Kerala High Court
Anoopkumar vs Deena P.T on 19 April, 2011
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN
WEDNESDAY, THE 28TH DAY OF MARCH 2012/8TH CHAITHRA 1934
Tr.P(C).No. 58 of 2012 ()
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CMP.NO.1300/2011 of JUDICIAL FIRST CLASS MAGISTRATE COURT II, ERNAKULAM
.......
PETITIONER(S):
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1. ANOOPKUMAR,
KARIMPURATH HOUSE, ERUMPAYAM (PO),
THALAYOLAPARAMBU (VIA), KOTTAYAM DISTRICT, PIN - 686 605.
2. SHYAMALAKUMARI,
W/O.VISWANATHAN, KARIMPURATH HOUSE,
ERUMPAYAM P.O.,THALAYOLAPARAMBU (VIA),
KOTTAYAM DISTRICT,PIN - 686 605.
3. AJAY VISWAM,
S/O.VISWANATHAN, KARIMPURATH HOUSE, ERUMPAYAM (PO).,
THALAYOLAPARAMBU (VIA), KOTTAYAM DISTRICT,
PIN - 686 605.
BY ADV. SRI.C.R.SIVAKUMAR
RESPONDENT(S):
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DEENA P.T.,
PUTHENPURACKAL HOUSE, CHERANELLOOR (P.O).,
ERNAKULAM DISTRICT. NOW RESIDING AT KARIMPURATH HOUSE,
ERUMPAYAM (PO), THALAYOLAPARAMBU (VIA),
KOTTAYAM DISTRICT, PIN - 686 605.
BY ADV. SMT.R.ASALATHA VARMA
THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 28-03-2012, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Kss
TPC.NO.58/2012
APPENDIX
PETITIONER'S ANNEXURES:
ANNEXURE-1 THE TRUE COPY OF THE CMP NO.1300/2011 FILED BY THE
RESPONDENT HEREIN DATED 19/04/2011.
ANNEXURE-2 THE TRUE COPY OF THE ORDER DATED 23/01/2012.
ANNEXURE-3 THE TRUE COPY OF THE M.C.NO.289/2011 DATED 11/08/2011.
ANNEXURE-4 THE TRUE COPY OF THE DIVORCE OP.NO.1288/2010 DATED
21/12/2010.
ANNEXURE-5 THE TRUE COPY OF THE O.P.NO.1136/2011.
RESPONDENTS' ANNEXURES: N I L
/TRUE COPY/
P.A.TO JUDGE
Kss
S.S.SATHEESACHANDRAN, J.
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Tr.P.(C) No.58 OF 2012
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Dated this the 28th day of March, 2012
ORDER
Petitioners are the respondents in a proceeding under the Protection of Women From Domestic Violence Act, 2005, for short, 'the PWDV Act', on the file of the Judicial First Class Magistrate Court- II, Ernakulam. That proceeding was initiated by the respondent herein, who is the wife of the first petitioner. The above petition is filed for transfer of the proceeding from the Judicial First Class Magistrate Court- II, Ernakulam to Judicial First Class Magistrate Court, Vaikom, under Section 24 of the Code of Civil Procedure, for short, 'the Code'.
2. The question emerging for consideration is whether the transfer applied for by the petitioners under Section 24 of the Code would lie. Proceedings are before a Magistrate and it contemplates a criminal proceeding, to which Code of Criminal Procedure is applicable. There cannot be any doubt on that question having regard to sub Section (1) of Section 28 of the PWDV Act, which reads thus:
Tr.P.(C) No.58/2012 2
"Save as otherwise provided in this Act, all proceedings under sections 12,18,19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974)."
However, the learned counsel for the petitioners relying on Sub Section (2) of the above said Section contends that when an application is moved under Section 12 or under sub Section (2) of Section 23, the Magistrate Court can adopt a procedure as found suitable for disposal of such a proceeding notwithstanding what has been stated in sub section (1) of that section. Reference is also made to Section 26 of the PWDV Act by the learned counsel to contend that in respect of an application moved under Section 12 of that Act what is essentially contemplated is adjudication of a civil right by the Magistrate and, as such, it is open and more so necessary to follow the procedure covered by the Code as well and not exclusively that of the Code of Criminal Procedure. That being so, according to the counsel, a request for transfer under Section 24 of the Code to transfer an application filed under Section 12 of the PWDV Act from one Magistrate Court to another is perfectly entertainable.
3. After looking into the relevant provisions of the PWDV Act, on which reliance is placed by the counsel, I find that what Tr.P.(C) No.58/2012 3 has been stated under sub Section (2) of Section 28 is only of conferring an authority on the Magistrate to dispose the application adopting a procedure which is recognised by law, and not of conferring any right on a party nor enabling any such party to contend that the Code can be made applicable in the disposal of an application moved under Section 12 of the PWDV Act. Section 26 of the Act only states that pendency and consideration of any application under PWDV Act will not be a bar or interdiction to any party thereto from agitating parallel proceedings under other statutes before different forums, for claiming protection of their rights thereunder. At any rate, the above section does not deal with any matter connected with the procedure to be followed in the consideration and disposal of any proceeding under the PWDV Act. So much so, when an application under Section 12 is entertainable only before a Magistrate, and the procedure under the Code of Criminal Procedure has been made applicable in respect of such proceedings, the provision made under sub Section (2) of Section 28 conferring an authority on the Magistrate to follow its own procedure 'for a fair disposal of such application' cannot be construed as one enabling the Magistrate to follow a procedure different from that under the Code of Criminal Tr.P.(C) No.58/2012 4 Procedure. Having regard to the fact that the substantive rights of the parties arise for adjudication, which normally require to be determined by a competent court of Civil jurisdiction, and the proceedings are quasi civil in nature, an enabling provision has been made under sub Section (2) of Section 28 for a fair disposal of the petition moved under the PWDV Act making it clear that the rigours and interdictions under the Code of Criminal Procedure which are normally applicable for the trial of an offence should not be given too much weightage in disposing such petitions. That being so, I find that the application for transfer in respect of a proceeding under PWDV Act, which has been filed before a Magistrate, has necessarily to be moved as under the enabling provisions covered by Section 407 or 408 of the Code before the competent forum, and not by invoking Section 24 of the Code as has been done in the present case.
Without prejudice to the right of the petitioner to move a transfer petition as provided either under Section 407 or 408 of the Code of Criminal Procedure, present petition is closed.
Sd/-
vdv S.S.SATHEESACHANDRAN, JUDGE
//True Copy// P.A to Judge