IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN FRIDAY, THE 16TH DAY OF AUGUST 2013 25TH SRAVANA, 1935 Crl.MC.No. 2036 of 2013 () --------------------------- AGAINST THE MC 59/2013 of J.M.F.C-1.,CHANGANACHERRY ----------- PETITIONERS/ACCUSED: -------------------- 1. MUHAMMED NAZEER, AGED 4 YEARS S/O.M.K.MUHAMMAD KUNJU, MUNDETHU HOUSE, VEROOR P.O. CHANGANASSERY.
2. M.K.MUHAMMAD KUNJU, AGED 7 YEARS S/O.LATE KUNJUKATHI RAWTHER, MUNDETHU HOUSE VEROOR P.O., CHANGANASSERY.
3. FATHIMA BEEVI @ PATHUMMA, AGED 6 YEARS W/O.M.K.MUHAMMAD KUNJU, MUNDETHU HOUSE, VEROOR P.O. CHANGANASSERY. BY ADVS.SRI.K.A.HASSAN SMT.JULIA PRIYA RESHMY RESPONDENTS/COMPLAINANT: ------------------------- 1. STATE OF KERALA REPRESENTED BY C.I. OF POLICE, CHANGANASSERY.
2. NISSY MOL W/O.MUHAMMAD NAZEER, MUNDETHU HOUSE, VEROOR P.O. CHANGANASSERY-691021. R1 BY PUBLIC PROSECUTOR SMT.S.HYMA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK Crl.MC.No. 2036 of 2013 () --------------------------- APPENDIX -------- PETITIONER(S)' EXHIBITS ----------------------- ANNEXURE-1: THE CERTIFIED COPY OF THE CMP NO.1139/13 IN M.C.NO.59/13 PENDING BEFORE THE JFMC-1, CHANGANASSERY. ANNEXURE-2: COPY OF THE TALAQ NAMA DATED 26 3.13. ANNEXURE-3: COPY OF THE LETTER DATED 26 3.13 TO THE JAMA-ATH. ANNEXURE-4: COPY OF THE LETTER TO THE SECRETARY, KARIKKODU NAINAR JUMA MASJID, THODUPUZHA ON 29.3.13. ANNEXURE-5: COPY OF THE INTERIM ORDER IN CMP NO.1139/13 IN M.C.NO.59/13 PENDING BEFORE THE JFMC-1, CHANGANASSERY. ANNEXURE 6 COPY OF THE PETITION IN M.C. 59/13 OF THE JFMC.1, CHANGANASSERY. ANNEXURE 7 COPY OF THE FIR IN CRIME NO.834/13 A DATED 8 5.13 OF THE CHANGANASSERY POLICE STATION. ANNEXURE 8 COPY OF THE ORDER IN B.A.3717/13 BY THE HON'BLE HIGH COURT. RESPONDENT(S)' EXHIBITS : NIL ----------------------- / TRUE COPY / P.A. TO JUDGE VK V.K.MOHANAN, J.
------------------------------------------ Crl.M.C.No.2036 of 2013 ------------------------------------------- Dated this the 16th day of August, 2013 ORDER The petitioners are respondents in M.C.No.59 of 2013 pending before the Judicial First Class Magistrate Court-I, Changanassery which is a proceedings instituted at the instance of the second respondent herein, under Section 12 of the Protection of Women from Domestic Violence Act, who is the alleged divorced wife of the first petitioner and the daughter-in-law of petitioners 2 and 3. The petitioners are also accused in Crime No.834 of 2013 of the Changanassery Police Station wherein the offence alleged is under Section 498-A read with Section 34 of IPC.
2. According to the petitioners, the first petitioner divorced the second respondent though he married her on 27/04/1997 in accordance with the customs and rights prevailing among the Muslim community and during their wedlock two children born out. According to the petitioners, from the earlier days of the marriage life, a lot of domestic Crl.M.C.No.2036 of 2013 :-2-: problems arose and difference of opinions occurred among the spouses which settled only when mediators from the two Juma-ath were interfered and according to the petitioners the problems were settled particularly in view of Annexure-2 and Annexure-3 and the said facts are further substantiated by Annexure-4. It is averred that in spite of those proceedings, the second respondent herein approached the court below and now proceedings are pending against the petitioners which according to them are clear abuse of process of court and therefore they preferred the M.C. under Section 482 of Cr.P.C. with a prayer to quash all proceedings in Annexure-I M.C.No.59 of 2013 pending before the Judicial First Class Magistrate Court-I, Changanassery.
3. Heard Sri.K.A.Hassan, the learned counsel for the petitioners and I have also heard the learned Public Prosecutor.
4. Sri.K.A.Hassan, the learned counsel for the petitioners vehemently submitted that the present proceedings at the instance of the second respondent are initiated belatedly Crl.M.C.No.2036 of 2013 :-3-: and that too when she ceased all the status of wife of the first petitioner. After taking me through Annexure-6 Form and Annexure-7 F.I.R., F.I. Statement and the affidavit filed by the second respondent before the court below, the learned counsel submits that, the second respondent approached the court below only to harass the petitioners and the averments contained in the above documents are contrary in nature which itself manifest the vexatious and frivolous nature of the petition preferred before the court below. If the petitioners are constrained to face the prosecution upon the proceedings instituted by the second respondent it will amount to sheer abuse of process of court and this court by exercising the jurisdiction under Section 482 of Cr.P.C. has to interfere with the same and by quashing the same, abuse of process of the court has to be prevented.
5. I have carefully considered the arguments advanced by the learned counsel for the petitioners and I have perused materials produced along with the M.C. Along with Annexure-6 the aggrieved person has also filed Annexure-I Crl.M.C.No.2036 of 2013 :-4-: affidavit in support of the petition under Section 23(2) of Protection of Women from Domestic Violence Act, 2005. It appears that after having considered the case put forwarded by the aggrieved person namely, the second respondent, the learned Magistrate has passed Annexure-5 order restraining the respondent from forcibly ousting aggrieved person from the shared household and also from causing any sort of disturbance to her while residing in it peacefully. It is also ordered to obtain Form-I report from the Probation Officer. The learned Magistrate has passed the said order on 27/4/2013.
6. From the facts which are beyond dispute it can be seen that the first petitioner herein married the second respondent on 27/4/1997 in accordance with the customs and rights prevailing among the Muslims and during the said wedlock two children born out to the first petitioner. It is true as per Annexure-2 and as per Annexure-A3 it appears that the first petitioner pronounced Talaq divorcing the second respondent which is confirmed as per Annexure-4. According Crl.M.C.No.2036 of 2013 :-5-: to me, whatever may be the proceedings adopted by the first petitioner to divorce his wife/the second respondent, who is the aggrieved person before the court below, are not ground to deny the privileges and protection given to a wife under the provisions of the Protection of Women from Domestic Violence Act, 2005. The contention of the learned counsel for the petitioner that the respondent herein is not entitled to get the benefit of the present Act, when the Muslim Women (Protection of Rights on Divorce) Act, 1986 are available. According to me, the above contention is untenable since the very same legislature which enacted Act 25 of 1986, adopted the Protection of Women from Domestic Violence Act, 2005, by passing the same in Loksabha on 24/8/2005 and in Rajyasabha on 29/8/2005 and thus came into effect on 26/10/2006. So, on a perusal of the provisions of the Protection of Women from Domestic Violence Act it can be seen that the Muslim wives are not excluded from the provisions of the said Act in spite of the fact that the Muslim Women (Protection of Rights on Divorce) Act, 1986 is prevailing at the time of enactment of the Crl.M.C.No.2036 of 2013 :-6-: present Act. It is clear that a divorced Muslim woman is also not excluded from the purview of the Protection of Women from Domestic Violence Act, 2005. So, according to me, the contention now advanced by the learned counsel for the petitioners cannot be sustained at this stage. Whatever contentions available to the petitioners can raise before the court below where the case is pending.
7. It is also relevant to note that in the present case the court below has passed Annexure-5 order. According to me, the above interim order can be re-considered by the court below at the instance of the person aggrieved by such interim orders and convince the court the illegality if any of such orders. Annexure-5 is also an appealable one. The petitioners herein have not resorted any of those course while Annexure-5 order is in force. The arguments now advanced by the learned counsel for the petitioners can be further considered and decided, only on the basis of the evidence yet to be adduced in the trial court. Crl.M.C.No.2036 of 2013 :-7-: Thus, according to me, considering the object sought to be achieved by the Act 43 of 2005, this Court will not be justified in interfering either with the interim order now passed by the trial court or the proceedings pending therein. If the petitioners 2 and 3 seek exemption from their personal appearance before the court below, the learned Magistrate is directed to consider the same on merit and I am sure that the learned Magistrate will not insist for the personal presence of the petitioners 2 and 3 unless their presence are indispensable. In the result, I find no merit in this petition and accordingly the same is dismissed but subject to the above observation. V.K.MOHANAN, JUDGE skj True copy P.A. to Judge