IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 22ND SEPTEMBER 2010 / 31ST BHADRA 1932 Crl.MC.No. 1307 of 2010() ------------------------------------- CMP.6262/2009 of JUDL.MAGISTRATE OF FIRST CLASS COURT, SASTHAMCOTTA .................... PETITIONER/COUNTER PETITIONER ----------------------------------------------------- ALEX T.KOSHY, S/O.KOCHU KOSHY, ELAMTHOTTATHIL, PARANTHAL P.O.,PANDALAM THEKKEKARA VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.B.MOHANLAL RESPONDENT/PETITIONER ---------------------------------------- 1. BINDU,D/O.JOYKUTTY, ST.MARY'S BUNGLOW, PADINJATTAM KIZHAKKU MURI, SOORANAD NORTH VILLAGE, KUNNATHOOR TALUK, KOLLAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.R.SURAJ KUMAR. R2 BY PUBLIC PROSECUTOR MR.P.A. SALIM. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22/09/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.1307 OF 2010 --------------------------------------------- Dated 222nd September, 2010 O R D E R Petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-VI order passed by Judicial First Class Magistrate, Sasthamcotta in Annexure-III application (C.M.P.6262/2009) filed by the first respondent in a petition filed under Section 12 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the Act”) for interim maintenance. 2. Learned counsel appearing for the first respondent pointed out that Annexure-VI order is appealable and remedy of the petitioner is to challenge Annexure-VI order by filing an appeal. Learned counsel Crmc 1307/10 2 appearing for the petitioner argued that the order is illegal as there was no domestic violence and before the Family Court the first respondent has stated that she does not need any maintenance and in such circumstances, Annexure-VI order should be quashed. 3. Section 29 of the Act provides that there shall be 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 case may be. Section 23(1) of the Act enables the Magistrate, when a petition under Section 12 of the Act is pending, to pass such interim orders as he deems just and proper. When an order under Section 23(1) of the Act is passed, respondent or the aggrieved person is definitely entitled to challenge that Crmc 1307/10 3 order by filing an appeal as provided under Section 29 of the Act. When an appeal is provided, it is not for this court to exercise the extra ordinary jurisdiction under Section 482 of Code of Criminal Procedure and decide the correctness or illegality of the order. Petitioner has to canvass the grounds in the appeal. Learned counsel appearing for the petitioner then submitted that as the petitioner has approached this court, appeal was not filed within the period and therefore, petitioner may be granted opportunity to file an appeal. 4. Appeal as provided under Section 29 is to be filed before the Sessions Court, within thirty days from the date on which the impugned order was served on him. If the order was not served on him, petitioner can file an Crmc 1307/10 4 appeal at any time. If the order has been served and petitioner did not file an appeal in view of filing the petition before this Court, he is at liberty to file an application to condone the delay. If an appeal is filed under Section 29 of the Act with an application to condone the delay, learned Sessions Judge to condone the delay and consider the appeal in accordance with law. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.