Nishi Joseph and Sara Babu v. Sabu Thomas and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 26TH DAY OF AUGUST 2016/4TH BHADRA, 1938** **Crl.MC.No. 2919 of 2015 () ---------------------------** **(AGAINST THE ORDER/JUDGMENT IN CMP 2886/2013 of JUDL.M.F.C.I,ERNAKULAM DATED 11-02-2015)** **PETITIONER(S)/PETITIONER IN C.M.P NO.2886 OF 2013 OF JFCM -1, ERNAKULAM:** **----------------------------------------------------------** **1. NISHI JOSEPH, AGED 38 YEARS, DAUGHTER OF LATE SRI.T.J.JOSEPH, RESIDING AT VADASSERY HOUSE, NEW YEAR ROAD, PONNURUNNI, ERNAKULAM 682 019.** **2. SARA BABU, AGED 7 YEARS, DAUGHTER OF SRI.SABU THOMAS RESIDING AT VADASSERY HOUSE, NEW YEAR ROAD, PONNURUNNI, ERNAKULAM 682 019.** **BY ADVS.SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS SRI.N.K.SUBRAMANIAN SMT.B.BINDU** **RESPONDENT(S)/RESPONDENT IN C.M.P. NO.2886 OF 2013 OF JFCM -1, ERNAKULAM:** **-------------------------------------------------------------** **1. SABU THOMAS, AGED 40 YEARS, SON OF SRI.THOMAS, RESIDING AT VADASSERY HOUSE, NEW YEAR ROAD, PONNURUNNI, ERNAKULAM - 682 019.** **2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.C.UNNIKRISHNAN (KOLLAM) R BY PUBLIC PROSECUTOR SMT.M.T.SHEEBA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 1008-2016, THE COURT ON 26/8/2016 PASSED THE FOLLOWING:** **Crl.MC.No. 2919 of 2015 () ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** **ANNEXURE A- TRUE COPY OF REPORT DATED 25.1.2012 ALONG WITH THE MEMORANDUM OF AGREEMENT ENTERED BETWEEN THE 1ST PETITIONER AND THE 1ST RESPONDENT** **ANNEXURE B- TRUE COPY OF COMPROMISE PETITION DATED 21.2.2012 EXECUTED BETWEEN THE 1ST PETITINER AND THE 1ST RESPONDENT** **ANNEXURE C- TRUE COPY OF ORDER DATED 25.2.2012 PASSED BY THE HONOURABLE JUDICIAL FIRST CLASS MAGISTRATE COURT -1, ERNAKULAM IN M.C.NO.35 OF 2011** **ANNEXURE D- TRUE COPY OF M.P. NO.2886 OF 2013 DATED 10.5.2013 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ERNAKULAM** **ANNEXURE E- TRUE COPY OF OBJECTION FILED THE 1ST RESPONDENT TO ANNEXURE D APPLICATION DATED 22.11.2014** **ANNEXURE F- CERTIFIED COPY OF ORDER DATED 11.2.2015 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT - I, ERNAKULAM IN C.M.P. NO.2886 OF 2013** **RESPONDENT(S)' EXHIBITS** **----------------------NIL** **/TRUE COPY/ PS TO JUDGE.** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl.M.C.No.2919 of 2015** - - - - - - - - - - - - - - - - - - Dated this the 26[th] day of August, 2016 ## **O R D E R** The petitioners assail the order in CMP No.2886/2013 of the Judicial First Class Magistrate Court - 1, Ernakulam. 2. The petitioners herein, who are the wife and daughter of the first respondent herein, had filed an application under Section 12 of the Protection of Women from Domestic Violence Act as MC No.35/2011. Pending the proceedings, the disputes between the parties were resolved in a mediation by Annexure-A Agreement. On the basis of it, Annexure B compromise petition was submitted by both sides. Thereafter, a compromise was recorded by the court below by Annexure-C and the MC was allowed on the basis of the compromise. The compromise included various terms and conditions. 3. Thereafter, alleging that the first respondent herein had failed to comply with the conditions therein and alleging that it was deliberately and willfully disobeyed by the respondent herein, application was filed by the petitioner Crl.M.C.No.2919/2015 2 herein invoking section 20 (5) of the PWDV Act. The court below by the impugned order held that compromise included various conditions including assignment of the shared household and monitory reliefs also and it was held that prayer in the petition appeared to be vague. However, holding that the respondent had no case that he had deposited any maintenance amount as agreed in the compromise, the court below called upon the respondent herein to pay the money payable from March 2012 within a month from the date of that order. 4. Aggrieved by the above order, the petitioners have approached this Court. Evidently, the compromise entered into between the parties contained several monetary reliefs as well as non monetary reliefs which were to be complied with. The courts are under an obligation to give effect to the compromise, in accordance with law. The monetary reliefs included the payment of maintenance. The petitioners have specifically asserted that the respondent has not complied with the obligation. Hence, the assistance of the court below was sought to initiate appropriate action under the Act. In the above circumstances, it cannot be said that the application was vague. It was clear and categoric that the Crl.M.C.No.2919/2015 3 amount ordered to be paid as maintenance was not paid by the first respondent herein and the assistance of Court was sought for enforcement of order. 5. Regarding the mode of execution, The **Rajastahan** **High Court in Kanchan v. Vikramjeet Setiya(2013 KHC** **2115)** has held that Section 20 of the Act reveals that exhaustive procedure for the execution of the monetary relief has not been laid down in this section because sub sections (4) and (5) of Section 20 provide the consequences to an order of monetary relief. It related to a provision identical to that of a garnishee proceeding under the Code of Civil Procedure. Hence, in relation to the persons other than those covered by clauses (4) and (5) there was no specific provision. Consequently, it was held that the court will have to fall back on the procedure provided under section 28 of the Act ,which lays down that the Courts shall be governed by the general provision of the Code of Criminal Procedure in relation to the specified provisions mentioned therein. Hence for the execution of an order of monetary relief, the court can resort to the general provisions of the Code of Criminal Procedure. In **Mini Shanmughan v .Shanmughan and Another (2012 (3) KHC 814)** it was held that since the interim Crl.M.C.No.2919/2015 4 maintenance has been passed in a proceeding under DV Act, the Magistrate is competent to proceed under section 125 (3) of the Cr.P.C. for enforcement of the order of interim maintenance. It was held in **Sudheesh v. Umadevi and Another (2015 KHC 5275)** that an order passed by the regular Court under Section 12 or under Section 23 of the DV Act can be enforced in the manner provided for enforcement of any order passed under Section 125 Cr.P.C. Consequently, I do not agree with the finding of the court below that the application was vague. It is not required to state exact mode of execution since the obligation of the court below is only to execute the order in accordance with law and specifically when several other modes of executions are not provided under the Act. The Court ought to have proceeded in accordance with law. 6. In the light of the above, it is clear that in relation to the non-monetary reliefs, the petitioner will be entitled to seek appropriate reliefs in accordance with law. In the light of the above, Cr.M.Cis disposed of by modifying the impugned order by directing the court below to enforce the monetary part of the order in accordance with Section 125(3) of Cr.P.C. The right of the petitioners herein to enforce the other non Crl.M.C.No.2919/2015 5 monetary part of the order by appropriate proceeding is left open. Crl.M.C.is allowed. Sd/- **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge. 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