Wednesday, August 21, 2013

DV case. Personal appearance NOT needed for EVERY date !! Appearance by counsel sufficient - Kerala HC ; However quash denied ; Wife seems to have filed entire package of 498a, DV etc etc though couple lived together ONLY for 9 days !!

DV case. Personal appearance NOT needed for EVERY date !! Appearance by counsel sufficient - Kerala HC ; However quash denied ; Wife seems to have filed entire package of 498a, DV etc etc though couple lived together ONLY for 9 days !! 
   
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The Hon HC states : ".......6. I fail to understand how, why and under what circumstances such personal appearance is insisted by the learned C.J.M. It is trite that even though proceedings under the Protection of Women from Domestic Violence Act, 2005 are initiated before a criminal court, the relief claimed is essentially and in its core, civil in nature......" 
   
".......But that cannot evidently mean that the personal presence of the petitioners can, should, ought to or must be insisted by the learned Magistrate. ...."
   
".........Ordinary on all dates of posting, they shall be permitted to appear through a counsel........"
  
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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
 
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CASE FROM JUDIS DOT NIC / KERALA HC WEB SITE 
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3016 of 2008()
   
1. VINOD M.S/O. P.K. MURALEEDHARAN NAIR  ... Petitioner
2. MANOJ, S/O. P.K. MURALEEDHARAN NAIR,
3. REMADEVI, W/O. P.K. MURALEEDHARAN NAIR,
4. DEEPTHI, D/O. P.K. MURALEEDHARAN NAIR,
5. DEEPA, W/O. MANOJ, AGED 26 YEARS,
   
 Vs
   
1. NAMITHA, D/O. N.VIJAYAKUMAR,  ... Respondent
2. N.VIJAYAKUMAR, S/O. NEELAKANTA PILLAI,
3. STATE OF KERALA, REPRESENTED BY
 *****************************************************
 For Petitioner :SRI.MILLU DANDAPANI
 For Respondent : No Appearance
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The Hon'ble MR. Justice R.BASANT
   
 Dated :11/08/2008
   
 O R D E R   R.BASANT, J
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 Crl.M.C. No.3016 of 2008
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 Dated this the 11th day of August, 2008
   
 ORDER
   
 Petitioners are the husband of the 1st respondent and his relatives. The 1st respondent, through her father-the 2nd respondent, had filed the petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005. The learned Chief Judicial Magistrate has taken the said petition on file as M.C.No.4 of 2008. Notice has been served on the petitioners. The petitioners have already appeared before the learned C.J.M, Thodupuzha. They have now come to this Court with this petition under Section 482 Cr.P.C with a prayer that the proceedings against them may be quashed invoking the extraordinary inherent jurisdiction.
   
 2. What is the ground ? The learned counsel for the petitioners submits that the allegations raised are totally false and are vexatious. The couple had lived together only for about 9 days. They have started living separately and such separate residence is not attributable to any fault on the part of the 1st petitioner husband or his relatives. She is unwilling to cohabit. With the only purpose of causing vexation and harassment to the petitioners, proceedings have been initiated before various authorities against the petitioners. A petition for divorce is pending before the Family Court. A prosecution under Section 498 A I.P.C has already been launched. A complaint has been filed before the police. It is in addition to all these that the present petition under the Protection of Women from Domestic Violence Act, 2005 is filed by the 1st respondent through the 2nd respondent, her father. An amount of Rs.10 lakhs is prayed for in such petition. There is also a prayer for restoration of 94 sovereigns of gold ornaments which are allegedly retained by the respondents.
   
 3. Powers under Section 482 Cr.P.C are to be invoked sparingly and in exceptional cases in aid of justice. Sufficient, satisfactory, compelling and exceptional reasons must be shown to exist to justify such invocation. The mere fact that the adversary makes an assertion that the allegations are false is by itself no reason to prematurely terminate the proceedings by invocation of the powers under Section 482 Cr.P.C. Disputed questions of fact cannot obviously be attempted to be resolved in proceedings under Section 482 Cr.P.C.
   
 4. I shall carefully avoid any detailed discussions on merits about the acceptability of the allegations or credibility of the data relied upon. Suffice it to say that at the moment and with the available inputs, I find no reason to sail to the conclusion that the proceedings are vexatious or that the proceedings under Section 12 of the Protection of Women from Domestic Violence Act, 2005 deserves to be prematurely terminated by invoking the jurisdiction under Section 482 Cr.P.C.
   
 5. The petitioners have a further grievance that the learned C.J.M is unnecessarily insisting on the personal appearance of the petitioners who include the mother in law and two sisters in law. It is submitted that unnecessary insistence on such personal appearance is causing vexation and hardship to the petitioners.
   
 6. I fail to understand how, why and under what circumstances such personal appearance is insisted by the learned C.J.M. It is trite that even though proceedings under the Protection of Women from Domestic Violence Act, 2005 are initiated before a criminal court, the relief claimed is essentially and in its core, civil in nature. Evidently in the interests of expedition, the Parliament has thought it fit to entrust the responsibility of operating the Protection of Women from Domestic Violence Act, 2005 with the criminal adjudicatory structure. But that cannot evidently mean that the personal presence of the petitioners can, should, ought to or must be insisted by the learned Magistrate. If they do not appear and are not represented before the learned C.J.M, the worst consequence is only an exparte order. Unless their personal appearance is found to be necessary for any specific purpose and without specifying that specif purpose, the learned Magistrate should not insist on the personal presence of the petitioner. Ordinary on all dates of posting, they shall be permitted to appear through a counsel.
   
 7. This Crl.M.C is, in these circumstances, dismissed. I may hasten to observe that the dismissal of this petition will not in any way fetter the rights of the petitioners to raise all appropriate and relevant contentions before the learned Magistrate in the course of the proceedings.
   
 (R.BASANT, JUDGE)
   
rtr/-
   
  


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