IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 18TH MARCH 2011 / 27TH PHALGUNA 1932 Crl.MC.No. 862 of 2011() ------------------------ MC.71/2010 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEDUMANGAD .................... PETITIONER(S):3RD RESPONDENT: ----------------------------------------------------- JALAJAKUMARI, AGED 51 YEARS, TRIPTHI, JANASEVIKAPURAM, SHANTHIGIRI.P.O., POTHENCODE, THIRUVANANTHAPURAM. BY ADV. SRI.T.K.RAJESHKUMAR RESPONDENT(S): COMPLAINANT & STATE: ------------------------------------------------------------------ 1. DR. DEVAKIKUTTY.M.N., KARISHMA, OPP. (CPT) CENTRAL POLYTECHNIC, T.C.NO.Y/1207, NETTAYAM.P.O., PIN-691 537, VATTIYOORKAVU, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.862 of 2011 ==================================== Dated this the 18th day of March, 2011 O R D E R Petitioner is the third respondent in M.C. No.71 of 2010 of the court of learned Judicial First Class Magistrate, Nedumangad initiated by the first respondent against petitioner and her two children born to her in her former husband under the Protection of Women from Domestic Violence Act, 2005. Marriage between petitioner and her husband, Atmadas ended in divorce in the year 2001. Respondents 1 and 2 in M.C.No.71 of 2010 are the children born to the petitioner in the said Atmadas. It is claimed by the first respondent that after divorce Atmadas married her. It is also her claim that after her marriage Atmadas brought her to the shared house where herself, Atmadas and respondents 1 and 2 in M.C. No.71 of 2010 were staying. While so Atmadas died on 08.06.2010. It is thereafter that the first respondent filed M.C. No.71 of 2010 alleging that petitioner and her children are harassing her and trying to forcibly evict her. Learned counsel submits that petitioner being a woman is not a “respondent” as defined in Sec.2(q) of the Act. Reliance is placed on the decisions CRL.M.C. No. 862 of 2011 -: 2 :- in Batra v. Taruna Batra (2007 [3] KLT SN 8 (Case No.9) and Leelavathy S. v. Murgesh (AIR 2011 (NOC) 78). It is contended that Atmadas divorced petitioner in the year 2001 and there was no relationship between petitioner and Atmadas thereafter. I have heard learned counsel for petitioner and the learned Public Prosecutor. 2. Various contentions as to the maintainability of M.C. No.71 2010 against petitioner is raised. That is a matter which petitioner can urge before the learned Magistrate if necessary by filing a petition to that effect. In that circumstance it is not necessary for this Court to interfere under Section 482 of the Code of Criminal Procedure and pass orders. It is open to the petitioner to file written statement raising all her contentions including maintainability of M.C. No.71 of 2011 against her and request learned Magistrate to decide the question as a preliminary point. 3. Learned counsel submitted that the case is posted on 19.03.2011 for filing written statement of petitioner. It is requested that petitioner may be granted time. Learned counsel also submitted that personal appearance of petitioner who is now CRL.M.C. No. 862 of 2011 -: 3 :- at Thiruvananthapuram may be dispensed with. That is a matter which the court below has to decide bearing in mind that M.C. No.71 of 2010 is not a prosecution for any criminal offence. Resultantly, Criminal Miscellaneous Case is disposed of in the following lines: (i) Petitioner is permitted to urge all her contentions including maintainability of M.C. No.71 of 2010 against her before the learned Magistrate. (ii) If maintainability of M.C. No.71 of 2010 against petitioner is raised by her learned Magistrate shall decide that question before proceeding with the enquiry in that case. (iii) Petitioner is granted three weeks’ time from this day for filing written statement. (iv) Request for exemption from personal appearance may be made before the learned CRL.M.C. No. 862 of 2011 -: 4 :- Magistrate and in case any such request is made learned Magistrate shall decide the request as provided under law. THOMAS P. JOSEPH, JUDGE. vsv