IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933 Crl.Rev.Pet.No. 2817 of 2011() ------------------------------------------- CRA.NO.322/2011 OF II ADDITIONAL SESSIONS COURT, KOLLAM CRL.M.P.NO.7977/2011 IN MC.NO.123/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, PUNALUR. -------------------------- REVN. PETITIONER(S): 2ND RESPONDENT/COMPLAINANT -------------------------------------------------------------------------------------- JIJINA, AGED 26, W/O.BIJI BASHEER, PRESENTLY RESIDING AT BIJI MANZIL, KARAMMOODU, KUNDAYAM VILLAGE, PATHANAPURAM TALUK (NABEESA MANZIL, KARAMMOODU, KUNDAYAM, PATHANAPURAM VILLAGE, PATHANAPURAM TALUK) BY ADV. SRI. K.SHAJ SRI.SAJJU.S. RESPONDENT(S): STATE/APPELLANTS/RESPONDENTS 2 AND 3 ---------------------------------------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. BASHEER, BIJI MANZIL, KARAMMOODU, KUNDAYAM VILLAGE, PATHANAPURAM TALUK. 3. JAMEELA, BIJI MANZIL, KARAMMOODU, KUNDAYAM VILLAGE, PATHANAPURAM TALUK. R1 BY PUBLIC PROSECUTOR SRI.T.R.RAJESH R2 & R3 BY ADV. SRI.THOMAS M.JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.2817 OF 2011 ----------------------------------------- Dated this the 13th day of December 2011 ORDER Challenge in the revision is against the order dated 11-11-2011 in Criminal Appeal No.322/2011 passed by the II Additional Sessions Judge, Kollam. The above Criminal Appeal arose from a proceeding under the Protection of Women from Domestic Violence Act, hereinafter referred to as PWDV Act, in which an ex parte order under Section 23(2) of PWDV Act was passed against the respondents in that proceeding. Petitioner in such proceedings, numbered as M.C No.123/2011 on the file of the Judicial First Class Magistrate -III, Punalur, an application under Section 12 of the PWDV Act, sought for various reliefs covered under the above Act against the three respondents named, her husband and his parents. With her application, she moved an affidavit seeking ex parte interim orders to restrain the respondents from disturbing her peaceful enjoyment and residence in the shared household and also from alienating the property and building scheduled in her petition. Acting on the averments sworn to in the affidavit, the magistrate passed an order granting the reliefs canvassed for ex parte and directed the Station House Officer having jurisdiction to ensure the execution of that order. Crl.R.P No.2817 OF 2011 2 Respondents 2 and 3, the parents of the 1st respondent, challenged that ex parte order filing the appeal referred to above. After hearing both sides, the sessions judge vacated the order passed by the magistrate over the shared household and retained the order restraining alienation of the property, referred to in the petition, allowing it to continue until final order is passed, after taking the evidence of the parties. Part of the order of the sessions judge vacating the order of the magistrate over the shared household is challenged in this revision by the petitioner/wife in the proceedings. So far as the order restraining alienation of the property, which as indicated above was directed to continue till disposal, the respondents have submitted to that order. 2. I heard the counsel on both sides. 3. The main thrust of challenge canvassed by the learned counsel for the petitioner is that the discretion exercised by the magistrate in passing the exparte order was wrongfully interfered by the learned sessions Judge in appeal without taking into account the laudable objectives behind the enactment of PWDV Act, which is intended to provide protection to women who are victims of domestic violence. Now, under the orders passed by the sessions Judge, the relief canvassed by her as an interim arrangement till disposal of the Crl.R.P No.2817 OF 2011 3 petition, to have continued occupation in the shared household, has been declined to her without being provided with an opportunity to canvass her case for sustaining the ex parte order already granted by the magistrate, is the submission of the counsel. The learned counsel would also submit that where an interim order and that too ex parte in nature was passed under the PWDV Act by the magistrate, it is only appropriate and proper to have a decision on such orders by the same magistrate and only thereafter a challenge against such order can be entertained by way of an appeal under Section 29 of the PWDV Act. The sessions judge has decided the issues covered by the affidavit solely on the basis of the arguments canvassed and also grounds raised in the memorandum of appeal, and that was totally unwarranted, especially, where the respondents could have canvassed the challenges available to them against the ex parte order before the magistrate. Per contra, the learned counsel for the respondents would submit that the building is owned by them. The 1st respondent has married again after pronouncing Talaq on the petitioner and, as such, on the facts involved, where especially a direction has been issued to the Station House Officer to ensure the execution of the order, and as it was not a case in which the magistrate has properly exercised jurisdiction in passing the ex parte orders, the appeal preferred by Crl.R.P No.2817 OF 2011 4 them, the right of which is insulated by the provisions of the PWDV Act, is perfectly justifiable, is the submission of the counsel. The order passed by the sessions judge vacating that part of the order relating to the shared household, which, according to the counsel, was passed after taking into account the facts and circumstances presented in the case, does not warrant any interference in exercise of revisional jurisdiction. 4. After hearing the counsel on both sides at length, I find that any observation by this court dilating over the disputed facts involved in the proceedings, that too for examining the propriety, legality and correctness of the interim order passed ex parte, has to be strictly avoided as it may have a bearing in the decision to be rendered by the magistrate over the matter after affording reasonable opportunity of hearing to both sides to do so. So I refrain from adverting to the case canvassed by the petitioner for the interim reliefs claimed ex parte and also the objections put up by the respondents as to why such reliefs are not allowable. So far as one of the interim reliefs claimed with respect to the restraint order passed by the magistrate prohibiting the respondents from alienating the property comprising the building scheduled in the petition as already indicated no further challenge is raised by the respondents and, as such, that order has to continue till Crl.R.P No.2817 OF 2011 5 the disposal of the case. However, as regards the ex parte order passed by the magistrate over the shared household, which has been vacated by the learned sessions Judge in appeal, as rightly contended by the learned counsel for the petitioner, it has been so decided without providing her an opportunity to advance her case before the magistrate. Objections to the ex parte order canvassed by them before the sessions judge, primarily, have to be examined by the magistrate and then he has to decide whether the ex parte order already passed has to be vacated or to be retained with or without modification till disposal of the case. From the submissions made by the counsel on both sides, it is apparent that some of the disputed questions arising for consideration have to be taken note of in passing appropriate order as to whether the petitioner is entitled to any order in respect of the shared household claimed by her or any other relief to have directions or orders for alternate accommodation at the expense of the 1st respondent in the proceeding. Perusal of the order passed by the sessions judge would indicate the order passed over the shared household was vacated forming a conclusion that the averments made in her affidavit would indicate that what she sought was only a re induction into the house where she resided earlier with her husband. Whether that house falls as a shared household on the Crl.R.P No.2817 OF 2011 6 allegations imputed by her of the domestic violence committed by the respondents and the question whether she is entitled to the relief canvassed, required to be probed and, no doubt, tested and examined with reference to the objections of the respondents in the proceedings. Decision made over the interim relief canvassed, as done in the present case in appeal when the challenge was against the ex parte order passed by the magistrate, no doubt, was not proper and correct. So much so, the order passed by the sessions judge setting aside the ex parte interim order in respect of the shared household has to be modified, making it clear that the magistrate shall consider the entitlement of the interim relief canvassed over the shared household with reference to the affidavit filed by her and also the objections by the respondents which if not filed so far, have to be filed within a period of three weeks from the date of this order, and after hearing both sides. 5. Till an order is passed by the magistrate, as indicated above, it is made clear that there will be no order with respect to the shared household since whatever order passed by the magistrate ex parte has already been vacated in appeal. 6. Parties are directed to appear through their counsel before the magistrate on 26-12-2011 and the magistrate shall pass Crl.R.P No.2817 OF 2011 7 appropriate orders with respect to the interim relief canvassed by the petitioner over the shared household as expeditiously as possible, at any rate, within a period of one month from the date of appearance as fixed above. Revision disposed of. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge