SHELLY vs JOY JOHN & ORS

The wife, aggrieved by the judgment in Crl.Appeal.Nos.244 and 269 of 2016 of the Additional District and Sessions Court, North Paravur

against the order in Crl.M.C.No.1 of 2014 of Judicial First Class Magistrate Court-I, North Paravur has preferred these revisions.

Crl.M.C.No.1 of 2014 was filed by the wife invoking section 12 of the Protection of Women from Domestic Violence Act. According to her,

the husband married her on 07.05.2008. It was her second marriage and in the earlier marriage, which had been terminated, she had a 16 year old

daughter. One son was born in the second marriage. She was working as a nurse in Austria and thereafter both husband and wife lived in

Switzerland, after the marriage, where she had got employment in the meanwhile. Husband also got employed in Switzerland. They earned

substantial amount and several properties were purchased by them. In 2013, she was diagnosed with cancer and hence, she returned. The

husband also left his employment and accompanied the wife to Kerala. They started residing in house No.284/II. It was alleged that while the

spouses were in Switzerland, husband used to harass her physically and mentally. He was alleged to be a drunkard and spendthrift. It was stated

that, on 24.12.2013, she was physically assaulted at the house in Kerala. She was assaulted by the husband, because when he demanded money,

it was refused by the wife. She claimed that, she was taken to hospital and crime No.2352 of 2013 was registered. On 31.12.2013, she returned

home from the hospital and found that the key of the almirah was missing. They opened the almirah with the help of a blacksmith and it was found

that, all gold ornaments, documents and ATM card kept in the almirah had vanished. It was alleged that the husband had taken the above articles.

It was alleged that she was harassed physically and mentally by the husband and his relatives. MC was hence filed against the husband, his sisters,

brother-in-law and relatives of the husband. She sought a protection order, residence order, order for returning valuables and documents and a

compensation of Rs.25,00,000/- for the mental agony. She also sought monthly maintenance of Rs.6,000/- for the child.

Husband appeared and filed detailed objection traversing and denying all allegations. It was stated that, both were employed in Switzerland and

were living happily. After she was diagnosed with cancer, he resigned his job and both returned to Kerala. There was absolutely no physical or

mental harassment and he was not a drunkard or spendthrift. He denied absolutely the allegations of domestic violence. It was also stated that the

house and property in which they were residing were jointly owned by the husband and wife. He had not removed any article or any other item.

The incident as alleged on 24.12.2013 had not happened and was only imaginary. She was taken to the hospital in connection with her cancer

treatment. It was also stated that the relatives had no connection with the above allegations. It was further alleged that, her relatives were spoiling

her.

On the basis of the above pleadings, PWs.1 to 3 were examined on the side of the wife and Exts.P1 to P4 were marked. Husband was

examined as RW1. Court below, on an appreciation of the entire evidence, found that, by virtue of an interim order, the husband and his relatives

were restrained from entering the disputed house and also from committing acts of domestic violence. The trial court found that, it was established

that the property was jointly owned by the husband and wife. Hence, it modified the order and permitted the husband to reside therein, subject to

the condition that, he shall not disturb her or her peaceful life or shall not commit any act of domestic violence. He was also restrained from

committing any acts of domestic violence. A compensation of Rs.25,000/- was ordered. All other claims were rejected. To that extent of the

order, declining various reliefs and granting relief in favour of the husband, criminal appeal was filed by the wife as Crl.Appeal.No.244 of 2016

before the Additional Sessions Court. Challenging that portion of the order to the extent it has gone against the husband, he preferred

Crl.Appeal.No.269 of 2016. Both the appeals were heard together and by a common order, all the reliefs granted in favour of the wife were

vacated and consequently, Crl.Appeal.No.244 of 2016 filed by the wife was dismissed. Criminal appeal No.269 of 2016 was allowed vacating

the reliefs granted in favour of the wife. Challenging the dismissal of Crl.Appeal.No.244 of 2016, wife has preferred Crl.R.P.No.195 of 2017. As

against the order in the Crl.Appeal, allowing Crl.Appeal.No.269 of 2016, wife has preferred Crl.R.P.No.385 of 2017.

Heard both sides and examined the records.

Essential facts touching upon the marriage, birth of the child, the stay in Switzerland and the return of the spouses in July 2013 to Kerala are not

in dispute. The crucial question that came up before the trial court was whether there was any evidence to substantiate the allegation of domestic

violence. The specific allegation of the wife was that husband had harassed her physically and mentally at Switzerland. He continued thereafter,

when they were in Kerala, initially resulting in an allegation of physical violence on her on 24.12.2013. Trial court, on evidence found that during

the life time of petitioners in Switzerland, there was absolutely no evidence to substantiate the acts of domestic violence. It was held that the

evidence showed that even while they were in Switzerland, joint transactions were done and on detecting cancer both collectively decided to

return, the husband resigned his job and came to India together. It was also established that, even the resignation letter of the husband was

prepared by the wife. Even after their return, till the incident that allegedly happened on 24.12.2013, there was absolutely no indication of any

harassment in Kerala. It was also found that, even after returning to Kerala, there were joint transactions of properties. The husband was dealing

with all financial transactions and he himself has purchased property in the name of wife. A building was being constructed in a plot jointly

purchased in the name of the wife and her sister. It was also seen that several monetary transactions also happened during the above time and

money was being handled by the husband. It led to a conclusion that, they were maintaining cordial relationship till the alleged incident on

24.12.2013. Even in the pleadings or in the evidence, there was no averment regarding any specific instance of physical harassment on any day

prior to 24.12.2013. Both the courts have concurrently arrived at this conclusion, which is based on substantial evidence. I find no reason to take a

different view.

The next point that was considered by the trial court was whether the incident as alleged on 24.12.2013 had occurred. Trial court held that,

even though it was alleged that there was physical violence and she had rushed to the house of her sister, where she was kicked and smashed and

she cried aloud, which was heard by the neighbours, the Court found that apart from PW2, her own sister, there was no other independent

evidence to substantiate this allegation. No documentary evidence was produced to show that she had sustained any injury on that day. Even

though, it was stated that she was taken to the hospital, it was on 27.12.2013. FIS was laid only on 28.12.2013. It was found by the court below

that, according to PW1, from the hospital, she returned on 31.12.2013 and found that the house was locked. It was broke open with the help of a

blacksmith and the almirah was also found locked and it was got opened by her. Still, the loss of articles were detected by her on 01.04.2014. On

the other hand, PW2 deposed that, they returned on 24.12.2013 and found that the door locked, it was opened with the keys of PW1. However,

the almirah was found locked, which was broke open with the help of a blacksmith. It seems that FIR was laid only on 08.01.2014. Trial court

hence disbelieved the version of the wife that she was physically assaulted by the husband. This was virtually accepted by the appellate court. I find

no reason to take a different view, which is based on proper appreciation of the available materials.

Trial court found that, originally an exparte order was passed, restraining the husband and the relatives who were arrayed as the respondents

from committing acts of domestic violence and entering the house. Trial court found that the order required modification and confined to restraining

the husband from committing acts of domestic violence and permitted him to reside in one portion of the house, since he was found to be the joint

owner of the property and acts of domestic violence were not established. Hence, the court below moulded the reliefs to that extent by granting a

protection order limited to restraining the husband from committing acts of domestic violence and was permitted to reside in a portion of the house

without disturbing the peaceful life of the wife.

Wife is aggrieved by this part of the order as well as the denial of the various reliefs to her.

Appellate court found that the incident that allegedly occurred on 24.12.2013 was unbelievable and unsubstantiated. According to the court

below, the genesis of the incident was an alleged demand by the husband for money, which was refused by the wife. In the evening, he allegedly

got drunk, came to the house and abused the wife. One of the reason given by the appellate court for disbelieving the version was that, even

according to the defacto complainant, in the almirah, she had kept her gold ornaments , cash and other documents. The husband had taken away

all the items and locked the almirah thereafter. They had to broke open the door. Evidently, the husband could have voluntarily taken the money if

he wanted. Hence, the court concluded that, there was no reason for the husband to demand money. It was also found by the court below that

there were several monetary transactions that had occurred after their return from Switzerland. The money was being handled by the husband and

joint and separate deposits were made by him on behalf of the wife and her family members. It was found that the version of PWs.1 and 2

regarding the incident and also regarding the opening of the house and the almirah with the aid of blacksmith were inconsistent. Hence the appellate

court correctly arrived at the conclusion that the incident that happened on 24.12.2013 is unbelievable. There is no reason to take a different view

in the light of the cogent reasons provided by both the courts and the nature of the evidence let in by the wife.

After having arrived at a conclusion that the very basis on which an alleged domestic violence had set up had crumbled down, there was no

scope for granting any consequential reliefs. The Court noted that, one item of property was purchased in the joint name of the wife and her sister.

An auditorium was being constructed in that property. Even the wife had stated that the husband had purchased property with the funds provided

by her in her name and had stated that he never misappropriated any money and if he had done so, she would have lost faith in him. This clearly

shows that, regarding the monetary transaction, husband was maintaining a clean record. On the other hand, the appellate court concluded that,

there were materials to show that the properties were purchased in the name of the relatives of the wife, whereas, no benefit was given to the

husbands relatives. This according to the lower appellate court speaks volume about the present situation. It was stated that there was no allegation

of harassment till 24.12.2013 or any specified day. The relatives of the husband were residing at far away places. Still, wife came up with a case

that, she alone was living in the house with children, husband was residing elsewhere and that the property was her own. She contended that, she

was living alone in that house with her children. In spite of the above, she came up with a false case and even roping in the relatives of the husband

who were living at far away places.

Having considered these facts, there is sufficient materials to show that the appellate court also arrived at proper conclusion that in the light of

the findings that no incident of domestic violence was established, consequential relief shall not follow. It was also found that the wife was

sufficiently financially sound and there was no necessity for any financial support to her. Hence, all the consequential reliefs granted by the court

below in favour of the wife were correctly set aside by the lower appellate court. This leads to the conclusion that the dismissal of the appeal filed

by the wife is only to be confirmed and that of allowing the appeal of the husband is also liable to be retained.

In the result, both revisions are dismissed confirming the common order in Crl.Appeal.Nos.244 and 269 of 2016 of the Additional District and

Sessions Court, North Paravur.