DV Act | Eviction from Shared Household Not a Shortcut—Substance of Domestic Violence Must Be Proved by Victim Herself: Kerala High Court

“The Power of Attorney Holder Cannot Testify About Incidents She Has Not Witnessed—Domestic Violence Requires Direct Evidence” - In a detailed judgment Kerala High Court ruled that eviction of a son from a shared household under Section 19(1)(b) of the Protection of Women from Domestic Violence Act, 2005, cannot be granted solely on the basis of hearsay evidence by a power of attorney holder, even if other reliefs under the Act are sustained.

Justice C. Jayachandran remanded the case to the lower appellate court for fresh consideration, holding that to sustain such eviction, the aggrieved mother must personally depose and be subject to cross-examination, as the allegations of domestic violence had been primarily asserted by her daughter acting under power of attorney.

“The Power of Attorney holder cannot depose for the principal in respect of a matter over which the principal alone has personal knowledge and is entitled to be cross-examined.”

Aged Mother Sought Protection and Eviction of Son from Shared Household Under DV Act

The petitioner, 84-year-old Omana Thomas, had moved for protection and residential reliefs under Sections 18 and 19 of the Domestic Violence Act, alleging that her son committed acts of domestic violence against her, thereby making her stay in their shared home unbearable.

While the Magistrate’s Court granted full relief, including eviction under Section 19(1)(b), the Appellate Sessions Court reversed this particular relief, observing that such eviction could not be used as a “shortcut” to gain possession, especially since a civil suit on the same issue was already pending.

High Court Reverses Reasoning of Appellate Court: Civil Suit No Bar to Domestic Violence Relief

Rejecting the appellate court’s view that granting eviction under Section 19(1)(b) would render the civil suit infructuous, the High Court clarified:

“The parameters of consideration in a civil suit and a proceeding under the D.V. Act are altogether different… What matters under the D.V. Act is the domestic relationship and proof of violence—not ownership or title.”

“The purpose of Section 19(1)(b) is to ensure that the woman is not subjected to further violence, and that she is protected in the shared household.”

The Court held that civil and DV Act proceedings can co-exist, citing Sections 26 and 36 of the Act, and pointed out that absence of DV Act relief in the civil suit does not bar its invocation in the Magistrate’s court.

Power of Attorney Testimony Inadequate for Section 19(1)(b) Relief

The core issue that led to the remand was evidentiary insufficiency. The petitioner’s daughter, Anitha Prakash, who also holds the Power of Attorney, deposed in court. However, she had no personal knowledge of the two main incidents of alleged violence in 2019 and 2022, which the mother claimed were committed by her son.

“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.”

“The right of the respondent to cross-examine the mother in respect of matters within her exclusive knowledge is seriously jeopardized.”

The Court held that relying on cut-and-paste affidavits by the power holder—without first-person narration by the mother—violates established legal precedent, citing Janki Vashdeo Bhojwani v. IndusInd Bank Ltd. and other Supreme Court rulings:

“Evidence tendered by PW1 [Power holder] cannot be taken stock of to grant relief under Section 19(1)(b).”

Reliefs Under Section 18 and Section 19(1)(a) Stand Confirmed—Remand Limited to Eviction Relief

The High Court preserved the reliefs already granted under Section 18 (protection) and Section 19(1)(a) (residence order), but remanded the matter only for fresh adjudication of the eviction order under Section 19(1)(b).

“Criminal Appeal No. 286/2023 is remanded to the Additional Sessions Court-VIII… Revision petitioner/mother must now be examined personally.”

“If her evidence is found to be credible, the relief under Section 19(1)(b) granted by the Magistrate shall be restored.”

The Court directed that her testimony be recorded directly by the appellate court within three months, ensuring procedural fairness and meaningful adjudication.

This judgment reinforces the rule that domestic violence proceedings must adhere to principles of evidence and fairness, especially when fundamental reliefs like eviction are sought. While recognizing the protective intent of the DV Act, the Court emphasized that even beneficial legislation cannot override the need for direct, first-hand testimony where allegations are personal and contested.

“When a technical ground is pitted against substantial justice, the latter should prevail. But justice must still be proved—not presumed.”

Date of Decision: 19 May 2025