISTRICT.

BY ADV. SMT.SOUMINI JAMES

RESPONDENT(S)/RESPONDENTS/COMPLAINANTS:

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1. SIJI, AGED 38 YEARS

D/O.PADMANABHAN, KANNOTH HOUSE, CHENGARA KARA

PATTIMATTOM VILLAGE – 683 562.

2. AKHIL

S/O.RAJAN, KANNOTH HOUSE, CHENGARA KARA

PATTIMATTOM VILLAGE, REP.BY MOTHER SIJI.

3. STATE REPRESENTED BY PUBLIC PROSECUTOR

HIGH COURT OF KERALA.

R1 & R2 BY ADV. SRI.VIPIN NARAYAN

R3 BY PUBLIC PROSECUTOR SRI.GITHESH.R.

THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON

24-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

P.UBAID, J.

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Crl.R.P No.366 of 2014

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Dated this the 24th July, 2014

O R D E R

An order obtained by the wife against her husband under the provisions of the Protection of Women from Domestic Violence Act, 2006 (hereinafter referred to as ‘the Act’ for short) is under challenge in this revision. The wife, who has been residing separately from the husband filed M.C No.103 of 2009 before the Judicial First Class Magistrate, Perumbavoor claiming reliefs under the Act. She sought protection order, maintenance order, order for compensation, residence order etc. She also sought the value of 4 sovereigns of gold ornaments alleged to have been appropriated by her husband. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

2 The husband entered appearance and resisted the claim on the contention that the alleged shared household does not belong to him, and that the wife is not entitled to get maintenance or compensation because she had not suffered anything bad at his hands, and that she has her own income to maintain herself. Thus, he denied the alleged cruelty, and he contended that his wife has no right to claim right of residence in the house that belongs to his mother.

3. The learned Magistrate conducted enquiry in the proceedings and recorded evidence. The wife examined herself as PW1. Two witnesses including her mother-in-law were examined on the side of the wife, and two Doctors were examined on the side of the husband. Exts.P1 to P6 were marked on the side of the wife and Exts.D1 to D3 were marked on the side of the husband. These documents were marked, and the Doctors were examined to prove his case that he is physically disabled. However, on an appreciation of the evidence, the trial court found in favour of the wife, and granted the following reliefs against the husband.

(a) Restraining the husband from committing any act of domestic violence.

(b) Restraining the husband from alienating the shared household and the property wherein, the building is situated.

(c) Directing the husband to pay maintenance to the wife at the rate of 400 per Crl.R.P No.366 of 2014 month and 500/- per month to the minor son.

(d) Directing the husband to pay an amount of 21,000/- as compensation to the wife and also the value of 4 sovereigns of gold appropriated by him.

Those directions were made by order dated 14.07.2010 in M.C No.103/2009.

4. The aggrieved husband approached the Court of Session, Ernakulam with Crl.A No.454 of 2010. In appeal, the learned Additional Sessions Judge, North Paravur concurred with the findings of the trial court on all the points except the last direction to pay the value of gold ornaments. Accordingly, the appellate court reversed the direction to pay the value of 4 sovereigns of gold ornaments but, maintained the other parts of the order in all respects. The husband is still aggrieved. He challenges the other parts of the order in revision.

5. On hearing both sides and on a perusal of the case records, I find that the husband in fact deserves some orders in his favour in revision. Of course, as regards the maintenance order or the order against the domestic violence, I find no reason for interference. The wife has made out a case in her favour, and I find that she has some grievance of her own. Though not 100% acceptable she has given evidence proving her case against her husband that she had no peace in matrimony in the shared household. In the said factual situation, I also find the necessity of maintaining the first part of the order restraining the husband from committing any act of domestic violence. So also, I find the necessity of sustaining the maintenance order because it stands not proved that the wife has any definite source of income or job. Though she knows tailoring, it will not dis-entitle her to claim maintenance from her husband. What is ordered by the court below is only 400/- per month. The amount ordered to the child is only 500/- per month. It is true that the husband examined two Doctors to prove his disability. But this medical evidence will not prove that he is in fact physically disabled to do any work, or to earn for his livelihood. Within the limits and within his capacity, he will have to maintain his wife and child. What he is liable to pay a month is only 900/-. This amount can Crl.R.P No.366 of 2014 be paid by any husband who is able bodied. I find no scope for interference in the maintenance order passed by the court below. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

6. Now comes to the most objectionable part of the order contained in the second clause of the trial court order. The husband is restrained from alienating the shared house hold and the property wherein the building stands. Of course, the definite case of the husband is that the property was in fact purchased by his mother with her own funds and that the said direction will not bind the mother. Now, it is submitted that the mother is no more, and that the husband has inherited the property including the shared house hold, as the sole legal heir. Of course, it is true that the said direction was not in fact binding on the mother. Any way, now, the property has come in his hands as the legal heir. Once the property has come in his hand as the sole legal heir, he will have to obey the order. But the material question is whether the wife is entitled to get such an order. In fact, what she claims is merely a civil right over the property. Her case is that, the said property was in fact purchased by the mother-in-law by utilising her funds also. It appears that she claims right to continue there as a co- owner, on a claim of right, on the basis of what she contributed, and not simply as the wife having right to live in the shared household. There is reason to believe that the relationship between the parties is really strained. If what the wife claims is some civil right over of the property, she will have to approach the competent Civil Court for appropriate civil remedy. However, she can continue in the shared household along with the husband so long as the shared house hold continues in the possession of the husband. The husband cannot be prohibited or restrained from alienating his property because it is his civil right. However, in case the husband proceeds to alienate the shared house hold, she can approach the court below for appropriate relief like alternative accommodation, and when such a claim comes, it will have to be decided by the trial court on merits. Subject to this, the second part of the order will have to be set aside.

Crl.R.P No.366 of 2014 In the result, this revision petition is allowed in part. Accordingly, the second clause of the trial court order restraining alienation of property will stand set aside, subject to the observations made above regarding the wife’s right to approach the trial court for further relief of alternative accommodation in case of alienation. The other orders confirmed by the appellate court are maintained.

Sd/-

P.UBAID JUDGE

ma

/True copy/

P.S to Judge

PDF file uploaded to http://1drv.ms/19vFwaP

*****************************disclaimer**********************************

This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE

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regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

498a wife also gets divorce case transferred to her place!

How Matrimonial feuds are filling up the courts and wasting precious time and energy of this country !!

Young couple of 24 and 28 fighting it out in courts

Marriage is becoming a gamble these days. If it works, it’s ok. If it does NOT, the MALE and his family are made to run around courts and spend time and money to get their basic rights validated. Many a time they fail, because the law takes a more lenient view of the woman’s requests

Here is the case of a woman who is alleged to have filed MULTIPLE police complaints against the husband in various jurisdictions, has also filed a DV case at a place of her work and is now getting the husband’s divorce case transferred from Ernakulam to Thiruvananthapuram a disctance of more than 200 KM !! The couple also have a six month old baby which aggravates the situation

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE P.BHAVADASAN

THURSDAY, THE 8TH DAY OF JANUARY 2015/18TH POUSHA, 1936

Tr.P(C).No. 589 of 2014

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OP 1780/2014 OF FAMILY COURT, ERNAKULAM TO FAMILY COURT,

THIRUVANANTHAPURAM

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PETITIONER(S)/RESPONDENT:

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DIVYA SUSAN MATHEW, AGED 24 YEARS,

D/O.MATHEW ALEXANDER, JOY VILLA, T.C NO 36/291(1),

MANAVA NAGAR, PETTAH P.O., THIRUVANANTHAPURAM – 695 024.

BY ADVS.SRI.D.KISHORE, SMT.MINI GOPINATH

RESPONDENT(S)/PETITIONER:

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DEEPU JOHN JOHN, AGED 28 YEARS,

S/O. JOHN, KAIMANNIL HOUSE, FORT VALLEY THOWNSHIP,

KAKKANAD ATHANI, KUSUMAGIRI,COCHIN – 682 030.

BY ADV. SRI.MANU ROY

THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON

08-01-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

msv/

Tr.P.C.No. 589 of 2014

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APPENDIX

PETITIONER(S)’ ANNEXURES:

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ANNEXURE I : TRUE COPY OF M.C.5/2014 FILED BY THE PETITIONER AND HER INFANT DAUGHTER.

ANNEXURE II: TRUE COPY OF THE ORIGINAL PETITION IN O.P.1780/2014 OF FAMILY COURT, ERNAKULAM.

RESPONDENT(S)’ ANNEXURES:

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ANNEXURE R1: COPY OF NOTICE DATED 9.8.2014.

ANNEXURE R2: COPY OF THE ORDER IN CRL. M.C.1601/2014.

ANNEXURE R3: COPY OF THE ORDER B.A.NO.7169/2014.

ANNEXURE R4: COPY OF THE COMPLAINANT DATED 27.9.2014.

ANNEXURE R5: COPY OF THE PETITION DATED 11.11.2014.

//TRUE COPY//

P.S.TO JUDGE

Msv/

P.BHAVADASAN, J.

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Transfer Petition (Civil) No.589 OF 2014

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Dated this the 8th day of January, 2015.

O R D E R

This is a petition filed under Section 24 of the Code of Civil Procedure seeking transfer of O.P.No.1780/2014 from Family Court, Ernakulam to Family Court, Thiruvananthapuram.

2. Suffice to say that, the marital relationship between the petitioner and the respondent ran into rough weather and litigations are in plenty. The petitioner has instituted M.C.No.5/2014 before the Additional Chief Judicial Magistrate Court, Thiruvananthapuram seeking relief under the Protection of Women from Domestic Violence Act, 2005. It is pointed out that the petitioner is currently employed at Thiruvananthapuram and she has a young child to look after. The respondent has instituted O.P.No.1780/2014 before the Family Court, Ernakulam seeking divorce.

3. According to the petitioner, she finds it extremely difficult to come over to Ernakulam frequently to attend the case on each posting date. Moreover, she claims that she has a child to look after. She also points out that there is nobody to accompany her to go to Ernakulam. On the basis of these pleas, she prays for transfer.

4. The petition is very vehemently opposed by the respondent. He points out that the petitioner has filed almost three complaints alleging offence under Section 498A IPC in three different places making the respondent and his family members run around and she is creating havoc. It is also pointed out that he is being threatened by the petitioner and her relatives and their attempt is to prevent the respondent from attending the case in the Family Court, Ernakulam. It is also contended that he was beaten up at Thiruvananthapuram by the parents of the petitioner. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

5. Relying on the decision in Anindita Das vs. Srijit Das (2006 KHC 1887), learned counsel appearing for the respondent contended that employment of petitioner-wife is not a sufficient ground for transfer and each case has to be considered on its merits and in the case on hand, except for saying that she is employed at Thiruvananthapuram and she has a child to look after, there is no other ground seeking transfer. It is also pointed out that it is not necessary for the petitioner to come over to Ernakulam on each posting date and she can seek exemption by appropriate means.

6. Learned counsel appearing for the petitioner placed reliance on the decisions in Sithara vs. Rajesh (2009 (4) KHC 269) and in Anjali Ashok Sadhwani vs. Ashok Kishinchand Sadhwani (AIR 2009 SC 1374) and contended that the consistent stand taken by courts is that the petition by the wife would be viewed with leniency since in all the posting dates wife cannot seek exemption from appearance. In the case on hand, the situation is such that the wife is employed at Thiruvananthapuram and she has to take leave for attending the case which will affect her employment.

7. It is very sad to know that the relationship has become so bitter which is evident from the accusation levelled against each parties and as revealed from the records produced before the court. The petitioner has instituted proceedings before the Additional Chief Judicial Magistrate Court, Thiruvananthapuram under the Protection of Women from Domestic Violence Act, 2005 and that is pending. The respondent, on the other hand, has a grievance that as vengeance, the petitioner is filing complaints after complaints in various Police Stations making the respondent and his family members on hooks. It is pointed out that the intention is only to harass the respondent and there is no real grievance for the petitioner for having the case transferred to Family Court, Thiruvananthapuram.

8. After having gone through the decisions cited by the counsel on both sides, it becomes evident that each case has to be decided on the facts of each case. As a general rule, it can be said that the petition filed by the wife has to be viewed with leniency. But that is not an invariable rule. In the case on hand, it is not in dispute that the petitioner is employed at Thiruvananthapuram. It is not proper for this Court to ascertain whether the allegations levelled against each parties are true or not. As pointed out by the learned counsel for the respondent, it is not necessary for the petitioner to appear before the Family Court, Ernakulam on each posting date. She can seek exemption from personal appearance.

9. It needs to be noticed that the petitioner is employed at Thiruvananthapuram and she has a baby child now aged approximately 6 months and she has to take care of her child. Even though it may be possible to say that it is not necessary for the petitioner to come over to Ernakulam in all the posting dates and she can seek exemption, it is a fact that she cannot always seek exemption. Whenever she comes over to Ernakulam to attend the case, she has to bring her child also. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

10. Considering the fact that the petitioner is employed at Thiruvananthapuram and she has a young child to look after, it is felt that some leniency can be shown in the matter.

For the above reasons, this petition is allowed and O.P.No.1780/2014 pending before the Family Court, Ernakulam shall stand transferred to Family Court, Thiruvananthapuram. The apprehension expressed by the respondent regarding assault at the hands of the petitioner and her family members will be brought to the notice of the Family Court, Thiruvananthapuram and the said court may pass appropriate orders.

Sd/-

P.BHAVADASAN JUDGE

smp

PDF File uploaded to http://1drv.ms/19uIwnW

*****************************disclaimer**********************************

This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE

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FOLLOW http://twitter.com/ATMwithDick on twitter or https://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/ FOR 100s of high court and supreme court cases

regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Gulf based NRI earning 65K to pay 6 K to wife : Kerala DV case

Gulf based NRI supposed 2 b earning 65K asked to pay 6 K to wife under DV case !

HC refuses to interfere in the case of a gulf based NRI asked to pay 6 k to wife. Husband supposed to be earning 65K p.m. in gulf!!

But the moot question is how will such an order be enforced IF the husband refuses to pay?? Obviously they can’t attach the husband’s salary, can they?

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

WEDNESDAY, THE 7TH DAY OF JANUARY 2015/17TH POUSHA, 1936

Crl.Rev.Pet.No. 22 of 2015 ()

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(AGAINST THE JUDGMENT IN CRL.A.NO. 45/2014 OF II ADDL.SESSIONS COURT, KOLLAM DATED 22-11-2014)

MC.NO.2/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,KOLLAM

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REVISION PETITIONER/APPELLANT/ACCUSED NO.1 :

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NADIRSHA A.M, S/O.ABDUL MAJEED,

RESIDING AT IMAM MANZIL, PALACHIRA.P.O.,

VARKALA, TRIVANDRUM.

BY ADV. SRI.C.K.SREEJITH

RESPONDENT(S)/COMPLAINANT & STATE :

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1. SMT. SABEENA, AGED 30 YEARS,

D/O. MUHAMMED KUNJU, RESIDING AT FABIYA,

HOUSE NO.40, KADAPPAKADA NAGAR, KOLLAM TALUK-691 008,

NOW RESIDING AT SHAHANAZ, KULANGARA BHAGAM MURI,

CHAVARA, KOLLAM.PIN-691 021

2. STATE OF KERALA,

REPRESENTED BY THE PUBLIC PROSECUTOR,

HIGH COURT OF KERALA, ERNAKULAM-682 031

R2 BY PUBLIC PROSECUTOR SRI.JIBU P. THOMAS

THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07-01-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

B.KEMAL PASHA, J

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Crl.R.P. No.22 of 2015

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Dated this the 7th day of January , 2015

O R D E R

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Petitioner herein is the husband of one Smt. Sabeena, aged 30 years who is the petitioner in C.M.P. No.248 of 2013 in M.C. No.2 of 2013 of the Chief Judicial Magistrate’s Court, Kollam. She had approached the Court below under Sec.12 of the Protection of Women from Domestic Violence Act (for short, ‘the Act’) through the M.C. In the M.C. , she has preferred an application under Sec.23(2) of the said Act seeking interim relief by way of maintenance. It seems that the learned Chief Judicial Magistrate has taken the view that the petitioner herein is gainfully employed in gulf and has been earning .65000/- (Rupees sixty five thousand only) per month. It has come out that the petitioner in the M.C. is not being looked after and maintained by the petitioner herein and she has been abandoned. The learned Chief Judicial Magistrate has directed the petitioner herein to pay an amount of .6000/- (Rupees six thousand only) per month for her livelihood, as maintenance.

2. It seems that the petitioner has challenged the said order before the 2nd Additional Sessions Court, Kollam through Criminal Appeal No.45 of 2014. The learned 2nd Additional Sessions Judge, has concurred with the findings entered by the learned Chief Judicial Magistrate and has dismissed the appeal through the impugned order.

3. Heard the learned counsel for the petitioner and perused the records.

4. On a thread bear scrutiny of the order passed by the learned Chief Judicial Magistrate and the subsequent judgment passed by the learned 2nd Additional Sessions Judge on it, it seems that the concurrent findings rendered by both the Courts below do not call for any interference at all, as those findings do not suffer from any illegality, irregularity or impropriety. This Crl. R.P. is devoid of merits and is only to be dismissed, and I do so.

In the result, this Crl. R.P. is dismissed.

Sd/-

B.KEMAL PASHA,

JUDGE

/ True Copy /

NS

P.A. To Judge

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FOLLOW http://twitter.com/ATMwithDick on twitter or https://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/ FOR 100s of high court and supreme court cases

regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist