IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 4TH JANUARY 2008 / 14TH POUSHA 1929 WP(C).No. 25131 of 2007(P) -------------------------- CMP.1903/2007 of J.M.F.C., MANNARKAD .................... PETITIONER: ------------ 1. KUNHAMMU, PALATHINGAL HOUSE, VETTATHOOR, PERINTHALMANNA. 2. PATHUMMA, PALATHINGAL HOUSE, VETTATHOOR, PERINTHALMANNA. 3. RAYINKUTTY, VAYENGODAN HOUSE, VETTATHOOR, PERINTHALMANNA. 4. LATHEEF, VAYENGODAN HOUSE, VETTATHOOR P.O.,PERINTHALMANNA. BY ADV. SRI.MANSOOR.B.H. RESPONDENTS: ------------- 1. PROTECTION OFFICER, DISTRICT PROBATION OFFICER GRADE I, CIVIL STATION, PALAKKAD. 2. AYISHA, AGED 61 YEARS, PALATHINGAL HOUSE, NIRANAPARAMBIL, VETTATHOOR P.O. PERINTHALMANNA, NOW RESIDING AT KALAMPARAMBIL HOUSE, NATTUKAL P.O., MANNARKKADU TALUK,PALAKKAD. 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 4. UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF LAW AND JUSTICE, NEW DELHI. BY ADV. SRI.A.D.RAVENDRA PRASAD, CGC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * W.P. ( C) No. 25131 of 2007 * * * * * * * * * * * * * * * * * * Dated: 4th day of January 2008 JUDGMENT In this Writ Petition filed under Articles 226 and 227 of the Constitution of India, the husband, husband's second wife, husband's sister and husband's sister's son respectively of the 2nd respondent Aysha challenge Ext.P2 order passed by the J.F.C.M. I, Mannarkkadu in c.M.P. No. 1903 of 2007 which was an application filed by the said Aysha under Sec. 12 of the Protection of Women from domestic Violence Act, 2003 ('the Act' for short). 2. The leaned counsel appearing for the petitioner's made the following submissions in support of the petition. Sec. 13 (2) of the Act is unconstitutional and violative of the rights guaranteed under Articles 14 and 21 of the Constitution and the order is opposed to the principles of natural justice. It confers arbitrary power on the Protection Officer in the matter of serving notice to the respondents . Eventhough Sec. 37 (2)(j) of the Act provides for the prescription of a Form of declaration, to be issued under Section 13 (2) of the said Act, no such Form has been prescribed in the Protection of Women from Domestic Violence Rules, 2006 ('the Rules' for short). The Protection Officer had not served notice on the application on the Writ Petitioners. It was without serving notice on the Writ Petitioners that the Protection Officer made a declaration under Section 13 (2) of the Act. That was how the petitioners W.P. ( C) No. 25131 of 2007 -:2:- were set ex-parte by the learned Magistrate. On these grounds, the reliefs sought for in this Writ Petition may be granted. 3. Learned counsel appearing for the 2nd respondent took exception of the above submission and submitted that Sec. 13 (2) of the Act does not suffer from any arbitrary or excessive delegation of power on the Protection Officer. 4. It is true that the Form of declaration under Sec. 13 (2) of the Act has not been prescribed under the Rules. But then, Section 37 (2) (j) is not a mandatory provision but an enabling provision in exercise of the said provision the Rule making authority may or may not prescribe a Form. It is only if the said provision is mandatory, could it be said that failure to prescribe the Form will render Section 13 (2) unworkable . Merely because a protection officer in a given case might abuse the power vested in him, it cannot be said that there is excessive or arbitrary delegation of power in such functionary or that there is unbridened authority conferred on such functionary. If in the instant case, the protection officer has not given notice of the application to the Writ Petitioners, that is a matter which they can profitably canvass before the appellate court since Ext.P2 order is an order which is appealable under Section 29 of the Act. Moreover, clause (c ) of sub Rule 2 of R.12 of the Rules declares that for serving the notices under Sec. 13 or any other provisions of the Act, the provisions under Order - V of the C.P.C. or the provisions under Chapter - VI of the Code of Criminal Procedure as far as practicable may be adopted. Sub Rule 3 of Rule 12 W.P. ( C) No. 25131 of 2007 -:3:- enables the protection officer to report to the court that service of notice under the Act has been effected and thereupon, the said provision confers the power on the Court to pass appropriate orders. It has to be presumed that Ext.P2 order was this passed in accordance with the above statutory scheme. If there has been infraction of any of the provisions of the Act, the petitioner can canvass the same in the appeal. Since Ext.P2 order is an appealable order, I decline to interfere with the same in exercise of extra- ordinary jurisdiction under Art. 226 and 227 of the Constitution. This Writ Petition is accordingly dismissed, without prejudice to the right of the petitioner to file appeal under Sec. 29 of the Act against Ext.P2 order. In case the petitioner files an appeal within a reasonable time from today, I am sure that the Sessions Court before which the said appeal is filed, will take a lenient view in the matter of condonation of delay taking notice of the fact that the petitioner was bonafide prosecuting his case before this Court. V. RAMKUMAR, (JUDGE) ani.