Pendency Of Civil Suit No Bar To Eviction Relief Under DV Act | Kerala HC Holds Right To Remove Respondent From Shared Household Exists Independently
Sanchayita Lahkar
The High Court of Kerala Single Bench of Justice C. Jayachandran has remanded a criminal appeal back to the appellate court, directing it to record the evidence of the petitioner in person. The court set aside the appellate court's decision that had denied relief under Section 19(1)(b) of the Protection of Women from Domestic Violence Act, 2005, and instructed the lower court to reappreciate the relief claim based on direct evidence. The High Court stated that testimonial evidence lacking personal knowledge cannot support the grant of eviction-related reliefs under the Act.
The case originated from a petition filed by an 84-year-old woman under Sections 18 and 19 of the Protection of Women from Domestic Violence Act, 2005. The petitioner alleged acts of domestic violence by her son and sought appropriate protective and residential reliefs. The Additional Chief Judicial Magistrate (E&O), Ernakulam, granted reliefs under both sections, including an order directing the respondent to remove himself from the shared household within two weeks.
Upon appeal, the Additional Sessions Court-VIII, Ernakulam, affirmed the reliefs under Sections 18 and 19(1)(a) but declined relief under Section 19(1)(b). The appellate court reasoned that the proceeding under the D.V. Act was being used as a shortcut to achieve eviction, especially when a civil suit seeking similar relief was already pending. The court further questioned the evidentiary basis of the claim, pointing out that the petitioner did not appear personally and that evidence was adduced through her daughter, acting as power of attorney holder.
The daughter, Anitha Prakash, was also the plaintiff in the civil suit and resided in Qatar. She deposed on behalf of the petitioner despite lacking direct knowledge of the events cited in the petition. The appellate court found this problematic, noting that deposition must come from someone with firsthand knowledge of the alleged domestic violence.
In the present revision petition, counsel for the petitioner argued that the appellate court erred in distinguishing the evidentiary standard for Section 19(1)(b) relief. It was pointed out that the daughter, being the petitioner’s power of attorney holder and close relative, should not have been disqualified from testifying. Counsel stated that the age and condition of the petitioner warranted reliance on documentary and delegated oral evidence, especially since the trial court had accepted this testimony.
The petitioner relied on Satish Chander Ahuja v. Sneha Ahuja [2020(5) KHC 496 (SC)] to contend that the relief sought under the D.V. Act was independent of the civil suit and governed by different legal parameters. The petitioner also invoked Section 12(1) and Section 36 of the D.V. Act to affirm that proceedings under the Act could be initiated by others on behalf of the aggrieved person and could run concurrently with civil proceedings.
The respondent, through senior counsel, submitted that the D.V. Act proceedings were filed only after failing to obtain interim relief in the civil case. It was argued that the mother was being used as a proxy by her daughter to evict the son. Counsel stated the judgment in Janki Vashdeo Bhojwani v. Indusind Bank Ltd. [AIR 2005 SC 439] to assert that a power of attorney holder cannot depose regarding matters that require personal knowledge of the principal.
The respondent further submitted that the petitioner was physically capable of appearing in court, having testified in related criminal proceedings and attended mediation sessions. The failure to take recourse to commission proceedings for recording her evidence was also criticized. The criminal case initiated by the daughter’s family ended in acquittal, which was cited to support the claim that the allegations were unsubstantiated.
Justice C. Jayachandran recorded that "the findings of the learned Additional Judge cannot be sustained; nor could the refusal to grant relief under Section 19(1)(b) on that premise be sustained." The court noted that the parameters applicable to the civil suit and the D.V. Act petition were entirely distinct. It stated that in a civil suit, the relief of mandatory injunction depended on title claims, whereas relief under the D.V. Act focused on "whether the aggrieved person is a woman who has been subjected to any act of 'domestic violence' by the respondent."
The court observed that "it would be grossly illegal to conclude that grant of a relief under 19(1)(b) so as to remove the respondent from the shared household would render the suit for mandatory injunction infructuous." It stated that the relief under Section 19(1)(b) is "only to ensure that the aggrieved person/woman is not subjected to any further domestic violence."
Regarding the evidentiary issue, the court stated: "Once it is established beyond the pale of any doubt that the crux of the matters spoken on behalf of the revision petitioner in evidence are matters over which the power holder has no personal knowledge, then, the absence of a cross-examination as regards such knowledge would not loom large."
The court referred to the proof affidavit and noted that it merely "cut and pasted" the complaint without adapting it to the deponent's first-person perspective. This, according to the court, showed that the deposition lacked credibility. It stated: "the crucial acts which constitute domestic violence have been spoken to, as though the revision petitioner is adducing evidence."
Further, it stated: "This Court finds that the right of the respondent to cross-examine the revision petitioner in respect of matters within her exclusive knowledge is seriously jeopardized by permitting the Power of Attorney holder to depose about such matters." The court held that "evidence tendered by PW1 as Power holder of the revision petitioner cannot be taken stock of to grant reliefs."
Although the petitioner cited documentary evidence including FIR and Final Report, the court maintained that the central issue was whether the petitioner herself had genuine grievances and was not merely a nominal figure used by her daughter.
The court stated that the appellate court's finding that the D.V. Act relief would render the civil suit infructuous was "hereby set aside." It directed a remand of Criminal Appeal No.286/2023 to the Additional Sessions Court-VIII.
It stated: "the solitary evidence of the revision petitioner/mother has to be recorded by the Appellate Court itself, and a fresh decision in the light of such evidence and the findings in this Order has to be taken by the Appellate Court."
The High Court directed the lower court to complete the process within three months of receiving the order. It clarified: "Until such time, the reliefs granted by the Appellate Court will prevail."
The remand, the court noted, was "a limited one to record the evidence of the revision petitioner/mother, that too only for the purpose of enabling re-appreciation of the relief sought for under Section 19(1)(b) in the light of the evidence to be adduced and the findings in this Order."
It further remarked that there was "no challenge, whatsoever, to the judgment of the appellate court by the respondent/son."
Advocates Representing the Parties:
For the Petitioner: Senior Advocate S. Sreekumar, duly instructed by Advocates Manu Roy, A.K. Neslin
For the Respondents: Senior Advocate M. Ramesh Chander, duly instructed by Advocates C.P. Udayabhanu, Navaneeth N. Nath, Rassal Janardhanan A., Abhishek M. Kunnathu, Boban Palat, P.R. Ajay, P.U. Pratheesh Kumar, K.U. Swapnil
Case Title: Omana Thomas v. Ajith Prakash & State of Kerala
Neutral Citation: 2025: KER:33830
Case Number: Crl.Rev.Pet.No. 1197 of 2023
Bench: Justice C. Jayachandran
[Read/Download order]
