OP(Crl.) No. 295 of 2021

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 2[ND] DAY OF DECEMBER 2021 / 11TH AGRAHAYANA, 1943** ## **OP(CRL.) NO. 295 OF 2021** **MC 184/2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, OTTAPPALAM** ## **PETITIONERS/RESPONDENTS IN MC** 1 KARUN PRASAD, AGED 27 YEARS S/O. JAYA PRASAD, KALISHERI (HOUSE), ARUNA, LM PAILY ROAD, VYTILA P.O. KOCHI 682 019. 2 JAYA PRASAD, AGED 60 YEARS S/O. SUKUMARAN, KALISHERI (HOUSE), ARUNA, LM PAILY ROAD VYTILA P.O. KOCHI, 682 019. 3 TENCY, AGED 48, W/O. JAYA PRASAD, KALISHERI (HOUSE), ARUNA, LM PAILY ROAD VYTILA P.O. KOCHI, 682 019. 4 THILOTHAMA, AGED 72 YEARS, W/O. RAJAGOPAL. P.DEEPTHI ANVER K.M. ## **RESPONDENTS/PETITIONERS IN MC** 1 KEERTHANA P.M, AGED 27 YEARS D/O. OF MURALEEDHARAN, P. WIFE OF KARUN PRASAD, PATHIPPARACKEL HOUSE, VANIYAMKULAM POST, OTTAPALAM. 2 PRAN KAILSSERY , AGED 1 YEARS S/O. KARUN PRASAD, REP BY IST PETITIONER, KEERTHANA P.M. (MOTHER) AGED 27, D/O. OF MURALEEDHARAN, P. BY ADVS. P.SAMSUDIN M.ANUROOP THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 15.11.2021, THE COURT ON 02.12.2021 DELIVERED THE FOLLOWING: OP(Crl).295 of 2021 2 ## **JUDGMENT** ## Dated : 2[nd] December, 2021 1. This Original Petition has been filed against the order in CMP 1542/2021 for restoring M.C.184/2021 on the file of Judicial First Class Magistrate Court-I, Ottappalam, which was dismissed for default as per the order dated 25.2.2021 (Ext.P3). M.C.184/2020 was filed by the respondents, wife and daughter, of the first petitioner seeking various reliefs under Section 12 of the Act. Petitioners are the respondents in M.C.No.184/2020. Respondents are the petitioners in the said case. 2. According to the first respondent, wife, M.C.184/2020 was posted to 17.2.2021 and it was not included in the list for calling on that day. Hence, respondent was not aware of the next posting date of the case. It was in the said circumstances, there happened to have no representation on behalf of the respondent and accordingly, the petition was dismissed for default. The petitioner herein filed objection contending that M.C.184/2020 was posted on 16.2.2020, 2.1.2021, 17.2.2021 OP(Crl).295 of 2021 3 and 25.2.2021 and there was no representation for the petitioners and hence M.C was dismissed for default. It is also the contention of the petitioner that once the MC is dismissed for default, Magistrate has no inherent jurisdiction to restore the case back to file and there is no provision in the Cr.P.C to restore the case which was dismissed for default. It is also his contention that once a case is dismissed for default, Section 362 of Cr.P.C (in short the Code) the Court cannot alter or review the same except to correct a clerical or arithmetical error. After hearing both sides, the learned Magistrate as per the impugned order, restored the case to file. 3. Heard both sides. 4. According to the petitioner, the impugned order passed by the Magistrate restoring the MC to file is without any jurisdiction since the Magistrate Court has no inherent jurisdiction to restore the case back to file. It is also his contention that as per Section 362, once the judgment or order is signed it cannot be altered or reviewed except for clerical error. 5. The learned Magistrate applying the principles laid down in **Preeju David v. Minor Mebel (2017 (4) KLT 1162 = 2017** OP(Crl).295 of 2021 4 **(4) KHC 609 = ILR 2017 4 (Ker), 71),** found that the Court deemed to possess implied authority to restore the matter in appropriate cases and accordingly allowed the petition. So the only question for consideration is whether any interference is called for in the order restoring the case to file ? 6. M.C.184/2020 has been filed under Section 12 of the Act claiming reliefs under Sections 12(1), 18, 19, 20 and 22 of Protection of Woman From Domestic Violence Act, 2005 (in short the Act). Statement of objects and Reasons of the Act would expressly provide that the Act was happened to be promulgated when it was found that the phenomenon of domestic violence which was prevailing widely but remains invisible in public dominion. The criminal law provides a remedy under Section 498A IPC for the redressal of a woman who is subjected to cruelty by the husband and relatives. But the Civil law does not address this phenomenon of domestic violence in its entirely. It was in that context that it was promulgated a law so as to ensure the constitutional guarantee provided under Articles 14, 15 and 21 of the Constitution of India for a remedy under Civil Law intended to protect woman from Domestic Violence Act to OP(Crl).295 of 2021 5 prevent the occurrence of domestic violence in the Society. So the Act provides a civil remedy which is being enforced through a Criminal Court. 7. In **Preeju David,** it has been held by this Court while dealing with a restoration petition under Section 125 of the Code of Criminal Procedure, 1973 that jurisdiction of the Court can be extended to exercise the powers to meet the ends of justice unless there is an indication to the contrary in the statute. It is also held that Courts exercising powers under Section 125(2), 127 Cr.P.C are possessing the implied authority to restore the matter in appropriate cases. So the contention of the petitioner in that case that the impugned order restoring the case is not legally sustainable, was rejected. 8. The act is also a benevolent legislation to redress the grievance of hapless woman and children at the hands of the opposite party. The Act itself provides as per Section 26 that any relief available under Sections 18 to 22 may also be sought in any legal proceeding before the Civil Court or a Family Court affecting the aggrieved person and the respondent where such proceeding was initiated before or after the commencement of OP(Crl).295 of 2021 6 this Act. Section 26(2) also provides that any relief referred to under 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 proceedings before a Civil or criminal court. The only embargo provided by sub-section (3) is that in case any relief has been obtained by the aggrieved person in any proceeding other than the proceeding under the said Act, she shall be bound to inform the Magistrate of the grant of such relief. So the Act itself provides adequate safeguard to seek the relief under Sections 18 to 22 in any civil proceeding in addition to any other relief pending in any other civil or criminal court. 9. The Apex Court in **Vaishali Abhimanyu Joshi v. Nanasaheb Gopal Joshi (2017 (14) SCC 373 = AIR 2017 SC 2926 = 2017 KHC 6434),** has held that a claim filed by the wife seeking a right under Section 19 of the DV Act can be entertained in a suit filed against her under Section 26 of Provincial Small Cause Courts Act seeking a mandatory injunction. 10. In **Badshah vs Sou. Urmila Badshah Godse & Anr.** (2014 (1) SCC 188), the Apex Court emphasized the need to OP(Crl).295 of 2021 7 keep a purposive interpretation to provisions of Section 125 Cr.P.C. The Court held while dealing with the application of destitute wife or hapless children or parents under the provisions of Code is dealing with the marginalized society, purpose is to achieve social justice which is a constitutional mandate. 11. PWDV Act is also a beneficial legislation and hence a purposive interpretation has to be given so as to achieve the object and to redress the grievance of marginalized society and the purpose of the Act is also to achieve social justice by eradicating menace of domestic violence which is rampant in our society. While dealing with such matters, the Court has to exercise its jurisdiction to advance the justice and curb injustice. In the present case, the impugned order itself would reveal that M.C.184/2020 was not included in the list on 16.12.2020 and 17.2.2021 on which date there was no representation for the respondent and hence the respondent could not have known the posting date of the case to 25.2.2021. So taking those aspects into account, the learned Magistrate find it just to restore the case back to file for adjudication on OP(Crl).295 of 2021 **==> picture [8 x 11] intentionally omitted <==** merits. I do not find any illegality or irregularity or illegal exercise of jurisdiction by the Magistrate warranting interference at the instance of this Court. 12. In the result, Original Petition is found to be devoid of any merit and hence dismissed. Sd/- **M.R.Anitha, Judge** Mrcs/27.11. OP(Crl).295 of 2021 9 ## **APPENDIX OF OP(CRL.) 295/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PETITION DATED 28/10/2002 OF M.C. 184/2020. Exhibit P2 TRUE COPY OF THE OBJECTION TO THE M.C. 184/2020 DATED 24/03/2021. Exhibit P3 THE TRUE COPY OF THE ORDER IN M.C. 184/2020 DATED 25.02.2021. Exhibit P4 TRUE COPY OF THE OBJECTION TO THE C.M.P. 1542/2021. Exhibit P5 TRUE COPY OF THE JUDICIAL PROCEEDINGS OF JFCM OTTAPALAM DATED 27/04/2021. Exhibit P6 TRUE COPY OF THE ORDER IN C.M.P. NO. 1542/2021 IN M..C 184/2020 DATED 08TH APRIL 2021