IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 Crl.MC.No. 1034 of 2009() ----------------------------------- OP.755/1999 of FAMILY COURT, THIRUVANANTHAPURAM. .................... PETITIONER(S): ---------------------- K.R. VASU, AGED 57 YEARS, WORKING AS SENIOR CLERK, CANARA BANK, PIDAVOOR BRANCH, KOLLAM, RESIDING AT ALUVILLA PUTHEN VEEDU, PLAKKOODU MURI, KAREEPRA, KOTTARAKKARA, KOLLAM. BY ADV. MR.S.RAJEEV RESPONDENT(S): ------------------------ 1. R. VIJAYALEKSHMI, W/O.K.R. VASU, AGED 47 YEARS, RESIDING AT T.C.NO..20/719, KARAMANA P.O. THYCAUD VILLAGE, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.S.U. NAZAR. R1 BY ADV. MR.DEVAN RAMACHANDRAN , MR.K.M.ANEESH, MR.SUMESH KUMAR N.C. . THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.1034 OF 2009 =========================== Dated this the 2nd day of November,2009 ORDER Petitioner is the respondent and the first respondent the petitioner in M.C.26/2009 on the file of Judicial First Class Magistrate Court-II, Thiruvananthapuram who filed a petition under section 12 of Protection of Women from the Domestic Violence Act, 2005 claiming protection order under section 18 and monetary relief under section 20 and damages under section 22 of the Act. This petition is filed under section 482 of Code of Criminal Procedure to quash the proceedings contending that marital relationship with the petitioner and first respondent were dissolved by Annexure 2 order of Family Court, Thiruvananthapuram in O.P.755/1999 and therefore first respondent is not an aggrieved person or petitioner, a respondent as defined under the Act and therefore the petition filed under section 12 of the Act is not maintainable. It is also contended that as per Annexure 1 affidavit filed along with the petition in the prescribed forum before the Magistrate, petitioner Crl.M.C.1034/2009 2 and first respondent were living separately from 24.5.1990 onwards and in such circumstances, the alleged domestic violence if any was prior to the coming into force of the Act and therefore learned Magistrate has no jurisdiction to grant the relief and therefore the proceeding is to be quashed. 2. Learned counsel appearing for the petitioner and first respondent were heard. 3. Petitioner is the respondent before the learned Magistrate, in a petition filed by the respondents under section 12 of the Act. Though by Annexure 2 order the marriage was dissolved, it is admitted fact that M.F.A 5/2002 is pending before this court challenging that order and therefore Annexure 2 order of dissolution has not become final. 4. The question whether the first respondent is an aggrieved person as defined under the Act or the petitioner is a respondent as defined under the Act are all matters to be decided by the learned Magistrate in the proceedings. It is to be borne in mind that petitioner is not an accused in a proceeding being tried by the learned Magistrate. On the other hand, the Act itself provides that the petitioner is a respondent before the Magistrate. Though a petition filed under section 12 is to be tried following the Crl.M.C.1034/2009 3 procedure provided in the Code of Criminal Procedure, essentially the proceedings is not criminal in nature, except in a case where cognizance is taken as provided under section 31 of the Act, which provides that on the breach of an interim order or a protection order passed under the Act cognizance could be taken. The proceedings before the learned Magistrate pending is not on taking cognizance of an offence under section 31 of the Act. In such circumstances, I do not find that this court has to invoke the extra ordinary powers under section 482 of Code of Criminal Procedure to quash the proceedings. Petitioner is at liberty to approach the learned Magistrate to consider the maintainability of the petition either on the ground that he is not a respondent as defined under the Act or first respondent is not an aggrieved person as defined under the Act or the Act is not applicable to the allegations raised in the petition filed before the learned Magistrate. With that liberty the petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006