1. The petitioner herein is the petitioner in M.C.No.35/2018 of the Judicial First Class Magistrate Court-I, Aluva. She sought for various reliefs under Section 12 of the Protection of Women from Domestic Violence Act, 2005 ('the D.V. Act', for short). An ex-parte residence order was granted with respect to a residential apartment at Aluva. However, after adducing evidence, the M.C. was dismissed, as per order dated 04.11.2020.

2. The petitioner/wife carried Criminal Appeal No.303/2020 before the District Court, Paravur. However, the same was also dismissed, by judgment dated 03.07.2023. The present revision impugns the said judgment.

3. Heard the learned counsel for the petitioner, the learned Public Prosecutor, on behalf of the 1st respondent and the learned counsel for the 2nd respondent. Perused the records.

4. Learned counsel for the petitioner would submit that the concurrent dismissal of the Miscellaneous Case, as also, the Appeal carried therefrom is erroneous in law, for the reason that the factum of the petitioner having resided in the subject apartment (shared household) at Aluva, though asserted in her proof affidavit, has not been challenged in cross examination by the 2nd respondent. Therefore, the petitioner’s claim over the shared household at Aluva, should be deemed to have been admitted. The second point canvassed by the learned counsel is that the 2nd respondent/husband has not chosen to mount the box. Instead, evidence was adduced through his power of attorney holder. Therefore, an adverse inference is liable to be taken against the 2nd respondent/husband. Thirdly, learned counsel would submit that, at the appellate stage, an application was filed seeking to examine a neighbour, to prove the factum of the petitioner’s residence in the shared household at Aluva. The same was disallowed by the Appellate Court. On these premise, the petitioner seeks the order in M.C., as also the judgment in the Crl.Appeal, to be set aside.

5. Refuting the above allegations, learned counsel for the 2nd respondent/husband invited the attention of this Court to the chronology of events, which finds a place in page No.6 of the counter affidavit filed. The marriage between the petitioner and the 2nd respondent took place on 25.09.2004 and they have last resided at a place called Udumbannoor, Thodupuzha on 24.11.2012. Thereafter, the petitioner and the 2nd respondent have not resided together as husband and wife. After a lapse of one year and one month, the 2nd respondent purchased a Flat at Aluva. A settlement was arrived at between the petitioner and the 2nd respondent, pursuant to which a property was transferred in the name of the petitioner by the respondent on 30.09.2016. A joint petition was filed before the Family Court, Thodupuzha by the petitioner and the 2nd respondent, wherein it is specifically stated that the parties have resided last together within the limits of the Family Court, Thodupuzha. Subsequently, the petitioner herein retracted, with the result, the join petition was dismissed. Thereafter, on 04.10.2017, the petitioner herein filed O.P.No.301/2017 seeking return of gold ornaments, wherein also there is a specific averment to the effect that the petitioner and the 2nd respondent last resided together at Udumbannoor, within the limits of the Family Court, Thodupuzha. An affidavit was also filed in connection with an Interlocutory Application in the said O.P., wherein also the contention is repeated and reiterated.

6. It is thereafter that the instant M.C. was filed in the year 2018 and an ex-parte residence order was obtained, which was later vacated. The M.C. itself was considered after adducing evidence. The Trial Court took stock of the above referred facts and dismissed the M.C. on 04.11.2020. An Appeal was carried therefrom, which was dismissed vide the impugned order, wherein also the above referred facts are considered in favour of the 2nd respondent. On the strength of the above facts, it is the final submission of the learned counsel that the 2nd respondent was being dragged in an unnecessary litigation from the year 2018 onwards.

7. Having heard the learned counsel appearing for the respective parties, this Court finds considerable merit in the submissions made by the learned counsel for the 2nd respondent. It remains a fact, which is not disputed before me, that the petitioner had stated in the joint petition that the parties have resided last together at Udumbannoor, within the limits of the Family Court, Thodupuzha. The same is the situation with respect to the averment contained in O.P.No.301/2017, preferred by the petitioner, seeking return of gold ornaments. It is relevant to notice that the subsequent O.P. for return of gold ornaments was one filed after the parties have parted their way and their consensus joint petition for divorce was dismissed. The significance of admissions in pleadings in the judicial proceedings need not be over emphasized. It stands at a better pedestal / footing, insofar as that specie of admissions are concerned. If that be so, the petitioner’s present claim in the M.C. that they have last resided together in the year 2018 at the flat at Aluva, can hardly be countenanced. Just one year before the institution of the M.C., that is to say, in the year 2017, the written pleadings in O.P.No.301/2017 was to the effect that the petitioner and the 2nd respondent resided last together within the limits of the Family Court, Thodupuzha. There exists no material, whatsoever, to show that the apartment at Aluva is a shared household, over which petitioner can claim a residence order. The concurrent findings in this regard by the learned Magistrate and the Family Court in Crl.Appeal No.303/2020 warrants no interference.

8. Coming to other contentions urged by the learned counsel for the petitioner, this Court notice that absence of cross examination is one aspect, which is to be borne in mind. However, that, by itself, cannot decide the fate of the judicial proceedings, especially when other evidences have been let in by both parties. Once evidence has been let in by both parties, it is for the Court to weigh the same, to find out, on the yardstick of preponderance of probabilities, as to the case preponded by which among the parties is more probable. At any rate, the same cannot be decided only on the absence of cross-examination of one aspect. Besides, learned counsel for the 2nd respondent would also contend that necessary cross-examination was conducted with respect to the petitioner’s claim over the shared household, at Aluva. The said contention is also, therefore, liable to be rejected.

9. The third contention raised by the learned counsel for the petitioner is that the 2nd respondent has not mounted the box and hence, an adverse inference is liable to be taken. Here also, this Court is of the opinion that the petitioner is misconceived. An adverse inference is liable to be taken when a person does not mount the box, dehors an opportunity being afforded/granted. Here is a case, where the power of attorney holder of the 2nd respondent has mounted the box. Therefore, adverse inference sought to be taken against the 2nd respondent is groundless. The only infirmity, which can be cast on a power of attorney holder, who appears on behalf of a party, is with respect to the matters over which he can adduce evidence, that is to say, those matters over which he has personal knowledge. The question of adverse inference does not arise at all.

10. The last contention urged by the learned counsel for the petitioner is with respect to a Crl.M.P. filed in the Appeal, with a witness list for the purpose of examining a neighbour, to prove her claim over the shared household at Aluva. The same has been dismissed by the Appellate Court. Primarily, this Court notice that no such attempt was made before the Trial Court. Secondly, even assuming that a witness speaks in favour of the petitioner, she will be pinned down by her own pleadings in two judicial proceedings, clearly admitting that they have resided last together within the limits of the Family Court, Thodupuzha. As already indicated, the value of an admission contained in a pleading in a judicial proceedings clinches the maker.

11. This Court finds no illegality or irregularity in the concurrent findings of the learned Magistrate and the learned District Judge, so as to warrant an interference in this revision.

12. In the result, this Crl.Revision Petition fails and the same will stand dismissed.