Saramma Shyju v. Shyju Varghhees and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 28TH JUNE 2011 / 7TH ASHADHA 1933** **OP(CRL.).NO. 29 OF 2011(Q)** **----------------------------------------** **MC.106/2009 OF J.M.F.C.-I, MAVELIKKARA** **....................** ## **PETITIONER** ## **-------------------** **SARAMMA SHYJU, AGED 29 YEARS, W/O. SHYJU VARGHEESE, VADAKKE VEEDU, ACKANATTUKARA, KALLUMALA, MAVELIKKARA, ALAPPUZHA DISTRICT, NOW RESIDING AT SHIBU BHAVAN, KUTHIRACHIR, PUNALUR, KOLLAM DISTRICT.** **BY ADV. SMT.S.L.SYLAJA** **RESPONDENT(S):** **--------------------------** **1. SHYJU VARGHEES, AGED 33 YEARS, S/O. V.T. VARGHEESE, VADAKKE VEEDU, ACKANATTUKARA, KALLUMALA,MAVELIKKARA, ALAPPUZHA DISTRICT-688007.** **2. ALIYAMMA VARGHEESE, AGED 65 YEARS, W/O. V.T.VARGHEESE, VADAKKE VEEDU, ACKANATTUKARA, KALLUMALA, MAVELIKKARA, ALAPPUZHA DISTRICT-688007.** **3. V.T. VARGHEESE, AGED 71 YEARS, VADAKKE VEEDU, ACKNATTUKARA, KALLUMALA, MAVELIKKARA, ALAPPUZHA DISTRICT-688007.** ## **ADDITIONAL RESPONDENT IS IMPLEADED** **--------------------------------------------------------------** **4. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **IS IMPLEADED AS PER ORDER DATED 28.06.2011 ON CRL. M.A. NO.9997 OF 2011** **ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL FOR R2-3 SMT.ASHA ELIZABETH MATHEW FOR R2-3** **BY PUBLIC PROSECUTOR SHRI JAYASURYA R4** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 28/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **APPENDIX** **---------------** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORIGINAL PETITION DATED 22.12.2009 FILED BY THE PETITIONER.** **EXHIBIT P2 TRUE COPY OF THE DOMESTIC INCIDENT REPORT FILED BY THE PETITIONER.** **EXHIBIT P3 TRUE COPY OF THE AMENDMENT APPLICATION.** **EXHIBIT P4 TRUE COPY OF THE DISMISSAL ORDER DATED 13.12.2010 BY THE JUDICIAL FIRST CLASS MAGISTRATE-I, MAVELIKKARA.** ## **RESPONDENT'S EXHIBITS:** **----------------------------------NIL** **TRUE COPY** ## **THOMAS P.JOSEPH, J.** **==================================== O.P(Crl.) No.29 of 2011 ==================================== Dated this the 28[th] day of June, 2011** ## **J U D G M E N T** Petitioner filed M.C.No.106 of 2009 in the court of learned Judicial First Class Magistrate-I, Mavelikkara under Section 12 of the Protection of Women from Domestic Violence Act (for short, “the Act”). While so, petitioner filed Ext.P3, petition for amendment to incorporate reliefs under Sec.19 of the Act and for awarding monthly allowance to her by way of maintenance. That petition was opposed by the respondents on various grounds including that there is no provision for amendment of the petition provided under the Act or the Code of Criminal Procedure (for short, “the Code”) and that petition for amendment is only a counter blast for a prosecution that second respondent, mother-in-law of petitioner has launched against petitioner for forging her certificates. Learned Magistrate was not inclined to allow the prayer of petitioner and dismissed the petition as per Ext.P3, order dated December 13, 2010. That order is under challenge. Learned counsel for petitioner contends that proceeding before learned Magistrate under the Act is quasi civil in nature and hence it is within the power of learned Magistrate to allow amendment **O.P(Crl.) No.29 of 2011** ## -: 2 :- in appropriate cases. Learned counsel contended that it was by a mistake that petitioner omitted to claim relief under Sec.19 of the Act and for maintenance. Reliance is placed on the decision of the Bombay High Court in **Raosahed P.Kamble v. Shaila Raosahed Kamble** (2010 [4] KLT 331). Learned counsel for respondents per contra contended that the procedure which learned Magistrate has to follow is laid down in Sec.28 of the Act as one under the Code and in the circumstances question of allowing amendment by the Criminal Court does not arise. It is also contended that it is after the evidence of petitioner was recorded and it was posted for evidence of respondents that the petition came, that too after the second respondent had initiated prosecution against petitioner. It is contended by learned counsel that though relief under Sec.19 of the Act is sought to be incorporated by amendment, there is no mention about that in the affidavit of petitioner. In the circumstances there is no reason to interfere with the order under challenge, it is argued. 2. No doubt, the Act confers jurisdiction on the Magistrate to grant reliefs referred to therein and the expression “Magistrate” is defined in Sec.2(i) of the Act as meaning the Judicial Magistrate of **O.P(Crl.) No.29 of 2011** ## -: 3 :- the first class, or as the case may be, the Metropolitan Magistrate, exercising jurisdiction under the Code of Criminal Procedure, 1973 (2 of 1974) in the area where the aggrieved person resides temporarily or otherwise or the respondent resides or the domestic violence is alleged to have taken place. Having regard to the relevant provisions of the Act including Sec.29 which provides an appeal to the court of Sessions from the order passed by the Magistrate though it is possible to say that the Magistrate functions as a Criminal Court, question arises as to whether proceedings before the Magistrate while exercising functions under the Act are Criminal or Civil in nature. The consistent view taken is that proceedings before the Magistrate and reliefs (except for punishment) provided under the Act are of a civil nature nature. Authority for that proposition is contained in the decisions in **Dr.Perceline George v. State of Kerala** (2010 [1] KHC 417) and **Vijayalekshmi Amma v. Bindu** (2010 [1] KHC 57). It has been held that proceedings before the Magistrate are of a civil nature. In **Dr.Perceline George v. State of Kerala** (supra) it has also been held that service of notice on an application under Sec.12 or interim relief under Sec.23 of the Act has to be in the manner provided under the Code of Civil Procedure. Certainly it is because **O.P(Crl.) No.29 of 2011** ## -: 4 :- proceedings before the Magistrate are of a civil nature. That exactly is what the Bombay High Court also has stated in **Raosahed P.Kamble v. Shaila Raosahed Kamble** (supra). There, it was held that proceedings under the Act are of a quasi civil nature and the court has power to allow the application for amendment and written statement. Learned counsel for respondents contended that the decision of the Bombay High Court is _per incuriam_ as it goes against Sec.28 of the Act which deals with the procedure to be followed by the Magistrate while entertaining proceedings under Secs.12 and 18 to 23 of the Act. But I must also bear in mind that sub-sec.(2) of Sec.28 of the Act says that nothing in sub-sec.(1) shall prevent the court from laying down its own procedure for disposal of an application under Sec.12 of the Act or under sub-sec.(2) of Sec.23 of the Act. In other words, in any application under Sec.12 or Sec.23 (2) of the Act notwithstanding the procedure prescribed under subsec.(1) of Sec.28 it is within the power of court to lay down its own procedure for its disposal. Certainly that power includes the power for amendment also. In these circumstances I do not find reason to disagree with the view taken by the Bombay High Court in **Raosahed P.Kamble v. Shaila Raosahed Kamble** (supra). It **O.P(Crl.) No.29 of 2011** ## -: 5 :- follows that when dealing with a petition under Sec.12 of the Act the Magistrate has the authority in appropriate cases to allow a petition for amendment or written statement as the case may be provided of course circumstances justified such a course of action. 3. The next question is whether on the facts of the case request for amendment of the petition ought to have been allowed. Learned counsel invited my attention to Ext.P3, affidavit of petitioner where it is stated that she had instructed her counsel (who originally filed the petition under Sec.12 of the Act) to incorporate relief under Sec.19 of the Act and a claim for monthly maintenance, she was examined in court and only when she entrusted the case to another counsel she learned that those claims are not included in the petition. Hence she wanted the petition under Sec.12 of the Act to be amended to incorporate relief under Sec.19 and for monthly maintenance. 4. Learned counsel for second respondent contended that in the meantime alleging forgery of certificates the second respondent had preferred a complaint against petitioner and the police had registered a case and it s only thereafter that Ext.P3, application for amendment was filed. Learned counsel would contend that attempt of petitioner is to pressurise the second **O.P(Crl.) No.29 of 2011** ## -: 6 :- respondent to withdraw the criminal complaint. 5. When dealing with a petition for amendment it is not necessary for the court to prejudge merit of the claim sought to be incorporated by amendment. What is required to be considered is whether the amendment is necessary to adjudicate all disputes between parties. The claim of petitioner under Sec.19 of the Act and for monthly maintenance has to be adjudicated. If amendment is not allowed, it will result in multiplicity of proceedings which has to be avoided. I bear in mind that it is open to the respondents to file additional written statement in answer to the amended petition and raise all their contentions to the reliefs sought in the petition for amendment. The mere fact that originally there was no claim under Sec.19 of the Act or for monthly maintenance by itself need not deprive petitioner of an opportunity to make those claims having regard to the facts and circumstances of the case. These aspects of the matter has not been considered by the learned Magistrate. Having regard to the circumstances of the case I am inclined to allow the request. But I make it clear that it is open to the respondents to file additional written statement to the amended petition and raise their contentions. Original Petition is allowed. Impugned order (Ext.P4) on Ext.P3, **O.P(Crl.) No.29 of 2011** ## -: 7 :- application is set aside and C.M.P. No.625 of 2010 will stand allowed. Petitioner shall carry out amendment in the petition within three weeks from this day. On the amendment being carried out, learned Magistrate shall give opportunity to the respondents to file additional written statement, if any. In case first respondent wants to adduce evidence even before amendment is carried out and additional written statement is filed, it is open to the respondents to make a request before learned Magistrate in that regard and at the risk of respondents examine the first respondent as witness on their side or if necessary recall first respondent for further evidence after amendment is carried out and additional written statement is filed. ## **THOMAS P. JOSEPH, JUDGE.** vsv