Manoj Kumar.V.S. vs Sunitha Beegum @ Sunitha on 24 March, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 1041 of 2009()


1. MANOJ KUMAR.V.S., T.C.19/2033,
                      ...  Petitioner

                        Vs



1. SUNITHA BEEGUM @ SUNITHA,
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY ITS

                For Petitioner  :SRI.M.BALAGOVINDAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :24/03/2009

 O R D E R
                       V. RAMKUMAR, J.
                    = = = = = = = = = = = =
                    Crl.R.P.No.1041 of 2009
                    = = = = = = = = = = = =
                       Dated: 24.03.2009

                           O R D E R

The revision petitioner, who was the respondent/counter

petitioner in CMP No.5866 of 2008 which is an application filed

under Section 12 of the Protection of Women from Domestic

Violence Act, 2005, challenges the ad interim order passed on

CMP No.5904 of 2008 by the Chief Judicial Magistrate,

Thiruvananthapuram.

2. As per the ex parte order dated 11.12.2008 passed by

the Chief Judicial Magistrate, Thiruvananthapuram,, the revision

petitioner was directed to pay a sum of Rs.20,000/- per month to

the 1st respondent/applicant by way of maintenance. The

revision petitioner who is a co-pilot working in Air India Service

challenged the said order by filing an appeal under Section 29 of

the Act before the Sessions Court, Thiruvananthapuram. As per

judgment dated 13.2.2009, the learned Sessions Judge

dismissed the appeal confirming the interim order and directing

the Chief Judicial Magistrate to dispose of the main case within

Crl.R.P.No.1041/09 -:2:-

two months from the date of receipt of the appellate judgment.

It is the said judgment which is assailed in this petition.

3. The learned counsel for the petitioner made the

following submissions before me in support of the revision:-

It may be true that the Magistrate has power to pass an ex

parte interim order by virtue of Subsection 2 of Section 23 of the

Act. But then, it is not a substitute for an interim order

contemplated under Section 23(1) of the Act. Since the

respondent, against whom the ex parte order was passed,

entered appearance before the learned Magistrate and filed his

response, the learned Magistrate had to pass a final order either

confirming, altering or rescinding the order. That alone will

constitute the interim order envisaged under sub section 1 of

Section 23 of the Act. After the appearance of the revision

petitioner, the Magistrate has not so far passed any order either

confirming, varying or rescinding the ex parte order dated

11.12.08.

4. I am afraid that I cannot agree with the above

submissions. Unlike Order 39 Rule 4 C.P.C, the provisions of the

Act and the Rules do not contemplate a further hearing on the

interlocutory application after the appearance of the respondent

Crl.R.P.No.1041/09 -:3:-

and the passing of a final order on such interlocutory

application. In the absence of any provision in that regard, the

procedure in the C.P.C cannot be read into the provisions of the

Act which is one enacted for giving more effective protection on

the rights of women guaranteed under the Constitution and who

are victims of violence of any kind carried on within the family.

The revision petitioner is a co-pilot in Air India Service and the

interim order passed as well as the quantum of interim

maintenance fixed by the trial court do not call for any

interference at the hands of this Court. This revision is

accordingly dismissed in limine.

V.Ramkumar, Judge.

sj