SARAMMA SHYJU Vs. SHYJU VARGHEES

JUDGEMENT

(1.) Petitioner filed M.C. No. 106 of 2009 in the court of learned Judicial First Class Magistrate-I. Mavelikkara under S.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 relief s under S.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 petitions 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 in appropriate cases Learned counsel contended that it was by a mistake that petitioner omitted to claim relief under Section 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 KerLT 331 Learned counsel for respondents per contra contended that the procedure which learned Magistrate has to follow is laid down in Section 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 Section 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 relief s referred to therein and the expression "Magistrate is defined in Section 2(i)of the Act as meaning the Judicial Magistrate of 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 Section 29 which provides an appeal to the court of Sessions from the order passed by the Magistrate though it is possible to sty 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 are the Magistrate and relief s (except for punishment) provided under the Act are of a civil nature. Authority for that proposition is contained in the decisions in Dr. Perceline George v. State of Kerala, 2010 1 KerLT 454. and Vijayalekshmi Amma v. Bindu., 2010 1 KerLT 79. It has been held that proceedings before the Magistrate are of a civil nature. In Dr. Percciine George. State of Kerala (supra) it has also been held that service of notice on an application under Section 12 or interim relief under Section 23 of the Act has to be in the manner provided under the Code of Civil Procedure. Certainly it is because 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 Raosoahed 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 incuram as it goes against Section 28 of the Act which deals with the procedure to be followed by the Magistrate while entertaining proceedings under Sections 12 and 18 to 23 of the Act. But I must also bear in mind that sub-s.(2) of Section 28 of the Act says that nothing in sub-s.(l) shall prevent the court from the laying down its own procedure for disposal of an application under Section 12 of the Actor under sub-section(2) of Section 23 of the Act. In other words, in any application under Section 12 or Section 23(2) of the Act notwithstanding the procedure prescribed under subsection 9(1) of Section 28 it is within the power of court to lay down its own procedure for its disposal. Certainly that power induces 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 Raoshed Kamble (supra). It is follows that when dealing with a petition under Section 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 Section 12 of the Act) to incorporate relief under Section 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 Section 12 of the Act to be amended to incorporate relief undo; Section 19 and for monthly maintenance.