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