IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 1540 of 2008(G)
1. FOUSIYA, D/O.ABOOBACKER,
... Petitioner
Vs
1. MURINGAKANDY JASMI, 53 YEARS,
... Respondent
2. MUHAMMED FAIZAL, S/O.ABOOBACKER,
3. SULFICKER,S/O.ABOOBACKER,
4. MUJEEB RAHMAN, S/O.ABOOBACKER,
5. SAMEER, S/O.ABOOBACKER,
6. FIROZE, S/O.USMAN KOYA,
7. THE STATE OF KERALA REPRESENTED BY THE
For Petitioner :SMT.K.V.RESHMI
For Respondent :SRI.T.G.RAJENDRAN
The Hon'ble MR. Justice R.BASANT
Dated :28/03/2008
O R D E R
R. BASANT, J.
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W.P(C).No. 1540 of 2008 G
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Dated this the 28th day of March, 2008
JUDGMENT
The petitioner claims to be aggrieved by Ext.P9 order
passed under the provisions of the Protection of Women from
Domestic Violence Act, 2005 (hereinafter referred to as the
DVA). The petitioner herein was not a party to that
proceedings. A sister of the petitioner had filed that application.
The brothers of the petitioner as also a son of a sister of the
petitioner are shown as respondents in that petition. The dispute
in that proceedings is about the right of the petitioner in the said
proceedings to reside peacefully in a house in which the brothers
and sisters have right. That is alleged to be a shared household.
As stated earlier, the petitioner was not arrayed as a party. After
keen contest it is seen that an order has been passed in the said
proceedings by the court under the DVA to the following effect.
“Respondents are prohibited from committing
any act of domestic violence against the petitioner.
So also,m they are prohibited further from aiding or
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2
abetting any act of domestic violence and also from
alienating the movables and immovables jointly owned by
the petitioner. I further order to restrain the respondents
from dispossessing or in any other manner disturbing the
possession of the properties of the aggrieved petitioner
from her shared household.”
2. The respondents in that petition, it is submitted, have
preferred an appeal under Section 29 of the Act and the same is
pending before the Sessions Court, Kozhikode. The petitioner, instead
of preferring an appeal, has come to this Court with this writ petition.
Eventhough no order of stay has been granted in the appeal pending
before the Sessions Court, the petitioner in that petition has succeeded
in obtaining an interim stay of the operation of Ext.P9 order until
further orders. It is at this stage that the petitioner in the DVA
proceedings has come before this Court with a prayer that the interim
order may be vacated and this writ petition may be dismissed.
3. The learned counsel for the respondents submits that the
petitioner has a right of appeal under Section 29 of the Act and without
and before exhausting that right which the petitioner herein has, she is
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3
not justified in coming to this Court. The learned counsel for the
petitioner herein contends that the petitioner has no right of appeal
under Section 29 and hence she is obliged to come before this Court
with this writ petition under Article 226 of the Constitution.
4. Section 29 of the DVA reads as follows:
“29. Appeal. – There shall lie an appeal to the Court
of Sessions within thirty days from the date on which the
order made by the Magistrate is served on the aggrieved
person or the respondent, as the case may be, whichever is
later.”
A plain reading of Section 29 eloquently conveys that not only a
respondent, but any aggrieved person has a right to prefer an appeal.
The petitioner claims to be aggrieved by the impugned order. The
learned counsel for the first respondent/claimant before the court
below contends that the petitioner is only fighting a proxy battle on
behalf of the respondents in the proceedings before the court below. If
she were aggrieved, she had to prefer an appeal under Section 29.
Having not preferred the same, she is not entitled to come before this
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Court with this petition, submits the learned counsel for the
respondents.
5. I find merit in the objections raised against the maintainability
of this writ petition. The petitioner, if she is aggrieved by the
impugned order, must certainly be held to be having a right of appeal
under Section 29 of the Act. The mere fact that such appeal has to be
preferred within 30 days from the date on which the order passed by
the learned Magistrate is served on the aggrieved person and that the
petitioner being a non-party has not been served with any such order
cannot certainly be held to affect the right of the petitioner to prefer an
appeal under Section 29. The stipulation of service of order is
incorporated in Section 29 not to identify the person who has a right of
appeal, but only to ascertain and stipulate the time within which the
appeal should be preferred. I do, in these circumstances, take the
view that the petitioner herein, though not a respondent in the
proceedings under the DVA before the court below, if she is an
aggrieved person can prefer an appeal under Section 29 of the Act
before the learned Sessions Judge. This is so notwithstanding the fact
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5
that she has not been served with the order passed by the Magistrate.
The petitioner has now received a copy of the order and such receipt of
copy or knowledge of the impugned order can be reckoned as
commencement of the period of limitation so far as the petitioner is
concerned.
6. The petitioner can hence prefer an appeal under Section 29 of
the Act before the Sessions Court. The Sessions Court, needless to
say, must consider such appeal along with the appeal preferred by the
other respondents before it. It is agreed that if the petitioner would
prefer an appeal, there can be a direction that the said appeal must be
entertained by the learned Sessions Judge condoning the delay, if any,
in filing the appeal. The interim order also shall remain in force for a
further period of 15 days from this date. In the application to be filed
by the petitioner, if she seeks any interim orders, the learned Sessions
Judge must consider such application on merits and the fact that such
order has been passed by this Court till this day or that such order is
directed to remain for a further period of 15 days need not and shall not
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6
influence the learned Sessions Judge while considering such
application.
7. With the above observations, this Writ Petition is dismissed.
(R. BASANT)
Judge
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