High Court of KeralaSingle Judge2012-02-28Revision petition disposed of as above.

Crl.Rev.Pet.No. 1859 of 2011

Case / Petition Number:Crl.Rev.Pet.No. 1859 of 2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. Bhavadasan
Judgment Date: 2012-02-28
Court Decision / Holding: The High Court set aside the order dated 11 May 2011 (C.M.P. 1183/2011 in M.C. 93/2011) as violative of Section 23(1) since it was issued without service and opportunity to be heard. It retained the interim order of 4 May 2011 but directed the Magistrate to take the matter back on file and pass orders after hearing the respondents and giving them a reasonable opportunity to file objections. The Magistrate is to dispose of the matter expeditiously, within three weeks from receipt of the copy of this order.
Final Disposition: Revision petition disposed of as above.

Parties to the Case

Appellants / Petitioners

Yahya Khan
Ashraf
Majeed
Ayoob
Jasmi

Respondents

Shabeena Beevi
DG
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• SMT.MAJIDA.S
• SRI.BABU KARUKAPPADATH
• SMT.M.A.VAHEEDA BABU
• SRI.JAGAN ABRAHAM.M
• SRI.P.C.PRAMOD
• SRI.ONEAL SABU

Counsels for Respondents

• SMT.MINI GANGADHARAN
• SRI.N.C.SAJUNAM
• SRI.SYAM J SAM
• SMT.JIJA JAMES MATHEW KANDATHIL
• SRI.T.R.RAJESH

Case Synopsis & Summary

This is a criminal revision petition under the Protection of Women from Domestic Violence Act, 2005, challenging an interim protection order and a subsequent order issued under Section 23(1). The revision petitioners, Yahya Khan, Ashraf, Majeed, Ayoob, and Jasmi, challenge the order dated 11 May 2011 (C.M.P. 1183/2011 in M.C. No.93/2011) passed by the Magistrate, which purportedly invoked Section 23(1) of the DV Act without issuing notice or affording hearing to the respondents. Earlier, on 4 May 2011, an interim order under Section 12 had been granted, directing respondents to desist from domestic violence and allowing the petitioner and two minor children to reside in a shared household, with maintenance and expenses specified. The respondents contend that the ex parte order may be permissible under Section 22 only in exigent circumstances, but the core issue is whether a Section 23(1) order can be issued without service and hearing. The High Court relies on Dr. Preceline George v. State of Kerala (2010 (1) K.L.T. 454), which held that a Section 23(1) order requires service and opportunity to be heard. Consequently, the 11 May 2011 order is set aside, while the 4 May 2011 order is maintained, with directions to re-hear after notice and to dispose of the matter within three weeks, ensuring due process while continuing interim relief.”

Provisions of Law Cited

Section 23(1) of Protection of Women from Domestic Violence Act, 2005Section 12 of Protection of Women from Domestic Violence Act, 2005Section 22 of Protection of Women from Domestic Violence Act, 2005

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants contend that the order dated 11 May 2011 passed under Section 23(1) of the DV Act was issued without service of notice and without hearing, which is mandatory before a Section 23(1) order can be issued. Citing Dr. Preceline George v. State of Kerala (2010 (1) K.L.T. 454), they argue that an order under Section 23(1) must follow proper service and opportunity to appear; hence the impugned order is illegal and void to that extent. They acknowledge the trial court’s power under Section 22 to pass an ex parte order but submit that the subsequent 23(1) order exceeded those bounds by not hearing the respondents. They request setting aside the 11 May 2011 order and directing rehearing with due notice, while preserving the interim protection already granted and maintaining the status quo for the two minor children.

Contentions of Respondents

The respondents submit that Section 23(1) orders can be issued after notice has been served and after opportunity to appear, but in exigent circumstances, ex parte protection orders can be passed under Section 22. They argue that there was no prejudice to the revision petitioners since they had an opportunity to adduce evidence before the lower court and the order served a protective purpose for the aggrieved person. They contend that theMagistrate acted within his powers to grant interim relief, and the revision cannot defeat the protective objectives of the DV Act. They request upholding the impugned order or, alternatively, allowing a rehearing with proper notice if required.”},

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Dr. Preceline George v. State of Kerala	2010 (1) K.L.T. 454	Positive	The court cites this decision to establish that a Section 23(1) order requires service and hearing; hence the impugned order without hearing is invalid.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Crl.Rev.Pet.No. 1859 of 2011 and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **TUESDAY, THE 28TH DAY OF FEBRUARY 2012/9TH PHALGUNA 1933** **Crl.Rev.Pet.No. 1859 of 2011 ( )** **-------------------------------CRA.249/2011 of SESSIONS COURT,TRIVANDRUM MC.93/2011 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II,TRIVANDRUM** **REVISION PETITIONERS/APPELLANTS/RESPONDENTS: --------------------------------------------** **1. YAHYA KHAN, S/O.SAYED MOHAMMED, AGED 32 YEARS,R/A.T.C.46/199,JASMI MANZIL,** **PARTHIKUZHY,POOTHURA P.O.,THIRUVANANTHAPURAM.** **2. ASHARAF, R/A.T.C.46/199,JASMI MANZIL, PARTHIKUZHY, POOTHURA P.O.,THIRUVANANTHAPURAM.** ## **3. MAJEED,** **R/A.T.C.46/199,JASMI MANZIL, PARTHIKUZHY,POOTHURA P.O.,THIRUVANANTHAPURAM.** ## **4. AYOOB,** **R/A.T.C.46/199,JASMI MANZIL, PARTHIKUZHY,POOTHURA P.O.,THIRUVANANTHAPURAM.** ## **5. JASMI,** **R/A.T.C.46/199,JASMI MANZIL, PARTHIKUZHY,POOTHURA P.O.,THIRUVANANTHAPURAM.** **BY ADVS. SMT.MAJIDA.S SRI.BABU KARUKAPPADATH SMT.M.A.VAHEEDA BABU SRI.JAGAN ABRAHAM.M SRI.P.C.PRAMOD SRI.ONEAL SABU** ## **RESPONDENT/PETITIONER:** ## **----------------------** **1. SHABEENA BEEVI, AGED 25 YEARS,R/A.SHABANA COTTAGE, PALI STREET, POONTHURA P.O.,THIRUVANANTHAPURAM, PIN-695 026** **--2--** **DG** **--2--** **Crl.Rev.Pet.No. 1859 of 2011 ( )** **2. STATE OF KERALA,** **REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **R1 BY ADVS.SMT.MINI GANGADHARAN SRI.N.C.SAJUNAM SRI.SYAM J SAM SMT.JIJA JAMES MATHEW KANDATHIL** **R2 BY ADV.SRI.T.R.RAJESH, PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **DG** ## **Crl.Rev.Pet.No. 1859 of 2011 ( )** ## **APPENDIX** ## **PETITIONEER'S ANNEXURES:** **ANNEXURE A: COPY OF THE O.P.NO.947/08 FILED BY THE 1ST REVISION PETITIONEER BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM.** **ANNEXURE B: COPY OF THE O.P.NO.750/09 BEFORE THE HON'BLE FAMILY COURT, THIRUVANANTHAPURAM FILED BY THE RESPONDENT FOR MAINTENANCE AND RECOVERY OF GOLD ORNAMENTS.** ## **RESPONDENT'S ANNEXURES** **-** ## **NIL** **//TRUE COPY//** **P.A.TO JUDGE** **DG** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P. No. 1859 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28[th] day of February, 2012. ## **ORDER** Under challenge is the order dated 11.5.2011 in C.M.P. 1183 of 2011 in M.C. No.93 of 2011. 2. The main grievance against the order is that the order impugned is an order passed under Section 23(1) of Protection of Women from Domestic Violence Act and that could have been passed only after hearing the petitioner herein and serving notice on him. The impugned order has been passed without hearing the respondents before the court below and as per the decision of this court reported in **Dr.Preceline George v. State of Kerala** (2010 (1) K.L.T. 454) the order is bad in law. 3. The petitioner before the court below moved the court under Section 12 of the D.V. Act for various reliefs. Having satisfied that an interim order is absolutely Crl.R.P.1859/2011. 2 necessary to protect the interests of the petitioner, the trial court passed the order dated 4.5.2011 in C.M.P. 1119 of 2011 in M.C. 93 of 2011, which reads as follows: - “.... Hence an interim order is passed as - follows: 1. Respondents are restraining from committing any sort of domestic violence against petitioner. 2. Petitioner and two minor children are allowed to reside at shared household, Jasmi Manzil, T.C.46/199, Paruthikuzhy, Poonthura P.O.. If the 1[st] respondent is not willing to accommodate petitioner and two minor children at shared household, he shall provide the same level of accommodation to aggrieved person by paying rent at the rate of rs.2,000/- per mensum and also Rs.3,000/- per mensum as monthly maintenance to petitioner and two minor children including their medical expenses. 3. Obtain the Domestic Incident Report from the Protection Officer. ....” Subsequently the impugned order was passed. Crl.R.P.1859/2011. 3 4. It is not in dispute that the learned Magistrate is well within his powers under Section 22 to pass an ex-parte order if he is satisfied that circumstances of the case warrants such an order being passed. The ex-parte order dated 4.5.2011 can be viewed only in that respect. 5. In the light of the decision cited by the learned counsel for the revision petitioners, there may be some justification in the complaint that the order dated 11.5.2011 should not have been passed without hearing the respondent. This court in the above decision had occasion to observe that an order under Section 23(1) can be passed only after effecting service on the respondent and after service of notice he has refused to appear. To that extent, the order impugned may be bad. The lower appellate court has considered this aspect and found that no prejudice as such is caused to the revision petitioners before this court and they have every opportunity to adduce evidence before the court below. Crl.R.P.1859/2011. 4 6. But the order dated 11.5.2011 can be treated only as an order passed under Section 23(1) of the Act, in which case, it was incumbent on the learned Magistrate to hear the respondents before it and pass an order and in case they refused to appear after service of notice. 7. Therefore, the order dated 11.5.2011 will have to be set aside. Hence, the said order is set aside retaining the order dated 4.5.2011. The learned Magistrate is directed to take back C.M.P.1183 of 2011 in M.C.93 of 2011 on file and pass orders thereon after hearing the respondents before it and after giving a reasonable opportunity to file their objections. Till then, the order dated 4.5.2011 shall continue in force. The learned Magistrate may make every endeavour to dispose of C.M.P. 1183 of 2011 as expeditiously as possible, at any rate, within a period of three weeks from the date of receipt of a copy of this order. Crl.R.P.1859/2011. 5 The revision petition is disposed of as above. Forward a copy of this order to the learned Magistrate concerned. **P. BHAVADASAN, JUDGE** sb.