Sheeba vs Jojan Abraham and State of Kerala

Thomas P. Joseph, J.—Fight between an estranged husband and wife taken up before the Family Court either in the form of a request for divorce or for return of gold ornaments and patrimony has transformed into allegation regarding violation of rights under the Protection of Women from Domestic Violence Act, 2005 - this title, in my view is not appropriate since it ought to have been The Protection of Women (from Domestic Violence) Act, 2005 (for short, "the Act"). Petitioner/wife, making various allegations against the first Respondent/husband including illicit affair with another lady sought various reliefs from the learned Judicial First Class Magistrate, Pala under the provisions of the said Act in M.C. No. 18 of 2009. It included a prayer for maintenance, a protection order and an order restraining the first Respondent alienating item Nos. 1 to 5 properties scheduled in the petition which included the shared household as well. Petitioner claimed that at a time when she was working abroad, she had sent her earnings from her hard toil to the first Respondent, it was remitted in their joint account and making use of the said money and her ornaments and patrimony given at the time of marriage, item Nos. 1 to 5 were purchased. The claim was resisted by the first Respondent. Parties had adduced before learned Magistrate who passed Annexure-A, order restraining the first Respondent from alienating item Nos. 1 to 5 properties including the shared household except with the permission of the learned Magistrate and prohibiting the first Respondent from committing domestic violence. The request for maintenance was disallowed as that was already granted by the Family Court in a separate proceeding.

In the meantime the Family Court had by a common order dismissed the petition for divorce filed by the first Respondent and allowed the suit filed by the Petitioner for return of gold ornaments and patrimony, in part. First Respondent challenged the said common order in this Court in Mat.Appeal. Nos. 614 of 2010 and 817 of 2010 moved application for stay of execution of the decree in Mat. Appeal. No. 614 of 2010. This Court on November 25, 2010 on C.M.A. No. 2508 of 2010 in the said appeal and the connected appeal directed by Ext. R1(A), order that first Respondent shall deposit 10% of the entire amount offer security for the rest of the amount due under the decree as on that day before the Family Court within 60 days. It was made clear that if there was any attachment of property (I am told the entire properties were placed under attachment as per the order of Family Court), first Respondent was put at liberty to offer the same property as security and the Family Court was directed to accept the same as security if the same otherwise was found sufficient and adequate (to satisfy the decree amount less 10% directed to be deposited).Since there was attachment over the entire properties, the first Respondent moved I.A. No. 288 of 2011 in Mat. Appeal No. 614 of 2010 for modification of Ext. R1(A), order. That application was disposed of by Annexure-R1 (B), order dated February 07, 2011. This Court directed that Annexure-R1 (A), order dated November 25, 2010 is modified subject to the first Respondent depositing the entire amount (including the interest due till that day) as per the impugned decree within six weeks from the said order. It is submitted that accordingly the first Respondent has deposited the entire amount ( Rs. 9,30,540/-) in the Family Court as evidenced by Annexure-R1 (C), receipt dated March 17, 2011.

In view of the said deposit, first Respondent sought permission of the learned Magistrate to sell the properties scheduled in M.C. No. 18 of 2009. First Respondent claimed that he had raised the money by way of loan from private financing institutions, the interest is mounting up and that he had no other means to discharge that liability except by sale of the properties. That request was resisted by Petitioner on various grounds. Learned Magistrate passed Annexure-E, order permitting the first Respondent to sell the properties scheduled in M.C. No. 18 of 2009 except item No. 2 and the shared household therein. That order is under challenge in this proceeding. Learned Counsel for Petitioner would contend that to enable the learned Magistrate modify the order dated October 11, 2010 in M.C. No. 18 of 2009, there should have been a change in the circumstance (since the order dated October 11, 2010), but no such circumstance existed in the present case requiring any modification of the said order. It is contended by learned Counsel that it is making use of the money and ornaments belonging to the Petitioner also that the properties were acquired in the name of the first Respondent. Learned Counsel has read out from the judgment of the Family Court that the first Respondent in that proceeding had admitted that he had a joint account with the Petitioner and that he had withdrawn money from that joint account. Learned Counsel argued that Petitioner has a daughter born in the first Respondent and that learned Magistrate has not taken care of the future of Petitioner and her daughter while allowing the first Respondent to sell all the properties except item No. 2 which takes in the shared household. It is argued that at any rate, sale of all those items is not required to discharge the liability the first Respondent claims, he has. In the circumstance it is prayed that Annexure-E, order passed by the learned Magistrate being an abuse of the process of Court, may be quashed.

Learned Senior Advocate, appearing for the first Respondent referred to the circumstances which I have mentioned above and pointed out the extreme difficult situation in which the first Respondent was constrained to make a request to modify the order dated October 11, 2010 in M.C. No. 18 of 2009. It is argued by learned Senior Advocate that though there was a claim made by the Petitioner that the properties were acquired in the name of first Respondent making use of her funds also, learned Magistrate has not accepted that contention which has not so far been challenged. It is pointed out that rejection of the prayer for maintenance and claim of Petitioner that she is entitled to half right over the properties on account of her money also being used for acquisition of the said properties having not been accepted and the finding or order of learned Magistrate having become final, Petitioner cannot contend that the scheduled items were acquired with the funds of Petitioner as well. It is also argued that the first Respondent being the title holder of the properties the only right Petitioner now has, is as decreed by the Family Court and that amount has already been deposited as ordered by this Court. No interference with the order of learned Magistrate is called for, it is argued.

I consider it necessary to refer to the finding entered by the learned Magistrate (learned Magistrate has not numbered the paragraphs of the order dated October 11, 2010 and hence I am unable to refer to the paragraphs by its number). Learned Magistrate has found that though Petitioner made a prayer that first Respondent may be directed to assign the residential house and half share in the property in her favour, the said prayer of Petitioner cannot be allowed as the first Respondent has already been restrained from alienating the properties except with the leave of the Court and since the documents show that the properties stand in the name of the first Respondent. In short learned Magistrate has not accepted the contention of Petitioner that scheduled items were acquired by the first Respondent making use of her funds as well. Hence at this stage, in this proceeding Petitioner cannot set up a claim that the properties were acquired making use of her funds.

Then the next question is whether first Respondent should be permitted to alienate the properties as allowed by the learned Magistrate. Learned Magistrate permitted first Respondent to sell the properties other than item No. 2 and the shared house hold. I also referred to the order dated October 11, 2010 whereby learned Magistrate has given a residence order in favour of Petitioner regarding the shared household and against alienating the shared household and other items but, with a rider, except with the leave of learned Magistrate. Section 25(2) of the Act states that if the Magistrate on receipt of an application from the aggrieved person or the Respondent is satisfied that there is a change in the circumstance requiring alteration, modification or revocation of any order made under the Act, he may for reasons to be recorded in writing pass such order as he deems appropriate.

It is not as if learned Magistrate, once has passed an order u/s 12 of the Act is deprived of authority to alter, modify or revoke the said order even when there is change in the circumstances. Learned Counsel for the Petitioner would contend that there is no change in the circumstances in the present case requiring modification of the order. The circumstances contemplated u/s 25(2) of the Act need not necessarily be of the aggrieved person alone as is evident from the fact that request for alteration, modification or revocation can come from the ''Respondent'' as well. In other words, if there is change of circumstance so far as the first Respondent is concerned, it is open to him to move appropriate application u/s 25(2) of the Act.

The question is whether there is any change in the circumstance as first Respondent claimed. I have referred to the decree passed by the Family Court whereby the first Respondent is to pay satisfy part of the claim made by Petitioner towards the value of the gold ornaments and patrimony. Learned Senior Advocate in fairness conceded that Petitioner has filed a cross appeal in the MAT appeals filed by the first Respondent claiming that part of the money which was disallowed by the Family Court.

According to the learned Senior Advocate the claim of Petitioner based on the decree of the Family Court is concerned, it is already secured by the deposit evidenced by Annexure-R1 (C), receipt. Learned Senior Advocate also submitted that first Respondent is prepared to furnish security for the amount claimed in the cross appeal.

It is seen that subsequent to the order dated October 11, 2010 of the learned Magistrate, in the light of Annexures-R1 (A) and (B), orders the first Respondent has deposited Rs. 9,30,540/- though, as security for stay of recovery of the amount as per the decree of the Family Court. The first Respondent, in the application filed before the learned Magistrate stated that he has to raise money to be deposited as per decree of the Family Court and as directed by Annexures-R1 (A) and (B), orders. Learned Senior Advocate contended that the deposit evidenced by Annexure-R1 (C), receipt was facilitated by availing loan from a private financier with liability to pay huge interest and the interest is mounting up. I must also bear in mind that as things now stand, absolute owner of the properties is the first Respondent though learned Magistrate has issued certain orders as above stated. But that is limited to protect the interest of Petitioner. I do bear in mind that as pointed out by learned Counsel for Petitioner, the warring husband and wife have a daughter are also sibling whose interest also is to be protected. The Court has to strike a balance between the claim of Petitioner, the interest of herself and daughter and the proprietary right of the first Respondent. Having regard to these circumstances and considering the amount that first Respondent had to deposit as seen from Annexure-R1 (C), receipt, I consider that it is not necessary to permit first Respondent sell the entire items that learned Magistrate has permitted by the impugned order. Instead it is sufficient that permission is granted to the first Respondent to sell item Nos. 4 and 5 in the schedule attached to the petition in M.C. No. 18 of 2009. Learned Counsel for Petitioner submits that the said items come to about 3 acres which is not necessary to raise the sum of Rs. 9 lakhs. I must bear in mind as aforesaid that the property belongs to the first Respondent as things now stand and subject to the order passed by learned Magistrate on October 11, 2010, proprietary right of the first Respondent enables him to sell his property subject of course to safeguarding the interest of Petitioner and her daughter.

I make it clear that if the liability that first Respondent claims to have could not be discharged by sale of items Nos. 4 and 5, this order will not foreclose right of first Respondent to move learned Magistrate and seek permission for sale of other items (other than item Nos. 2 and the shared household) on showing sufficient reason and with notice to the Petitioner.

Resultantly this criminal miscellaneous case is allowed in part to the extent that permission granted by the learned Magistrate to the first Respondent for sale of properties vide order dated March 18, 2011 on C.M.P. No. 10540 of 2010 in M.C. No. 18 of 2009 shall be confined to item Nos. 4 and 5 in the schedule attached to the petition in M.C. No. 18 of 2009. I make it clear that the observations and findings made above will be confined to the disposal of this criminal miscellaneous case.