IN THE HIGH COURT OF KERALA AT ERNAKULAM
Tr.P(Crl.).No. 35 of 2010()
1. BEENA JOSEPH, AGED 37 YEARS,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. K.R.BIJU, S/O.RAMAKRISHNAN,
For Petitioner :SRI.C.P.PEETHAMBARAN
For Respondent :SRI.P.VIJAYA BHANU
The Hon'ble MR. Justice V.RAMKUMAR
Dated :13/07/2010
O R D E R
V.RAMKUMAR, J.
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Tr.P.(Crl)No.35 of 2010
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Dated this the 13th day of July, 2010
ORDER
Heard both sides.
Petitioner who is the wife of the second respondent
herein is the applicant in M.C.No.30/2010 on the file of
the Chief Judicial Magistrate, Kozhikode under Section 12
of the Protection of Women from Domestic Violence Act,
2005. According to the petitioner even at the time of
accepting the complaint the learned Magistrate openly
declared that he will not allow the application as the
same is an abuse of the process of Court and even after
appearance of the second respondent husband the
Magistrate was persistently compelling the petitioner to
give-up the claim and go and reside with the respondent,
inspite of the fact that she had been incessantly harassed
(both physically and mentally) and assaulted and abused.
The petitioner would have it that when her learned
Tr.P.Crl.No.35/2010
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counsel made a submission about the impossibility of a
re-union, the learned Magistrate accused the counsel by
saying that he is standing in between. According to the
petitioner she apprehends that the second respondent
taking advantage of the situation will endanger the life of
the petitioner. Going by proximity as well as the place
where the petitioner resides the Magistrate at Mattannur
in Kannur District is the appropriate court. She will not
get a fair trial or justice from the Chief Judicial
Magistrate, Kozhikode.
2. This Court called for the remarks of the Chief
Judicial Magistrate who has submitted his detailed
remarks. He has wound up by saying that he had no
special interest in the case, except the welfare and well-
being of an innocent tiny child and he wished the re-union
of the parents of the unfortunate child and that the
allegations made against him in paragraph ‘4’ of the
transfer petition are false.
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3. I see no reason why the remarks of the learned
Magistrate should not be accepted since he only wanted
a rapproachment between the marital partners.
According to the Magistrate the petitioner who was filing
interlocutory applications one after another had
eventually agreed to settle the matter and she had got
two of the petitions dismissed as “not pressed” as
evidenced by the endorsements made by her counsel.
But thereafter she filed a complaint before the Kasaba
Police Station against the second respondent for an
offence under Section 498 A of I.P.C. It was the
petitioner who precipitated matters thereby rendering
chance of reconciliation difficult. It is true that she is
residing in Kannur District. But then the property in
respect of which residence order was claimed and the
second respondent are all in Kozhikode. The petitioner
also was of the view that the second respondent who
belongs to Idukki District will not be available at
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Kozhikode. That was why she opted to file the application
before the Chief Judicial Magistrate, Kozhikode. There is
no case that the Chief Judicial Magistrate, Kozhikode has
no jurisdiction to entertain this case. Merely because
some other court has also jurisdiction it cannot be said
that the proceedings before the Kozhikode cannot be
continued. Any way, the Court of the Chief Judicial
Magistrate, Kozhikode was a forum which was willingly
chosen by the petitioner. She cannot be allowed to seek
for a transfer of the case to another court on the ground
that the Magistrate advised her to resume cohabitation
with her husband.
This Tr.P.(Crl.) is dismissed.
V.RAMKUMAR, JUDGE
skj