IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 24TH MARCH 2011 / 3RD CHAITHRA 1933 OP(Crl.).No. 787 of 2011(Q) --------------------------- MC.245/2009 of J.M.F.C.-II,TRIVANDRUM .................... PETITIONER: -------------------- N.J. KRISHNA KUMAR, AGED 37 YEARS, S/O.S. NADESAN CHETTIYAR, KUMAR HOUSE, PUTHUKUNNU, POWDIKKONAM.P.O, TRIVANDRUM - 695 587 BY ADV. SRI.A.B.MOHANAKUMAR RESPONDENT: --------------- S. MANJU, AGED 35 YEARS, D/O. SARASWATHI, DEVI VILAS, POTTAYIL, MALAYINKEEZHU.P.O, TRIVANDRUM - 695 571. ADV. SMT.MAJIDA.S FOR R-1 SRI.K.RAJESH KANNAN FOR R-1 THIS O.P. (CRIMINAL) HAVING COME UP FOR ADMISSION ON 24/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - O.P.(Crl.) No. 787 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of March, 2011 JUDGMENT Joseph J., The petitioner has approached this Court seeking the following prayers: “i) Direct the Judicial First Class Magistrate Court-II, Thiruvananthapuram to keep in abeyance trial of M.C. No. 245 of 2009 till the final disposal of O.P. No. 505 of 2009 before the Family Court, Thiruvananthapuram. ii) Issue an order of interim stay of further proceedings in M.C. No. 245 of 2009 pending disposal of O.P. No. 505 of 2009 before the Family Court, Thiruvananthapuram.” 2. Briefly the case of the petitioner is as follows. The petitioner and respondent are husband and wife and their marriage was solemnised on 26.8.2009 at Thiruvananthapuram. The O.P.(Crl.) No. 787 of 2011 :2: respondent left for her parental home, deserting the petitioner. The petitioner filed O.P. (H.M.A) No. 458 of 2009 before the Family Court, Thiruvanathapuram for restitution of conjugal rights. This is pending and it is produced as per Ext.P1. It is his further case that as a counter blast, Ext.P2 was filed by the respondent as petition for divorce. Thereafter in order to harass the petitioner, his parents and his sister, the respondent filed M.C. No. 245 of 2009 before JFMC-II, Thiruvananthapuram, which is now in trial stage. The contention taken by the petitioner is that the jurisdiction to decide property dispute between spouses is conferred upon the Family Court vide Section 7 of the Family Courts Acts and the Magistrate Court has no jurisdiction and the trial has to be conducted as per Cr.P.C. by the Magistrate Court. Since different procedures are prescribed for the Family Court and Judicial First Class Magistrate, it is likely that conflicting judgments will be pronounced by the Family Court and the Magistrate Court, with respect to immovable properties scheduled as A, B & C in O.P. No. 505 of 2009 before the Family Court and M.C. No. 245 of 2009 before the JFMC. O.P.(Crl.) No. 787 of 2011 :3: 3. We heard learned counsel for the petitioner and learned counsel for the respondent. 4. Learned counsel for the respondent referred to the provisions of The Protection of Women from Domestic Violence Act & Rules. Learned counsel for the petitioner drew our attention to Sec.7 of the Act. 5. We do not think that we should express any view in regard to the question, as it is always open to the petitioner to raise all his objections before the Magistrate and it is for the Magistrate to take a decision considering various provisions contained in the Family Courts Act and The Protection of Women from Domestic Violence Act & Rules. The learned counsel for the respondent points out that M.C., which is of the year 2009 is posted for trial. 6. In such circumstances, having regard to the facts, particularly, that the M.C. is of the year 2009 and it is posted for trial, we dispose of the O.P. (Crl.) as follows: There will be a direction to the Judicial First Class Magistrate Court-II, Thiruvananthapuram to take up M.C. No. 245 of 2009 on O.P.(Crl.) No. 787 of 2011 :4: its trial and dispose of the same after trial and affording opportunities to the parties to place their arguments before the Court at the earliest, at any rate, on or before 31.7.2011. 7. We make it clear that we have not gone into the merits, which are raised by the parties and we leave it open to the petitioner to raise all his objections before the Magistrate Court and it is for the Magistrate Court to consider the same and take a decision on the same when he disposes the M.C. No. 245 of 2011. K.M. JOSEPH, (JUDGE) M. L. JOSEPH FRANCIS, (JUDGE) dl/