Thursday, 22 October 2015

Whether sister of husband can be denied right in property of her father on ground of right of wife to get shared household as per DV Act?


Of course, an order under Section 19(1)(f) is permissible only on

satisfaction that domestic violence had taken place. In this case, even

according to the first respondent, she left her matrimonial home as early

as in the year 1998 and filed the petition under Section 12 of the D.V.

Act only in the year 2009. In this case, the revision petitioner is the

sister of the third respondent and she along with the third respondent

inherited the properties of their parents on their death. It is to obtain

her share that the aforementioned partition suit was filed and pursuant

to the decree it was partitioned in between the revision petitioner and


the third respondent in tune with Ext.D1 decree, referred as such in the

order in M.C.No.38 of 2009. The impugned orders would reveal that

pursuant to the preliminary decree a partition was effected and a final

decree was also passed by a competent Civil Court.                  In such

circumstances, on the strength of a decree of a competent Civil Court

and the partition the revision petitioner became entitled to enjoy her

share in the said property. There is nothing on record before the court

to suggest that the house in question was partiable and, even otherwise

essentially, the question whether a property scheduled in a suit for

partition is partiable or not is not a matter to be considered in a collateral

proceedings and that too, in a criminal proceedings. When the court of

competent jurisdiction passed a preliminary decree permitting the parties


to the suit to effect partition amicably after declaring the share and


thereafter passed a final decree the partition and the decree cannot be


set at naught in a criminal proceedings. Respondents 1 and 2 cannot be

heard to contend that they were not aware about the suit for partition

and also regarding the passing of a preliminary decree in the said suit for

partition and in fact, the preliminary decree was produced in the

proceedings in M.C.No.38 of 2009 and the order thereon was passed

taking into account the same. In such circumstances, respondents 1 and

2 cannot be heard to say that they were not aware that in terms of the


preliminary decree a partition might take place adverse to their interest

based on an amicable settlement between the revision petitioner and the

third respondent and that the order in M.C.No.38 of 2009 also restricted

their right to reside only in the share alloted to the third respondent.

Certainly, in the light of the settled position of law an endeavour to

challenge the partition and decree would not have been made by

respondents 1 and 2 in a collateral proceedings and at any time, it could

not have been accepted in a criminal proceedings.      Section 19(1)(f) of

the D.V. Act provides for issuing directions to the `respondent', which

term has been defined under Section 2(q) of D.V. Act, to secure same

level of alternate accommodation for the aggrieved person as enjoyed by

her in the shared household or to pay rent for the same, if the

circumstances so require. Considering the right which is available under

Section 17 and especially, taking into account the circumstances it

cannot be said that respondents 1 and 2 could insist for direction to

continue residence in the shared household itself ignoring the judgment

and decree passed by competent Civil Court whilst the first respondent

could only insist for protection of her right guaranteed under Section 17

of D.V. Act taking note of the provisions under Section 19(1)(f) of the

said Act. A combined reading of Section 17(2) and Sections 19(1)(f) and

19(6) of the D.V.Act would reveal that while giving utmost care and


protection to an aggrieved party especially, in respect of protection

orders, the D.V. Act does not intend to defeat or deny the rights of


others available in respect of a shared household lest the provisions

under Sections 19(1)(f) and 19(6) would not have been incorporated to

ensure protection of right to reside available under Section 17(1), of the

D.V. Act. A close scrutiny of the common order of the learned Magistrate

would reveal that even while dismissing the Miscellaneous Petitions the

learned Magistrate has specifically found that the first respondent herein

would have the right to demand alternate accommodation (Is it not

alternative accommodation?) from the third respondent herein taking

into account the fact that her right to reside in the shared household was

made impossible due to the execution of the partition deed.           This

certainly is the right and protection available in such circumstances, in

terms of Sections 19(1)(f) and 19(6) of the D.V. Act.         This position

makes the impugned common judgment all the more, unsustainable.

The first respondent was residing separately from her husband since

1998 and thereafter she did not stay with him in the shared household

and she along with the second respondent is residing at Ernakulam. All

these circumstances would indicate that it is a fit case for the first

respondent to work out her claim for alternate accommodation

(alternative accommodation) as against the third respondent, in



accordance with law.   
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                        PRESENT:

                  THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

          THURSDAY, THE 2ND DAY OF JULY 2015

                            Crl.Rev.Pet.No. 102 of 2014 ()
                          
         MARY JACOB (MARY KURIAKOSE)
         
Vs

        ELIZABETH JACOB, 



                         Dated 2nd July, 2015

                            


            The former revision petition is filed against the judgment

in Crl.A.No.222 of 2012 passed by the Court of the Additional Sessions

Judge-V, Ernakulam whereby the order dated 21.12.2011 in CMP.

No.489 of 2011 in M.C.No.38 of 2009 of the Court of the Judicial First

Class Magistrate-I, Ernakulam was set aside.        The same revision

petitioner filed the latter revision petition against the judgment in

Crl.A.No.225 of 2012 of the same Court whereby the order in

CMP.No.490 of 2011 in the aforesaid M.C.No.38 of 2009 was

interfered with and remanded to the trial court for fresh disposal, in

accordance with law. In fact, it is a common judgment. For the sake

of convenience, hereafter in this order, the parties are referred to in

accordance with their status in Crl.R.P.No.102 of 2014. Respondents

1 and 2 are respectively the estranged wife and daughter of the 3rd

respondent and the revision petitioner is the sister of the 3rd

respondent. A succinct narration of the facts is required for a proper

disposal of these revision petitions.



             2. The marriage between the first respondent and the 3rd

respondent was solemnised on 8.7.1990 and the 2nd respondent was

born in their wedlock on 29.6.1991. The mother of the revision

petitioner/the mother-in-law of the first respondent died on 24.1.2008

and in fact, her husband viz., the father of the revision petitioner and the

third respondent predeceased her. The revision petitioner and the third

respondent were having another sibling and she pre-deceased the

parents. After the death of the parents the disputed house, claimed to

be the shared household, and the contenement that situate in the State

of Karnataka were inherited by the revision petitioner and the third

respondent.     The first respondent was taken to that house after the

marriage on 8.7.1990 and she claimed to have resided there from 1991

to 1994 and thereafter, during 1997-1998. Subsequent to the death of

the in-laws the first respondent filed M.C.No.38 of 2009 before the Court

of Judicial First Class Magistrate-I, Ernakulam under Section 12 of the

Protection of Women from Domestic Violence Act (for short `D.V. Act').

It was filed with the following prayers:-




        "a. Pass an order prohibiting the respondents from
            alienating, encumbering, charging or creating any
            interest over the shared household - 158, Old
            No.71/1 Nandidurg Road, Bangalore-46, which will
            any way affect the right of the petitioners and
            communicate the said order to the SRO, Nandidurg


            Road, Bangalore and to the SHO, J.C.Nagar, Police
            Station, Bangalore.

         b. Direct respondents to pay a sum of Rs.10,00,000/-
            (Rupees Ten lakhs only) as compensation to the
            petitioners for the injuries caused by acts of domestic
            violence committed by them.

         c. Direct the first respondent to pay the maintenance at
            the rate of Rs.10,000/- (Rupees ten thousand only)
            per month to petitioners.

         d. Pass an order directing respondents to make
            arrangements to enable the petitioners to reside
            peacefully in the shared household - 158, Old No.71/1
            Nandidurg Road, Bangalore-46, without any threat or
            harassment from respondents.

         e. Pass such order or orders as this Hon'ble court deem
            fit   and   proper   under    the   given   facts   and
            circumstances of the case for protecting the applicant
            from domestic violence and in the interest of justice."




             3. The first respondent filed M.C.No.38 of 2009 stating that

the marriage between herself and the third respondent was solemnised

as per the religious rites and ceremonies, on 8.7.1990 and thereafter

they were residing together at House No.158 (Old No.71/1) of Nandidurg

Road, Bangalore-46 (the house in question) and that it is her shared

household.     It was further alleged therein that she was subjected to

physical and mental cruelty and that she lived there from 1991 to 1994

and also during 1997-1998. It was also stated therein that from 1998

onwards the first and third respondents were living separately and that


the first and second respondents were residing at Ernakulam in a rented

building. In fact, the second respondent herein was the 2nd petitioner

therein. Essentially, they filed the petition as they required an

accommodation in the shared household of the first respondent on being

faced with difficulty in paying rent for the house at Ernakulam. It was

also alleged therein that they got reliable information that the revision

petitioner and the 3rd respondent were proposing to sell the shared

household and therefore, it was sought to refrain them from transferring

the shared household.     A further prayer to direct the 3rd respondent

herein/the first respondent therein to pay the maintenance at the rate of

 10,000/- per month was also sought for besides a residential order

directing the respondents therein to make arrangement for the peaceful

residence of the petitioners in the shared household.     Evidently, yet

another prayer claiming  10,00,000/- as compensation from the

respondents therein viz., the revision petitioner and the 3rd respondent

herein was also sought for. On due process, the respondents therein/the

revision petitioner and the 3rd respondent herein appeared before the

court and they denied the allegations. After considering the arguments

advanced and the evidence adduced by the parties, the learned

Magistrate allowed M.C.No.38 of 2009 in part as per order dated

4.9.2010 as hereunder:-


        "1) The petitioners are entitled to reside the house No.158
            (Old No.71/1) Nandidurga road, Bangalore till the said
            property and building are partitioned, and after
            partition, the petitioners are entitled to reside in the
            share allotted to the 1st respondent herein.

         2) The respondents are restrained from committing any
            act that would affect the peaceful residence of the
            petitioners in the above house/building.

         3) The 1st respondent is restrained from alienating,
            transferring, selling or creating encumbrance upon his
            share over the above said property.

         4) Respondents are restrained from committing any act of
            domestic violence against the petitioners.

         5) The prayer of the petitioners to grant compensation
            and maintenance is disallowed. But, it is made clear
            that the petitioners has the right to file a fresh petition
            claiming maintenance and to plead and prove the
            source of income of the parties.

         6) The SHO, JC Nagar Police Station, Bangalore is directed
            to give police        protection to the petitioners, if
            requested by the petitioners in writing."




Subsequently, C.M.P.Nos.489 and 490 of 2011 were filed by respondents

1 and 2 herein before the learned Magistrate in M.C.No.38 of 2009. In

fact, prior to that, another petition viz., C.M.P.No.252 of 2011 was filed

for a direction to break open the door of the shared household and afford

protection to reside thereon. C.M.P.No.489 of 2011 was filed with the

prayer to modify the order passed in MC.No.38 of 2009 and to permit the


petitioners therein/respondents 1 and 2 herein to reside in the shared

household ignoring partition deed executed between first and second

respondents therein that is, the revision petitioner and the 3rd respondent

herein.    C.M.P.No.490 of 2011 was filed with the prayer to proceed

against the respondents therein/the revision petitioner and the third

respondent herein under Section 31 of the D.V. Act for violating the

order of the court.       All those Civil Miscellaneous Petitions filed in

M.C.No.38 of 2009 viz. C.M.P.Nos.252, 489 & 490 of 2011 were disposed

of by a common order dated 21.12.2011. At this juncture, it is to be

noted that pending M.C.No.38 of          2009 a suit for partition viz.,

O.S.No.5461 of 2009 was filed by the revision petitioner before the Court

of Additional City Civil Judge-38, Bangalore City for effecting partition of

the shared household and the appurtenant land. In the said suit the 3rd

respondent remained ex parte and ultimately the suit was decreed and it

was found that the revision petitioner herein is entitled to get half share

in the plaint schedule property viz., the house in question and the land

appertaining to it. Needless to say that the third respondent herein is

entitled to the other half. These facts were in fact, taken note of by the

learned Magistrate while passing orders in M.C.No.38 of 2009. In fact,

the order would reveal that the preliminary decree in the said suit was

produced in that proceedings and it was marked as Ext.D1. The fact that


going by Ext.D1 decree the 3rd respondent herein was having only half

share over the shared household was also taken note of by the learned

Magistrate. It was after taking note of Ext.D1 decree that M.C.No.38 of

2009 was disposed of as per order dated 4.9.2010 as aforesaid. It is to

be noted that while passing orders in M.C.No.38 of 2009 the learned

Magistrate after perusing Ext.D1 arrived at the conclusion that at that

stage respondents 1 and 2 herein/the petitioners therein got the right to

reside in the shared household till it is partitioned by metes and bounds

and after partition they would be having only the right to reside in the

share allotted to the first respondent therein/the 3rd respondent herein.

Availing the liberty granted under Ext.D1 it is said that the revision

petitioner and the third respondent effected partition of the shared

household as also the appertaining land and thereafter, in terms of the

deed whereby they effected partition, a final decree was also passed on

29.9.2011 in O.S.No.5461 of 2009 by the Court of Additional City Civil

Judge-38, Bangalore City.     The prayer in C.M.P.No.489 of 2011 itself

would reveal that it was filed after the passing of the preliminary decree

and the consequential registration of the partition deed executed

between the revision petitioner and the third respondent. The learned

Magistrate considered all such aspects while disposing of C.M.P.Nos 252,

489 and 490 of 2011 as per common order dated 21.12.2011. After


hearing both the parties the learned Magistrate found that by the

execution of the partition deed allotting the entire building to the share

of the revision petitioner, the first respondent herein/the petitioner

therein would not be able to reside in the shared household and that the

court could not ignore a decree passed by a competent Civil Court

regarding the share of the parties.        Consequently, the prayer in

C.M.P.No.489 of 2011 to modify the order dated 4.9.2010 in M.C.No.38

of 2009 and to permit the first and second respondents to reside in the

shared household ignoring the partition deed was held as not allowable.

In C.M.P.No.490 of 2011 which carried the prayer to proceed against the

revision petitioner and the third respondent for violation of the order

passed by the learned Magistrate in M.C.No.38 of 2009 in the light of the

partition effected based on a decree passed by a competent Civil Court it

was observed that it could not be held that the revision petitioner and

the third respondent have violated the orders passed by the court though

the right of the first respondent to reside in the shared household was

virtually taken away by the partition deed. Accordingly, it was found that

there was no ground to proceed against the revision petitioner and the

third respondent      under Section 31 of the D.V. Act for violation of

orders. C.M.P.No.252 of 2011 seeking a direction to break open the

shared household and to afford protection to the first and second


respondents to reside in that house was also found not allowable as by

virtue of the said deed the revision petitioner herein got the exclusive

ownership and possession of the entire shared household. At the same

time, it was observed that the first respondent herein would have the

right to demand alternate accommodation from the 3rd respondent

herein/the first respondent therein, as she is unable to reside in her

shared household due to the execution of the partition deed. With the

said observations virtually, all the three miscellaneous petitions were

dismissed as per common order dated 21.12.2011. Respondents 1 and

2 herein/the petitioners in the aforesaid miscellaneous petitions preferred

appeals against the orders in C.M.P.Nos.489 and 490 of 2011 as

Crl.A.Nos.222 of 2012 and 225 of 2012 respectively. It is to be noted

that though as per the aforesaid common order C.M.P.No.252 of 2011

filed by the first respondent herein to break open the shared household

and afford her protection to reside in that house was also dismissed

assigning the aforementioned reason obviously, no        appeal was filed

against the same. The Court of Additional Sessions Judge-V, Ernakulam

considered the criminal appeals and allowed the appeals as per a

common judgment dated 6.12.2013. As per the said common judgment

the learned Sessions Judge set aside the common order passed by the

learned Magistrate in C.M.P.Nos.489 and 490 of 2011 though the learned


Magistrate, in fact, dismissed C.M.P.No.252 of 2011, as well, by the said

common order assigning the aforementioned reason and respondents 1

and 2 did not file any appeal against the said order.           As per the

impugned common judgment dated 6.12.2013 the appellate court

ordered thus:-




       "(a) As the purported final decree and the partition deed
            are non est and only to be ignored the appellants are
            entitled to reside at the shared household which is the
            ground floor of the house building bearing No.158 old
            No.71/1 Nandidurga road, Bangalore.

       (b) The 2nd respondent is hereby directed to remove
            structures if any made after obtaining the purported
            final decree and make the ground floor of the said
            building inhabitable at her own costs within 45 days
            from the date of this order.

       (c) If respondents 1 & 2 are causing any obstruction to the
            entry of the appellants in to the shared household or
            causing any obstruction to the peaceful residence of
            the appellants in the ground floor of the said building
            the appellants are at liberty to approach the S.H.O. of
            the Police Station concerned first and if the police has
            not taken action to implement the above order and
            remove the obstruction the appellants are entitled to
            approach the learned Magistrate court which passed
            the order in M.C.38/09.

       (d) The appellants are entitled to recover Rs.5000/- as
            costs of appeal from the respondent No.1 & 2 and
            from their assets.

       (e) CMP 490/2011 is remanded back to the JFCM-I,
            Ernakulam for fresh disposal according to law within 4
            months     from   today   after  affording   reasonable


            opportunity to both sides to adduce evidence and
            hearing both sides and untrammelled by any of the
            observations made in this common judgment.

       (f) It is further made clear that the learned Magistrate if
            found that there is breach of protection order by the
            respondents or any of the respondents the Magistrate
            shall proceed against them/him/her after framing
            charge as stated under sub section (3) of S.31 of the
            PWDV Act 2005.

       (g) The parties in CMP 490/11 are directed to appear
            before the trial court on 21.12.2013."


As noticed hereinbefore, Crl.R.P.No.102 of 2014 is filed against the

judgment in Crl.A.No.222 of 2012 and Crl.R.P.No.111 of 2014 is filed

against the judgment in Crl.A.No.225 of 2012.




             4. I have heard the learned Senior counsel Sri.George

Thomas Mevada appearing for the revision petitioner in both these

revision petitions and Sri.Philip Mathew, the learned counsel appearing

for respondents 1 and 2. Though notice was issued to the 3rd respondent

it was returned initially and thereafter it was served by affixture.




             5. The learned Senior counsel appearing for the revision

petitioner submitted that a perusal of the order of the learned Magistrate

in M.C.No.38 of 2009 would reveal that it was passed after taking into

consideration the judgment and decree in O.S.No.5461 of 2009. The


subsequent common order in the Civil Miscellaneous Petitions in

M.C.No.38 of 2009 and the common judgment against which above

criminal revision petitions are filed, would reveal that they were passed

taking note of the factum of passing of a preliminary decree in

O.S.No.5641 of 2009, the consequential partition deed as also the final

decree.    The learned Magistrate, in the order in M.C.No.38 of 2009,

arrived at the following conclusion:-




           "So, the possible conclusion at this stage is that the
           petitioners have the right to reside in their shared
           household till it is partitioned by metes and bounds,
           and after partition, they have the right to reside in the
           share allotted to the first respondent."




The order dated 4.9.2010 was passed in M.C.No.38 of 2009, as already

mentioned, in tune with the aforesaid conclusion. It was thereafter that

respondents 1 and 2 herein/the petitioners in M.C.No.38 of 2009 filed

C.M.P.Nos.252, 489 and 490 of 2011 before the court and the common

order was passed thereon dismissing them with observations, as

aforesaid.    Thus, obviously, honouring the judgment and preliminary

decree, the partition and the final decree in the aforesaid suit the learned

Magistrate dismissed those petitions observing that the first respondent

still got the right to demand alternate accommodation from the 3rd


respondent herein.        However, the learned Sessions Judge, after

considering the very same aspects, held that the decree passed by the

Court of City Civil Judge-38, Bangalore City and also the partition deed

executed pursuant to the final decree are non est and therefore, they are

only to be ignored and found that the petitioners therein/first and second

respondents herein are entitled to reside in the shared household which

is the ground floor of the house building bearing No.158 (Old No.71/1),

Nandidurg road, Bangalore. Consequential orders were also passed as

mentioned hereinbefore. The learned Senior counsel for the revision

petitioner contended that the action on the part of the learned Sessions

Judge in arriving at the finding and issuing orders to the effect that the

final decree and the partition deed are non est and therefore, to be

ignored is one which is passed without any jurisdiction as a decree

passed by a competent Civil Court could not be interfered with and set

aside in a collateral proceedings, that too, in a criminal proceedings. To

buttress the said contention the learned Senior counsel relied on the

decision of the Hon'ble Apex Court in Union of India and Others v.

Major S.P.Sharma and Others ((2014) 6 SCC 351).                The learned

Senior counsel, in the light of the said decision, further contended that

when once it is found that the learned Sessions Judge exceeded the

jurisdiction in holding the final decree and partition deed as non est and


that the consequential orders are founded on such finding, the impugned

common judgment is liable to be set aside.       Per contra, the learned

counsel appearing for respondents 1 and 2 submitted that the common

judgment passed by the learned Sessions Judge is not suffering from any

legal infirmity or perverseness and the said judgment cannot be said to

be passed against the weight of evidence or infected with an error in law.

In short, according to the learned counsel for respondents 1 and 2, the

impugned common judgment is only to be sustained.             The learned

counsel asserted that the final decree was also produced along with the

objection filed by the revision petitioner herein/2nd respondent therein,

before the learned Magistrate and further contended that as held by the

learned Sessions Judge the said decree was obtained by the revision

petitioner by fraud and a decree obtained by fraud is a nullity. Therefore,

the learned Sessions Judge was perfectly right in holding the decree and

the consequential partition deed as non est, it is contended.           To

substantiate the said contentions the learned counsel relied on the

decisions of the Hon'ble Apex Court in S.P.Chengalvaraya Naidu v.

Jagannath and Others (1995 KHC 182), A.V.Papayya Sastry and

Others v. Government of A.P. and Others ((2007) 4 SCC 221) and

Ruby Sales and Services (P) Ltd. and Another v. State of

Maharashtra and Others ((1994) 1 SCC 531). Yet another


contention taken is that the final decree which was passed in

O.S.No.5461 of 2009 by the Court of Additional City Civil Judge-38,

Bangalore City has to be ignored as it is a compromise decree passed

based on the partition deed effected availing the liberty granted by the

preliminary decree and that the said agreement was entered into by the

revision petitioner and the third respondent to defeat the right available

to respondents 1 and 2 by virtue of the order in M.C.No.38 of 2009. In

the context of the said contention it is only apropos to note the following

aspects:-

             Taking note of the judgment and decree in O.S.No.5461 of

2009 of the Court of the Additional City Civil Judge-38, Bangalore City

the learned Magistrate arrived at the conclusion in M.C.No.38 of 2009

that the petitioners therein (respondents 1 and 2 herein) got right to

reside in their shared household till it is partitioned by metes and bounds

and after partition, they have the right to reside in the share alloted to

the first respondent therein (the third respondent herein).         Further

orders and directions were issued as per the order in M.C.No.38 of 2009

in tune with such conclusion. Even then, respondents 1 and 2 did not

challenge the said order in M.C.No.38 of 2009 dated 4.9.2010. True

that, subsequently, CMP.No.489 of 2011 was filed seeking modification of

the order passed in M.C.No.38 of 2009 and to permit them to reside in


the shared household ignoring the partition deed executed between the

revision petitioner and the 3rd respondent herein.       To fortify the said

claim and the contention in support of it the learned counsel relied on the

decisions in Narayanan v. Rajamany (1995 (2) KLT 351), Raman

Pillai Kanakku Madhavan Nair v. Gowri Pillai Thankachi

Bhagavathi Pillai Thankachi (1953 KLT 382), Prithvichand

Ramchand Sablok v. S.Y.Shinde ((1993) 3 SCC 271) and Ruby

Sales and Services (P) Ltd. and Another v. State of Maharashtra

and Others ((1994) 1 SCC 531). Taking note of the other contentions

raised on behalf of the revision petitioner that the first respondent herein

has already abandoned the claim for monetary benefits the learned

counsel for respondents 1 and 2 contended that the said contention is

unsustainable for various reasons. Firstly, it is contended that only an

existing right could be waived or relinquished and for waiving or

relinquishing a right there should be a conscious and voluntary waiver.

To support the said contention the decisions in A.P.Srtc and Others v.

S.Jayaram ((2004) 13 SCC 792),               Ayanikkattu Unniraja and

Others v. K.P.Gurudas (2014 (1) KHC 473), Mariam Koshy v. Jolly

Varghese and Others (2007 (4) KLT 803), Usha Thayyil and

Others v. State of Kerala and Others (2009 (4) KLT 1), Sreesan

E.A. v. Manager, P.M.S.A.High School and Others (2012 (3) KLT


551) and Ravindran Nair v. Sakunthala Amma (1978 KLT 246)

were relied on. Learned counsel for respondents 1 and 2 would further

submit that even if the parties are living separately the wife who has

been living separately from her husband even before the coming into

force of the D.V. Act would also be entitled to the benefit of the said Act.

To drive home the said point the learned counsel relied on the decisions

in Bhanot V.D. v. Savita Bhanot (2012) 3 SCC 183), Sabana alias

Chand Bai and Another v. Mohd. Talib Ali and Another (2014 KHC

2373) and Saraswathy v. Babu ((2014) 3 SCC 712).




             6. In the light of the aforesaid rival contentions I will firstly

consider the question whether a partition deed effected pursuant to

preliminary decree and final decree passed pursuant thereto by a

competent Civil Court could be held as non est and therefore liable to be

ignored, in a collateral proceedings that too, in a criminal proceedings.

The said question is no more res integra as the said question was

pointedly posed for consideration and answered by the Hon'ble Apex

Court in Inderjit Singh Grewal v. State of Punjab (2012 Crl.L.J.

309) and Union of India and Others v. Major S.P.Sharma and

Others ((2014) 6 SCC 351). It will only be appropriate to refer to the

question of law that came up for consideration of the Hon'ble Apex Court


in Inderjit Singh's case (supra) and the same reads thus:-




        "The appeal raises a substantial question of law as to
        whether the judgment and decree of a competent Civil
        Court can be declared null and void in collateral
        proceedings, that too, criminal proceedings."




In this context, it is appropriate to note that a perusal of the impugned

judgment in this case would make it clear that respondents 1 and 2

herein took up a contention before the learned Sessions Judge that the

said decree in O.S.No.5641 of 2009 was obtained by fraud and

therefore, the partition deed executed pursuant to the preliminary

decree and the final decree passed pursuant thereto were only to be

ignored as they are non est. In Inderjit Singh's case (supra) also a

plea of fraud was alleged by the 2nd respondent therein in respect of a

decree of divorce obtained from a Civil Court by her husband and in fact,

in that case, such a decree was obtained by mutual consent. Essentially,

paragraph 6 of the said decision would reveal that she had resisted the

appeal contending that the decree of divorce was a nullity and it was

obtained by fraud. Paragraph 10 of the said decision would reveal that

while considering the aforesaid aspects the Hon'ble Apex Court

considered yet another question as to whether the reliefs sought for in

the complaint involved in that case could be granted by a criminal court


so long as the judgment and decree of a Civil Court subsist. In the

contextual situation, it is apposite to refer to paragraphs 11-14 in the

said decision. Paragraph 11 reads thus:-




      "11. It is a settled legal proposition that where a person
           gets an order/office by making misrepresentation or
           playing fraud upon the competent authority, such
           order cannot be sustained in the eyes of the law as
           fraud unravels everything. "Equity is always known to
           defend the law from crafty evasions and new
           subtleties invented to evade law." It is a trite that
           "Fraud and justice never dwell together" (fraus et jus
           nunquam cohabitant). Fraud is an act of deliberate
           deception with a design to secure something, which is
           otherwise not due.        Fraud and deception are
           synonymous. "Fraud is an anathema to all equitable
           principles and any affair tainted with fraud cannot be
           perpetuated or saved by the application of any
           equitable doctrine." An act of fraud on court is always
           viewed seriously. (Vide: Meghmala & Ors. v.
           G.Narasimha Reddy & Ors., (2010) 8 SCC 383:
           (2010 AIR SCW 5281)."




Even after making such observations in the light of the earlier decision of

the Hon'ble Apex Court in Meghmala & Ors. v. G. Narasimha Reddy

& Ors. ((2010) 8 SCC 383) in paragraph 12, the Hon'ble Apex Court

raised another point for consideration that is, whether it is permissible

for a party to treat the judgment and order as null and void without

getting it set aside from the competent court. Thereafter, it was found

that the said issue is no more res integra and it stood settled by a catena


of decisions of the Hon'ble Apex Court. In the light of the decisions in

State of Kerala v. M.K.Kunhikannan Nambiar Manjeri Manikoth

Naduvil (dead) & Ors (AIR 1996 SC 906) and Tayabbhai M.

Bagasarwalla & Anr. v. Hind Rubber Industries Pvt. Ltd. (AIR

1997 SC 1240) it was held that for setting aside such an order, even if

void, the party has to approach the appropriate forum. Paragraphs 13

and 14 also pertain to consideration of the aforesaid question. In

paragraph 13 thereunder the decision of the Hon'ble Apex Court in

Sultan Sadik v. Sanjay Raj Subba & Ors. (AIR 2004 SC 1377) to

the effect that even if an order is void or voidable the same requires to

be set aside by the competent court was taken note of. Virtually, in

paragraph 14 an earlier decision of the Hon'ble Apex Court in

M.Meenakshi & Ors. v. Metadin Agarwal (dead) by Lrs. & Ors.

((2006) 7 SCC 470) was quoted with approval.           In that case, the

Hon'ble Apex Court considered the issue at length and observed that

if the party feels that the order passed by the court or a statutory

authority is non est/void, he should question the validity of the said

order before the appropriate forum resorting to the appropriate

proceedings. The findings of the Hon'ble Apex Court in the said decision

was thereafter quoted with approval as hereunder:-


                   "It is well settled principle of law that even a
          void order is required to be set aside by a competent
          Court of law, inasmuch as an order may be void in
          respect of one person but may be valid in respect of
          another. A void order is necessarily not non est. An
          order cannot be declared to be void in collateral
          proceedings and that too in the absence of the
          authorities who were the authors thereof."




The Hon'ble Apex Court also took note of its earlier decision in Sneh

Gupta v. Devi Sarup & Ors. ((2009) 6 SCC 194) reiterating the

similar view. Virtually, the said decision was restated by the Hon'ble

Apex Court in Union of India and Others v. Major S.P.Sharma and

Others ((2014) 6 SCC 351).              Paragraph 70 of the said decision

assumes relevance in this context and it reads thus:-


           "A decision rendered by a competent Court cannot be
           challenged in collateral proceedings for the reason
           that if it is permitted to do so there would be
           "confusion and chaos and the finality of proceedings
           would cease to have any meaning."


In view of the said decisions it is evident that the position was settled

by the Hon'ble Apex Court that even if a party feels that an order or

decree passed by a court of competent jurisdiction or an authority is

non est/void the said party should question the validity of the said order

before the appropriate forum resorting to appropriate proceedings and

as long as the decree of a Civil Court subsists a Criminal Court cannot


arrive at a finding that the said decree passed by the competent Civil

Court is non est or void in the collateral proceedings before it. In short,

the essence of the decision is that even if a decree or an order is non est

or void in the estimation of a party, the party who is entertaining such a

feeling   should    approach  the   appropriate   forum    in  appropriate

proceedings and get it set aside and unless a court of competent

jurisdiction set aside such decree or an order over which the party

entertained such a feeling it could not be said to be non est whilst it has

to be treated as valid. When that is the exposition of law by the Hon'ble

Apex Court I am of the view that respondents 1 and 2 cannot rely on the

decisions referred to hereinbefore to support the finding of the learned

Sessions Judge in respect of the final decree passed by the Court of

Additional City Civil Judge-38, Bangalore City and also the observation

that the said final decree and the partition deed effected pursuant to its

preliminary decree are non est and are only to be ignored. In the light of

the aforesaid position of law, the reliefs sought for, on treating the

partition effected pursuant to the preliminary decree could not have been

upheld.     Add to it, in this case, a final decree was also passed

subsequently. As noticed hereinbefore, the learned Sessions Judge was

only considering appeals preferred by respondents 1 and 2 herein

against the common order passed by the learned Magistrate in


C.M.P.Nos.252, 489 & 490 of 2011 in M.C.No.38 of 2009. When once it

is so found the finding of the learned Sessions Judge that the decree

passed by the Court of Additional City Civil Judge-38, Bangalore City and

the partition deed are non est and therefore, to be ignored has to be held

as suffering from legal infirmity and in fact, it is an illegality and the

same has to be set at right in invocation of the revisional jurisdiction of

this Court. A scanning of the impugned common judgment would reveal

that the directions extracted above were passed in Crl.A.Nos.222 & 225

of 2012 by the learned Sessions Judge based on the finding that the first

and second respondents are entitled to reside at the shared household.

In the said factual and legal positions obtained in this case I am at a loss

to understand as to how a criminal court could arrive at a finding that a

decree passed by a competent Civil Court in a suit for partition declaring

the rights of the parties therein in accordance with law was obtained by

fraud. When there are only two legal heirs for the estate of a deceased

person how can the declaration of half right to one of them in a properly

instituted suit could be said to be `not in accordance with law.' If at all

any such grievance exists with respect to the decree or the partition

effected pursuant thereto such contentions could be upheld only by a

competent forum in appropriate proceedings that too, after specifically

raising the necessary allegations with respect to fraud and on proving the


same. In such circumstances, even if respondents 1 and 2 feel that the

decree was obtained by fraud and the partition deed was not executed in

accordance with law, necessarily, they ought to have worked out their

remedies in accordance with law, in appropriate proceedings. The

learned counsel for respondents 1 and 2 contended that it is a matter

which could be gone into by this Court in these revision petitions.      I am

of the view that as the Hon'ble Apex Court laid down the position of law

that a decree of a competent Civil Court could not be challenged in a

collateral proceedings that too, in a criminal proceedings, this Court also

cannot look into the contentions raised by respondents 1 and 2 on the

ground of fraud to challenge the sustainability or otherwise of the final

decree and the partition deed in these criminal revision petitions. In this

case, yet another aspect also assumes relevance. The decree in question

was passed by the Court of Additional City Civil Judge-38, Bangalore City

in O.S.No.5461 of 2009 and the said Civil Court lies within the

jurisdiction of the State of Karnataka and in fact, within the jurisdiction of

High Court of Karnataka.




             7. As noticed hereinbefore, while passing the order in

M.C.No.38 of 2009 the learned Magistrate was fully aware of the

existence of the judgment and decree of a competent Civil Court in


O.S.No.5461 of 2009 which is a partition suit between the revision

petitioner and the third respondent herein and evidently, it was taking

into account the settled position of law that cautiously and correctly the

learned Magistrate moulded the relief while passing the order in

M.C.No.38 of 2009. The learned Magistrate ordered that the right of the

petitioners therein/respondents 1 and 2 herein, was only the right to

reside in the shared household of the first respondent till it is partitioned

by metes and bounds and it was also specifically ordered that after the

partition they would be having only the right to reside in the share

alloted to the third respondent.




             8. Bifold contentions, mutually contradictory to each other,

are raised by respondents 1 and 2. One is to the effect that no partition

deed was actually executed and the other is that the partition deed was

executed in such a way to defeat the purpose of the orders in M.C.No.38

of 2009 and therefore, it is vitiated by fraud. It is to be noted that

neither before the trial court nor before the appellate court the first

respondent took up the contention that the partition deed was not

actually executed. On the contrary, a perusal of paragraphs 6 and 12 of

the common order passed by the learned Magistrate dated 21.12.2011

and paragraph 2 of the impugned common judgment of the learned


Sessions Judge dated 6.12.2013 would undoubtedly reveal that

C.M.P.No.489 of 2011 in M.C.No.38 of 2009 against the order of which

Crl.A.No.222 of 2012 was preferred, carried the prayer to modify the

order passed by the learned Magistrate in M.C.No.38 of 2009 and to

permit respondents 1 and 2 (the petitioners therein) to reside in the

shared household ignoring the partition deed executed between the

revision petitioner and the third respondent viz., respondents 1 and 2

therein. It is also relevant to note that it was based on the contentions

raised by respondents 1 and 2 who were the appellants therein that the

learned Sessions Judge as per the impugned common judgment held the

purported final decree and the partition deed as non est and only to be

ignored.    In the said circumstances, respondents 1 and 2 cannot be

heard to take up the contention, that too for the first time before this

Court in the revision petitions filed by the revision petitioner herein/the

2nd respondent therein, that no partition deed was executed between the

revision petitioner and the third respondent herein pursuant to the

preliminary decree in O.S.No.5641 of 2009 and final decree in

FDP.142/2010. These contentions therefore, are liable to be rejected at

the threshold. Now, I will consider the next contention, may be, the

alternative contention. It is evident that a final decree was also passed

in O.S.No.5641 of 2009 by the Court of the Additional City Civil Judge-


38, Bangalore City in FDP.142/2010. Virtually, in the light of the said

final decree and the partition deed that the situation whereunder

respondents 1 and 2 could not enter into the house and to reside

thereon, arose and that prompted them to approach the learned

Magistrate again. In the said context, certain other aspects have to be

considered. As noticed hereinbefore, as per the preliminary decree in

O.S.No.5461 of 2009 the Court of           Additional City Civil Judge-38,

Bangalore City declared that the plaintiff       therein viz., the revision

petitioner herein is having half share in the plaint schedule property.

Naturally, taking into account the fact that the third respondent is the

other legal heir entitled to the other half, as per the preliminary decree,

the revision petitioner and the 3rd respondent were given the liberty to

effect the partition in accordance with the said preliminary decree by

compromise and to approach the court for partition to be effected by

deputing an Advocate Commissioner, in case they find it difficult to effect

such partition on agreement. When the learned Magistrate passed the

order in M.C.38 of 2009 taking note of the said preliminary decree and

made it very clear in the order itself that after partition, respondents 1

and 2 would be having the right to reside only in the share allotted to the

third respondent herein, how can they contend that the third respondent

and the revision petitioner are liable to be proceeded under Section 31 of


the D.V. Act. Evidently, based on the rival pleadings both the courts

found that a partition deed was executed.         Whether the property in

question that is, plaint schedule property is partiable and in what manner

it could be partitioned and whether the partition was effected in such a

manner solely for defeating the right of the parties could be decided only

if respondents 1 and 2 raise such question in appropriate proceedings

before the appropriate forum. Evidently, the partition was taken note of

and the competent Civil Court passed the final decree.           I have no

hesitation to hold that a criminal court in collateral proceedings cannot

arrive at a finding that the partition effected was not in tune with the

preliminary decree especially, when it is the indisputable position that

after the partition deed, taking note of it, a final decree was also passed.

In such circumstances, if in a collateral proceedings that too, in criminal

proceedings, the final decree and also the partition deed are held as non

est it would amount to unsettling the finality in the appropriately

instituted civil suit as held by the Hon'ble Apex Court.       The order in

M.C.No.38 of 2009 would reveal that after taking note of the judgment

and decree the learned Magistrate held that the right to reside available

to the first respondent herein would be confined only to the share that is

alloted to the third respondent after the partition. Thus, going by the

order passed by the learned Magistrate after partition the right to reside


in the shared household of the first respondent would depend upon the

partition.   In the proceedings in C.M.P.Nos.252, 489 & 490 of 2011

before the trial court and also in Crl.A.Nos.222 and 225 of 2012 the

question whether the house in question was partiable and even if it is

partiable how it could have been partitioned could not have been

decided. The said question cannot be gone into in these proceedings as

well. A perusal of the order in M.C.No.38 of 2009 would reveal that it

was taking note of all such circumstances that the learned Magistrate

issued the order very carefully and cautiously restricting the right of the

first respondent to reside in the shared household till it is partitioned by

metes and bounds and making the same only in respect of the share to

be alloted to the third respondent as the partition was not then effected.

True that, at that point of time, by virtue of the order the first

respondent was to reside in the ground floor. But, the question is, in

such circumstances, even after the partition how could the learned

Sessions Judge hold that the ground floor of the said building should be

treated as the shared household as relates the first respondent. Is it not

an order affecting the partition and the final decree passed by a

competent Civil Court ? There is no case for respondents 1 and 2 that

going by the partition and the final decree the ground floor has been

alloted to the share of the third respondent. In fact, the contention is


otherwise. The direction of the learned Sessions Judge is virtually one in

supersession of the partition and the final decree and it would amount to

allotment of the ground floor towards the share of the third respondent.

Thus, in all respects the common judgment of the learned Sessions

Judge lancinated the decree of the competent Civil Court, without any

jurisdiction, that too in a criminal proceedings. This is clearly a violation

of the dictum laid down by he Hon'ble Apex Court in Inderjith Singh

Grewal's case and Major S.P. Sharma's case (supra). In the light of

the contentions of respondents 1 and 2 herein I am of the view that it

will not be inappropriate to consider another aspect, as well. It appears

that the sum and substance of the contentions of respondents 1 and 2 is

that even though the revision petitioner herein who is the sister of the

first respondent's husband, the third respondent, is having the half right

she could enjoy the same only without interfering with the right to reside

of the first respondent.     At the very outset, it is to be noted that the

order in M.C.No.38 of 2009 which was not taken up in appeal though

later, sought to be modified, virtually, restricted the right to reside in the

house till the partition and thereafter, only in the share alloted to the

the third respondent. In this context, it is to be noted that the first

respondent being the wife of the third respondent is having only a right

to reside in the house if it is her shared household. This position is


evident from Section 17 of the D.V. Act which reads thus:-




    "17. Right to reside in a shared household.-
              (1) Notwithstanding anything contained in any other
          law for the time being in force, every woman in a
          domestic relationship shall have the right to reside in the
          shared household, whether or not she has any right, title
          or beneficial interest in the same.

             (2) The aggrieved person shall not be evicted or
          excluded from the shared household or any part of it by
          the respondent save in accordance with the procedure
          established by law."




Section 17(2) would reveal that the aggrieved person could be evicted or

excluded from the shared household or any part of it by the respondent

in accordance with the procedure established by law.         It would thus

reveal that the right to reside in a shared household cannot be said to be

an indefeasible right. In this context, it is also to be noted that under

any circumstances if it is made impossible for the aggrieved person to

enjoy the accommodation in the shared household sufficient safeguard

has been made in the D.V. Act itself to protect the right guaranteed

under Section 17(1). A bare perusal of Section 19(1)(f) and Section

19(6) of the D.V. Act would unravel the said position and they read

thus:-



       "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-
            (a)...........................
            (b).............................
            (c).................................
            (d)............................
            (e).............................
            (f) directing the respondent to secure same level of
                alternate accommodation for the aggrieved person
                as enjoyed by her in the shared household or to
                pay rent for the same, if the circumstances so
                require.
            ...........................

       (6) While making an order under sub-section (1), the
            Magistrate may impose on the respondent obligations
            relating to the discharge of rent and other payments,
            having regard to the financial needs and resources of
            the parties."
                                                    (emphasis added)




Of course, an order under Section 19(1)(f) is permissible only on

satisfaction that domestic violence had taken place. In this case, even

according to the first respondent, she left her matrimonial home as early

as in the year 1998 and filed the petition under Section 12 of the D.V.

Act only in the year 2009. In this case, the revision petitioner is the

sister of the third respondent and she along with the third respondent

inherited the properties of their parents on their death. It is to obtain

her share that the aforementioned partition suit was filed and pursuant

to the decree it was partitioned in between the revision petitioner and


the third respondent in tune with Ext.D1 decree, referred as such in the

order in M.C.No.38 of 2009. The impugned orders would reveal that

pursuant to the preliminary decree a partition was effected and a final

decree was also passed by a competent Civil Court.                  In such

circumstances, on the strength of a decree of a competent Civil Court

and the partition the revision petitioner became entitled to enjoy her

share in the said property. There is nothing on record before the court

to suggest that the house in question was partiable and, even otherwise

essentially, the question whether a property scheduled in a suit for

partition is partiable or not is not a matter to be considered in a collateral

proceedings and that too, in a criminal proceedings. When the court of

competent jurisdiction passed a preliminary decree permitting the parties

to the suit to effect partition amicably after declaring the share and

thereafter passed a final decree the partition and the decree cannot be

set at naught in a criminal proceedings. Respondents 1 and 2 cannot be

heard to contend that they were not aware about the suit for partition

and also regarding the passing of a preliminary decree in the said suit for

partition and in fact, the preliminary decree was produced in the

proceedings in M.C.No.38 of 2009 and the order thereon was passed

taking into account the same. In such circumstances, respondents 1 and

2 cannot be heard to say that they were not aware that in terms of the


preliminary decree a partition might take place adverse to their interest

based on an amicable settlement between the revision petitioner and the

third respondent and that the order in M.C.No.38 of 2009 also restricted

their right to reside only in the share alloted to the third respondent.

Certainly, in the light of the settled position of law an endeavour to

challenge the partition and decree would not have been made by

respondents 1 and 2 in a collateral proceedings and at any time, it could

not have been accepted in a criminal proceedings.      Section 19(1)(f) of

the D.V. Act provides for issuing directions to the `respondent', which

term has been defined under Section 2(q) of D.V. Act, to secure same

level of alternate accommodation for the aggrieved person as enjoyed by

her in the shared household or to pay rent for the same, if the

circumstances so require. Considering the right which is available under

Section 17 and especially, taking into account the circumstances it

cannot be said that respondents 1 and 2 could insist for direction to

continue residence in the shared household itself ignoring the judgment

and decree passed by competent Civil Court whilst the first respondent

could only insist for protection of her right guaranteed under Section 17

of D.V. Act taking note of the provisions under Section 19(1)(f) of the

said Act. A combined reading of Section 17(2) and Sections 19(1)(f) and

19(6) of the D.V.Act would reveal that while giving utmost care and


protection to an aggrieved party especially, in respect of protection

orders, the D.V. Act does not intend to defeat or deny the rights of

others available in respect of a shared household lest the provisions

under Sections 19(1)(f) and 19(6) would not have been incorporated to

ensure protection of right to reside available under Section 17(1), of the

D.V. Act. A close scrutiny of the common order of the learned Magistrate

would reveal that even while dismissing the Miscellaneous Petitions the

learned Magistrate has specifically found that the first respondent herein

would have the right to demand alternate accommodation (Is it not

alternative accommodation?) from the third respondent herein taking

into account the fact that her right to reside in the shared household was

made impossible due to the execution of the partition deed.           This

certainly is the right and protection available in such circumstances, in

terms of Sections 19(1)(f) and 19(6) of the D.V. Act.         This position

makes the impugned common judgment all the more, unsustainable.

The first respondent was residing separately from her husband since

1998 and thereafter she did not stay with him in the shared household

and she along with the second respondent is residing at Ernakulam. All

these circumstances would indicate that it is a fit case for the first

respondent to work out her claim for alternate accommodation

(alternative accommodation) as against the third respondent, in


accordance with law.       The above mentioned finding of the learned

Magistrate would reveal that the common order dated 21.12.2011 is a

well-merited one passed in conformity with the aforementioned

provisions of law and also the position of law settled by the Hon'ble Apex

Court as mentioned hereinbefore. For the aforesaid reasons, I am of the

considered view that the learned Sessions Judge was not justified in

upturning the common order passed by the learned Magistrate in

C.M.P.Nos.252, 489 and 490 of 2011 in M.C.No.38 of 2009.




             9. It is also to be noted that though a common order was

passed in C.M.P.Nos. 252, 489 and 490 of 2011 filed by respondents 1

and 2 herein, the order of dismissal in C.M.P.No.252 of 2011 which

carried the prayer to issue a direction to the S.H.O., J.C Nagar Police

Station, Bangalore to break open the door of the shared household and

afford protection to reside thereon, was not challenged by respondents 1

and 2.




             10. The long and short of the above discussion is that the

challenge against the impugned common judgment has to succeed.

Accordingly, the judgment of the Court of the Additional Sessions

Judge-V, Ernakulam in Crl.A.Nos.222 of 2012 and 225 of 2012 are set


aside and the common order passed by the learned Magistrate dated

21.12.2011 is restored.    In the circumstances, in terms of the said

orders it will be open to the first respondent to demand alternative

accommodation from the third respondent herein, in accordance with

law.

             The Criminal Revision Petitions are allowed as above.




                                                           Sd/-
                                                    C.T.RAVIKUMAR
                                                         Judge



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