Tag Archives: Kerala HC

Real MEN, Manginas, Feminists and MEN who file #fakeDV, #FakeDowry against MEN

In India, many fathers think their daughters are THEIR PROPERTY

The daughter has to eaty, study, dress and even marry according to the whims and fancies of the dad / or mum

That’s probably ok when the daughter is a kid, but NO longer OK when the daughter is 18 or 20 years old

In such cases, IF the daughter marries or lives with another guy which is NOT to the like of the dad, the father files #FalseRape #FaleAbduction etc cases on such lovers

Many such women are forcibly brought back and married off to some other innocent boy, making everyone’s life a living hell

Many #fakeDowry and #fakeDV cases have their origins in such #failedLove stories

Here is ONE such attempt by a dad, where luckily the girl stands her ground and sticks to her lover !!

Please note that I am NOT justifying either love marriages or arranged marriages, but just stating how the legal machinery is misused and fale cases filed when the fault lies with the daughter and probably in parenting !!!

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

TUESDAY, THE 19TH DAY OF JANUARY 2016/29TH POUSHA, 1937

WP(Crl.).No. 508 of 2015 (S)

PETITIONER(S):

SAJU JOHN, AGED 48 YEARS,
S/O.BABY JOHN, ANJENY HOUSE, ELIKKATTOOR P.O.,
PIRAVANTHOOR, KOLLAM – 689 696.

BY ADV. SMT.P.MAMATHA

RESPONDENT(S):

  1. STATE POLICE CHIEF/DIRECTOR GENERAL OF POLICE,
    POLICE HEAD QUARTERS, THIRUVANANTHAPURAM -695001.
  2. THE DISTRICT POLICE CHIEF,
    KOLLAM -691 001.

  3. THE STATION HOUSE OFFICER,
    PATHANAPURAM POLICE STATION,
    KOLLAM DISTRICT -689 695.

  4. SHAMSUDHEEN,
    AGED 42 YEARS, S/O.KADER, PUZHAMKARA ILLATHIL,
    CHALINGAD P.O., IRINJALAKUDA,
    THRISSUR DISTRICT – 680 681.

*ADDL.R5 ANJU S. SAJU,
AGED 18 YEARS 8 MONTHS,
D/O. SAJU JOHN,
ANJENY,ELIKATTOOR P.O.,
PIRAVANTHUR, KOLLAM – PIN 689 696.

*IS IMPLEADED AS ADDL.R5 AS PER THE ORDER IN I.A.NO.18382/2015 DATED
19.01.2016.

R1 TO R3 BY SENIOR GOVERNMENT PLEADER, SRI. SHIBU JOSEPH
R1 TO R3 BY ADDL. DIRECTOR GENERAL OF PROSECUTION,
SRI. TOM JOSE PADINJAREKKARA
R4 & ADDL.R5 BY ADV. SRI.P.K.IBRAHIM
R4 & ADDL.R5BY ADV. SMT.K.P.AMBIKA
R4 & ADDL.R5 BY ADV. SMT.A.A.SHIBI
R4 & ADDL.R5 BY ADV. SRI.A.L.NAVANEETH KRISHNAN            .

THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 19-01-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(Crl.).No. 508 of 2015 (S)

APPENDIX

PETITIONER’S EXHIBITS:

EXHIBIT P1:           A TRUE COPY OF THE MEDICAL CERTIFICATE DATED 08.01.2016
ISSUED BY DR. S.MUHAMMED FAIZAL TO KUMARI ANJU S. SAJU.

EXHIBIT P2(A):        A TRUE COPY OF THE MEDICAL BILLS, DATED 14.08.2014 ISSUED
BY THE LITTLE FLOWER HOSPITAL, PUNALUR IN THE NAME OF
KUMARI ANJU S. SAJU.

EXHIBIT P2(B):        A TRUE COPY OF THE MEDICAL BILLS, DATED 14.08.2014 ISSUED
BY THE LITTLE FLOWER HOSPITAL, PUNALUR IN THE NAME OF
KUMARI ANJU S. SAJU.

EXHIBIT P2(C):        A TRUE COPY OF THE MEDICAL BILLS DATED 14.08.2014 ISSUED
BY THE LITTLE FLOWER HOSPITAL, PUNALUR IN THE NAME OF
KUMARI ANJU S. SAJU.

EXHIBIT P3:           A TRUE COPY OF THE MEDICAL REPORT DATED 20.08.2014 ISSUED
BY DR. D. PRABHASH IN THE NAME OF KUMARI ANJU S. SAJU.

EXHIBIT P4:           A TRUE COPY OF THE DONATION RECEIPT DATED 06.07.2015,
ISSUED BY THE S.N. COLLEGE, PUNALUR TO KUM. ANJU S. SAJU.

EXHIBIT P5:            A TRUE COPY OF THE BIRTH CERTIFICATE OF KUM. ANJU S. SAJU
ISSUED BY THE REGISTRAR OF BIRTHS & DEATHS, PUNALUR
MUNICIPALITY.

EXHIBIT P6:           A TRUE COPY OF THE CERTIFICATE (AISSCE-2015) ISSUED BY THE
INSTITUTION IN THE NAME OF KUM. ANJU S. SAJU.

RESPONDENTS’ ANNEXURES:

ANNEXURE A1:          TRUE COPY OF THE PETITION DATED 10.12.2015 SENT BY
REGISTERED POST TO STATE DIRECTOR GENERAL OF POLICE
WITH COPY TO DISTRICT POLICE CHIEF,THRISSUR.

ANNEXURE A2:          TRUE COPY OF THE LETTER DT. 16.12.2015 ADDRESSED TO HE
MARRIAGE OFFICER, MATHILAKAM ENCLOSING NOTICE OF
INTENDED MARRIAGE.

//TRUE COPY//

P.S. TO JUDGE

St/-

C.K. ABDUL REHIM
&

SHAJI P. CHALY, JJ.

W.P. (Crl.) No.508 of 2015

Dated this the 19th day of January, 2016

JUDGMENT

Shaji P. Chaly, J.

This writ of habeas corpus is filed by the petitioner who is the father of one Anju S. Saju, aged 18 years, seeking production of the said detenue and set her at liberty alleging that she is under the forcible and illegal custody of the 4th Respondent.

  1. When the case came up for admission, this Court issued notice to the 4th Respondent and directed to produce the alleged detenue before this Court, if she is available in his custody. The 3rd Respondent was directed to intensify the investigation of the case registered with respect to the missing of the alleged detenue and also directed to ensure that the alleged detenue is produced before this Court.
  • When the case was again taken up on 21.12.2015, the Respondent entered appearance through counsel and had filed an Interlocutory Application seeking impleadment of the alleged detenue. In the affidavit filed along with the I.A., it was stated that the alleged detenue is in acquaintance with the 4th Respondent since December 2014 onwards and she is determined of marrying him. According to her, she had left her parental house along with the 4th Respondent on 07.12.2015 and was staying along with him at different places and she expressed her disinclination to go to her parental house along with the petitioner.

  • It was also stated in the affidavit that the ‘notice of intended marriage’ has already been submitted to the Marriage Officer, Mathilakam and the requisite fee was remitted through money order sent on 16.12.2015. The learned counsel appearing for the 4th Respondent had produced for our perusal a copy of the acknowledgement with respect to receipt of money by the Marriage Officer on 17.12.2015. Since there is no valid marriage, even though the alleged detenue expressed her inclination to go along with 4th Respondent, this Court did not permit her to do so and thereupon we directed the 3rd Respondent to admit the alleged detenue at S.N.V. Sadanam Hostel, Ernakulam South and further directed the alleged detenue to be produced before this Court on 15.01.2016.

  • On 15.01.2016, we interacted with the alleged detenue and she reiterated her strong determination to solemnize marriage with 4th Respondent based on the ‘notice of intended marriage’ already submitted on 17.12.2015. We interacted with the alleged detenue on that day also with regard to the statements and allegations contained in I.A.No.594 of 2016 and we were satisfied that since the alleged detenue has attained majority and she was not under any forcible or illegal custody, she can be permitted to go along with 4th Respondent after the marriage in accordance with the notice given for the intended marriage. Thereupon, the alleged detenue was directed to be re-admitted in the Hostel with a rider that she be permitted to appear before the Marriage Officer, Mathilakam on 18.01.2016 and the case was posted today.

  • Today when the case was taken up, the marriage certificate issued by the Marriage Officer, Mathilakam dated 18.01.2016 is produced before us, and it is evident from the said certificate that the alleged detenue entered into marriage with 4th Respondent under the Special Marriage Act and therefore we are convinced that the alleged detenue and the 4th Respondent have entered into the marital bond in accordance with law.

  • In the circumstances, we are inclined to think that the alleged detenue is not under the forcible or illegal custody of the 4th Respondent and she is set at liberty to go along with the 4th Respondent.

  • The writ petition accordingly fails and the same is dismissed.

    Sd/-

    C.K. ABDUL REHIM JUDGE Sd/-

    SHAJI P. CHALY JUDGE //true copy// P.S. to Judge St/-

    19.01.2016

    Advertisements

    When a 498a quash order says ‘… financial claims were settled …’ How many lakhs / crores is that ??

    There are 1000s of 498a cases where the woman takes money and happily agrees to quash. Generally the financial details are mentioned for the safety of both parties. However, we also see orders where even the amount is not mentioned !! Was it too big ? one wonders !!

     

    IN THE HIGH COURT OF KERALA AT ERNAKULAM

    PRESENT:

    THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR

    WEDNESDAY, THE 2ND DAY OF JANUARY 2013/12TH POUSHA 1934

    Crl.MC.No. 3438 of 2012 ()

    PETITIONER(S)/ACCUSED:

    1. AJAY.G.R.
      S/O.LATE RAJAKUMAR, T.C. 1593-1, THIRUMALA P.O.
      THIRUVANANTHAPURAM.
    2. GEETHA, AGED 50 YEARS, W/O.LATE RAJAKUMAR, T.C.1593-1,
      THIRUMALA P.O., THIRUVANANTHAPURAM.

    BY ADVS.SRI.S.RAJEEV
    SRI.K.K.DHEERENDRAKRISHNAN

    RESPONTENTS/COMPLAINANT:

    1. STATE OF KERALA
      REP. BY PUBLIC PROSECUTOR
      HIGH COURT OF KERALA-682 031.
      ERNAKULAM (CRIME NO.490/2011 OF
      POOJAPPURA POLICE STATION
      THIRUVANANTHAPURAM DISTRICT)
  • RINU, D/O.DR.V.JAYAPRAKASH,
    T.C. 13/731 (1), SIVAM, THARAPATHAM
    LANE, KUNNUKUZHY P.O., 695 004
    THIRUVANANTHAPURAM.

  • R2 BY ADV. SRI.KALLAMPALLY MANU
    BY PUBLIC PROSECUTOR SRI.V.H.JASMINE

    THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
    02-01-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

    MNS

    Crl.MC.No. 3438 of 2012 ()

    APPENDIX

    PETITIONER(S) EXHIBITS:

    ANNEXURE-I: CERTIFIED COPY OF THE FIR IN CRIME NO.490/2011 OF
    POOJAPPURA POLICE STATION.

    ANNEXURE-II: ORIGINAL AFFIDAVIT SWORN BY THE SECOND RESPONDENT/
    DEFACTO COMPLAINANT DATED 25.05.2012.

    ANNEXURE-III: TRUE COPY OF THE AFFIDAVIT SWORN BEFORE THE NOTARY
    PUBLIC BY THE SECOND RESPONDENT.

    RESPONDENTS’ EXHIBITS:NIL

    //TRUE COPY//

    P.A TO JUDGE

    T.R. RAMACHANDRAN NAIR, J.
    ~~~~~~~~~~~~~~~~~~~~~~~~~~~
    Criminal M.C.No.3438/2012
    ~~~~~~~~~~~~~~~~~~~~~~~~~~
    Dated this the 2nd day of January, 2013

    O R D E R

    The main prayer is to quash proceedings in Crime No.490/2011 of Poojappura Police Station, Thiruvananthapuram. Annexure-I is the copy of the First Information Report. The offences involved are under Section 498A read with Section 34 of the Indian Penal Code. The petitioners are accused Nos.1 and 2. The de facto complainant is the wife of the first accused and the second accused is her mother-in-law. The de facto complainant filed a private complaint which was forwarded to the police for investigation under Section 156(3) of the Code of Criminal Procedure, pursuant to which the crime has been registered.

    1. It is averred that the disputes have been settled with the intervention of the mediators and others. The parties have now decided to separate and get the marriage dissolved.
  • Heard the learned Public Prosecutor, learned counsel for the petitioners and the learned counsel appearing for the second respondent.

  • The second respondent has filed an affidavit produced as Annexure-III herein along with Crl.M.Appln.No.62/2013. It reveals that the parties have filed a mutual divorce petition as O.P.No.1087/2011 before the Family Court, Thiruvananthapuram. In para.6, it is averred that the entire financial claims were settled and the second respondent has no objection in quashing the proceedings in the criminal case.

  • The learned Public Prosecutor also submitted that the parties have settled their disputes.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

  • As the parties have settled the matter, learned counsel for the petitioners and the second respondent prayed for quashing the proceedings. They rely upon various Judgments of the Supreme Court, especially, in Gian Singh v. State of Punjab [2012 (4) KLT 108 (SC)] and Joshi v. State of Haryana [2003 (2) KLT 1062 (SC)].

  • The legal position declared therein is that even if the offences are non compoundable, this Court can exercise jurisdiction under Section 482 of the Code of Criminal Procedure in a fit case. Herein, criminal case arose only due to the private disputes between the parties. Therefore, in view of the subsequent developments, it is not necessary to proceed with the criminal case.

  • Accordingly, the criminal miscellaneous case is allowed. Further proceedings in Crime No.490/2011 of Poojappura Police Station will stand quashed. No costs.

  • Sd/-

    (T.R. Ramachandran Nair, Judge.) ms

    *****************************disclaimer**********************************
    This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


    CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
    *******************************************************************************

     

    Father free 2 take kid abroad without disturbing mother’s visiting rights! Urvashi V Manoj K Jayan KeralaHC

    Mother tries to force her EX husband to surrender kid’s passport. Court declines her wishes. Says as long as father does NOT disturb mother’s visiting rights he is free to take kid abroad.

    IN THE HIGH COURT OF KERALA AT ERNAKULAM

    OP (FC).No. 106 of 2011(R)

    1. V.P.KAVITHA RANJINI @ URVASHI, AGED …  Petitioner

    Vs

    1. MANOJ KADOM POOTHRA MADOM JAYAN @ …       Respondent

    For Petitioner  :SRI.K.RAMAKUMAR (SR.)
    For Respondent  : No Appearance

    The Hon’ble MR. Justice K.M.JOSEPH
    The Hon’ble MR. Justice M.L.JOSEPH FRANCIS

    Dated :15/06/2011

    O R D E R
    K. M. JOSEPH &
    M.L.JOSEPH FRANCIS JJ.,


    O.P.(F.C.) No.106 of 2011 R


    Dated this the 15th day of June, 2011

    JUDGMENT

    K.M. Joseph J.,

    1. The prayers in the O.P.(F.C.) are as follows: “(i) To call for the records leading upto Ext.P2 and quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction. (ii) To direct respondent to surrender the passport of the child Thejalakshmy @ Kunjatta before the Family Court, Ernakulam.”
    2. Though we have not admitted, it was being considered along with the O.P.(F.C.) No.112 of 2011 relates to the same parties.
    3. The matter arises out of G.O.P. No.964 of 2009 filed by the petitioner. The petitioner moved I.A. No. 3766 of 2010 seeking  O.P.(F.C.) No.106 of 2011 direction to surrender the passport of her daughter, which is in the possession of the respondent before the Family Court. It is the case of the petitioner that following the marriage of the respondent, the child may be taken abroad by the respondent with his future wife in whose company the child will be extremely uncomfortable. Ext.P1 I.A. was rejected by Ext.P2 order. We have perused the order. The Family Court has directed the respondent to file an affidavit to the effect that he shall make available the child as and when directed. Thereafter the apprehension alleged by the appellant was unfounded. The application was dismissed.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
    4. When the matter was pending before this Court, apart from the counter affidavit filed by the respondent, the respondent has also filed an additional counter affidavit, which inter-alia reads as follows “(i) That on any occasion that I may take my child abroad along with me using her passport now in my possession, I will do so only after informing the Hon’ble Family Court, Ernakulam in the form of an affidavit about the details of my trip along with my child itinerary of such  O.P.(F.C.) No.106 of 2011 trip including the places of destination and duration of such visits etc. (ii)That on any occasion that I may take my child abroad along with me, I will do so only without disturbing or disrupting the visitorial rights granted to the petitioner mother vide common order dt.13.11.2009 on I.A. No. 1565 of 2009 in O.P. No.623 of 2008 and I.A. No.2824 of 2009 in G.O.P.No. 964 of 2009, the Hon’ble Family Court vide the said common order dt.13.11.2009.”
    5. We think that the apprehension of the petitioner would satisfy in the interest of justice. We close the O.P.(F.C) recording the stand of the respondent in the portion of the additional affidavit filed before this Court, which we have extracted above.

    K.M.JOSEPH, (JUDGE)

    M. L. JOSEPH FRANCIS, (JUDGE)

    dl

    *****************************disclaimer**********************************
    This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


    CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


    Grant AB 2 relatives accused in DV case DONOT pass general orders U/s 18 DV, be specific. Kerala HC

    Hon Kerala HC grants Anticipatory bail to relatives accused of assaulting a woman !! and also advises Hon MM courts to pass specific order (NOT general ones) under Sec 18 DV act.

    The Hon court goes on to say “…Passing a general or vague order like the present one under Section 18(a) may result in unfortunate consequences. If such an order is passed breach of the direction granting residential order under Section 19 or monetary relief under Section 20 or compensation order under Section 21 or custody order under Section 22 also will become punishable under Section 31(1), which is not contemplated by the Act. If a blanket order is passed, even failure to pay maintenance will attract Section 31(1)….” IMHO, This means the Hon HC is clear that NON payment of maintenance is NOT covered by Sec 31 and so no arrest for the same !!


    IN THE HIGH COURT OF KERALA AT ERNAKULAM

    PRESENT:

    THE HONOURABLE MR.JUSTICE K.ABRAHAM MATHEW

    FRIDAY, THE 26TH DAY OF JUNE 2015/5TH ASHADHA, 1937

    Bail Appl..No.267 of 2015


    CRIME NO.1033/2014 OF MUVATTUPUZHA POLICE STATION,ERNAKULAM.

    PETITIONER’S/ACCUSED:
    ************************************-
    1. JABBAR,AGED 41 YEARS,S/O.PAREETH,
    VALIYAVEETIL HOUSE,PANAYIKULAM P.O.
    ALANGAD VILLAGE,ERNAKULAM.

    1. SHAHITHA,AGED 37 YEARS,D/O.PAREETH,
      VALIYAVEETIL HOUSE,PANAYIKULAM P.O.
      ALANGAD VILLAGE,ERNAKULAM.

    BY ADV.SMT.P.R.REENA

    RESPONDENT’S/COMPLAINANT & STATE:
    ************************************************************-
    1. STATE OF KERALA,
    REPRESENTED BY PUBLIC PROSECUTOR,
    HIGH COURT OF KERALA,ERNAKULAM,PIN – 682 031.

    1. SUB INSPECTOR OF POLICE,
      BINANIPURAM POLICE STATION,
      ERNAKULAM DISTRICT,PIN – 683 502.

    BY PUBLIC PROSECUTOR SMT.REMA.R.

    THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
    ON 26-06-2015, THE COURT ON THE SAME DAY PASSED THE
    FOLLOWING:

    K. ABRAHAM MATHEW, J.


    B.A.No. 267 of 2015
    * * * * * * * * * * * * * * * * * * * * * –
    Dated this the 26th day of June, 2015

    O R D E R

    Petitioners are accused 1 and 3 in Crime No. 1033 of 2014 of Binanipuram Police Station registered for the offences under Section 323 IPC and Section 31 of the Protection of Women from Domestic Violence Act, 2005. They are brother and sister. The wife of the first petitioner filed an application against them and the co-accused under Section 12 of the Protection of Women from Domestic Violence Act, 2005. Learned Magistrate passed an interim order on 05.05.2014. The petitioners herein were prohibited from alienating or encumbering the shared household and also from committing “any sort of domestic violence” against the petitioner in the M.C. A case has been registered against the petitioners on the allegation that in violation of the interim order they assaulted the petitioner in the M.C. and thereby they have committed the offences under Section 323 IPC and Section 31(1) of the Protection of Women from Domestic Violence Act. They pray that they may granted anticipatory bail. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

    Section 323 IPC is a bailable offence. The offence under Section 31(1) of the Protection of Women from Domestic Violence Act, 2005 is a cognizable and non-bailable offence though it is punishable only with imprisonment which may extend to one year or with fine which may extend to Rs.20,000/* or with both. But to attract the section the order passed by the Magistrate should be a protection order passed under Section 18 of the Act. It may be interim or final order. Violation of an order passed under any other section does not amount to an offence.

    The direction in the impugned order not to alienate or encumber the properties is a protection order covered by Section 18(e) of the Act. But there is no allegation that the petitioners herein have committed breach of this direction.

    The other direction is that they shall not commit any domestic violence, which obviously was passed under Section 18(a) of the Act. This is not a specific order.

    Passing a general or vague order like the present one under Section 18(a) may result in unfortunate consequences. If such an order is passed breach of the direction granting residential order under Section 19 or monetary relief under Section 20 or compensation order under Section 21 or custody order under Section 22 also will become punishable under Section 31(1), which is not contemplated by the Act. If a blanket order is passed, even failure to pay maintenance will attract Section 31(1). So while passing an order under Section 18(a) of the Act Magistrates shall not direct that the respondent is prohibited from doing any act of domestic violence; the act sought to be prohibited shall be specifically stated in the order, the nature of which shall depend on the facts alleged in the petition.

    This is a fit case to grant anticipatory bail. In the result, this application is allowed.

    The petitioners shall be released on bail on their executing a bond for Rs.20,000/* (Rupees twenty thousand only) each with two solvent sureties each for the like sum if they are arrested by the Police in connection with this case. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

    Sd/-

    K. ABRAHAM MATHEW, JUDGE

    DST //True copy// P.A. To Judge

    *****************************disclaimer**********************************
    This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


    CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
    *******************************************************************************

     

    Magistrate CANNOT order Nonbailable warrant for failure to pay DV maintenance. NBW quashed! Kerala HC

    Classic case where Kerala HC clearly states “….Learned Magistrate cannot order non bailable warrant for the failure to pay maintenance as has been done in this case. It is made clear that Magistrate can proceed against the petitioner or other respondents for non payment of the interim maintenance only as provided under Protection of Women from Domestic Violence Act and such an order cannot be enforced as has been done by the learned Magistrate. In such circumstances, the order issuing non bailable warrant can only be quashed. Petition is allowed. The order issuing non bailable warrant against the petitioner in M.C.No. 246/2010 is quashed…..”


    IN THE HIGH COURT OF KERALA AT ERNAKULAM

    Crl.MC.No. 4843 of 2010()

    1. SHANAVAS, S/O.ABDULSALAM,…  Petitioner

    Vs

    1. RASEENA, D/O.SHIHABUDEEN,…       Respondent
    2. STATE OF KERALA,

    For Petitioner          :SRI.AYYAPPAN SANKAR
    For Respondent      :No Appearance

    The Hon’ble MR. Justice M.SASIDHARAN NAMBIAR

    Dated :10/12/2010

    O R D E R

    M.Sasidharan Nambiar, J.

    Crl.M.C.No.4843 of 2010

    ORDER

    1. First respondent, through her mother, filed petition under Section 12 of Protection of Women from Domestic Violence Act before Judicial First Class Magistrate’s Court-II, Thiruvananthapuram, which was numbered as M.C.No.246/2010. First respondent also filed a petition for interim order under Section 23 of Protection of Women from Domestic Violence Act. By Annexure-II ex parte order dated 24.9.2010, respondents therein were restrained from committing any sort of domestic violence against the first respondent herein. Petitioner, the first respondent therein, was directed to appear before the court on 7.10.2010 and surrender his passport. He was also directed to pay Rs.1,500/- per month towards maintenance to the aggrieved person. Notice was ordered to the respondents therein, including the petitioner. Petitioner, along with the third respondent, challenged that order before Sessions Court, Thiruvananthapuram in Crl.A.No.758/2010. It is pending. They also sought an order staying Annexure-II  order. By Annexure-IV order, learned Sessions Judge stayed only the direction to surrender the passport. Annexure-VI, copy of the proceedings paper in M.C.No. 246/2010, shows that case was posted to 19.10.2010 and on that day, learned Magistrate directed the petitioner to appear in person and pay maintenance. On that day, case was posted to 2.11.2010. On 2.11.2010, petitioner was absent. The case was then posted to 18.11.2010. On 18.11.2010 recording that petitioner was absent and there was no payment of interim maintenance ordered, non bailable warrant returnable on 9.12.2010 was issued. This petition is filed under Section 482 of Code of Criminal Procedure for a direction to the learned Magistrate to dispose the petition filed under Section 12 of Protection of Women from Domestic Violence Act expeditiously and to stay the order issuing non bailable warrant.
    2. In the light of the order to be passed in this petition, it is not necessary to issue notice to the first respondent. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
    3. Section 23(1) of Protection of Women from Domestic Violence Act provides that in any proceeding  before the Magistrate, he may pass such interim order as he deems just and proper. Sub-section (2) provides that if the Magistrate is satisfied that an application prima facie discloses that respondent is committing or has committed an act of domestic violence or that there is likelihood that respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under Sections 18, 19, 20, 21 or 22 against the respondent.
    4. Section 31 of Protection of Women from Domestic Violence Act provides for penalty for breach of protection order. Under sub-section (1), a breach of protection order or of an interim protection order by the respondent shall be an offence and shall be punishable with imprisonment for a term which may extend to one year or fine or both. Section 32 provides that notwithstanding anything contained in the Code of Criminal Procedure, the offence under sub-section (1) of Section 31 shall be cognizable and non bailable.
    5. As is clear from Section 31 of Protection of Women from Domestic Violence Act, when an order under  Section 23, whether under sub-section (1) on hearing the respondent or under sub-section (2), an ex parte interim protection order, was passed and respondent commits breach of that order, respondent is punishable as provided under sub-section (1) of Section 31. That offence, as provided under Section 32 of Protection of Women from Domestic Violence Act is non bailable and cognizable. But the cognizable offence provided under Section 31(1) would only be the result of a breach of the protection order as provided under Section 18 of Protection of Women from Domestic Violence Act.
    6. A Magistrate, on passing an order under Section 23(1) or an ex parte order under Section 23(2) of Protection of Women from Domestic Violence Act, cannot direct arrest of the respondent by issuing non bailable warrant before taking cognizance of the offence, if an offence is committed under sub-section (1) of Section 31. Annexure-VI proceeding paper shows that after passing Annexure-II ex parte order as provided under sub-section (2) of Section 23 of Protection of Women from Domestic Violence Act, the petition filed by the first respondent under Section 12 of Protection of  Women from Domestic Violence Act was posted for the appearance of the respondents. When first respondent appeared through a counsel, he was directed to appear in person and pay the maintenance. It is on the failure to appear and pay maintenance as ordered, the non bailable warrant was issued. Learned Magistrate cannot order non bailable warrant for the failure to pay maintenance as has been done in this case. It is made clear that Magistrate can proceed against the petitioner or other respondents for non payment of the interim maintenance only as provided under Protection of Women from Domestic Violence Act and such an order cannot be enforced as has been done by the learned Magistrate. In such circumstances, the order issuing non bailable warrant can only be quashed. Petition is allowed. The order issuing non bailable warrant against the petitioner in M.C.No. 246/2010 is quashed. Judicial First Class Magistrate- II, Thiruvananthapuram is directed to dispose the petition filed under Section 12 of Protection of Women from Domestic Violence Act, on merits, expeditiously. It is also made clear that learned Magistrate is competent to execute Annexure-II order passed under Section 23(2) of Protection of Women from Domestic Violence Act, in accordance with the provisions of the Act.

    10th December, 2010

    (M.Sasidharan Nambiar, Judge)

    tkv

     

    *****************************disclaimer**********************************
    This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


    CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
    *******************************************************************************