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:
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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