OMANA THOMAS Vs. AJITH PRAKASH

JUDGEMENT

(1.) Under challenge in this Revision Petition is the judgment of the Additional Sessions Court - VIII, Ernakulam, in Crl.Appeal No.286/2023, which appeal was carried from the judgment in M.C.No.43/2022, of the Additional Chief Judicial Magistrate's Court (E.O), Ernakulam, a proceeding initiated under the provisions of the Protection of Women from Domestic Violence Act, 2005 ('D.V. Act', for short). The petitioner in the M.C, a woman aged 84 years, sought relief against her son in terms of Sec. 18 and 19 of the D.V. Act. Finding domestic violence, the learned Additional Chief Judicial Magistrate granted reliefs, both under Ss. 18 and 19, including the relief compelling the respondent/son from removing himself from the shared household, within a period of two weeks. However, in Appeal, all the reliefs, except the one under Sec. 19(1)(b) - which mandated the respondent/son from removing himself from the shared household - was confirmed. As regards that relief, the appellate court, in the impugned judgment, found that the relief under Sec. 19(1)(b) of the D.V. Act cannot be resorted to by the petitioner (revision petitioner herein) as a short cut to get the respondent evicted from the shared household, especially when a civil suit for the same relief of eviction is pending consideration before a competent civil court. The first appellate court also frowned upon the evidence adduced by the revision petitioner through her daughter/power of attorney (both of whom were the plaintiffs in the civil suit) for the reason that the power holder had no personal knowledge of the facts involved in the case. Accordingly, relief under Sec. 19(1)(b) of the D.V. Act is refused, while the relief under Sec. 18(a) and (b), as also, under Sec. 19(1)(a) were confirmed.

(2.) Heard Sri.S.Sreekumar, learned Senior Counsel duly instructed by Adv.Manu Roy, on behalf of the revision petitioner; and Sri.Ramesh Chander, learned Senior Counsel, duly instructed by Adv.C.P.Udayabhanu, on behalf of the respondent. Perused the records.

(3.) Learned Senior Counsel for the revision petitioner would submit that the appellate court grievously erred in refusing the relief under Sec. 19(1)(b), despite finding the requirements of (i) shared household and (ii) domestic violence committed therein in favour of the revision petitioner. Learned Senior Counsel pointed out that both the premises creased out to refuse relief under Sec. 19(1)(b) are erroneous. Insofar as the power of attorney is concerned, it is the submission of the learned Senior that the power holder is not a stranger, but the daughter herself of the executant of the power of attorney, wherefore, the contention that the power holder had no direct knowledge about the domestic incidents/violence, is bereft of any bonafides. Learned Senior Counsel would hasten to add that when relief is liable to be granted on the basis of documentary evidence adduced, the contention of the power of attorney holder lacking personal knowledge of the facts should not have weighed much with the learned Additional Sessions Judge, more so when the petitioner is an 84 years old woman, who had suffered domestic violence at the hands of her own son. The second finding of the appellate court that, on granting relief under Sec. 19(1)(b), the civil suit will become infructuous, is completely misconceived, according to the learned Senior Counsel. The parameters for grant of reliefs in a civil suit are completely different from those for granting reliefs under the D.V. Act. In support of his contention, learned Senior Counsel would rely upon a judgment of the Hon'ble Supreme Court in Sathish Chander Ahuja v. Sneha Ahuja [2020(5) KHC 496 (SC)]. On such premise, learned Senior would seek interference by this Court in the instant revision, so as to restore the relief under Sec. 19(1) (b) of the D.V. Act.