Marykutty and Rosamma Thomas v. Sheeja Antony

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** ## **THURSDAY, THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940** ## **OP(Crl.).No. 470 of 2018** **AGAINST THE ORDER/JUDGMENT IN MC NO.14/2016 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, CHANGANACHERRY** ## **PETITIONER/S:** **1 MARYKUTTY, AGED 75 YEARS W/O.LATE THOMAS, KOCHUKANIKKAD HOUSE, NEDUMUDY POST, CHAMBAKKULAM VILLAGE, ALAPPUZHA DISTRICT, NOW RESIDING AT PADANILATHU HOUSE, KADAMANCHIRA KARA, THRIKKODITHANAM POST, THRIKKODITHANAM VILLAGE, CHANGANASSERY TALUK, KOTTAYAM DISTRICT 2 ROSAMMA THOMAS @ BEENA, AGED 40 YEARS, W/O.JOSHY,RESIDING AT PADANILATHU HOUSE, KADAMANCHIRA KARA, THRIKKODITHANAM POST, THRIKKODITHANAM VILLAGE, CHANGANASSERY TALUK, KOTTAYAM DISTRICT.** **BY ADVS. SRI.V.R.KESAVA KAIMAL SMT.C.DEVIKA RANI KAIMAL** ## **RESPONDENT/S:** **SHEEJA ANTONY, AGED 38 YEARS W/O.RAJEEV THOMAS, KOCHUKANIKKAD HOUSE, PERUMBANACHI POST, KURUMBANADAM, MADAPPALLY VILLAGE, CHANGANASSERY TALUK, KOTTAYAM DISTRICT-686536.** **BY ADVS. SRI.ISAAC GEORGE SRI.RAJESH SIVARAMANKUTTY** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 14.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(Crl.).No. 470 of 2018** **2** ## **JUDGMENT** The daughter-in-law of the petitioners herein, as the aggrieved person, instituted M.C No. 14/2016 before the Judicial Magistrate of First Class-I, Changanassery seeking reliefs under the Protection of Women from Domestic Violence Act, 2005 (for short, ‘PWDV Act’). 2. The petitioners entered appearance and filed Exhibit-P2 objection denying any act of domestic violence. Along with their objection, they filed a counter claim under Order VIII Rules 6(a) and 6(b) of the Cr.P.C, 1908. 3. Apprehending that the learned Magistrate would not consider their counter claim, the petitioners have approached this Court by filing this petition under Article 227 of the Constitution of India seeking a direction to the court below to consider the counterclaim raised by them as per law and afford sufficient opportunity to them to adduce evidence in their Counter claim. 4. It appears that in the counter claim filed by them, the petitioners have sought for an order of injunction restraining the aggrieved person or any person claiming under her from causing any inconvenience to the peaceful residence of the petitioners in the counter claim property, which incidentally is the shared household, and from causing any waste or from removing the movables etc. **OP(Crl.).No. 470 of 2018** **3** 5. Heard the learned counsel appearing for the petitioners, the learned counsel appearing for the party respondent and the learned Public Prosecutor. 6. The learned counsel appearing for the petitioners submitted that the proceedings under the Domestic Violence Act, 2005 is quasi civil in nature. In order to substantiate his contention, he would refer to the proviso to sub section (2) of Section 12 and contend that the amount paid by the Magistrate in a proceeding under the Act can be set off while awarding a decree for compensation or damages. The learned counsel would also heavily rely on Section 26 of the Act and it is contended that any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a Civil court, Family court or a Criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act. He would then place reliance on **Vaishali Abhimanyu Joshi v. Nanasaheb Gopal Joshi** (judgment dated 09.05.2017 in Civil Appeal No. 6448/2017) and it is argued that the Hon’ble Supreme Court had occasion to consider an identical question and had held that a counter claim can be maintained. 7. The learned counsel appearing for the respondent, on the **OP(Crl.).No. 470 of 2018** **4** other hand, submitted that the contentions advanced by the petitioners cannot be sustained. It is submitted that the learned Magistrate was bound to follow the provisions of the Code of Criminal Procedure and this Court in exercise of its supervisory powers, will not be justified in directing the learned Magistrate to adopt a procedure which is not contemplated under the Code. 8. I have anxiously considered the submissions advanced. 9. I am of the considered view that the prayer of the petitioners is liable to be rejected. 10. The object of the PWDV Act is to provide for more effective protection of the rights of women guaranteed under the Constitution, who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. Section 12 forming part of Chapter IV of the PWDV Act provides for an application being made by an aggrieved person or a protection officer or any other person on behalf of aggrieved person. The application is maintainable before a Judicial Magistrate of First Class or a Metropolitan Magistrate, as the case may be. Sub-section (3) of Section 12 provides that every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed. **OP(Crl.).No. 470 of 2018** **5** 11. The Protection of Women From Domestic Violence Rules, 2006 (hereinafter referred to as 'the said Rules') have been framed under the PWDV Act. Rules 6 and 7 are the relevant rules which lay down the procedure. Rule 6 says that every application of the aggrieved person under Section 12 shall be in Form II or as nearly as possible thereto. Sub Rule (5) stipulates that application under Section 12 shall be dealt with and the orders enforced in the same manner laid down under Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974). 12. Section 26 of the PWDV Act has been inserted with an objective that in addition to the provisions of Section 12, the aggrieved person is entitled to any relief available under Sections 18, 19, 20, 21 and 22 in any legal proceeding, before a Civil Court, Family Court or a Criminal Court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of the PWDV Act. Sub-section (2) of Section 26 further envisages that any relief referred to in Sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a Civil or Criminal Court. Sub-section (3) obliges the aggrieved person **OP(Crl.).No. 470 of 2018** **6** to disclose the nature of the reliefs, if any, obtained in any proceeding other than a proceeding under the Act. The intention of the legislature was to enable the aggrieved person to secure the same relief in other proceedings before the Civil Court, Family Court or Criminal Court, whether it was instituted prior to or after the commencement of the PWDV Act. This would inure to the convenience of the aggrieved person as well as the respondent and would also prevent multiplicity or proceedings and conflict of orders. 13. Section 28 of the Domestic Violence Act provides for the procedure to be followed for adjudicating an application filed under section 12. It reads as follows: “12. Procedure.-(1) 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). (2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.” 14. A reading of the above provisions would show that the **OP(Crl.).No. 470 of 2018** **7** learned Magistrate is governed by the provisions of the Code. The procedure as contemplated by the Code is to be followed and the filing of a counter claim and its adjudication by the Magistrate is an alien procedure which cannot be ordered. 15. The reliance placed by the learned counsel on **Vaishali** (supra) is misconceived. The question that was considered by the Apex Court in **Vaishali** (supra) was whether the counter claim filed by an aggrieved person who was being proceeded against as the defendant by her father-in-law in a suit instituted before the Small Causes Court constituted under the Provincial Small Cause Courts Act, 1887 was entertainable or not. In para Nos.36 and 37 of the report, it was held as follows. “Section 26 of the Act, 2005 has to be interpreted in a manner to effectuate the very purpose and object of the Act. Unless the determination of claim by an aggrieved person seeking any order as contemplated by Act, 2005 is expressly barred from consideration by a civil court, this Court shall be loath to read in bar in consideration of any such claim in any legal proceeding before the civil court. When the proceeding initiated by Plaintiff in the Judge, Small Causes Court alleged termination of gratuitous licence of the Appellant and prays for restraining the Appellant from using the suit flat and permit the Plaintiff to enter and use the flat, the right of residence as claimed by the Appellant is interconnected with such determination and refusal of consideration of claim of the Appellant as raised in **OP(Crl.).No. 470 of 2018** **8** her counter claim shall be nothing but denying consideration of claim as contemplated by Section 26 of the Act, 2005 which shall lead to multiplicity of proceeding, which can not be the object and purpose of Act, 2005. 37. We, thus, are of considered opinion that the counter claim filed by the Appellant before Judge, Small Causes Court in Civil Suit No. 77 of 2013 was fully entertainable and courts below committed error in refusing to consider such claim.” 16. In **Vaishali** (supra), the aggrieved person was the defendant in a Civil Suit instituted by the father-in-law for restraining her from using the plaint schedule apartment for her stay and also for a direction to permit the plaintiff to occupy the same. The aggrieved person entered appearance and filed a counter claim asserting her right to reside. By virtue of Section 26 of the PWDV Act, the aggrieved person was entitled to seek any relief referred to in subsection (1) in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a Civil or Criminal Court. By interpreting Section 26 of the Act and taking note of the fact that the counter claim was raised in a civil proceeding, the Apex court had held that the learned Civil Judge was not justified in refusing her prayer though it was a court of small causes. In other words, the said judgment was rendered in a different fact scenario and in a proceeding pending before the Civil court. **OP(Crl.).No. 470 of 2018** **9** For the adore-mentioned reasons, I hold that the petitioners are not entitled to the prayer sought for. Reserving the right of the petitioners to raise all their legal contentions before the learned Magistrate, this petition will stand dismissed. ## **SD/-** ## **RAJA VIJAYARAGHAVAN V** ## **JUDGE** //TRUE COPY// P.A. TO JUDGE avs **OP(Crl.).No. 470 of 2018** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PETITION DATED 11.02.2016 IN M.C.NO.14/2016 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT NO.1,CHANGANASSERY** **EXHIBIT P2 TRUE COPY OF THE OBJECTIONS ALONG COUNTER CLAIM FILED BY THE PETITIONERS TO EXT.P1** **EXHIBIT P3 TRUE COPY OF THE PETITION FOR TEMPORARY INJUNCTION DATED 09.03.2016** **EXHIBIT P4 TRUE COPY OF THE OBJECTIONS FILED BY THE RESPONDENT TO COUNTER CLAIM** **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 23.07.2018 IN W.P.(C)NO.8218/2017.** **RESPONDENT'S/S EXHIBITS:** **NIL**