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Cites 4 docs
The Protection of Women from Domestic Violence Act, 2005
The Muslim Women (Protection of Rights on Divorce) Act, 1986
Section 125 in The Code Of Criminal Procedure, 1973
Section 29 in The Protection of Women from Domestic Violence Act, 2005

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Kerala High Court
A.P.Usman vs Mrs.Kamaru Laila on 27 June, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 19485 of 2008(T)


1. A.P.USMAN, AGED 53 YEARS,
                      ...  Petitioner

                        Vs



1. MRS.KAMARU LAILA, AGED 46 YEARS,
                       ...       Respondent

2. P.V.MAMMOO HAJI, LICENSEE,

3. STATE OF KERALA, REPRESENTED BY

                For Petitioner  :SRI.SUNNY MATHEW

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT

 Dated :27/06/2008

 O R D E R
                          R.BASANT, J.
                       ----------------------
                    W.P.C.No.19485 of 2008
                   ----------------------------------------
               Dated this the 27th day of June 2008

                         J U D G M E N T

The petitioner has suffered an order under Section 12 of the Protection of Women from Domestic Violence Act read with Section 125 of the Code of Criminal Procedure. Monetary relief by way of maintenance was claimed by the claimant in that petition. That petition has been allowed and directions have been issued ex parte by Ext.P1 order.

2. Ext.P1 order on simple reading of the provisions of the Protection of Women from Domestic Violence Act is an appealable order under Section 29 of the said Act. Without preferring an appeal under Section 29 of the said Act, the petitioner has rushed to this court with this writ petition.

3. How is this writ petition maintainable when the petitioner has an equally efficacious remedy by way of proper appeal under Section 29 of the said Act. The learned counsel for the petitioner raises two grounds. First of all he contends that it is not very clear whether the order is passed under Section 12 of the Protection of Women from Domestic Violence W.P.C.No.19485/08 2 Act or under Section 125 Cr.P.C. The impugned order if carefully perused should not have left any doubt on the question. Even assuming that there was a doubt it is very evident that the learned Magistrate has no jurisdiction to pass an order under Section 125 Cr.P.C and it is only the Family Court which can pass orders under Section 125 Cr.P.C. The alleged confusion prevailing in the mind of the petitioner is thus a non-existent one and is evidently pressed into service without any bona fides.

4. The learned counsel for the petitioner then contends that wrong address of the petitioner has been shown by the claimants before the learned Magistrate in the petition filed under the Protection of Women from Domestic Violence Act. This is a fraud played on the court and the petitioner, it is submitted. Therefore, the petitioner is entitled to come to this court with this writ petition, it is further urged. That is a contention which the petitioner can certainly raise in proceedings in appeal under Section 29 of the Protection of Women from Domestic Violence Act or in an application to set aside the ex parte order if such a petition is legally maintainable. It is for the petitioner to take appropriate steps to get the ex parte order set aside or W.P.C.No.19485/08 3 challenged by initiating appropriate proceedings. In any view of the matter, I am not satisfied that in the wake of availability of an efficacious alternative remedy under Section 29 of the Protection of Women from Domestic Violence Act, this writ petition deserves to be entertained. This writ petition is accordingly dismissed.




                                           (R.BASANT, JUDGE)
jsr

            // True Copy//    PA to Judge

W.P.C.No.19485/08    4

       R.BASANT, J.




         CRL.M.CNo.




            ORDER




21ST DAY OF MAY2007