IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 19TH JANUARY 2009 / 29TH POUSHA 1930 Crl.Rev.Pet.No. 3946 of 2008() ------------------------------ AGAINST THE ORDER DATED 03/11/2008 IN CMP 6784/08 IN MC.28/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TALIPARAMBA .................... REVN. PETITIONER(S): RESPONDENT/PETITIONER -------------------------------------------------------- VALIYALAKKANDI @ PUTHIYARAMBATH PUTHIYA PURAYIL RASHEEDA, W/O.RAYAROTHVALAPPIL MUHAMMED KUNHI, 35 YEARS CHENGALAL AMSOM , KOYYAM DESOM, TALIPARAMBA TALUK, KANNUR. BY ADV. SRI.MATHEW KURIAKOSE SRI.G.GIREESH RESPONDENT(S): PETITIONERS/RESPONDENTS ------------------------------------------------------ 1. RAYAROTHVALAPPIL MUHAMMEDKUNHI S/O.ABDUL KHADER, 47 YEARS, R.V.MANZIL, CHENGLAL AMSOM, KOYYAM DESOM, KOYYAM PO., TALIPARAMBA TALUK, KANNUR. 2. R.V.SALAM, S./O.ABDUL KHADER, 35 YEARS, R.V.MANZIL, CHENGALAI AMSOM, KOYYAM DESOM, KOYYAM PO., TALIPARAMBA TALUK KANNUR. 3. KAMALUDHEEN.K.V., S/O.AZAINAR, 52 YEARS, R.V.MANZIL, CHENGLAI AMSOM, KOYYAM DESOM, DO.DO. 4. MUHAMMEDKUNHI.R.V, 60 YEARS, AYISHA MANZIL, KAYARALAM, KAYARALAM, ERINHIKKADAVU TALIPARAMBA TALUK, KANNUR. 5. ABDUL KHADER, S/O.ASSAINAR, R.V.MANZIL, CHENGAL AMSOM, KOYYAM DESOM, KOYYAM PO., TALIPARAMBA TALUK, KANNUR.` 6. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M. NAZAR FOR R6 SRI.S.MAMMU FOR R4 & 5 SRI.S.MAMMU FOR R1,3 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3946 OF 2008 =========================== Dated this the 19th day of January,2009 ORDER Revision petitioner is the petitioner in M.C.28/2007 on the file of Judicial First Class Magistrate,Taliparamba. The cognizance was taken by the learned Magistrate under the provisions of The protection of Women from Domestic Violence Act,2005 (hereinafter referred to as the Act) on application filed under section 12 of the Act. An ex parte order was passed on 18.10.2008 restraining respondents from committing or aiding or abetting any commission of domestic violence and also from entering into the house and attempting to communicate with the revision petitioner. A direction was also issued to respondents to return Rs.1,00,000/- and 10 sovereigns of gold paid as stridhan and Rs.2000/- each as maintenance to the revision petitioner and her children. Respondents filed C.M.P 6784/2008, an application to set aside CRRP 3946/2008 2 the ex parte order. Revision petitioner filed an objection challenging the jurisdiction to set aside the ex parte order and also contended that there is no sufficient cause to set aside the ex parte order. Learned Magistrate allowed the application by non-speaking order. The order reads:- “Heard. Allowed. Ex parte order set aside.” The order is challenged in this revision. 2. Learned counsel appearing for the revision petitioner and respondents were heard. 3. Learned counsel appearing for respondents challenged the very maintainability of the revision contending that under section 29 of the Act an appeal shall lie against the impugned order and therefore no revision will lie. Learned counsel appearing for revision petitioner pointed out that the impugned order and was not passed under the Act as the Act does not contain a provision to set aside the ex parte order. It was pointed out that as provided under sub section (4) of Section 19 of the Protection of Women From Domestic Violence CRRP 3946/2008 3 Act, 2005 a petition filed under section 12 of the Act shall be dealt with and the orders enforced in the same manner laid down under section 125 of the Code of Criminal Procedure and so even if it is contended that in view of the provision, section 126 of the Code of Criminal Procedure to set aside an ex parte order will lie, an order passed in such an application cannot be an order passed under the Act which could be challenged under section 29 of the Act and order under section 126 of Code of Criminal Procedure cannot be challenged in an appeal but only in a revision and so the revision will lie. There is force in the submission. Section 29 of the Act provides that there shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later. The order contemplated under section 29 is an order passed under the Act. When the Act does not provide for filing of an application to set aside the ex parte order, the order passed in such an CRRP 3946/2008 4 application cannot be treated as an order passed under the Act which is made appealable under section 29. Therefore a revision will lie. 4. As rightly pointed out by the learned counsel appearing for revision petitioner, learned Magistrate allowed the application and set aside the ex parte order without considering the objections raised by the revision petitioner including the very jurisdiction to set aside the ex parte order. As the order is not a speaking order and was passed without considering the objection, including the question of jurisdiction to set aside an ex parte order, the impugned order is set aside. Sub Divisional Magistrate is directed to reconsider CMP No.6784/2008 and pass appropriate order in accordance with law. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006