IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 18TH MARCH 2011 / 27TH PHALGUNA 1932 Crl.Rev.Pet.No. 2235 of 2010() ------------------------------ CRA.612/2009 of I ADDL. SESSIONS COURT, TRIVANDRUM CMP.2397/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VARKALA .................... REVN. PETITIONER(S): RESPONDENTS -------------------------------- 1. NAZIMUDDIN, S/O.SYED MUHAMMED KANNU, FROM CHAMA VILA VEEDU, NOW PERMANENTLY RESIDING AT TEMPLE VIEW, CHERUKUNNAM DESOM, VARKALA VILLAGE, CHIRAYINKIL TALUK. 2. NAZEEMA, D/O.SYED MUHAMMED KANNU, SHAMEER MANZIL, NOW PERMANENTLY RESIDING AT TEMPLE VIEW, CHERUKUNNAM DESOM, VARKALA VILLAGE, CHIRAYINKIL TALUK. 3. SAFIYA BEEVI, D/O.HABEEB MUHAMMED, FROM CHAMAVILA VEEDU, NOW PERMANENTLY RESIDING AT TEMPLE VIEW, CHERUKUNNAM DESOM, VARKALA VILLAGE, CHIRAYINKIL TALUK. BY ADV. SRI.P.K.MUHAMMED SRI.S.VIJI RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. SHAHANA, D/O.MUHAMMED BASHEER, FROM CHAMA VILA VEEDU, K.P.HOUSE, PUTHEN KADAVU, CHERUNNIYOOR P.O., VARKALA, CHERUNNIYOOR VILLAGE, CHIRAYINKIL TALUK. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.S.M.PREM FOR R1 SMT.K.P.SANTHI FOR R1 SRI.P.K.NIJOY FOR R1 PUBLIC PROSECUTOR SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.2235 OF 2010 ------------------------------------------------- Dated this the 18th day of March, 2011. ORDER The respondents in a proceedings before the court of Judicial Magistrate of First Class-I, Varkala are the revision petitioners. The grievance of the petitioners is that though the revision petitioner herein had preferred an appeal against the order dated 26.8.2009 in C.M.P.No.2397 of 2008 of the trial court, the Addl. Sessions Judge, Thiruvananthapuram disposed of the appeal, setting aside the impugned order and though there is no scope for any remand, remanded the matter back to the trial court for fresh disposal in accordance with law, with the observation that interim order passed by the lower court on earlier occasion which has emerged in the order of learned Magistrate continue till the disposal of the original petition on merits. According to the revision petitioners the lower court has no jurisdiction to proceed with the petition in the absence of a report from the Protection Officer or Service provider, which is mandatory in view of Section 12(1) of the Crl.R.P.NO.2235 OF 2010 2 Protection of Human Domestic Violence Act. 2. I have heard learned counsel for the petitioner and the respondent and I have also perused the order of appellate court as well as the trial court. 3. The aggrieved person is the wife of the first revision petitioner. It is an admitted fact that both the parties belonged to Muslim community and the marriage between the aggrieved person and the first respondent/husband was solemnized on 9.5.1993 in accordance with the Muslim Religious Rites and Ceremonies. Two children were born in the said wedlock. Subsequently, difference of opinion arose as a result of which the marital relationship got strained. It is under the above circumstance, the aggrieved person approached the trial court by invoking Section 12 of the above Act seeking various relief under the provisions of the above Act including the order for residence, for monitory relief and for maintenance. During the trial PWs. 1 to 3 were examined and Exts.P1 to P3 were marked from the side of the petitioner. From the side of the respondents/ revision petitioners Dws. 1 to 4 were examined and Exts.D1 to D10 were marked. After considering the allegations Crl.R.P.NO.2235 OF 2010 3 raised in the above petition and after hearing the revision petitioners and the aggrieved person and on considering the evidence of materials on record, the trial court by the impugned order allowed the petition granting certain reliefs. 4. Challenging the above order, the revision petitioner herein had preferred Crl. Appeal No.612 of 2009 and by judgment dated 4.6.2010 the court of Addl. Sessions judge, Thiruvananthapuram allowed the appeal in part as indicated earlier. It is the above orders of the courts below challenged in this revision petition. 5. The learned counsel for the revision petitioners vehemently submitted that in view of the mandatory provisions contained in Section 12 of the Act, the trial court has no jurisdiction to entertain a petition filed under Section 12 by an aggrieved person, in the absence of a report from the Protection Officer or the Service provider. Therefore, the entire proceedings of the learned Magistrate is liable to be set aside and the court has no jurisdiction to proceed further on the basis of the petition preferred before it, even though the matter is remanded back to the appellate court Crl.R.P.NO.2235 OF 2010 4 for fresh disposal. It is also the submission of the learned counsel that after the pronouncement of the order of the trial court the first revision petitioner herein had pronounced Talak against the aggrieved person and the divorce through pronouncing Talak completed after the disposal of the appeal. So, according to the learned counsel the aggrieved person is not the wife of the first revision petitioner and therefore, she is not entitled to get any of the relief sought in the petition before the learned Magistrate. 6. The counsel for the aggrieved person/respondent herein submitted that whatever contentions the petitioner have got and raised before this Court can be raised in the trial court as the matter is remanded back to the trial court for fresh disposal. The respondent herein had also preferred an application before this Court as Crl. M.A.No.2531 of 2011 for a direction to pay the amount, ordered as maintenance, to the aggrieved person. 7. I have carefully considered the arguments advanced by the counsel for the revision petitioners as well as the respondents. I have also carefully perused the orders of the trial court as well as the appellate court. Crl.R.P.NO.2235 OF 2010 5 8. The counsel for the revision petitioners and the respondents has several contentions on merit regarding the jurisdiction of the learned Magistrate and the liability of the revision petitioners in view of the various provisions contained in the above Act. I am not proposed to consider the above contentions on merit in the light of the manner in which, I propose to dispose of this revision petition. From judgment of the appellate court it appears that the learned judge has accepted the contention of the revision petitioners regarding the jurisdiction of the trial court based upon Section 12 of the Act and the matter is remanded back to the trial court. It is also relevant to note that the revision petitioners have not taken the contention regarding the jurisdiction before the trial court as a preliminary objection, which they ought to have taken before the trial court because the same is touching the very jurisdiction of the trial court. However, as the Sessions Judge has already remanded the mater back to the trial court for fresh disposal, I am of the view that the petitioners can be relegated to take the question regarding the jurisdiction before the trial court and the trial court in turn Crl.R.P.NO.2235 OF 2010 6 can consider such jurisdictional question as first issue and thereafter, depends upon the outcome of the consideration of such question, the trial court can either proceed further or drop the proceedings there. The parties are free to adduce evidence if required. It is also made clear that as the matter is remanded back to the trial court, the trial court is also free to consider any Interlocutory Application, if any, filed by any party including the aggrieved person, during the pendency of the matter before the trial court. In the result, this revision petition is disposed of relegating the petitioners to approach the trial court to raise his contention regarding the jurisdiction etc. Respondent is also entitled to file Interlocutory Application, if any. As the matter pertained to the year 2008, the learned Magistrate is directed to consider the matter as expeditiously as possible. V.K.MOHANAN, JUDGE pm