IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 16TH DECEMBER 2011 / 25TH AGRAHAYANA 1933 Crl.MC.No. 3694 of 2011() ------------------------- CMP.2397/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, VARKALA .................... PETITIONER(S)/RESPONDENTS :- ---------------------------------------------- 1. NAZIMUDHEEN,AGED 45 YEARS, S/O.SAYYED MUHAMMED KANNU,CHAMAVILA VEEDU, VARKALA VILLAGE, CHERUKUNNAM DESOM, CHIRAYINKEEZHU TALUK. 2. NAZEEMA,AGED 47 YEARS, D/O.SAYYED MUHAMMED KANNU, SHAMEER MANZIL, VARKALA VILLAGE. 3. SAFIYA BEEVI, D/O.HABEEB MUHAMMED, AGED 75 YEARS, VARKALA VILLAGE, CHERUKUNNAM DESOM, CHIRAYIN KEEZHU TALUK. BY ADV. SRI.P.K.MUHAMMED RESPONDENT(S)/COMPLAINANT AND STATE :- --------------------------------------------------------------------- 1. SHAHNA,AGED 34 YEARS, D/O.MUHAMMED BASHEER, CHAMAVILA VEEDU, VARKALA VILLAGE,CHERUKUNNAM DESOM,CHIRAYINKEEZHU TALUK, PIN-695141. 2. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.S.M.PREM FOR R-1 SMT.K.P.SANTHI FOR R-1 SRI.P.K.NIJOY FOR R-1 PUBLIC PROSECUTOR SMT.JASMINE THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt CRL.M.C.No. 3694 OF 2011 APPENDIX Petitioner's Exhibits :- Annexure A1 :- Copy of the Order passed by the Judicial First Class Magistrate Court-I, Varkala in C.M.P.No.2397/2008. Annexure A2 :- Copy of the order in Crl.Appeal No.612/2009 on the file of the Addl. Sessions Court-I, Thiruvananthapuram. Annexure A3 :- Copy of the order in Crl.R.P.No.2235/2010 dated 18.3.2011 passed by the Hon'ble High Court of Kerala. Annexure A4 :- Copy of the order in C.M.P.No.2397/2008 dated 13.9.2011 passed by the Judicial First Class Magistrate Court-I, Varkala. Anneuxre A5 :- Copy of the complaint filed by the 1st respondent. Annexure A6 :- Copy of the certificate of attendance produced by the petitioners. Respondent's Exhibits :- NIL. //True Copy// P.A. to Judge N.K.BALAKRISHNAN, J. -------------------------------- Crl.M.C. No.3694 of 2011 ----------------------------------- Dated this the 16th day of December 2011 O R D E R Petitioners are the respondents in C.M.P.No.2397/2008 of J.F.C.M.-I, Varkala. That was a petition filed under Sec.12 of the Protection of Women from Domestic Violence Act, 2005. Besides the petitioners herein, there were two other respondents in that petition. That petition was allowed by the learned Magistrate as per Annexure A1 order dated 26.8.2009 directing the first respondent (petitioner herein) to pay Rs.5,00,000/- to the petitioner therein being the value of 100 sovereigns of gold ornaments. There was a further direction to pay Rs.2,00,000/- being the pocket money which was stated to have been paid to him at the time of marriage. A further relief was also granted directing him to pay maintenance to the first respondent herein and two minor children at the rate of Rs.5,000/- per month from the date of petition – 23.4.2008. That order was challenged before the Sessions Court. Crl.M.C. No.3694 of 2011 -: 2 :- Annexure A2 is the order passed by the learned Sessions Judge. That appeal was allowed in part and the matter was remanded to the court below for fresh disposal. The petitioner herein then moved this Court by filing a revision petition. Annexure A3 is the order passed by this Court in that revision petition. 2. The main contention advanced by the petitioner before this Court is that the learned Magistrate lacks jurisdiction to entertain a petition under Sec.12 of the Act since the Domestic Incident Report was not obtained before passing an order therein. In the Crl.R.P. this Court directed to be relegated to the trial court to be decided as the first issue and thereafter depending upon the outcome of the consideration of that question, the trial court was directed to proceed further. Annexure A4 is the order subsequently passed by the learned Magistrate on 13.9.2011. 3. The question of jurisdiction to entertain the petition filed under Sec.12 of the Act was considered as a preliminary issue in Annexure A4 order. The learned Magistrate found Crl.M.C. No.3694 of 2011 -: 3 :- that the application is maintainable and hence the case stands posted for further evidence of the parties. The aforesaid Annexure A4 order is challenged by the husband (first petitioner herein) in this case contending that though this Court specifically directed the learned Magistrate to record a finding as to the jurisdiction of that court to entertain a petition under Sec.12 of the Act, in view of the fact that no Domestic Incident Report was obtained before passing an order, the learned Magistrate has not properly considered that question. This argument is stiffly resisted by the learned counsel for the wife (first respondent herein) pointing out that what is required under Sec.12 is to obtain such a domestic incident report before passing the final order. It does not say that the petition under Sec.12 cannot be received or entertained at all. Since the earlier order passed by the learned Magistrate has already been set aside that is no longer available to the petitioner herein to contend that the entire proceeding has to be quashed. What is required is that before passing any order a DIR has to be obtained. It is Crl.M.C. No.3694 of 2011 -: 4 :- stated by the learned Magistrate that a DIR has already been obtained after the order of remand. That is obtained only for the purpose of deciding whether an order has to be passed under Sec.12 and not to ratify the earlier order which was already set aside. As such it cannot be said that the learned Magistrate does not have jurisdiction to proceed further under Sec.12 of the Act. Since the earlier order regarding payment of maintenance, return of the value of gold ornaments etc. have already been set aside by the learned Sessions Judge, what remains now before the trial court is only the petition under Sec.12 of the Act. According to the learned counsel for the first respondent herein, there is no jurisdictional error in proceeding further in the matter. Though it may be correct that the learned Magistrate should not have passed orders for maintenance, return of gold ornaments etc. before obtaining the Domestic Incident Report, that question no longer survives for consideration since that part of the order was set aside. 4. Now the other question that remains for Crl.M.C. No.3694 of 2011 -: 5 :- consideration is whether the learned magistrate can obtain the DIR subsequent to the filing of a petition under Sec.12 of the Act. Proviso to Sec.12(1) reads : "12. Application to Magistrate-(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggreived person may present an application to the Magistrate seeking one or more reliefs under this Act : Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider." The domestic incident report is required only for passing any order on such a petition. To entertain a petition under Sec.12 such a report (DIR) is not a pre requisite. In other words, the DIR can be filed after filing of the application also. The section only mandates that the learned Magistrate will take into consideration any DIR received by him from the Protection Officer or the service provider before passing any order on such application. Therefore, according to the learned counsel for the first respondent, such a DIR is required only to be produced or filed before passing any order Crl.M.C. No.3694 of 2011 -: 6 :- on such application. Now, that the earlier order has already been set aside by the appellate court what remains is only the application filed under Sec.12(1) of the Act. Therefore, the fact that DIR was obtained only subsequently will not in any way affect the maintainability of the petition. Sub section (2) of Sec.12 also makes it clear that the relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent. Since Annexure A4 order is appealable under Sec.29 of the Act, the contention that this Court should invoke the jurisdiction under Sec.482 Cr.P.C. cannot be sustained. Of course, the main argument focused by the learned counsel is that the learned Magistrate has not complied with the direction issued by this Court and by the Sessions Court in the orders mentioned above. But going through the order passed, it is seen that the learned Magistrate has passed an order on the preliminary issue as to Crl.M.C. No.3694 of 2011 -: 7 :- the jurisdiction of that court. Whether the order passed by the learned Magistrate is correct or not is to be challenged before the appellate court. Hence, leaving that opportunity to the petitioner herein, this petition is only to be dismissed. In the result, this petition is dismissed but giving opportunity to the petitioners to challenge Annexure A4 order before the appellate court under Sec.29 of the Act. N.K.BALAKRISHNAN, JUDGE. Jvt