IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN MONDAY, THE 29TH DAY OF JULY 2013 7TH SRAVANA, 1935 Tr.P(Crl.).No. 65 of 2013 () ----------------------------- (AGAINST THE ORDER/JUDGMENT IN MP 5804/2012 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II,THRISSUR) PETITIONERS/RESPONDENTS NOS:
1. TO 4.---------------------------------- 1. RIJU JACOB,AGED 3 YEARS S/O.JACOB, KODIYAN HOUSE, P.O.KADUPPASSERY IRINJALAKUDA, MUKUNDAPURAM TALUK, THRISSUR ”
698.
2. CICILY JACOB, W/O.JACOB, KODIYAN HOUSE, P.O.KADUPPASSERY IRINJALAKUDA, MUKUNDAPURAM TALUK, THRISSUR ”
698.
3. REENA JOY W/O.JOY, KALAPURAKAL HOUSE, P.O.MALA MUKUNDAPURAM TALUK, PIN 68.732.
4. RANI PAULSON, W/O.PAULSON, KANJUTHARA HOUSE OPPOSITE PALLIPURAM LATIN CHURCH, MALA PALLIPURAM P.O., PIN 68.732. BY ADV. SMT.K.V.BHADRA KUMARI RESPONDENTS/PETITIONERS: ------------------------ 1. PINKY MARGARAT VARGHESE, AGED 30 D/O.C.J.VARGHESE, CHIROTHA HOUSE, S.M.LANE CHEETTUPUZHA, PULLAZHI VILLAGE, OLARIKARA DESOM THRISSUR TALUK 2 JAIK RIJU (MINOR) REP. BY HIS MOTHER AND GUARDIAN PINKY MARGARAT VARGHESE, D/O.C.J.VARGHESE CHIROTHA HOUSE, S.M.LANE, CHEETTUPUZHA PULLAZHI VILLAGE, OLARIKARA DESOM, THRISSUR TALUK.
3. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM ”
031. BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 29-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: MNS Tr.P(Crl.).No. 65 of 2013 () APPENDIX PETITIONER'S ANNEXURES: ANNEXURE 1 TRUE COPY OF THE PETITION, O.P.NO.102/2011 FILED BY THE 1ST RESPONDENT BEFORE THE FAMILY COURT, THRISSUR. ANNEXURE II:TRUE COPY OF THE ORDER DATED 24 6.2013 IN Tr.P.(C). NO.169/2013 OF THIS HON'BLE COURT. ANNEXURE III:TRUE COPY OF THE PETITION, M.P.NO.5804/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II,THRISSUR FILED BY THE 1ST RESPONDENT AGAINST THE PETITIONERS. RESPONDENTS' ANNEXURES: NIL //TRUE COPY// P A TO JUDGE V.K.MOHANAN, J.
---------------------------------------- Tr.P.(Crl.)No.65 of 2013 ---------------------------------------- Dated this the 29th day of July, 2013 ORDER
The petitioners are the respondents 1 to 4 in M.P.No.5804 of 2012 of Judicial First Class Magistrate Court -II, Thrissur and they seek an order under Section 407 of Cr.P.C., to transfer M.P.No.5804 of 2012 pending before the Judicial First Class Magistrate Court-II, Thrissur to Family Court, Thrissur.
2. Heard Advocate K.V.Bhadra Kumari learned counsel for the petitioners and I have perused the materials produced along with this transfer petition.
3. The case of the petitioners are that the aggrieved person in M.P.No.5804 of 2012 has already approach the Family Court, Thrissur under Section 7 of Family Court Act seeking several reliefs including the relief as contemplated under Section 26 of the Protection of Women from Domestic Violence Act. But the same relief sought for in the petition filed under Section 12 of the Protection of Women from Domestic Violence Act and if these two proceedings are allowed to go in two separate courts there is every likelihood of conflicting judgments. It is also the contention of the Tr.P.(Crl.)No.65 o”
2. learned counsel that in the light of the decision of the Division Bench of this Court in K.N.Sudhannya v. Umasanker Valsan (2013 (1) KLT 135), the Family court has also jurisdiction to try a petition filed under Section 12 of the Protection of Women from Domestic Violence Act and, therefore, the petitioners are entitled to get an order as well.
4. I am unable to sustain the above contentions. First of all, it is relevant to note that the point considered by the Division Bench in a decision in K.N.Sudhannya v. Umasanker Valsan (2013 (1) KLT
135) is whether the Family Court has jurisdiction to entertain the petition under the provisions of the Domestic Violence Act. No doubt Section 26 of the Domestic Violence Act given option to aggrieved person to approach either Magistrate court or under Section 12 of D.V Act or Family court, if any person needs reliefs as contemplated under Sections 18, 19, 20, 21 and 22 of D.V Act, based upon the facts and circumstances involved the case, particularly considering the cause of action arose. In the present case, the aggrieved person opted to file a petition under Section 12 of the Protection of Women from Domestic Violence Act before the Judicial First Class Magistrate Court-II, Tr.P.(Crl.)No.65 o”
3. Thrissur. Therefore the question arose for consideration is whether that petition is liable to be transferred to the Family Court, Thrissur, where earlier petition are pending. Considering the convenience of the aggrieved person, according to me and especially when she opted to file a petition before the court of Judicial First Class Magistrate-II, Thrissur, the said proceedings cannot be ordered to be shifted or transferred to the Family Court at Thrissur, especially, when both the proceedings are pending in the courts at Thrissur itself.
5. The apprehension expressed by learned counsel for the petitioner about the possibility for conflicting judgments in case of proceeding for the same relief in two different courts, according to me, is unfounded in view of Section 26 of the Protection of Women from Domestic Violence Act, 2005. Sub Section 2 of Section 26 of D.V Act refer to any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. Sub Section (3) further says in case any relief has been obtained by the aggrieved person in any proceedings other Tr.P.(Crl.)No.65 o”
4. than a proceeding under this Act, she shall be bound to inform the magistrate of the grant of such relief.
6. In the represent case, if the aggrieved person fails to comply with the procedure contemplated Under Section 26(3), the petitioner can bring those aspect to the notice of the learned Magistrate. Thus considering the object sought to be achieved by the Protection of Woman from Domestic Violence Act, the option made by the aggrieved person or the woman cannot be disturbed or the Forum selected by such woman shall not be shifted. In the result, I find no merit in this petition and accordingly the same is dismissed. V.K.MOHANAN Judge mns/