IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1034 of 2009()
1. K.R.VASU,AGED 57 YEARS,WORKING AS
... Petitioner
Vs
1. R.VIJAYALEKSHMI, W/O.K.R.VASU, AGED 47,
... Respondent
2. STATE OF KERALA, REP.BY PUBLIC
For Petitioner :SRI.S.RAJEEV
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :02/11/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.No.1034 OF 2009
===========================
Dated this the 2nd day of November,2009
ORDER
Petitioner is the respondent and the first
respondent the petitioner in M.C.26/2009 on the file of
Judicial First Class Magistrate Court-II,
Thiruvananthapuram who filed a petition under section
12 of Protection of Women from the Domestic Violence
Act, 2005 claiming protection order under section 18
and monetary relief under section 20 and damages
under section 22 of the Act. This petition is filed
under section 482 of Code of Criminal Procedure to
quash the proceedings contending that marital
relationship with the petitioner and first respondent
were dissolved by Annexure 2 order of Family Court,
Thiruvananthapuram in O.P.755/1999 and therefore first
respondent is not an aggrieved person or petitioner, a
respondent as defined under the Act and therefore the
petition filed under section 12 of the Act is not
maintainable. It is also contended that as per
Annexure 1 affidavit filed along with the petition in
the prescribed forum before the Magistrate, petitioner
Crl.M.C.1034/2009 2
and first respondent were living separately from 24.5.1990
onwards and in such circumstances, the alleged domestic
violence if any was prior to the coming into force of the
Act and therefore learned Magistrate has no jurisdiction to
grant the relief and therefore the proceeding is to be
quashed.
2. Learned counsel appearing for the petitioner and
first respondent were heard.
3. Petitioner is the respondent before the learned
Magistrate, in a petition filed by the respondents under
section 12 of the Act. Though by Annexure 2 order the
marriage was dissolved, it is admitted fact that M.F.A
5/2002 is pending before this court challenging that order
and therefore Annexure 2 order of dissolution has not
become final.
4. The question whether the first respondent is an
aggrieved person as defined under the Act or the petitioner
is a respondent as defined under the Act are all matters to
be decided by the learned Magistrate in the proceedings.
It is to be borne in mind that petitioner is not an accused
in a proceeding being tried by the learned Magistrate. On
the other hand, the Act itself provides that the petitioner
is a respondent before the Magistrate. Though a petition
filed under section 12 is to be tried following the
Crl.M.C.1034/2009 3
procedure provided in the Code of Criminal Procedure,
essentially the proceedings is not criminal in nature,
except in a case where cognizance is taken as provided
under section 31 of the Act, which provides that on the
breach of an interim order or a protection order passed
under the Act cognizance could be taken. The proceedings
before the learned Magistrate pending is not on taking
cognizance of an offence under section 31 of the Act. In
such circumstances, I do not find that this court has to
invoke the extra ordinary powers under section 482 of Code
of Criminal Procedure to quash the proceedings. Petitioner
is at liberty to approach the learned Magistrate to
consider the maintainability of the petition either on the
ground that he is not a respondent as defined under the Act
or first respondent is not an aggrieved person as defined
under the Act or the Act is not applicable to the
allegations raised in the petition filed before the learned
Magistrate. With that liberty the petition is dismissed.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006